Requirements for copyright to exist

There is no copyright in an idea, but in the way an idea is expressed. Copyright only exists if a work is written down or recorded in a material form. It needs to be original and have substance – a slogan of a word or two may be deemed “insubstantial”.

Material form

There is no copyright in a work until it is in a “material form”. For example, there is no copyright in a poem composed in a poet’s mind, but not written down or otherwise recorded.

A work is considered to be in material form if it is in any form of storage (whether visible or not) from which the work (or a substantial part of the work) can be reproduced (s 10(1)). This means that a work stored in digital form (e.g. on a hard drive) is in material form.

The material form of a work does not need to be permanent, but does need to be a form from which the work can be reproduced. For example, a court has held that part of a PlayStation game stored in the random access memory (RAM) of the console was not in material form because it could not be reproduced from the RAM.

The definitions of films, sound recordings and published editions in the Copyright Act are of objects having a material form, while broadcasts obviously cannot be in material form.

Originality

Section 32 of the Copyright Act requires a work to be original for copyright to exist. “Original” in this context means that the material must have originated with the author, rather than having been copied from another source. A work does not need to be novel, creative or inventive in order to be original, and can be original even if derived from another work. For example, a translation into English of a French novel is an original literary work by the translator (although making the translation infringes the author’s copyright in the original novel if made without the author’s consent).

There is no requirement that sound recordings, films, broadcasts or published editions be original.

“Substance”

Courts have held than some works are not subject to copyright because they are “insubstantial” in the sense of being too small. Single words and phrases, such as company names, advertising slogans, titles and newspaper headlines have fallen into this class.

In 2009, the Federal Court ruled that copyright did not subsist in the words “Help – Help – Driver – in – Danger – Call – Police – Ph.000” (see Victoria v Pacific Technologies (Australia) Pty Ltd (No 2) [2009] FCA 737). However, copyright has been held to exist in short works, such as a business letter of 100 words.

Expression, not ideas

There is no copyright in an idea, only in the way in which the idea is expressed. For this reason, there can be no copyright in a formula (unless it falls within the definition of a “computer programme”), nor can there be copyright in a single item of information, such as a name or address.

However, where a number of items of information – none of which could be the subject of copyright by itself – are collected together, the whole collection may be the subject of copyright as a table or compilation. The test of whether copyright exists in a compilation is whether enough labour and skill have been expended on the way in which information is expressed (as opposed to collecting the information) to justify treating it as an original work. For example, a database consisting of known information about printer cartridge compatibility brought together in a particular convenient arrangement by an individual employee is an original work, because sufficient skill and judgment were used by the employee in selecting and arranging the information.

A collection of short stories, each of which is out of copyright, can be the subject of copyright as a result of the skill and taste involved in selecting the stories. The editor is the first owner of the copyright in such a collection.

It is also necessary for a copyright work to have one or more authors (even if they cannot be identified by name). Some compilations cannot be said to have an author at all, because so many people are involved in their creation, and none of them provides a sufficient contribution to be regarded as an author. Australian courts have held that telephone directories and television programming schedules are not copyright works on this basis. This is also true of computer-generated source code and databases.