Requirements for Copyright
Protection
In Australia there is no requirement to register to protect copyright works. Copyright protection is free and automatic - it does not depend on publication, a copyright notice, or any other procedure. Copyright material is protected from the time it is first written down or recorded in some way, provided it is the result of the creator's skill and effort and is not merely copied from another work.
The right to reproduce or copy a work is controlled by the copyright owner for the following types of material:
- Literary,
- Dramatic,
- Musical and artistic works,
- Cinematograph films,
- Sound recordings and
- Television, radio broadcasts and published editions
Duration of copyright
Depending on the type of material the length of protection varies. In most cases, copyright lasts from the time of creation for the life of the creator plus 70 years. After that time, the material enters what is known as the ‘public domain' where it can be freely used without permission.
Exclusive rights of copyright owners
Owners of copyright have exclusive rights to deal with their works in certain ways. Anyone who wants to use their works in these ways will need the owner's permission, although some exceptions to this rule apply.
There are a number of exclusive rights depending on the genre of literary or artistic endeavour. For example copyright owners of literary, dramatic and musical works control the right to copy or reproduce, as well as the right to publish, perform in public, communicate to the public and adapt their works.
Assigning and licensing rights
Copyright owners may assign or license these rights to others. Assignment of copyright and licences can include a number of limitations and conditions. These can include limitations on the type of use that can be made of the work, the period of time for which a licence applies and requirements for payment.
What does copyright protect?
Copyright protects literary, dramatic, musical and artistic works. It also protects sound recordings, films and broadcasts.
A song may have more than one copyright. The lyrics will be protected as a literary work and the music as a musical work. A recording of the song will also be separately protected as a sound recording.
Assignment
An assignment must be in writing and signed by or on behalf of the owner of copyright to be legally effective. Where copyright is assigned, the person to whom the copyright is transferred becomes the new copyright owner. For example, it is common for film production companies to get an assignment of copyright in a screenplay from the screen writer. The film production company then becomes the owner of copyright in the screenplay.
Licensing Music Users
Our clients include venues that play music, television and radio stations, and increasingly businesses that use music online. Because it would be impractical for these clients to obtain permission from the owner of copyright in each musical work they use, they enter an agreement with APRA. APRA monitors their performance and communication of music, collects a royalty and distributes this payment to the copyright owners. This provides a simple means of complying with copyright law. It also ensures payment to the copyright owners whose music is performed or communicated in public.
Mechanical Rights
If you are making a record of a copyrighted work on CD, tape or any other format, you need to obtain a licence for Mechanical Rights.
Synchronisation Rights
If you are making a soundtrack for a cinematographic film using a copyrighted work, you need to obtain a licence for Synchronisation Rights
Advertising Rights
If you are making a commercial jingle or an accompaniment to commercial advertising using a copyrighted work, you need to obtain a licence for Advertising Rights.
Print Rights
If you are reproducing a work in printed form, you need to obtain a licence for Print Rights.
Public Performance Rights
If you are a proprietor of a business that provides music to the public, or if music is used in any entertainment that you provide, you require a licence from COMPASS.
Some examples of premises requiring licences are discotheques, nightclubs, karaoke lounges, pubs, restaurants, hotels, clubs, cinemas, concert halls, factories, skating rinks, hairdressing salons, fitness centres, office buildings and shopping centres.
Rights in Music and Lyrics
Copyright in music or lyrics is the exclusive right to do the following acts:
- to reproduce the work;
- to publish the work;
- to perform the work in public
- to communicate the work to the public
- to make an adaptation of the work
Assignments and licences
The owner of copyright can deal with the copyright by assignment or licence.
An assignment is a transfer of ownership.
The Copyright Act states that copyright is personal property it is, however, intangible property and comprises the exclusive rights referred to above.
To be effective in law an assignment must be in writing signed by or on behalf of the owner of copyright. An assignment however, may be limited in any way, including so as to apply to one or more classes of acts referred to above, or a sub-set of one of those classes, or to apply for a limited period or a limited part of Australia . It is even possible to assign future copyright so that when the work is created copyright will vest at that time in the person to whom future copyright has been assigned. The assignment of copyright may involve stamp duty and capital gains tax considerations. A licence does not transfer ownership of copyright. A licence is a permission to do acts which would otherwise be unlawful.
A licence can be limited in many ways. It can be limited in time and in the geographic area to which it applies. It can also limit the acts which are permitted. A licence may also be exclusive or non-exclusive. The Copyright Act, however, requires exclusive licences to be in writing signed by the licensor (i.e. the person granting the licence).
As an example, a composer may grant a non-exclusive licence to re produce a particular musical work for inclusion in a sound recording in Australia . Because it is non-exclusive, the composer may in future grant further licences for the same rights. If however, the composer grants an exclusive licence of the same rights say for 10 years, then not only is the composer unable to grant further Australian licences for those rights during that term, the composer cannot exercise those rights personally in Australia during that term.
Sound Recordings
Sound recordings are the subject matter of a separate copyright.
Copyright in a sound recording is the exclusive right:
- to make a copy of the recording;
- to cause the recording to be heard in public;
- to enter a commercial rental agreement in respect of the recording;
The copyright in a sound recording continues until the end of 50 years from the end of the year in which the recording is first published (section 93).
The general rule is that the maker of a sound recording is the first owner of copyright in the sound recording. If however, the sound recording is commissioned then the party commissioning the work will be the first owner.
The creation of a sound recording often involves the reproduction of musical works and lyrics. The right to reproduce is, as already noted, one of the exclusive rights of the owner of copyright in the music. The person making the recording will therefore need to obtain the permission (a licence) to use the music (and lyrics) in the recording or otherwise risk infringing copyright.
