The Law Handbook 2024

754 Section 7: Consumers, contracts, the internet and copyright Authorship of works All works must have an author or authors. The author of a literary, dramatic, musical or artistic work is the person who is responsible for the work’s particular form of expression. For example, a biographer who writes a book using information about a person’s life is normally the author. The person who provides their life story is not an author unless they are also responsible for creative and/or written contributions (see ‘Joint ownership’, below). An author must be a living person; computer- generated works are not protected by copyright in Australia – telephone directories have been denied copyright on this basis. Ownership of copyright Who is the first owner? The Copyright Act sets out who is automatically the first owner of the copyright in the different types of material, but the parties can always agree to a different ownership arrangement. Literary, dramatic, musical or artistic works The author of a literary, dramatic, musical or artistic work is normally the first copyright owner. However, there are some exceptions (s 35 Copyright Act). Employees In general, copyright in a work made by an employee in the course of their employment is owned by the employer, unless there is an express or implied agreement that the employee owns the copyright. Journalists: Employee journalists own the copyright of their work in relation to its reproduction for some purposes only, while the employer owns the remainder of the copyright. If you wish to control the use of substantial works produced by you in the course of your employment, you should try to negotiate an agreement with your employer. For example, you could agree that although your employer owns the copyright, you must be identified as the author, and may also reproduce the work (possibly after a period of time has passed since its completion). Or you could agree that you will own the copyright, but grant your employer a perpetual royalty-free licence to reproduce the work. Such agreements should be in writing, and signed by both parties. Independent contractors The fact that a person has paid for a work to be made (other than a photograph for domestic purposes, or a portrait or engraving) does not mean that they own copyright in it, although they may be permitted to copy it, or exercise other rights of the owner. For example, if a community organisation commissions an artist to prepare a drawing for a flyer, the artist will own copyright in the artwork and the organisation will have an implied licence to reproduce it in the flyer (see ‘Licensing copyright’, below). This means the artist could allow someone else to use the artwork for another purpose. If the organisation wants to control the use of the artwork, it should require the artist to assign copyright in the artwork to the organisation as a condition of the commission (see ‘Assignment of copyright’, below). Photographs A person who commissions a private or domestic photograph (or the making of a portrait or engraving) (e.g. wedding photos) owns the copyright in the work, but the artist or photographer can prevent the owner from dealing with the work other than for the purpose for which it was commissioned. A photographer is the first owner of photographs commissioned for a commercial purpose. Sound recordings and films The first owner of copyright is the maker of the sound recording or film, unless the maker has been commissioned to make the recording or film for another person for payment. In that case, the other person owns the copyright (ss 97, 98). The maker of a sound recording is the person who owns the first record containing the recording (s 22(3)(b)). This means the owner of the copyright in a sound recording is usually the recording company. However, performers in live performances (including musical and dramatic performances and readings or recitals of literary works) (or their employer) are co-owners of the copyright in a sound recording of the live performance with the owner of the first record containing the recording (s 22(3A), (3B)). The maker of a film , and therefore the owner, is the person who made the necessary arrangements for the making of the film (s 22(4)(b)). This is