Copyright is the intellectual property right which protects ‘works’, including literary work, a dramatic work, a musical work, an artistic work or a cinematograph (s189 Copyright Act 1968 (Cth)).
The purpose of copyright is to reward creators for their efforts by providing a framework of protection that allows for safe creation and distribution of intellectual and creative works. In Australia, copyright applies to both published and unpublished works, and is governed by the Copyright Act 1968 (Cth) (“the Act”).
It is important therefore for an author or creator to understand the framework provided by the Act and to take steps to control the destiny of their works.
Such works may include:
– Architectural plans – Art works – Books, newspapers and periodicals – Broadcasts (both sound and television) – Choreography – Compilations & Databases – Computer Games – Design drawings and plans – Diaries and letters – Document precedents – Films – Manuscripts – Maps – Musical scores – Photographs – Plays – Published editions – Screenplays and scripts – Software – Song lyrics – Sound recordings – Software code – Websites.
Identification of the work
Copyright allows the owner of the copyright of the work the right to control how the work is used, copied and re-used. This means that any form of commercialisation, from the publication or performance of the work, through to any adaptations and communications can be controlled and managed.
In order to enforce copyright certain key facts need to be known:
- The identity of the owner/s
- The date of creation
- If published, the date of first publication
Copyright ownership is distinct from physical ownership and generally resides with its creator or maker. However, copyright is assignable and may be assigned to an employer or publisher by the creator or author under agreement.
Agreements for the commissioning of works also often provide for copyright to reside with the commissioner of the work.
TIPS FOR COPYRIGHT OWNERSHIP
Maintain a portfolio of works clearly recording in writing for each piece of work:
- Name or title of the work
- Name of the creator
- Who will own the copyright if it is to be assigned
- Date of creation
- Description of the work
- If online, the URL where the work is hosted and dates of access
- If published, dates and location of publications (both in hard and softcopy)
Controlling the destiny of your work extends beyond your death. Copyright can form part of a deceased estate as something that can either be specifically bequeathed or form part of the residue of the estate.
Limitations of copyright protection
The moment an idea or creative concept is documented on paper or electronically it is automatically protected. However, there are limitations and exemptions that apply, such as that copyright does not protect ‘ideas’ or ‘concept’ but rather the specific form of expression of the protected content. To obtain protection under the Act there must be an identifiable piece of work and an identifiable form of that work.
Copyright protection under the Act does not last forever and depends on several factors, including whether the creator is known, whether the work was published and, if so, the date of first publication.
In Australia, as a general rule, copyright protection lasts for the life of the author plus 70 years. However, if the author is unknown, copyright endures for a term of 70 years from the first publication or 120 years from the year of its creation, whichever expires first. The duration of protection for unpublished works will depend on whether the work was made public in the creator’s lifetime.
Works referred to as ‘out of copyright’ or that are ‘in the public domain’ are no longer protected by copyright.
How can businesses protect their intellectual property?
Most businesses own and profit from the commercialisation or use of the intellectual property they own, and much of that intellectual property is protected as copyright under the Act.
It is important to take practical steps to safeguard and enforce those rights. The information and intellectual property made available to staff and contractors should be limited to only what they need in order to do their job, as well as limited to the relevant period that access is required.
Businesses should restrict access to information that does not need to be generally accessed by all staff. This includes both physical and virtual access to work premises and databases, which should be kept secure with dates and times of access recorded.
TIPS FOR PROTECTING THE INTELLECTUAL PROPERTY OF A BUSINESS
Employers should take steps to ensure that intellectual property created by staff in the course of employment is properly assigned. Every employment contract should deal with the following 4 terms:
- Where intellectual property is created in the course of employment, it is owned by the employer.
- That the employee will sign any document that the employer reasonably requires to record the ownership of the intellectual property, both during employment and after.
- The employee will maintain the employer’s confidential information and will not disclose it to another person or use it in any manner outside the course of employment, both during employment and after.
- That the employee waives the employee’s moral rights in any copyright works created.
Prescribed intellectual property identification protocols for the commencement of employment or project-based work may also allow employers to specifically identify intellectual property that existed at the time of commencement of employment and what the employer is required to work on or develop, depending on the role.
Similarly, employment exit protocols may allow the employer to identify and record what intellectual property was developed or accessed during the course of employment, and to confirm in writing that the employee has:
- returned all property, including electronic files;
- that no files have been copied; and
- the employees understanding of their continuing obligations under the employment agreement.
Intellectual property is undoubtedly one of the most valuable assets of a business. Directly reflected in elements such as key messaging, know how, client retention levels and the overall reputation of a business, intellectual property is an asset that needs proper protection, from the beginning days of a business through to every stage of its operation and evolution.
With the New Year just a few weeks away, now is the ideal time to review your intellectual property processes and protections to ensure this valuable and irreplaceable asset is protected. To find out how to do this, simply contact our team today.