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Under national and international copyright laws, this publication may not be copied, in whole or in part, without the prior written consent of the copyright holder.
What is copyright?
Copyright provides legal protection for people who express ideas and information in certain forms. The most common forms are writing, visual images, music and moving images.Copyright is a type of property that is founded on a person’s creative skill and labour.
Copyright protects the form or way an idea or information is expressed, not the idea or information itself.
Copyright is not a tangible thing. It is made up of a bundle of exclusive economic rights to do certain acts with an original work or other copyright subject matter. These rights include the right to copy, publish, communicate (eg broadcast, make available online) and publicly perform the copyright material.
Copyright creators also have a number of non economic rights. These are known as moral rights. This term derives from the French droit moral. Moral rights recognised in Australia are the right of integrity of authorship, the right of attribution of authorship and the right against false attribution of authorship.
Copyright is distinct from physical property. A clear distinction exists between the copyright in a work and the ownership of the physical article in which the work exists. For example, an author may own the copyright in the text in a book even though the physical copy of the book will be owned by the person who purchases it. Similarly, the purchaser of an original painting does not have the right to make copies of it without the permission of the owner of copyright: the right of reproduction remains with the copyright owner who is generally the artist.
What is intellectual property?
Copyright is part of an area of law known as intellectual property. Intellectual property law protects the property rights in creative and inventive endeavours and gives creators and inventors certain exclusive economic rights, generally for a limited time, to deal with their creative works or inventions. This legal protection is designed as a reward to creators to encourage further intellectual creativity and innovation, as well as enabling access by the community to the products of intellectual property. Because intellectual property protects rights, rather than physical property, intellectual property is an intangible form of property. It is property which cannot be seen or touched.
Intellectual property is the general name given to the laws covering patents, trade marks, designs, circuit layouts, plant breeder’s rights and copyright. Each of these forms of intellectual property is protected by a specific Act of the Commonwealth Parliament. The framework for these Acts is largely based on Australia’s obligations under international treaties.
The Patents Act 1990 grants monopoly rights to inventors of new inventions such as improved products or devices, substances and methods or industrial processes, provided that the invention is a manner of manufacture, is new, is not obvious and is useful. A registered patent provides exclusive rights to the owner to exploit the invention for the life of the patent, which is 20 years. The innovation patent provides protection for incremental and lower level inventions for a period of 8 years.
The Trade Marks Act 1995 grants protection to a letter, word, phrase, sound, smell, shape,logo, picture, aspect of packaging or combination of these, used by traders on their goods and services to indicate their origin and to distinguish such goods and services from those of other traders. Initial registration lasts for 10 years, with the possibility for further renewals for as long as the mark is used.
The Designs Act 2003 grants protection to the visual appearance or design of a manufactured article if it is new or original. It protects the features of shape, pattern or ornamentation applied to an article.
Protection is based on a system of registration and can last for up to 10 years.
Some designs for articles may qualify for both designs and copyright protection. Before registering a design of an artistic work under the Designs Act, you should seek legal advice on whether registration would affect copyright protection of any articles related to the design.
Registration of patents, trade marks, designs
Protection for patents, trade marks, designs rights is dependent upon a formal registration procedure conducted by the central or regional offices of IP Australia. IP Australia is the Australian Government agency which administers the Patents Act 1990, Trade Marks Act 1995, Designs Act 2003 and the Plant Breeder’s Rights Act 1994.
Confidential information and passing off
Other categories of intellectual property which do not have special statutory protection include confidential information and trade secrets. These are protected by the action for breach of confidence.
The business reputation and goodwill in unregistered trade marks or trade names may be protected by the common law action of passing off or an action for mis
leading or deceptive conduct under the Competition and Consumer Act 2010 or equivalent state or Territory legislation.
What law governs copyright in Australia?
Copyright Act 1968
Copyright exists in works and other subject matter by virtue of the
Copyright Act 1968. The only exception to this is in relation to certain limited prerogative rights of the Crown in respect of copyright in
Acts of Parliament.
The Copyright Regulations 1969, the Copyright Tribunal (Procedure) Regulations 1969 and the Copyright (International Protection) Regulations 1969 specify matters related to the operation of the
Access to the law
The Copyright Act and Regulations are constantly under review and are amended from time to time.
Access to electronic versions of Commonwealth legislation is available through the Attorney General’s
Department’s legal information retrieval system, ComLaw. Hard copies can also be purchased through
the ComLaw website.