What does automatic copyright mean? Copyright law in Australia, unlike trademarks and patents, is an automatic Intellectual Property right that attaches to creative and original works. Below, we set out what type of work copyright protects, and the exceptions that apply.

What is Automatic Copyright Protection?

In Australia, the Copyright Act 1968 (Cth) (the Act) governs copyright – it is the automatic protection provided to creators of an original work and subject-matters other than works. There is no formal registration process, and protection only attaches to material works (i.e. not ideas).

Copyright is personal property (see section 196(1) of the Act). This will give you the exclusive right to prohibit others from using it, publishing it, performing the work in public, communicating it or making adaptations. You will also receive economic rights and non-economic rights (moral rights).

Type of Work Protected by Copyright

Copyright protects only two types of creations, namely:

  1. Works; and
  2. Subject-matter other than works.

Works

“Works” includes artistic, literary, dramatic or musical works.

  • Artistic works include sculptures, drawings, paintings, engravings, photographs, prints, buildings and models of buildings. 
  • Literary works include books, poems, journal articles, letters, newspaper articles, emails, lyrics to a song, databases and computer programs.  
  • Dramatic works intend to be presented, such as a play, script for a film, choreographic piece or television program.  
  • Musical works cover musical compositions.

Subject-matters other than works

Subject-matter other than works includes films, sound recordings, broadcast and published editions.

  • Cinematograph films include moving pictures recorded on film, videotape, and DVD.
  • Broadcasts include pre-recorded or live radio and television.
  • Sound recordings include audio CDs, recordings of spoken words or sounds, tapes and digital sound films (such as an MP3 format).
  • Published editions include a typographical arrangement of a published work (i.e. the combination of features such as the font size, style, size, margins, headings, etc.).

Qualifying Factors of Copyright Protection

Before copyright subsists in your original work, the following qualifying factors must be satisfied:

  • Subject matters: The creation must fit the category of “work” or “subject matters other than works”.
  • Material form: Copyright protects the expression of an idea, not the idea itself.  
  • Qualified persons: Under section 32 of the Act, a qualified person is an Australian citizen or a resident in Australia.
  • Substantial: The creation must be significant. Single words or titles are usually not enough to evoke copyright protection.  
  • Original: The creation must have originated from an author’s intellectual effort and not merely copied from another work.

“Reasonable Efforts” to Protect Copyright

For a Court to enforce your copyright, you will need to prove that you made “reasonable efforts” to protect your creation.  For example, a reasonable effort to protect your trade secret may be that you had non-disclosure agreements with relevant business partners, employees and other related persons.   

Circumstances Where Your Copyright Might Not be Protected

Copyright will not attach to your name, slogans, or headlines as they are considered “not substantial” and too insignificant to warrant copyright protection. Although, other forms of IP protection may apply such as trade marks. Further, copyright is unlikely to protect ideas, information and concepts. Here, copyright departs from other IP forms such as patents and designs.

For example, a patent provides the owner with the exclusive right to exploit an invention. The patent owner is only required to have considered the idea enough that they can tell someone else (with sufficient skills in the relevant field) exactly how to make the invention. There is no requirement for an implementation of the process/prototype. Conversely, copyright does not prevent another person independently creating a similar work based on the same idea or information.

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If you are unsure about whether copyright protects your creative works, get in touch with our IP lawyers on 1300 544 755.

Esther Mistarz

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