Copyright is a bundle of exclusive rights. These rights enable the copyright owner to make copies of the work and to protect it from unauthorised use. The type and extent of the rights differ according to the nature of the material.
The general rule is that the author or creator of a work, and the maker of other subject matter is the first owner. However, there are exceptions to this rule, particularly in the employment context, when the employer will generally be the owner. As copyright is a form of personal property, it can be bought and sold, and as such, ownership can change over time. A person will only have to prove that they own copyright if their claim to copyright is disputed in court. If they own copyright as a result of being the author or creator of the material concerned, they would prove this by calling witnesses who know that the person created the material or by producing their original drafts and/or manuscripts. In some countries, including Australia, the author of a work has an additional ‘moral’ right to be recognised as the author regardless of who owns the copyright.
How long does copyright last?
Copyright generally lasts for a period of 70 years. However, the mechanics of how this operates differs with each material. Copyright in works will normally last for 70 years after the 31st of December of the year the author of the work dies.
If an author dies before publication or performance of their work, copyright lasts for 70 years after the 31st of December of the year the work was first made available (s33(3)). Section 34 states that this is also the case where the author of the work is unknown, and for broadcasts, sound recording and films the rule is the same (ss93,94 and 95).
Literary, Dramatic or Musical Works
For literary, dramatic or musical works the rights are as follows:
- to reproduce the work in a material form which includes all forms of copying, whether by hand, photocopying, recording, filming, printing, and storage in a computer retrieval system;
- to publish the work which means supplying copies to the public;
- to perform the work in public which includes both live and recorded performances;
- to communicate the work to the public;
- to make an adaptation of the work;
- to do, in relation to an adaptation, any of the acts specified above;
with the exception of computer programs, to enter into a commercial rental arrangement in respect of the work reproduced in a sound recording;
in the case of a computer program, to enter into a commercial rental arrangement in respect of the program.
Copyright in artistic works is narrower, comprising the rights to:
- reproduce the work in a material form;
- publish the work;
- communicate the work to the public.
Copyright in sound recordings includes the rights to:
- make a copy of the recording;
- cause the recording to be heard in public;
- communicate the recording to the public;
- enter into a commercial rental arrangement in respect of the recording.
Copyright in relation to films includes the rights to:
- make a copy of the film;
- cause the film, in so far as it consists of visual images, to be seen in public, or, in so far as it consists of sounds, to be heard in public;
- communicate the film to the public.
Television and Sound Recordings
Copyright in television and sound recordings includes the rights:
- in the case of a television broadcast, to make a film of the broadcast, or a copy of such film;
- in the case of a sound broadcast or of a television broadcast in so far as it consists of sounds, to make a sound recording of the broadcast, or a copy of such sound recording;
- to re-broadcast a television or sound recording;
- communicate the television or sound recording to the public otherwise than by broadcasting it.
Copyright in a published edition is the right to make a copy of the edition, including by photocopying and offset printing.
The commercial rental right referred to above for literary, dramatic and musical works and sound recordings, only arises when the commercial rental arrangement is made in the course of conduct of a business and only when payment is made for the copy. It is not enough that a deposit is paid to secure return of the copy. The commercial rental right in relation to computer programs only arises when the program is an essential object of the rental. The right includes the rental of objects such as floppy discs, CD roms and integrated circuits. The right only extends to the rental of other machines or devices if the program can be copied through the normal use of the machine or device.
Until recently, performers did not have copyright in their performances. It is still the case that if a live performance is recorded in film, copyright will belong to the maker of the film. However, if a sound recording is made of a live performance, copyright is jointly owned by the maker of the sound recording and the performers. There is also separate provision for ‘performers rights’ in Copyright Act, requiring a performer’s consent for the recording or broadcast of a live performance. Once consent is given, the authorised recording may be used in any way without further consent from the performer. The only exception to this rule is that a sound recording cannot be used in the sound track of a film without permission.
Moral rights are concerned principally with the right of an author to be recognised as the author of a work and to object to alteration or distortion of the work. These rights are personal to the author and can still be exercised even after copyright has been transferred to another person. Moral rights have been recognised for many years in Europe and in UK copyright law.
The Copyright Act gives an author:
- a right of attribution of authorship; or
- a right not to have authorship falsely attributed; and
- a right of integrity of authorship.
Performers also have moral rights. The moral rights of a performer are:
- a right of attribution of performership; or
- a right not to have performership falsely attributed; and
- a right of integrity of performership.