Requirements for copyright to exist

Contributed by Annette Rubinstein and Fitzroy Legal Service and current to 1 September 2005

MATERIAL FORM

There is no copyright in a work until it has been reduced to a material form. For example, there is no copyright in a poem composed in the poet’s mind, but not written down or otherwise recorded. Any form of storage (whether visible or not) from which a work or a substantial part of the work can be reproduced is “material form” (s.10(1)). This means that a work stored in digital form on a floppy disk is in “material form”.

The material form of a work does not need to be permanent, but does need to be a form from which the work can be reproduced. For example, a court has held that a part of a PlayStation game stored in the RAM (random access memory) of the console was not in material form because it could not be reproduced from the RAM.

The definitions of films, sound recordings and published editions in the Act are of objects having a material form, while broadcasts obviously cannot be in material form.

ORIGINALITY

Section 32 of the Act requires a work to be “original” for copyright to exist in it. “Original” in this context means only that the material must have originated with the author, rather than having been copied from another source. A work does not need to be novel, creative or inventive in order to be “original”, and can be “original” even if derived from another work. For example, a translation into English of a French novel is an original literary work by the translator (although the making of the translation will infringe the author’s copyright in the original novel if made without the author’s consent).

There is no requirement that sound recordings, films, broadcasts or published editions be original.

“SUBSTANCE”

Courts have held that some works are not the subject of copyright because they are “insubstantial” in the sense of being too small. Single words and phrases, such as company names, advertising slogans and titles have fallen into this class. For example, the owner of the copyright in the song The Man Who Broke the Bank at Monte Carlo failed to prevent the title of the song being used as the name of a film. However, copyright has been held to exist in short works, such as a business letter of a hundred words.

EXPRESSION, NOT IDEAS

There is no copyright in an idea, only in the way in which the idea is expressed. For this reason, there can be no copyright in a formula (unless it falls within the definition of a “computer program”). Nor can there be copyright in a single item of information, such as a name and address.

However, where a number of items of information, none of which could be the subject of copyright by itself, are collected together, the whole collection may be the subject of copyright as a table or compilation. The test of whether copyright exists in a compilation is whether enough labour and skill have gone into collecting and arranging the information to justify treating it as an original work.

For example, a spare parts catalogue was held to be subject to copyright because the items had been grouped into tables giving details of standard parts and code numbers (A-1 Accessory Imports Pty Ltd v Off Road Imports Pty Ltd [2] (1996) 34 IPR 306). The Federal Court of Australia has held that there was copyright in the White Pages and Yellow Pages telephone directories. A collection of short stories, each of which is out of copyright, can be the subject of copyright as a result of the skill and taste involved in selecting the stories. The editor is the first owner of the copyright in such a collection.

There have been no Australian decisions on copyright in computer-generated lists (such as the results of an internet search). Copyright would probably not exist in such a list – it is unlikely that a human author contributed sufficient skill and work.