Copyright

Copyright is a form of intellectual property consisting of the right to control the exploitation of literary, musical, artistic and dramatic works, as well as sound recordings, films, broadcasts and published editions. Generally, only the copyright owner, or someone who has their permission, can publish, copy or perform copyright material, or transmit it electronically to the public.

In Australia, the rights of copyright owners derive from the Copyright Act 1968 (Cth) (‘Copyright Act’). The Copyright Act also grants other rights (performers’ protection and moral rights) that complement copyright.

Materials that can be copyright are:

• literary works (including computer programs);
• dramatic works;
• musical works;
• artistic works (including buildings);
• sound recordings;
• films;
• sound and television broadcasts; and
• published editions.

Literary, dramatic, musical and artistic works are all ‘works’ in the Copyright Act and in this chapter.

Literary works

The term ‘literary works’ is not defined in the Copy­right Act. Courts have held that any work expressed in print or writing is a literary work. Section 10(1) of the Copyright Act provides that a literary work includes a table, or compilation, expressed in words, figures or symbols, and a computer program or a compilation of computer programs. The definition of ‘computer program’ is wide enough to include both the source code written by programmers and the machine-readable object code that causes a computer to perform a function.

A piece of writing does not have to have a ‘literary’ quality, in the sense that the word is used in ordinary speech, in order to be a literary work for the purposes of the Copyright Act. Business letters, technical manuals and lists of gambling odds have all been held to be literary works. Copyright exists in both published and unpublished literary works.

Dramatic works

These are works that are intended to be performed (e.g. plays, opera libretti, and scripts for radio, television or film). Section 10(1) of the Copyright Act specifically includes dance and mime productions as dramatic works (describing them as ‘choreographic shows’ and ‘dumb shows’). Copyright exists in dramatic works regardless of whether they have been performed, produced or published.

Musical works

These are not defined by the Copyright Act but courts have described music as ‘combining sounds for listening to’. All kinds of music are included, regardless of artistic merit. Music does not need to have been published or performed for copyright to exist, but it needs to have been written down or recorded in some way. 

Song lyrics

Song lyrics are literary works and so have a separate copyright. Song lyrics have traditionally not been  considered to be musical works. 

However, in Boomerang Investments Pty Ltd v Padgett (Liability) [2020] FCA 535, the judge held that ‘the sound of those words being sung’ (rather than their meaning) was part of the musical work. The basis of this decision was that the voice is a musical instrument and the words are instructions on the sounds to be made by it.

Artistic works

Unlike literary, dramatic and musical works, artistic works are defined by the Copyright Act.

Section 10(1) states that ‘artistic work’ means:

a. a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;

b. a building or a model of a building, whether the building or model is of artistic quality or not; or

c. a work of artistic craftsmanship.

An artistic work may be simple (e.g. a logo) or utilitarian (e.g. an engineering drawing). Section 10(1) of the Copyright Act states that a ‘drawing’ includes a diagram, map, chart or plan.

‘Sculptures’ have been defined by courts as three-dimensional objects that are intended to be enjoyed as visual things. A primarily utilitarian object, even if well designed or pleasing to the eye, is not a sculpture. If a three-dimensional object is created as a work of art or decoration, the fact that it objectively lacks ‘artistic quality’ does not prevent it being a sculpture.

A ‘building’ includes a structure of any kind. ‘Structure’ has been given a broad meaning by the courts, and has included a swimming pool.

‘Works of artistic craftsmanship’ are included in the definition of ‘artistic works’ to give copyright protection to works of craftsmanship incorporating aesthetic elements. For example, jewellery, pottery, woodcarving and embroidery. Although the object may be useful, its appearance must have resulted primarily from aesthetic rather than functional considerations. For this reason, the High Court has held that a handmade model of a yacht was not a work of artistic craftsmanship (see Burge v Swarbrick [2007] HCA 17). Works of artistic craftsmanship must be made by a person with sufficient skill to be described as a craftsman, although they do not have to be made by hand.

Sound recordings

‘Sound recording’ means the total of sounds in a ‘record’, which is defined in the Copyright Act (s 10(1)) so that it is not limited to any particular form of technology. ‘Record’ is wide enough to include vinyl records, cassettes, CDs and digital recordings stored on a computer or mobile phone. Sound tracks of films are specifically excluded from the definition of sound recordings (s 23), but are included in the definition of cinematograph films (s 10(1)).

Films

The definition of ‘cinematograph film’ in section 10(1) of the Copyright Act requires visual images to be embodied in an article so that the images can be shown as a moving picture by use of the article, or by embodying them in another article.

This definition covers moving pictures recorded on film, videotape, DVD or computer, and inter­active computer games (including their soundtracks). However, the definition does not include a live digital signal because it does not have a physical form.

Sound and television broadcasts

These are limited to communications delivered to the public by ‘broadcasting services’ as defined by the Broadcasting Services Act 1992 (Cth). This is the delivery of radio and television programs to the public, including by cable, optical fibre or satellite, and by use of the radio frequency spectrum. It does not include internet audio, video streaming or datacasting.

Published editions of literary, dramatic, musical or artistic works

This category protects the typographical arrange­ments of published works (including the choice of font) and the way in which the work is set out on the page. Published editions include works published in machine-readable form (e.g. on CDs or as ebooks).

Several types of copyright can apply to the same material. For example, in a published song, copyright applies to the words (a literary work), the music (a musical work) and the typographical arrangement (edition copyright). If the song is recorded on CD, there is also copyright in the sound recording, and if it is broadcast on the radio, copyright in the sound broadcast.

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’ in ‘Ownership of copyright‘).

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.