It is important to understand copyright before distinguishing between materials that are all rights reserved, in the public domain, and openly licenced.

In Australia, the law that governs copyright is the Australian Copyright Act 1968.

What is copyright?

Copyright is a type of property that is founded on a person’s creative skill and labour. Copyright protects the form or way an idea or information is expressed, not the idea or information itself.

Copyright is not a tangible thing. It is made up of a bundle of exclusive economic rights to do certain acts with an original work or other copyright subject-matter. These rights include the right to copy, publish, communicate (e.g. broadcast, make available tangibleonline) and publicly perform the copyright material.

Copyright creators also have a number of non-economic rights. These are known as moral rights. This term derives from the French ‘droit moral’. Moral rights recognised in Australia are the right of integrity of authorship, the right of attribution of authorship and the right against false attribution of authorship.

Copyright is distinct from physical property

A clear distinction exists between the copyright in a work and the ownership of the physical article in which the work exists. For example, an author may own the copyright in the text in a book even though the physical copy of the book will be owned by the person who purchases it. Similarly, the purchaser of an original painting does not have the right to make copies of it without the permission of the owner of copyright: the right of reproduction remains with the copyright owner who is generally the artist.^[1]

Who owns copyright?

It is important to understand who owns copyright to help you determine who has the right to assign an open licence to a work. It will also help you understand who needs to be contacted when permission is required to use their material.

Works – the general rule of copyright ownership

The owner of the copyright in works will generally be the author or creator (e.g. the writer, artist, composer, etc). There are certain important exceptions to this rule, as set out below.

Other subject matter – the general rule of copyright ownership

The owner of the copyright in sound recordings, films and broadcasts will generally be the maker or producer.

This means that:

• The owner of copyright in a sound recording is generally the record company.
• The owner of copyright in films is generally the producer.
• The owner of copyright in a broadcast is the broadcaster.

Some exceptions to the general rule of copyright ownership

• Contract – the rights given under the Copyright Act may be varied by contract e.g. the author of a journal article may assign the right to publish to a journal publisher via a copyright transfer agreement.
• Employment – copyright in works made by an employee in the course of employment under a contract of service is usually owned by the employer (e.g. course materials produced by an instructor- see RMIT Intellectual Property policy Section 4.13
• Commissions – copyright in photographs, portraits and engravings commissioned for a private or domestic purpose will generally be owned by the person who commissioned the photograph, portrait or engraving. For all other commissions, the general rule is that the author or maker is the copyright owner unless the contract for the commission provides otherwise.
• Co-authorship – copyright may be owned by several authors jointly. Joint owners cannot deal with their copyright without the consent of the other authors. In order to qualify as a joint author, a person must have done more than merely supplied ideas or suggestions.
• Crown copyright – where copyright material is created under the direction or control of the Crown, or where it is first published by the Crown, the copyright will be owned by the Crown. The Crown includes a wide range of government bodies, including government libraries and departments, but does not usually include independent statutory bodies such as the Australian Broadcasting Corporation.
• Performers’ rights in sound recordings – unless otherwise agreed, the copyright in a sound recording made of a performance will be owned equally between the performer and the record company.^[2]

What are the rights of a copyright owner?

Economic rights

The Copyright Act gives copyright owners a number of exclusive economic rights. These exclusive rights vary according to the different types of works and other subject matter protected by copyright.

Literary, dramatic or musical works

The owner of copyright in a literary, dramatic or musical work has the following exclusive rights:

• to reproduce the work in a material form (which includes making a sound recording or film of the work or including a substantial portion of the work in a database)
• to publish the work (that is, to make copies of the work available to the public for the first time)
• to perform the work in public
• to communicate the work to the public (which includes the electronic transmission of the work such as a broadcast, and making the work available online)
• to make an adaptation of the work (which includes an arrangement of a musical work and a dramatisation or translation of a literary work)
• in the case of computer programs, and works recorded in sound recordings, to commercially rent the sound recording or computer program.

Artistic works

The owner of copyright in an artistic work has the following exclusive rights:

• to reproduce the work in a material form (which includes reproducing a two-dimensional work in a three-dimensional form and vice versa)
• to publish the work
• to communicate the work to the public (which includes the electronic transmission of the work as a broadcast or making the work available online).

Other subject matter

The owner of copyright in a film or sound recording has the following exclusive rights:

• to copy it
• to cause it to be heard or seen in public
• to communicate the material to the public (which includes electronic transmission, and making the film or sound recording available online)
• in the case of a sound recording, to commercially rent it.

The owner of copyright in a radio or television broadcast has the exclusive right to make a sound recording, film or photograph of it, to re-broadcast it, or to communicate it to the public (otherwise than by re-broadcasting it, e.g. internet streaming).

Licensing of rights

Copyright owners may exercise any of the above rights themselves or may give permission to other people to do so. Such permission is referred to as a licence. Copyright owners may grant a licence that is subject to certain conditions such as the payment of a fee or royalty, or limit the licence as to time, place or purpose.^[3] For example, copyright owners can retain their rights in a work and grant the use of the work to others in the form of an open licence. ^[4]

How long does copyright last?