Article - Copyright

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Intellectual Property - Copyright

Last month, we discussed the merits of registering trade marks and the role of trade marks in protecting an organisation's name and reputation. Besides trade marks, the type of Intellectual Property (IP) that organisations are most likely to encounter is copyright. This may include organisations protecting their own copyright and ensuring that they do not infringe the copyright of others.

Copyright protects the form in which ideas and information are expressed and not the ideas or concepts themselves. Examples of tangible works protected by copyright include literary, dramatic, musical and artistic works, as well as sound recordings, films, broadcasts and performances. Products such as computer programs typically fall within the ambit of literary works. Copyright typically lasts for the life of the author plus 70 years.

Copyright is protected in Australia pursuant to the Copyright Act 1968 (Cth). In Australia, copyright is not recorded or registered in any way there is an automatic right to protection upon creation of a copyrightable work. This is commonly misunderstood, in no small part because there is a form of copyright registration in the United States. The © copyright symbol may be applied to works, and it is often useful as a deterrent to potential infringers, but its use is not obligatory to protect works.

Protecting copyright works

There should be express provision, in employment contracts of employees of organisations, to provide that all IP produced by the employee in the course of his or her employment with the organisation is the property of the organisation. In the absence of such provisions, organisations should institute and adhere to an IP policy, which employees agree to comply with via their contract (for example, the employee agrees to abide by all published policies of the organisation) or by signing a copy of the policy. If this option is taken, then the organisation must ensure that the policy is approved, published and made easily available to all employees. In Victoria University of Technology v Wilson & Ors [2004] VSC 33, the Victorian Supreme Court held that the University employer did not have intellectual property rights in an invention developed by two senior academics. While the University had an IP policy in place and the academics' contracts stipulated that they agreed to abide by such policies, there was no evidence that the policy had been approved by the University Council, nor was it published in any staff or other relevant manual. Accordingly, the University was unable to claim ownership of the invention created by a staff member.

Using copyright works

When using and reproducing copyright works, organisations must ensure that they are not infringing the rights of other copyright owners. This is important where the copyright owner has no relationship to the organisation (for example, the author of a text or the composer of a piece of music). Further, there may be multiple copyright owners in each work (for example, the lyricist and composer of a song are likely to each own copyright in aspects of the same work).

Under the Copyright Act, the owner of copyright is typically entitled to a broad range of rights including the right to reproduce, publish and perform the work, as well as communicate the work to the public and make an adaptation of the work. There are some exceptions to these general principles. For example, a third party may copy part of a copyright work for the purpose of research or study where the copy is a `fair dealing`. Organisations should be aware of such exemptions and how these exemptions relate to them, in order for the organisation's legal position to be protected.

There are a number of schemes in place with collecting societies in Australia which have been established on behalf of copyright owners, to assist in the legitimate use of copyright material. These collecting societies are particularly useful in locating the owners of copyright materials and distributing royalties. Relevant collecting agencies include the Australasian Performing Rights Association (APRA) for performing rights, the Copyright Agency Limited (CAL) for print material and the Australasian Mechanical Copyright Owners Society (AMCOS) for sheet music.

Conclusion

Organisations must be vigilant in using IP on a day-to-day basis, both to ensure their own rights are protected and to make certain that they do not infringe the rights of others. The laws are not easy to interpret and there are some traps that organisations can fall into, if in doubt, seek legal advice.

For more information about copyright please contact Nicole Stevens-Warton on 03 9608 2264 or n.stevens-warton@cornwalls.com.au or Anna Smits on 03 9608 2103 or a.smits@cornwalls.com.au. at Cornwall Stodart Lawyers

IMPORTANT Disclaimer: This is not legal or other professional advice. Readers should not act solely on the basis of the material contained in this article. Articles are general comments only and do not constitute or convey advice per se. Formal professional advice should be obtained before applying information in this article to particular circumstances. Enterprise Care is not in any way responsible for any loss or liability by anyone acting on the basis of information in this article or for any error in or omission from it.© Copyright 2014

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