What do you do when there is “UNAUTHORISED USE OF YOUR MATERIAL”?
First you should get legal advice about whether your copyright has been infringed. If only part of you material has been used, you may need advice about whether that part is “substantial”. You might also need advice about whether the person who used your work was entitled to use it under any special exception. Also, sometimes a person may have taken only the idea behind your material, and not infringed the copyright.
In some cases, the Copyright Council’s staff lawyer can advice on whether copyright has been infringed.
Then you have to decide what you want. In consultation with your legal adviser, you should decide how you would like the matter resolved and what you require of the infringing party. When your copyright is infringed you are entitled to demand any one or all of the following:
- that the infringement stop;
- that the infringing copies of your material be delivered to you, or disposed of as you direct;
- that any master copies used to make infringing copies be delivered to you, or disposed of as you direct; and
- that you either are paid for the use of the work or you are given the profits the infringer has made from it.
Once you have decided what you want from the infringer, you will need to decide wether you should first try to resolve the matter by informal negatiation.
If the approach does not settle the matter, or is not suitable in the circumstances, the next step is usually to send a letter of demand. Letters claiming infringement of copyright can result in problems under the law of defamation or under section 202 of the Copyrigth Act. Therefore, it is advisable to have your letter of demand drafted by a lawyer.
In some cases, the Copyright Council’s staff lawyer can help you draft a letter of demand to send under your own letterhead.The Council does not generally contact other parties on behalf of clients.
If the matter is not settled by negociation or as a result of sending the letter of demand, you will need to decide whether or not you wish to take the infringer to court.
What Work is Not Copyright-Protected?
Once Copyright has expired, the material is generally referred to as being “in the public domain”. Copyright protection can not be renewed or revived by republication or any other procedure.
However, translation and new arrangements of music are regarded as separate copyright works and may still be protected although the original work is out of copyright.
The Copyright Act does not state whether or not names, titles or slogans are protected by copyright. However, the court has held that they are not protected by copyright but could be breach other laws.
An idea or concept, in itself, is not protected by copyright. Nor are facts, information, systems, functions, methods or techniques protected by copyright.
Filed under: Copyright
What is “RIGHTS MANAGEMENT” and how does it work?
Selling rights, giving permission, contracts, agreements, commissions, competitions, fees, royalties, terms, conditions, Creative Commons licences
Copyright owners can “assign” (generally, sell) or license their rights. Assigning rights means someone else becomes the copyright owner; licensing means another person can use the copyright material.
Assignments and licences can apply to all the rights in the material, or to just one or some of the rights. For example, a writer can assign or license just the right to reproduce his or her story in a book, but keep all other rights.
In addition, a copyright owner may restrict an assignment or licence in various ways: to particular countries; or to a particular period of time; or to a set number of copies; or to a particular format (for example, hard-copy only, or in brochures but not in posters), for example.
A copyright owner may also set certain conditions, such as payment, as part of their agreement to assign or license rights.
It is good business practice to put all arrangements relating to copyright into writing. An assignment must be in writing and signed by the copyright owner to be fully effective. An exclusive licence that is in writing and signed by the copyright owner entitles the licensee to institute legal proceedings for copyright infringement.
If you do not own copyright, you should record:
- whether or not you have a clearance in relation to the work;
- whether a decision has been made as to whether a clearance is required, and if not, the basis of that decision;
- who any clearance has been obtained from;
- when the clearance was obtained, and how long it lasts;
- the terms of the licence (what used is the licence granted for, and what terms or conditions apply).
You should also document whether or not decisions have been made as to whether creators will need to be attributed, and whether or not the use of works or films might give rise to an infringement of a creator’s right to have the integrity of their work respected. In relevant cases, record any consents that have been sought or obtained.
In terms of administration, it is a good idea to keep all the documentation (or copies of that documentation) relating to clearances, consents and claims of copyright ownership together.
Filed under: Copyright
When creating new material what must you do to protect your legal rights?
In Australia, material is automatically protected by copyrigt, under the Copyright Act 1968 (Cth), if the material is in one of the categories of things that are protected by copyrigth. There is no registration of copyright in Australia, and no formal procedures to go through.
There are only two requirements for protection under Australian law and these are generally not difficult to meet.
1. Connection with Australian copyright law
Works, film and sound recording are protected if they are published in Australia, or made by a citizen or resident of Australia. They are also protected if they are first published in a country listed in the Copyright International Protection Regulation or made by a national of one of these countries. These are countries which are party to international copyright treaties to which Australia is a part, including the Berne convention, and the Trade Related Aspects of Intellectual Property (TRIPs) agreement. Most countries are party to these international conventions.
2. The work must be ‘original’
This does not mean that the work has to be new or novel, or display original ideas. ‘Originality’ under the Copyright Act means that the work must not be merely copied from somewhere else; it must be the product of that author’s independent skill and labour. It is important to note that it is the originality of the way a creator has expressed information or ideas that is relevant, rather than whether the idea expressed in the work is original.
