Copyright Legal Advice:

Generally speaking, copyright arises automatically as individuals create works in the course of their employment activities or personal activities. If works are created in the course of employment, it may be the case that the copyright will vest in the employer (for more information about employer-employee relations, see legal practice area “Employment & Safety Law”). However, works created outside the scope of employment may vest in the creator himself. Some of the kinds of works that could be created and in which copyright subsists include:

• Manuals;
• Textbooks;
• Marketing materials (for more information on sensitive or privileged material, see our section “Confidential Information” in this legal practice area);
• Online content (internet and intranet);
• Architectural plans (for more information for Architects, see our section for “Architects” under the “Environmental Law & Property Law” legal practice area);
• Artwork;
• Music;
• Text; and
• Computer code.

The above is only a sample list. There may be many more kinds of works in which copyright subsists. Some of the more general categories that are specified in the Copyright Act 1968 (Cth) are original literary, dramatic, musical or artistic works, as well as sound recordings, cinematographic films, television and radio broadcasts and the like.

Although it is not a legal requirement, it is useful to give notice that your work is owned by you through the use of the copyright symbol “©” (which is sometimes also represented as a “(c)”) followed by the name of the creator, author or artists, and the date the work was created. This is often done as a matter of prudence. Owners of copyright can enforce their rights if they believe that there has been a breach of the Act. For more information, please see the section “Copyright Disputes & Infringements”.

Authors or creators of material may wish to assign their rights to a third party to use exclusively. This will ensure that there is no uncertainty as to the ownership of the copyrighted material. Assignments can be oral, but should a dispute arise in the future, any ambiguities can lead to a very messy and chaotic process whereby the rights and liabilities of individuals are ascertained. It is advisable therefore that assignment of copyright take the form of deed, or a written document that clearly identifies the material and the entity to which the intellectual property rights are assigned.

If the owner of copyright is an employer, it is a good idea to make provision in the employment contract for an employee’s dealings with intellectual property that is owned by the employer, and that any work created by the employee while in the employ of the employer is the property of the employer. Having policies in place that deal with intellectual property and copyright can also clarify the position of who owns intellectual property in the workplace.

The IP Team at Navado Lawyers and Solicitors can provide legal advice and drafting services that can assist in the production of these contractual provisions and policies.

It is important for people who deal with media and works of art or craft, that their dealings do not constitute violations of copyright. Severe penalties have been imposed on businesses and individuals who have been found guilty of copyright violation.

It is prudent to seek legal advice when dealing with material that may have been created by another person, before using that material in any way, especially if that use is for commercial gain. This is because if a person or business makes use of another person or business’s intellectual property for gain, they are unfairly exploiting the efforts and labor of that other author or creator for their benefit.

It is essential that any person who has been accused of the violation of another party’s intellectual property immediately seek legal assistance to deal with this matter.

Often an individual may own a form of intellectual property, such as a piece of work in which copyright subsists, and wish to exploit it commercially but not have the means to do so. In situations like these, a third party that has the means but does not own the copyright may become involved. A license agreement to use copyright may be one way in which parties can co-operate for mutual financial benefit when dealing commercially with copyright material. If you are the owner of copyright and wish to enter into a license agreement with another party, you will naturally wish to secure your interests in respect of your intellectual property. The character of such a license agreement will vary depending on the subject property, the nature of the business that will be engaged, the industry in which the copyright will be used and the expectations of the owner and licensee. Accordingly, there is no standard license agreement form, but there are some general provisions that each copyright license agreement may have, and some of these may include the following:

• The way in which the copyright can be used (this includes any restrictions, prohibitions and certain mandates and requirements on its use);
• The licensee’s rights (if any) to subcontract under the head copyright license;
• Remuneration provisions for the exploitation of the copyright (including provisions that explain how much is paid and when);
• A clarification which party has standing to bring legal proceedings for infringement of the subject copyright;
• Certain provisions outlining the particulars of the business operations, the manner it will deal with and handle the copyright material, its use and its exploitation;
• Certain provisions relating to the ownership of any intellectual property that may be collateral to the copyright under license;
• Record keeping obligations in respect of royalties (if any);
• Other reporting obligations to the owner of the copyright;
• Provisions concerning restraint of trade and confidentiality (for more information, see our section on “Restraint of Trade” under the Employment & Safety Law title as well as the section “Confidential Information” under this title);
• Any relevant warranties and indemnities;
• Insurance obligations (if and where necessary);
• Provisions relating to the revision of rights that are granted under this copyright license agreement;
• Specific performance obligations;
• Provisions relating to Dispute Resolution procedures; and
• Termination clause.

Navado Lawyers and Solicitors can provide drafting and review services for the production of copyright license agreements, as well as legal advice for businesses and individuals who have entered into, or are contemplating entering such agreements.