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Whether you are a journalist, blogger, novelist or poet, protecting your written work is crucial. Copyright provides you with automatic and exclusive rights to publish, use, adapt and distribute the literary works you create. This article explains how copyright protects writers in Australia and how to enforce rights.
What is Copyright Protection?
In Australia, the Copyright Act 1968 (Cth) governs copyright. Copyright protects the expression of writers’ ideas as, among other things, original literary works. Literary works include:
- song lyrics;
- screenplays; and
Copyright protection in Australia is free and automatic. Therefore, you do not need to register your work for protection like you would for a trade mark, design or patent. However, if you would like copyright protection in other countries, you should check whether it also applies automatically. For example,the United States has systems in place for registering copyright material.
As a copyright owner, you have exclusive rights over your work, such as the ability to:
- perform; or
- license your work to others.
The Copyright Act also provides you with moral rights, which protect your work against false attribution and derogatory treatment. Like copyright, moral rights apply automatically to your literary work. Unlike copyright, you cannot assign your moral rights to another. Moral rights include the right:
- to be credited as the author of the work;
- against false accreditation; and
- of integrity or the right not to have the work distorted.
What is Copyright Ownership?
Generally, the creator of a work owns the copyright in the work. However, this is not always the case. For example, if your employer asks you to write an article, they will typically own the copyright in the article, as you created the work in the scope of your employment. There may also be a provision in your employment agreement providing that your employer owns the copyright in any work you create for them. Therefore, your employer can choose how to use, modify and distribute the work.
Can More Than One Person Own Copyright?
Two or more people can jointly own the copyright. For example, if you co-author an article with another writer, you may both jointly own the copyright in the article. For joint ownership of copyright, the contribution of all owners must be significant and original. The way in which ownership is shared can be equally or unequally divided depending on the arrangement.
If you are a freelance writer or a contractor, whether or not you own the copyright in the work you create depends on your agreement. To avoid any issues about copyright ownership, it is best to set out the terms at the outset and ensure all parties are on the same page.Continue reading this article below the form
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How Do I Assign or License My Rights?
If you are the copyright owner of your work, you can license or assign your copyright. The key difference between licensing and assigning your copyright relates to ownership of the work. Assigning your copyright involves transferring the rights afforded to you to another party. Upon assigning your copyright, the other party becomes the copyright owner of your work. They can therefore use, adapt and distribute your work as they please. For example, if you write for your employer, your employment agreement will likely include an assignment of copyright clause.
By licensing your copyright, another party can use your work while you remain the owner. Mutually negotiated terms govern the relationship between you and the other party using your work. Terms of the licence may include payment in the form of royalties. For example, if you write a book and intend on publishing it, your publishing agreement will license your copyright to the publisher so they can use, print, publish and distribute your work.
Unlike the economic rights in copyright, you cannot assign or transfer your moral rights. However, you can provide consent for another party to ‘infringe’ your moral rights. For example, you can provide consent for a publisher to publish your book under a pseudonym.
To prevent someone from exploiting your work and infringing on your rights, there are a number of steps you can take. These include:
- adding the © symbol to any literary work to show others that you are aware of your rights and serious about protecting them;
- keeping a record of your creative process, especially if you need to prove ownership of the work;
- clearly setting out the terms and conditions of any agreements and reviewing them before granting anyone your copyright;
- documenting who you provide a licence to or give permission to use your work.
Enforcing Your Rights
If you find someone using your work without permission, you can take legal action against them and enforce your rights. You can start by sending the infringing party a letter of demand. The letter should:
- state that you own the copyright;
- identify the infringement;
- allow the other party an opportunity to rectify the infringement; and
- provide the infringing party with a course of action.
Suppose the infringement is still not rectified before taking legal action in court. In that case, you can try to solve the issue by exploring alternative dispute resolutions (ADR). ADR may be a quicker and more flexible option than going to court, but it requires both parties to agree to this as an alternative to court proceedings. If the issue escalates, you may consider taking the matter to court.
As a writer, it is essential that you understand how copyright operates in Australia and how to protect and enforce your rights. Copyright is an automatic right afforded to the creator of an original literary work. However, a creator of a work may not always own the copyright. If you own the copyright in your work, you can assign or license your rights to another party so they can use your work. To prevent others from infringing on your rights, you can take proactive measures to notify people of your copyright ownership and set out clear terms in any agreements. If someone infringes your rights, you can:
- send a letter of demand;
- engage in ADR; or
- as a last measure, take them to court.
If you have any copyright questions, our experienced intellectual property lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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