When Does Copyright Exist?

Although there is no official registry or application process for copyright protection, there are requirements for copyright to exist. For copyright to exist there are six factors that must be present:

Qualified person

A qualified person must hold the Australian copyright. This includes: a body corporate incorporated under a law of the Commonwealth or State, or an Australian citizen, or a person who is resident in Australia.

Material form

Under the Copyright Act, material form is defined as ‘any form (whether visible or not) of storage of the work or adaptation, or a substantial part of the work or adaptation, (whether or not the work or adaptation, or a substantial part of the work or adaptation, can be reproduced)’. This basically means: any storage of the whole or substantial part of the work, i.e. a novel in electronic or published form, a song on a CD, a painting on a canvas, a photograph stored on a digital disk. The work must exist in some form that can be recognised or reproduced.

Originality

Originality means that the material – a novel, a poem, a song, must have originated with the author, and not have been copied from another source. A translation of a book from Chinese to English is viewed as original work. It merely has to be original. A translation would also need to be from a book out of copyright, or with the author’s consent. The originality requirement only applies to works. It is not a requirement for other subject matter.

Substance

Substance requires that the matter be more than single words and phrases. Generally, single words and phrases are not protected by copyright. However, more than single words and phrases, such as a haiku poem, or a pro forma letter will be regarded as having enough substance

Expression, not ideas

The expression is what is copyrighted, not the ideas. A good example is a collection of short stories. Other authors may have copyright in each individual story but the editor of the collection who chose the works will have copyright in the collection – in the expression. The editor would have used their skill and judgment, and this qualifies their work as an expression that can attract copyright.

Author

There must be an author of the work. It does not matter if it is one or more authors. However, if there are many contributors – such as for a telephone directory, there will be no copyright in the work as the work of each participant is not sufficient to amount to expression – there will be insufficient substance to their work.