The categories of material protected by copyrights can be find using this link: http://www.copyright.org.au/information/cit004/cit097/wp0289
Copyright gives its owner the legal right to take action in certain circumstances if someone else uses their material. Sometimes, criminal proceedings can be brought.
Copyright does not protect ideas, information, techniques, names or slogans. For information on areas of law that can sometimes protect these, see the information sheets Ideas in the pdf document: http://www.copyright.org.au/pdf/acc/infosheets_pdf/g015.pdf
In Australia or in most other countries, there is no registration of copyright or any formal process before your material is protected by copyright.
In some countries (such US), it is possible to register copyright. However, even in those countries, registration is not normally required in order to receive copyright protection.
The copyright notice
The use of the copyright notice is not required for protection in Australia, but it is a useful way of warning people that a work is protected by copyright and of identifying the person who claim rights in the work.
The copyright notice consists of the symbol ©, the name of the copyright owner and the year of first publication. For example: © Anne Phung 2009
While the absence of a copyright notice on a work does not mean that the work is not protected by copyright, it is advisable that copyright owners place the copyright notice on their work.
Things you need to consider when seeking a copyright clearance:
- your details, including relevant names and contact details — use letterhead if appropriate;
- precisely identify the material to be copied, including which part or parts of the work you want to copy, page numbers, chapter titles, or any artworks included. Whether you need exclusive or non-exclusive rights. This avoids confusion later, and allows the rightsholder to quickly identify the work, especially if they control a lot of material (such as a publisher);
- how the material is going to be used, including information such as number of copies made, who they will be distributed to, where they will be distributed (for example, to staff in overseas offices) and whether the work will be distributed free of charge or for profit (including all possible future uses);
- how long the permission lasts (eg, is it a one-off copy or will the material continue to be copied for a set period of time?);
- will copying be paid for? And if so how and when will the charges be calculated?
- will the rights holder be acknowledged as the author or publisher in any way on your copies?
- a warranty (which is a legal guarantee or legally binding promise) that the person granting permission does in fact control the copying rights in the work and that the work does not infringe any existing copyright.
When you seek permission to copy, you may be provided with a standard permission form to complete – you should make sure that it covers what you propose to do.
What if permission to copy is not granted?
The rightsholder does not have to grant you permission to copy. If you do not have permission you cannot legally copy the work – to do so may constitute an infringement of copyright and leave you open to legal action.
If permission is not granted, there are several options available to you. You may wish to negotiate on amended terms, you may consider seeking permission from a different source or you may decide to create your own original material.
Australia has amazing wild animals and this is one of them I saw, only its head near Exmouth:
And this second picture is also an amazing one. We have four generations between this pretty grand-grandmother and this child (found in Amanda blog http://aptafeblog.wordpress.com):
First make sure all the copyright owners have been identified; there may be more than one.
Works
Usually the creator of a literary, dramatic, musical or artistic work is the first owner of the copyright in it, but there are several exceptions. One important exception is that copyrights in works made during the course of employment are owned by the employer and not the employee. All copyright ownership rules (except those that relate to moral rights) may be varied by agreement.
Certain commissioned works
In the case of certain artistic works, including engravings and painted or drawn portraits that are made under commission, the person commissioning the work is the first copyright owner, subject to any agreement to the contrary. However, if the person commissioning the work informs the artist of the purpose for which the work is required then the artist can legally restrain the use of the work for any other purpose.
In the case of commissioned photographs, the photographer is the copyright owner, subject to any agreement to the contrary. Where the commissioned photographs are of a private or domestic nature, the commissioning party owns the copyright, subject to any agreement to the contrary.
Sound recordings and films
The owner of any copyright in a sound recording or a film is normally the person/s who made it. The ‘maker’ of a sound recording is the owner of the master recording, but where the recording is of a live performance, the performers are also ‘makers’. The ‘maker’ of a film is the person who undertook the arrangements necessary for the making of the film. However, for commissioned sound recordings and films, the default position is that the copyright is owned by the commissioning party. The rules for first ownership of copyright in sound recordings and films can, as in the case of works, be varied by contract. For instance, a recording contract between a performing artist and a record company may include assignment of some or all of the artist’s share of copyright in the recordings made under the contract to the company. In the case of sound recordings of performances made before 1 January 2005, special rules apply regarding the performer’s rights and legal advice should be obtained.
Other ownership rules
Special provisions in the Copyright Act provide for the ownership of copyright in radio and television broadcasts, publishers’ copyright in editions of works (ie the typesetting and layout), material published by international organizations and material made before the Copyright Act came into operation.
Government materials
The Australian Government and State or Territory Governments own the copyright in materials which are made by or first published under their direction or control.
(information from :http://www.ag.gov.au/www/agd/agd.nsf/Page/Copyright_Whoisacopyrightowner)
You know who owns copyright, but not how to contact them:
Often you will be able to work out who the copyright owner probably is (for example, from the copyright notice or some other information on the item or its packaging). Finding organizations and people has become much easier with online search engines such as Google and online telephone directories, but you still may not be able to work out how to contact the copyright owner. This happens more often when the copyright owner is an individual rather than an organization, and if the material is from overseas.
