Updated as at 1/8/2001.

1. Overview

General Description

Copyright protects from unauthorised reproduction or adaptation of original creations such as books, computer programs, scripts, paintings, sculptures, drawings, photographs, music, film, video, broadcasts and the choreography of a performance. The copyright owner has the exclusive right to copy, publish, perform, broadcast, adapt (for example, a screenplay from a novel), sell, license or import copyright protected creations.

In the Internet context:

* typical website content will generally constitute a number of different copyright works in the form of original literature (including computer programs), dramatic, musical, artistic works, sound recordings, films, broadcasts, cable programs and adaptations of the above (including compilations);

* a copyright owner enjoys an exclusive right to reproduce or to authorise another to reproduce, their work on to or from a website;

* a copyright owner enjoys an exclusive right of communication to the public in relation to literary, dramatic, musical, and artistic works, sound recordings, films and broadcasts (1). The right protects copyright material that is made available online or transmitted electronically (eg uploading of copyright material onto a server connected to the Internet). The right only covers communication in the electronic domain and does not create an exclusive right of communication in the tangible print environment; and

* copyright is unlikely to exist in a URL.(2)

When does copyright arise?

Copyright comes into existence automatically in relation to an original creation in Australia or in a country whose nationals are entitled to copyright protection in Australia. Copyright in unpublished works does not begin to run until they are published.

Term of protection

Subject to exceptions, protection generally runs for the life of the author plus 50 years from the year of the author’s death or 50 years from the year of first publication.(3) A published edition of a book is protected for only 25 years after first publication of the edition. Once copyright expires, the material enters the public domain and can be freely used by others.

Exceptions

(a) Fair dealing

The use of copyright material for the purpose of research or study, criticism or review, reporting of news and professional advice given by a legal practitioner or patent attorney generally does not constitute an infringement of copyright. Rules are provided to determine what is fair dealing in respect of the research and study and the newly created right of communication to the public.(4)

(b) Educational institutions and libraries

Educational institutions and libraries may digitise printed material and reproduce and communicate a reasonable proportion of digital material for the same purposes as permitted in the printed environment. A reasonable proportion of a published literary work (excluding a computer program or electronic compilation such as a database) or a published dramatic work in electronic form is 10% of the words in the work or, if divided into chapters, one chapter.

(c) Technical processes and temporary copies

Temporary reproduction of a work that occurs as part of a technical process of making or receiving an electronic communication is not an infringement of copyright provided the making of the communication is not an infringement of copyright. This exception covers browsing and certain types of caching (for example, by a software browser on a user’s PC). It is unclear whether this exception applies to hypertext linking, framing, or caching by a proxy server.(5) Remedies in relation to hypertext linking and framing may be conferred by trade practices legislation.

(d) Computer software

Copies of computer software made in the normal course of running the program, for the purposes of developing interoperable products, security testing, error correction and making back-up copies do not infringe copyright.(6)

Copyright infringement

Electronic digital technology employed by the Internet facilitates unauthorised access, duplication, storage, transmission and concealing of copyright works. Protected work or material may be scanned into a file server connected to the Internet, uploaded onto the Internet via a network, downloaded into a hard drive, sent by email or printed to hard copy. Copyright infringement (of the exclusive right to reproduce, adapt or communicate to the public) will occur in each case if the work or material is an original work and a substantial part is reproduced without authority.

Infringement will not occur if:

* the unauthorised use of the work fits within the above exceptions, or
* a licence from the copyright owner can be implied in the circumstances.

A substantial part (defined as a qualitative and not quantitative measure) of any copyright work must be taken to infringe copyright.(7)

It is currently unclear whether hypertext linking, framing, or caching by a proxy server infringe copyright.

Penalties

Copyright owners are entitled to civil remedies for copyright infringement and criminal sanctions apply to:

* the manufacture or possession for purposes of sale and distribution of infringing works;

* tampering with electronic rights management information (RMI) (information attached to or embodied in digital material that identifies the material, its author or the copyright owner, or any terms of use) or dealing in material whose RMI has been tampered with; and

* the manufacture and dealing in circumvention devices (devices which circumvent technological measures employed by copyright owners to protect their material) for a purpose that is not a permitted purpose.

Registration required

No registration of copyright is required, protection is automatic. There is no register to search to ascertain if material is copyright protected.

General comments

A copyright owner does not control the medium in which the idea is expressed, for example, a person may freely buy then sell the same book, but they cannot copy the contents of the entire book without copyright permission.

If an employee creates an original work for employer, then as a general principle (subject to exceptions) the employer owns the copyright in the work created.

