Ownership of copyright

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

WHO IS THE FIRST OWNER?

Literary, dramatic, musical or artistic works

The author of a literary, dramatic, musical or artistic work is normally the first owner of copyright in the work. However, there are some exceptions:

EMPLOYEES

In general, copyright in a work made by an employee in the course of his or her employment is owned by the employer, unless there is an express or implied agreement that the employee will own the copyright. However, section 35(4) of the Act provides that journalists own the copyright of their work in relation to reproduction for some purposes only. It can also be argued that it is an implied term of academics’ contracts of employment that they own the copyright in their academic work, except where the contract includes an express term to the contrary.

If you wish to control the use of substantial works produced by you in the course of your employment, you should try to negotiate an agreement with your employer. For example, you could agree that although your employer owns the copyright, you must be identified as the author, and may also reproduce the work (possibly after a period of time has passed since its completion). Alternatively, you could agree that you will own the copyright, but grant your employer a perpetual royalty-free licence to reproduce the work. Such agreements should be in writing, and signed by both parties.

PHOTOGRAPHS

A person who commissions a private or domestic photograph, or the making of a portrait or engraving, owns the copyright in the work, but the author can prevent the owner from dealing with the work other than for the purpose for which it was commissioned (s.35(5)).

THE CROWN

The Commonwealth and the Australian states own the copyright in works made by, or under the direction or control of the Commonwealth or state. It is not clear what is meant by “under the direction or control”. The State of Victoria has used this provision to claim copyright in all documents created by non-government agencies in the course of carrying out functions funded by the state. It seems likely that this is not justified, unless the creation of the documents as well as the performance of the funded function is directed or controlled by the government (s.176).

The fact that a person has paid for the making of a work (other than a photograph, portrait or engraving) does not mean that they will own copyright in it, although they may be permitted to copy it, or exercise other rights of the owner. For example, if a community group commissions an artist to prepare some artwork for a pamphlet, the artist will own copyright in the artwork, although the community group will have an implied licence to reproduce it in the pamphlet (see ‘Licensing’ below). This means the artist could allow someone else to use the artwork for another purpose. If the community group wants to control use of the artwork, it should require the artist to assign copyright in the artwork to the group as a condition of the commission (see: ‘Assignment of Copyright’ below).

Sound recordings and films

The first owner of copyright is the maker of the sound recording or film, unless the maker has agreed to make the recording or film for another person for payment. In that case, the other person owns the copyright (s.97, s.98).

The maker of a sound recording is the person who owns the first record containing the recording (s.22(3)(b)). This means the owner of the copyright in a sound recording is usually the recording company. However, performers in live performances (including musical and dramatic performances and readings or recitals of literary works) are co-owners of the copyright in a sound recording of the live performance with the owner of the first record containing the recording.

The maker of a film, and therefore the owner, is the person who made the necessary arrangements for the making of the film (s.22(4)(b)). This is normally the film company or the producer, not the director.

Broadcasts

Copyright is owned by the broadcaster (the ABC, SBS, or the person holding a licence under the Broadcasting Services Act 1992 (Cth) (s.99)).

Published editions

The publisher of an edition of a literary, artistic, dramatic or musical work owns the copyright in the published edition (s.100).

JOINT OWNERSHIP

Where two or more authors collaborate on a work, and the contribution of each author is not separate from that of the others, they are joint authors, and joint owners of copyright in the work (s.78). This means neither can exercise any of the rights of the owner (such as publishing the work) without the consent of the other.

Where the contributions of the authors are separate (for example, in a book where different chapters are written by different people) the copyright in each individual contribution is owned by its author.

OWNERSHIP OF DIFFERENT TYPES OF COPYRIGHT

Where there is more than one type of copyright in material, each type may have a different owner. In the example of the published song, the person who wrote the words owns copyright in them, the person who wrote the music owns copyright in it, and the publisher owns the edition copyright. Copyright in the sound recording is owned by the record company, unless it was made for payment on behalf of another person. The owner of the radio station owns copyright in the sound broadcast of the recorded song.

DO I NEED TO REGISTER MY OWNERSHIP OF COPYRIGHT?

There is no system for registering copyright in Australia. Ownership of copyright is automatic on the creation of the copyright material. However, it is a good idea to include a copyright notice setting out the owner’s name and year of creation in the form © Sussex St Community Law Service 2004 in copyright material, as this will require anyone who copies your work to prove that the facts stated in the copyright notice are not true. This statement is also necessary to obtain copyright protection in some foreign countries for works first published in Australia.

ASSIGNMENT OF COPYRIGHT

Copyright can be transferred from the initial owner to another person. Assignment of copyright must be in writing and signed by the person assigning the copyright. It is possible to assign the copyright in a work the author has not yet created. For example, some tertiary education institutions require students to assign to them copyright in the works the students will create during their courses. These agreements may not be enforceable, depending on the circumstances under which they are entered into.