An introduction to Australian copyright law for communicators

1. Legal issues across
communication
• Copyright
and related issues
• Contracts
A/Prof Martin Hirst
September 2013

2. COPYRIGHT
• COPYRIGHT BRIEF
• 1. HAS THERE BEEN COPYING? A “substantial part”
needs to have been copied, NOT the entire work.
• 2. WHO IS THE CREATOR OF THE “WORK”?
• 3. HAVE THE RIGHTS BEEN SOLD, ASSIGNED,
LICENSED?
• 4. IS THERE A CONTRACT?
• 5. IF NOT, WHAT DID THE PARTIES INTEND?

3. COPYRIGHT
• Competing aims:
• The right to get value from things you create - The
right to access and use things that other people
have created
• Copyright law developed worldwide – global trade
and commerce has meant it had greater priority
for governments than some other areas of the law
• Copyright will only exist for a set period of
time – after this access unrestricted

4. COPYRIGHT
OF STUFF
• Copyright only applies to tangible things
• So ideas, styles, techniques cannot be protected
by copyright – as well as FACTS and
INFORMATION
• Copyright protects “WORKS” – like writing, artistic
works, music, computer programs, film/video,
photos, broadcasts, performances
• “Moral rights” also now protected – right to be
acknowledged as the creator of the work etc.

5. COPYRIGHT –
DURATION
• Copyright expires at different stages for different
‘works’:
• 70 years after the death of the creator of a literary
work or photographic work
• 70 years after sound recordings or films first
published
• 50 years after first radio or TV broadcast
• 25 years after the first edition of a published work

6. COPYRIGHT
• Important for media practitioners and creators of
work in two ways
• They need to know what the rules and costs are
for using material (word, photos, video etc) that
has been created or is owned by others
• Particularly important in the online digital age of
‘user-generated’ ‘citizen’ content
• They also need to know what their own rights are
if others use their work

7. COPYRIGHT
• Copyright treats works as a commodity – a valuable
possession – as with all possessions these can be
bought or sold, leant, given away
• Australian copyright law is contained in the
Copyright Act 1968 + amendments .
• It is a Commonwealth law
• It involves civil AND criminal law
• The Australian Copyright Council
http://www.copyright.org.au/

8. COPYRIGHT – WHEN COPYING IS OK
• 6. IS THERE A DEFENCE?
• “Fair dealing”
• S.41 defence covers reproducing original material
for criticism or review
• S.42 covers reproducing material in order to report
the news.
• In both cases, “sufficient acknowledgement” must
be given to the owner of the work.
• And the amount copied must be “fair”

9. COPYRIGHT-RELATED ISSUES
• PASSING OFF
• Applies to an individual or business
misrepresenting itself as someone else’s
business or personality or misrepresenting
endorsement from someone else’s business or
personality - and gaining custom, trade or
goodwill as a result.

10. PASSING OFF
• Key elements:
• they must have a reputation or personality that
has some value
• a business or individual must be taking
advantage of this without permission
• the passing off must cause some damage to
the owner – either financial loss or damage to
the image or reputation that is being exploited

11. INTELLECTUAL PROPERTY
• Register with ‘Intellectual Property Australia’:
• DESIGNS – to protect “the overall appearance of the
product resulting from one or more visual features”
• TRADE MARKS – to protect “a sign used, or intended
to be used, to distinguish goods or services dealt with
or provided in the course of trade”
• PATENTS – to protect inventions of products or
processes

12. COPYRIGHT - CHECKLIST
• 1. WHO IS THE OWNER OF THE “WORK”?
• Who is the “creator”?
• 2. HAVE THE RIGHTS BEEN SOLD, ASSIGNED,
LICENSED?
• Is there a contract?
• For freelance journalists – usually retain the
ownership of copyright but allow use
• For employed journalists - where the work is done
in the course of an employee’s usual duties, the
employer owns copyright

13. COPYRIGHT - CHECKLIST
• 1. WHO IS THE OWNER OF THE “WORK”?
• Who is the “creator”?
• 2. HAVE THE RIGHTS BEEN SOLD, ASSIGNED,
LICENSED?
• Is there a contract?
• For freelance journalists – usually retain the
ownership of copyright but allow use
• For employed journalists - where the work is done
in the course of an employee’s usual duties, the
employer owns copyright

14. COPYRIGHT - PENALTIES
• In Civil cases:–
• Damages – compensation for the unlicensed use of
the material
• Injunctions – orders to stop more copying
• Account of profits – handing over the profits made
by the illegal copying
• Orders for ‘delivery up’
• In Criminal cases:- fines and imprisonment

15. COPYRIGHT – THE FUTURE
• In the digital internet age, copyright laws are
facing significant challenges
• The basic rule is that linking is not copying
• BUT- consider Youtube and video sharing sites,
Limewire and audio sharing sites
• The increasing use of ‘user-generated’ or ‘citizen’
content in news coverage – who owns it? Who can
use and re-use it?
• The availability of photos and video on social
networking sites like Facebook

16. COPYRIGHT – THE FUTURE
• New laws to protect digital rights, video games,
artistic rights have been developed
• BUT – enforcement against individuals is rare
and is difficult
• New websites and copying can occur quicker
than the law can catch up
• Social network sites put the responsibility on
the user to ensure copyright is their’s

17. CONTRACT LAW
• Contracts govern many parts of daily life
• Definition – “An agreement between two or more
parties that deliver a service, benefit or goods in
exchange for something”
• Best in writing because they are more certain, but
can be verbal or by custom and practice
• Legal advice is recommended

18. CONTRACTS
• Three essential elements: Offer, Acceptance and
Consideration
• Offer – one of the parties needs to make a clear
offer to deliver or perform a service, benefit or
goods
• Acceptance – the offer must be accepted on
agreed terms. Partial acceptance or conditional
acceptance varying the terms of the original offer
will not constitute acceptance

19. CONSIDERING A CONTRACT?
• Consideration – there must be something of
value or benefit given in return for the offer of
services or goods. This is often money, but can
be other things such as payment in kind.
• Intention can also be important – both parties
need to be clear they are entering into a binding
agreement

20. CONTRACT ON YOU
• Once a contract is recognised by the courts as
existing, it is legally enforceable
• Failure by either party to deliver their side of the
bargain can lead to legally enforceable
consequences
• Either to enforce the terms of the agreement or
to provide compensation or damages for
“breach’ of the terms of the agreement.