Whether you are a journalist, blogger, novelist or poet, protecting your written work is important. Copyright provides you with automatic and exclusive rights to publish, use, adapt and distribute your literary work. You can also grant others a right to use or distribute your work. This article explains how copyright protects writers in Australia and how you can enforce your rights.
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
As copyright protection in Australia is free and automatic, 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 to see whether it also automatically applies. For example, in the United States, there are systems for registering copyright material.
As a copyright owner, you have the exclusive right to use, modify, copy, perform or licence your work to others. The work you create is protected under copyright for the duration of your life plus another 70 years. However, copyright does not protect:
- ideas or titles;
- writing styles; or
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.
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 own the copyright in any work you create for them. Therefore, your employer can choose how to use, modify and distribute the work.
Two or more people can jointly own 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 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.
Assigning or Licensing Your 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 licence 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.
Preventing Infringement and Enforcing Your Rights
To prevent someone from exploiting your work and infringing on your rights, you can take a number of steps:
- although it is not a requirement, you can add the © symbol to any literary works to show others that you are aware of your rights and serious about protecting them;
- keeping a record of your creative process is useful, especially if you need to prove ownership of the work;
- you should also clearly set out the terms and conditions of any agreements and review them before granting anyone your copyright; and
- you should document whom you provide a licence to or give permission to use your work.
If you find someone using your work without permission, you can take legal action against them and enforce your rights. You can start off 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.
If the infringement is still not rectified, before taking legal action in court, you can try to solve the issue by exploring alternative dispute resolutions (ADR). ADR is typically cheaper, quicker and more flexible 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 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 licence 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 ownership of copyright 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 questions, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.
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