Copyright Ownership

Video overview by Kylie Pappalardo on copyright ownership.

Ownership of Original (Part III) Works

For Part III works, the general rule is that the author of the work is the first owner of copyright (s 35(2)). Copyright ownership can be modified by contract, however, and in practice it is often done so. For example, authors of books may transfer copyright ownership of their book to their publisher in the publishing contract, or a recording artists may transfer copyright in the songs they write to their record company. A transfer of copyright ownership is called an “assignment”. This practice means that the creator (author) of a copyright work and the owner of a copyright work may in fact be different people.

Section 10 provides that the author of a photograph is the person who took the photograph. Subjects of photographs (i.e the people in the photograph) have no copyright interest in it.

There are three exceptions to the general rule that the author is the first owner of copyright. These arise in relation to:

  • Works produced in the course of employment;
  • Works created by journalists; and
  • Commissioned artistic works.

Work Produced in the Course of Employment

Where a creator is working under a contract of employment, the rule is that the employer owns copyright of works produced in the course of employment (s 35(6)). The creator must be working under a contract of service, as distinguished from a contract for services. In other words, they must be an employee and not an independent contractor. Additionally, a person employed as a consultant retains copyright in the work he/she produces, subject to contrary express agreement: Oceanroutes (Australia) Pty Ltd v M C Lamond.

Rachel Choi on Distinguishing employees and independent contractors

Margot Pincus on Distinguishing employees and independent contractors

In determining whether the work is created in the course of employment, it can be helpful to ask: “Whether on the one hand the employee is employed as part of the business and his work is an integral part of the business, or whether his work is not integrated into the business but is only accessory to it, or, […] the work is done by him in business on his own account”: Mr Diljeet Titus v Mr. Alfred A Adebare 130 (2006) DLT 130 (Delhi High Court)

Beloff v Pressdram Ltd* [1973] FSR 33

  • The plaintiff, a political correspondent of the “London Observer”, issued a politically sensitive internal memo to the editor and senior staff about the Prime Minister. It was published in full by the “Private Eye”. The plaintiff sued for infringement of copyright.
  • Held, as the plaintiff was employed under a contract of service, the copyright in the memo was vested in the owners of the “London Observer” and not in the plaintiff.

Journalists

Journalists are the owners of copyright in the articles they produce within the terms of their employment only with respect to s 35(4):

  • reproduction of the work for the purpose of inclusion in a book; or
  • reproduction of the work in the form of a hard copy facsimile made from a paper edition of an issue of the newspaper.

For these purposes, the journalist will not need permission from their employer. A facsimile copy is generally an exact copy made, for example, by a photocopying or fax machine.

The proprietor of the newspaper or magazine (the journalist's employer) is the owner of copyright for any other purpose (s 35(4)).

Commissioned Artistic Works

In the following cases, the person who commissioned the work, rather than the person who created the works, owns copyright in it (s 35(5)):

  • the taking of a photograph for a “private or domestic” purpose.
  • the painting or drawing of a portrait.
  • the making of an engraving.

This is provided for in section 35(5) of the Copyright Act. