Although the Copyright Act 1968 (Cth) in Australia aims to protect people’s intellectual property as much as possible, there are certain limits of copyright law that need to be understood.

What is copyright material?

Of course, there are the more obvious limits of copyright law, for example, that intellectual property must fall under the definition of “copyright material”. Copyright material could be works that are textual, artistic or musical in nature. In effect, copyright laws do not protect signs such as logos or names that distinguish a business; this is an area normally protected by trade mark law. Similarly, ideas, designs or methods also do not fall into the category of copyright material and is normally protected through the patenting system.

When is copyright material not protected?

Moving away from the various definitions of intellectual property, there are circumstances when even copyright material will not be protected, particularly when it comes to fair dealing. A “fair dealing” refers to the use of copyright material for a specific purpose. A specific purpose may include research, review, reporting news or for parody or satire. If the use of the copyright material falls under one of those specific purposes, it is necessary to show that the use is also fair. A lawyer can assist in determining whether the use of a particular work would be considered fair, considering factors such as the proportion of the work that was used, whether the copyright owner was acknowledged or whether the copyright material was used to make a profit. Of course this is not an exhaustive list of factors, but a specialist copyright lawyer will be able to determine all the relevant factors to determine if your use would be considered “fair dealing”.

Assigning your copyright

Another important aspect to consider is that copyright can also be assigned. This means that you can contractually forfeit your rights to the copyright material you have created. This is something to look out for particularly in employment or contractors agreements. It could also be a factor to consider if you are producing work for a client. A graphic designer who has produced a logo, for example, may be happy to assign ownership of their copyright material to their clients. For people working in the creative industries, it is crucial to clarify whether the work you have produced will remain your intellectual property.

Conclusion

Like most laws, there will always be an exception. A lawyer who understands how to protect your intellectual property will be able to advise you appropriately about the limits of copyright law. This may entail providing you with guidance on whether your use of existing copyright material would be considered “fair dealing”. It may also be to determine whether you have ownership of the copyright material you have created or commissioned. If you need assistance in protecting your intellectual property, speak to our team of LegalVision lawyers to discuss the limits of copyright law and what you can do to address them.

Kristine Biason

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