Copyright eBook: Appendix | Australia
Mistake 1 - Thinking you own copyright if you pay someone to produce work for you.
The first owner of copyright is the creator of the work.
Someone who pays for work to be made can generally use the work for the purposes for which it was created, but may not be entitled to use it for other purposes.
Mistake 2 - assuming using freelancers is the same as using employees.
Where a work is made by an employee as part of that person's job, the employer will usually own copyright. For staff journalists and photo-journalists, however, while the employer will own most of the copyright, the employee will usually own copyright for some purposes (photocopying and publication in books).
Freelance creators will usually own copyright in what they create but someone who pays for the work to be made can generally only use the work for the purposes for which it was created, and not be entitled to use it for other purposes.
Mistake 3 - not understanding that joint ownership could leave you in a stalemate situation.
One owner cannot exercise the rights in a work of joint authorship without the agreement of the other joint owner.
It is a good idea to have a written agreement about who will own copyright if there is more than one person involved in the creation of the material or where material is commissioned.
It seems from the case of Case: Seven Network v TCN Channel Nine - [2005] FCAFC 144 (8 August 2005) that the position is similar to that of the UK, in that joint ownership does leave you in a stalemate position.
The case the full Federal Court handed down its appeal decision in a decision which focuses on how the arrangements between Channel Seven and a Mr Murray in relation to film footage of a trip down the Kokoda Trail by a group of disadvantaged schoolboys should be characterized. Mr Murray had approached Channel Seven for help in filming the trip. Among other things, Channel Seven provided the funds for a freelance cameraman and a freelance sound recordist to accompany the group, and paid for various pieces of equipment, such as cameras, batteries and tapes. Mr Murray later authorized a production company to make a television documentary which incorporated material created by the freelance cameraman and sound recordist. The documentary was to be screened by Channel Nine.
The primary judge"s finding that both Channel Seven and Mr Murray were "makers" of the footage, and therefore co-owners of the copyright in the visual images and sound track was not disturbed. However, the Full Federal Court did uphold Channel Seven"s appeal on the basis that Channel Seven had not assigned its share of the copyright to Mr Murray, and had not granted Mr Murray a license which would extend to authorizing the broadcast of the film by Channel Nine. Mr Murray was therefore not in a position to authorize the broadcast. Channel Seven was consequently entitled to an injunction.
Need to Register Copyright?
Under Australian law, there is no registration procedure for copyright. Copyright protection is free: there are no procedures to follow or fees to pay.
Copyright comes into existence at the same time as someone creates something, i.e. copyright is automatically created by writing down a story; typing up a poem; shooting film footage; recording music; and taking a photo.
Assignment Formalities
Assignments and exclusive licenses of copyright must be in writing and signed by the copyright owner before they are legally effective.
Dealings with copyright do not have to be by way of contract. A copyright owner can transfer ownership of their copyright to someone else merely by signing a piece of paper which records the transfer.
