Who owns the copyright to a work is a complex issue, and can depend on whether it is a film, photograph or article and whether it was commissioned as part of your employment. Journalists have the copyright if their work is reproduced, academics are likely to own their copyright, and the Crown owns the copyright in works made by the Commonwealth and Australian states.
Who is the first owner?
Literary, dramatic, musical or artistic works
The author of a literary, dramatic, musical or artistic work is normally the first copyright owner. However, there are some exceptions.
In general, copyright in a work made by an employee in the course of their employment is owned by the employer, unless there is an express or implied agreement that the employee owns the copyright.
Journalists: Under section 35(4) of the Copyright Act, journalists own the copyright of their work in relation to its reproduction for some purposes only, while the employer owns the remainder of the copyright.
If you wish to control the use of substantial works produced by you in the course of your employment, you should try to negotiate an agreement with your employer. For example, you could agree that although your employer owns the copyright, you must be identified as the author, and may also reproduce the work (possibly after a period of time has passed since its completion).
Or you could agree that you will own the copyright, but grant your employer a perpetual royalty-free licence to reproduce the work. Such agreements should be in writing, and signed by both parties.
The fact that a person has paid for a work to be made (other than a photograph for domestic purposes, or a portrait or engraving) does not mean that they will own copyright in it, although they may be permitted to copy it, or exercise other rights of the owner. For example, if a community group commissions an artist to prepare a drawing for a flyer, the artist will own copyright in the artwork, although the community group will have an implied licence to reproduce it in the flyer (see “Licensing copyright”). This means the artist could allow someone else to use the artwork for another purpose. If the community group wants to control the use of the artwork, it should require the artist to assign copyright in the artwork to the group as a condition of the commission (see “Assignment of copyright”).
A person who commissions a private or domestic photograph (or the making of a portrait or engraving) (e.g. wedding photos) owns the copyright in the work, but the artist or photographer can prevent the owner from dealing with the work other than for the purpose for which it was commissioned (s 35(5)). The parties can change this by agreement.
The Commonwealth and the Australian states own the copyright in works made by, or under the direction or control of, the Commonwealth or state. This means that copyright in works prepared by independent contractors for the Crown vests in the Crown, although it would not if the work were done for a non-government body.
In 2005, the Copyright Law Review Committee recommended the abolition of Crown copyright.
The first owner of copyright is the maker of the sound recording or film, unless the maker has agreed to make the recording or film for another person for payment. In that case, the other person owns the copyright (ss 97, 98).
The maker of a sound recording is the person who owns the first record containing the recording (s 22(3)(b)). This means the owner of the copyright in a sound recording is usually the recording company. However, performers in live performances (including musical and dramatic performances and readings or recitals of literary works) are co-owners of the copyright in a sound recording of the live performance with the owner of the first record containing the recording.
The maker of a film, and therefore the owner, is the person who made the necessary arrangements for the making of the film (s 22(4)(b)). This is normally the film company or the producer. A film director (or the director’s employer) is also an owner of the right to include the film in a re-transmission of a free-to-air broadcast (but not other rights included within copyright).
Copyright is owned by the broadcaster (e.g. the ABC or SBS) or the person holding a licence under the Broadcasting Services Act 1992 (Cth) (s 99).
The publisher of an edition of a literary, artistic, dramatic or musical work owns the copyright in the published edition (s 100).
Where two or more authors collaborate on a work, and the contribution of each author is not separate from that of the others, they are joint authors, and joint owners of copyright in the work (s 78). This means neither can exercise any of the rights of the owner (such as publishing the work) without the consent of the other. However, one owner can sue for copyright infringement without the participation of the other owner.
Where the contributions of the authors are separate (e.g. in a book where different chapters are written by different people) the copyright in each individual contribution is owned by its author.
Where there is more than one type of copyright in material, each type may have a different owner. In the example of the published song, the person who wrote the words owns copyright in them, the person who wrote the music owns copyright in it, and the publisher owns the edition copyright. Copyright in the sound recording is owned by the record company, unless it was made for payment on behalf of another person. The owner of the radio station owns copyright in the sound broadcast of the recorded song.
There is no system for registering copyright in Australia, although copyright registration exists in some countries (e.g. the USA and China). Ownership of copyright is automatic on the creation of the copyright material.
However, it is a good idea to include a copyright notice in the copyright material setting out the owner’s name and year of creation (e.g. “© Fitzroy Legal Service Inc. Melbourne 2016”), as this will require anyone who copies your work to prove that the facts stated in the copyright notice are not true.
Copyright can be transferred from the initial owner to another person. Assignment of copyright must be in writing and signed by the person assigning the copyright. It is possible to assign the copyright in a work the author has not yet created. For example, some tertiary education institutions require students to assign the copyright in the works the students will create during their courses to the institution. These agreements may not be enforceable, depending on the circumstances under which they are entered into.