Generally, if a person commissions a person other than an employee to create an original work, the person does not own that work unless the creator formally assigns their copyright to the person. The assignment must be in writing and signed by or on behalf of the creator.

Copyright ownership may be joint (a work produced by two or more authors) or divided (eg unless otherwise assigned, a newspaper has copyright ownership of work created by a journalist and published in the newspaper, but the journalist retains copyright ownership with respect to publication of the material in a book or film).

Copyright management best practice

Attach to creatively produced work the following:

* copyright symbol ©;
* the name of the author;
* year of first publication; and
* include any terms of use.

For example, © Oz NetLaw, 2000. Provide RMI to facilitate requests for permission by interested persons. The © symbol gives notice to the public of your claim to copyright ownership and gives the work reciprocal protection under the laws of other countries who are signatories to the Universal Copyright Convention.

Identify the ownership of copyright for all third party content used on the website including text, graphics, photographs, animations, film, music compositions, sound recordings, software and database material. Obtain and keep records of each permission to digitise a copyright protected work.

Before linking to or framing a third party website, review that website for any prohibition on linking or framing and if permitted subject to conditions, adhere to those conditions. Avoid linking to or framing a third party website that includes copyright infringing material, as this may be construed as an endorsement or republication of the infringing material.

Identify licensors of any copyright material subject to a licence. Obtain any required licences to use such material, being sure to identify the scope of the licence (including limits on use and assignment and procedures on termination). In relation to computer programs, the © symbol should be prominent in the code, and appear in any initial displays generated by the code. The site and any screens which appear prior to downloading of the code should include disclaimers that expressly set out the extent to which any software or any other material downloaded from the site can be copied or used.

An employer should obtain written assignment of copyright from employees at the commencement of their employment to minimise any downstream disputes over copyright ownership. Instruct the relevant Internet Service provider (ISP) of any restrictions you wish to place on access to protected material on your website.

Make protected material accessible only upon payment of a fee or acceptance of contractual terms of use.

Encrypt the material so only authorised users have access. Invest in new technology which regulates how the material may be used meaning the work becomes protected by contract rather than copyright.

2. Licensing Of Copyright

For most material used on the Internet, permission to digitise is unlikely to have been obtained or included in any licence agreement covering that material. Ownership of the copyright in the material may be unclear, as physical ownership of a work does not automatically confer copyright ownership. A person accessing that material on the Internet must recognise when permission from the copyright owner is required and when a licence to exercise the copyright should not be implied.

A copyright owner who places material on the Internet without notifying the user of any RMI or use restrictions is likely to be giving an implied licence to the user to download or print the material.

A website provider may license to third parties any software used in its website where it has the right to license such software. This may occur for example where the website provider or an employee in the course of employment developed the software, or the relevant software development contract confers the right to license or sub-license the use of the software to third parties.

3. Computer Programs

Copyright protection extends to the source and object code of a computer program and any expression of systems or methods, but not the functionality of the program (which is covered by the patent system).(8) This means developers may create functionally compatible software programs without infringing copyright provided no underlying expression is misappropriated.(9)

4. ISP Liability -TEST

An ISP is not taken to have authorised any infringement of copyright in a work merely because it provides facilities used by a person to do something the right to which is included in the copyright.

A ISP will be liable only if it authorises a copyright infringement, which is determined according to:

(a) the extent (if any) of the ISP’s power to prevent the doing of the act concerned;
(b) the nature of the relationship between the ISP and the infringer; and
(c) whether the ISP took reasonable steps to prevent or avoid the infringement.

Given that ISPs have little or no control over most copyright material not directly hosted on their servers (that is, material to which they merely provide internet connectivity) and no relationship with a person who places material on such sites, their liability is correspondingly limited. ISPs have greater control over websites on their own servers and will need to consider taking reasonable steps to avoid authorisation liability in respect of such websites.(10)



Other relevant Fact Sheets:

Sources of Law
Copyright Act 1968 (Cth)
End Notes
1. Copyright Act 1968 (Cth) section 31(1)(a)(iv)
2. Exxon Corp v Exxon Insurance Ltd [1982] 1 Ch 119
3. The period of copyright protection has been extended to 70 years in the European Union, UK and the US.
4. Copyright Act 1968 (Cth) sections 40-43, 103A-C
5. Copyright Act 1968 (Cth) sections 43A, 111A
6. Copyright Act 1968 (Cth) sections 47B-47F
7. Autodesk v Dyason (1993) 176 CLR 300
8. Autodesk v Dyason (No 1) 1992 173 CLR 330; Data Access v Powerflex [1999] HCA 49
9. Copyright Act 1968 (Cth) Div 4A
10. Copyright Act 1968 (Cth) sections 39B, 112C