Intellectual property takes many forms, such as trade marks (brands), patents, designs and copyright. Because you don't need to formally "register" your copyright upon its creation, it remains a mystery to most people. This article hopes to expose the basics of copyright law.

Copyright Basics

Copyright results from the particular form of expression of information and ideas ('things of the mind'). Copyright does not reside in the idea itself. Even though copyright requires no legal registration its importance is of the same standing as more recognised forms of property. Copyright, like other forms of property, can be bought, sold, assigned, gifted and even willed to a beneficiary.

The primary purpose of copyright is to provide an incentive for people to produce new works in return for the right to copy these works and to provide a commercial reward from people who wished to use or copy these works. It is a form of social contract legislated under the Copyright Act 1968.It has been estimated that up to 3% of the country's GDP is a direct result of copyright-based industries such as writers, songwriters, film, music, publishing and software industries.

You can obtain copyright by expression of an idea or information. This includes works made up of words (novels, books, and newspapers), computer code, music, dance, two dimensional images (paintings, photographs, drawings, and architectural plans), three dimensional objects (sculptures, jewellery), films, TV programs, animated films, podcasts, and compilations (directories). The form of expression need not be "artistic" to be protected by copyright. However a 'work' must be the result of some skill and effort. The level of skill need not be high, however the less skill required to produce the work, the less likely that someone else will infringe that work. A number of copyright cases claiming copyright protection have failed because the work was not substantial enough or did not result from sufficient skill and effort (such as names, titles or slogans and even TV programme titles and schedule times).

Who owns copyright?

Where there is no agreement as to who will own the copyright in the work, the creator or author of the work is the first owner. There are some exceptions including works created by employees as part of their employment is owned by the employer. A commissioned work such as a portrait, photograph, film or sound recording made for the client is owned by the client. Any material made for the government is owned by the government.

In some cases there is more than one owner of the work for example if two people collaborate on a film script. In this case, the creators are usually the first owners of copyright in equal shares. A group of people such as a band may come together and collaborate on a song. They may agree that the group will co-own equally in the copyright in the song. Apparently John Lennon and Paul McCartney had an agreement to share in the royalties on all songs written by either or both of them.

It is common in the music industry to have multiple owners of copyright. The part relating to performance, broadcasting, and online communication is usually transferred by songwriters to APRA (The Australasian Performing Right Association ('APRA') collects and distributes licence fees for the public performance and communication of musical works) while other parts are owned by the music publisher or songwriter themself such as the right to reproduce the work, lyrical and musical arrangements and theatrical performance.

This brings me back to The Beatles. Back in 1963, the Beatles gave their publishing rights (not copyright) to Northern Songs, a company created by their manager. Northern Songs went public in 1965, and John Lennon and Paul McCartney each had 15% of the company's shares, while their manager and the company's chairman held a controlling 37.5% of shares. In 1969, Northern Songs was sold to the Associated Television Corporation (ATV). In 1985, ATV's music catalogue was sold, and Michael Jackson reportedly paid US$47 million for the publishing rights to over 200 Beatles songs. A decade later, Jackson and Sony merged their music publishing businesses. Since 1995, Jackson and Sony/ATV Music Publishing have jointly owned the publishing rights to most of the Beatles songs and reportedly earn US$140 million in royalties per year.

So what does it mean to have copyright? Why all the fuss.

Owning copyright means that you are the only one allowed to deal with the work, such as:

• copying,
• performing,
• playing or showing in public,
• electronic transmission (email, broadcasting) , or
• uploading to a website.

Anyone else who wants to copy or use your work needs your permission, unless an exception applies under the Copyright Act.

So what do you need to know?

• for copyright to be established in a particular work - it must be original;
• There must have been sufficient "skill and effort" in creating the original expression; and
• Copyright subsists in the form of expression not the information or idea itself.

As stated above, copyright resides in the expression of the idea or information. The "expression" must be original and have resulted in some skill or effort. Many people think that because they had "the idea" they must own it. But borrowing an idea itself does not necessarily infringe copyright. In 2006 a judge ruled that the bestselling author Dan Brown did not steal ideas for The Da Vinci Code from the nonfiction work The Holy Blood and The Holy Grail because Dan Brown had used these as reference books only and had not copied the way the information was expressed by the other author.

To infringe copyright the following elements must apply:

• There must be a reproduction of a substantial part of the work (considering both the quantity and quality of what has been copied); and
• You must consider the originality of the part copied.

Remember:

• The commercial value of the information is not relevant.
• If the information copied is not original no infringement will occur.
• Similarly, if the relevant work is lacking originality, the greater amount of the work will need to be copied for there to be infringement.
• Where the expression of the idea or information is of "limited originality" – such as the title or time - it is likely to lack the requisite originality to constitute a substantial part.
• The requisite "skill and effort" applied to the expression is considered but relates to the form of the expression not the information itself.

For further information, please contact:
Blair Beven
Partner
Tel: +61 2 92368361
Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it