What material can be subject to copyright?

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

Materials that can be copyright include:

• literary works (including computer programs);
• dramatic works;
• musical works;
• artistic works (including buildings);
• films;
• sound recordings;
• broadcasts; and
• published editions.

Literary, dramatic, musical and artistic works are all described as “works” in the Act and in this chapter.

LITERARY WORKS

The term “literary works” is not defined in the Act. Courts have held that any work expressed in print or writing is a literary work. Section 10(1) of the Act provides that a literary work includes a table, or compilation, expressed in words, figures or symbols, and a computer program or a compilation of computer programs. The definition of “computer program” is wide enough to include both the source code written by programmers and the machine-readable object code which causes a computer to perform a function.

A piece of writing does not have to have “literary” quality, in the sense that the word is used in ordinary speech, in order to be a “literary work” for the purposes of the Act. Business letters, technical manuals and lists of gambling odds have all been held to be literary works. Copyright exists in both published and unpublished literary works.

DRAMATIC WORKS

These are works which are intended to be performed, such as plays, opera libretti, and scripts for radio, television or film production. The Act specifically includes dance and mime productions as dramatic works (describing them as “choreographic and dumb shows”). Copyright exists in dramatic works regardless of whether they have been produced or published.

MUSICAL WORKS

These are not defined by the Act. All kinds of music are included, regardless of aesthetic merit. They do not need to have been published or performed for copyright to exist, but need to have been written down or recorded in some way. Song lyrics are literary works, not musical works.

ARTISTIC WORKS

Unlike literary, dramatic and musical works, artistic works are defined by the Act. Section 10(1) states that “artistic work” means:

(a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;
(b) a building or a model of a building, whether the building or model is of artistic quality or not; or
(c) a work of artistic craftsmanship which does not fall within any of the previously listed categories.

These expressions (other than “works of artistic craftsmanship”) are self-explanatory. An artistic work may be simple, such as a logo, or utilitarian, such as an engineering drawing.

However, the courts have held that purely utilitarian objects, including a frisbee, and moulds used for an industrial purpose, do not fall within the concept of “sculpture”. Section 10(1) of the Act states that a “drawing” includes a diagram, map, chart or plan and a “building” includes a structure of any kind. “Structure” has been given a broad meaning by the courts, and has included a swimming pool.

“Works of artistic craftsmanship” were included in the definition of “artistic works” in order to give copyright protection to works of craftsmanship incorporating some aesthetic elements. Examples include jewellery, pottery, woodcarving and embroidery. Although the object may be utilitarian, it must have significant aesthetic appeal. Works of artistic craftsmanship must be made by a person with sufficient skill to be described as a “craftsman”, although this does not mean that they must be made by hand.

SOUND RECORDINGS

The definition of “sound recordings” in section 10(1) of the Act is not limited to any particular form of technology, and is wide enough to include vinyl records, tapes, cassettes and CDs. Sound tracks of films are specifically excluded from the definition of sound recordings, but are included in the definition of cinematograph films.

FILMS

The definition of “cinematograph film” in the Copyright Act requires visual images to be embodied in an article so that the images can be shown as a moving picture by use of the article, or by embodying them in another article. This definition covers moving pictures recorded on film, videotape, CD-ROM or DVD, and includes interactive computer games (including their soundtracks).

SOUND AND TELEVISION BROADCASTS

These are limited to communications to the public delivered by “broadcasting services” as defined by the Broadcasting Services Act 1992 (Cth). This means the delivery of radio and television programs to the public, including by cable, optical fibre or satellite, as well as by use of the radio frequency spectrum. It does not include internet audio or video streaming, or datacasting.

PUBLISHED EDITIONS OF LITERARY, DRAMATIC, MUSICAL OR ARTISTIC WORKS

This category protects typographical arrangements of published works, including choice of font, and the way in which the work is set out on the page. Published editions include works published in machine-readable form (e.g. on CD-ROM).

SEVERAL TYPES OF COPYRIGHT CAN EXIST TOGETHER

Several types of copyright can exist in the same material. For example, in a published song, there is copyright in the words (a literary work), the music (a musical work) and edition copyright in the typographical arrangement. If the song is recorded on CD, there is an additional copyright in the sound recording. A radio broadcast of the recording will give rise to a new copyright in the sound broadcast.