If you write an investigative article or design a business’ logo as a freelance artist, copyright will automatically attach to your work. Copyright is an automatic protection of “works” and “subject matter other than works” that are in material form. “Works” includes artistic, literary, dramatic and musical works whereas “subject-matter other than works” includes films, sound recordings, broadcasts and published editions.

There is, however, a difference between the copyright author and copyright owner. Below, we step you through these differences as well as some points to consider when determining whether you own the work you create.

General Rules Attaching to Authors

The general starting point is that the author or creator of works is the first owner of copyright and has automatic ownership. There may, however, be instances where the author cannot be distinguished. For example, where two or more people equally contributed to the creative work, they may be joint authors (and as such, joint owners) under the Copyright Act 1968 (Cth) (the Act). 

Under the Act, moral rights also attach to all authors of copyright works. Moral rights protect creators by ensuring they are always attributed or credited to the original as well as safeguarding the integrity of the work, even if you have transferred ownership.

Section 196(1) of the Act defines copyright as personal property. It follows that although an author of copyright material is usually the first owner, they may not ever be an owner. This concept is best explained through the examples we’ve set out below.

Employees

Employment agreements typically include an IP assignment clause which states that an employer has ownership of the work an employee creates during the course of their employment.

Importantly, independent contractors or freelancers (e.g. photographers or journalists) usually own the copyright in their work subject to any agreement they have with the publisher.

A copyright author can always:

  1. Licence rights to copyright (this will not transfer ownership); or
  2. Assign ownership of the copyright to another.

As such, whether an employee owns the copyright as the original author will depend on the express terms of the contract. 

Sound Recording and Films

The issue of ownership can become complicated regarding sound recordings and films. Usually, a person who creates a sound recording or film is the owner. But where someone records a live performance, the performer likely owns the copyright.

Government Material

Under the Act, the Australian Government and State or Territory government will have ownership of copyright which is made by or first published under their direction or control.  

Key Takeaways

Although copyright is an automatic right that attaches to works or subject matter other than works in a material form, the author is not always the copyright owner. It’s important to understand then under which circumstances you might assign your intellectual property rights to an employer, or co-own the copyright. 

If you have any questions about how to best protect your creative works, get in touch with our IP lawyers on 1300 544 755. 

Esther Mistarz

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