If the organization is an Australian company, you may be able to get information about it from the Australian Securities and Investments Commission – for example, you can find out if the company has been taken over or is trading under a new name.
If the copyright owner is an Australian creator, and you have been unable to contact him or her through the relevant collecting society (such as APRA, CAL or VISCOPY), you may be able to contact them through their professional association or union.
You don’t know who owns copyright:
If the material has been used by someone else, they may be able to tell you how they got permission. For example, if you want to use something from a book or magazine, try contacting the publisher. Book publishers usually have a staff member responsible for copyright permissions. Similarly, if what you want to use is on a website, contact the webmaster of that site for information about where the website proprietors got permission.
The Copyright Act does not allow you to use protected material without permission when you are unable to find
the copyright owner.
Nonetheless, in some cases, publishers and other users make a commercial decision to use copyright material
despite having failed to find the copyright owner. They weigh the risks of a copyright owner bringing an
infringement action against the benefits of reproducing the work. They sometimes include a statement (referred
to as a “good faith notice”) saying they tried to find the copyright owner, and that they are willing to pay the
copyright owner a reasonable fee. A good faith notice does not give legal protection from being sued for
infringement.
However, on a practical level, it may show the copyright owner that the failure to obtain permission was because
the user could not find him or her, not because they wanted to avoid paying for the use. Copyright owners may
settle a claim, by accepting an agreed license fee, in these circumstances.
If you intend to use such a notice, it is important to keep records of all attempts you have made to locate and
contact the copyright owner.
Copyright clearance is required when:
- you use something protected by copyright,
- you use a substantial part of the copyright material, it does not mean a large part, it means any part that is important, distinctive or essential,
- the copyright of the material has not expired,
- your use is controlled by copyright owner (the copyright owner has the exclusive right to make the use),
- your use is not covered by a special exception.
Once you have permission to use the material, you still need to ensure that you do not infringe its creator’s moral rights.
Most materials used as content on your site – including text, still images, moving images and music – is likely protected by copyright. And it might require a copyright clearance.
If you use copyright material without a clearance, it can bring legal action against you. A court can order a range of remedies, including compensationm account of profits, injunction and delivery of infringing articles. If the infringement is flagrant, you have to pay not only the reasonable licence fee, but the legal fees of the copyright owner.
In general terms, a ‘fair use’ exception would introduce a general exception or defense to copyright infringement for activities that are determined to be ‘fair’. This would allow people to use or copy copyrighted material for those purposes without needing permission from the copyright owner.
Does it exist in Australian Copyright Law
In 2005, the Australian Government has decided not to adopt the US ‘fair use’ system – where a broadly worded defense must be assessed on a case-by-case basis.
The government conducted a review on whether the Copyright Act should include a general exception associated with principles of ‘fair use’ or specific exceptions. The Copyright Act currently contains a number of exceptions to copyright known as the ‘fair dealing’ exceptions. The Government released an issues paper outlining the nature of copyright under the Copyright Act, the nature of and rationale for exceptions and the impact of relevant international obligations.
In summary, the Australian Government has announced:
- 2 new private use exceptions – time-shifting and format-shifting;
- new exceptions allowing schools, universities, libraries, and other cultural institutions to use copyright material for non-commercial purposes;
- new exceptions for people with disabilities;
- a new exception to allow use of copyright material for parody or satire;
- new enforcement measures
What is?
Copyright protects the original expression of ideas, not the ideas themselves. It is free and automatically safeguards your original works of art and literature, music, films, sound recording, broadcasts and computer programs from copying and certain other uses. Copyright is not registered in Australia.
Material is protected from the time it is first written down, painted or drawn, filmed or taped. Copyright material will also enjoy protection under the laws of other countries who are signatories to the international treaties, of which Australia is a member.
Copyright protection is provided under the Copyright Act 1968 and gives exclusive rights to license others in regard to copying the work, performing it in public, broadcasting it, publishing it and making an adaptation of the work. Rights vary according to the nature of the work. Those for artistic works, for instance, are different to those for literary and musical works.
Although making copies of copyright material can infringe exclusive rights, a certain amount of copying is permissible under the fair dealing provisions of the legislation.
Copyright doesn’t protect you against independent creation of a similar work. Legal actions against infringement are complicated by the fact that a number of different copyrights may exist in some works – particularly films, broadcasts and multimedia products.
Moral rights & performers’ rights
There are legal obligations to attribute creators of works, and to refrain from doing anything with a work that damages the designer’s reputation or is offensive to the designer.
The notice for visually perceptible copies should contain all the following three elements:
- The symbol © (the letter C in a circle), or the word “Copyright,” or the abbreviation “Copr.”
- The year of first publication of the work.
- The name of the owner of copyright in the work.
Example: © 2004 John Doe
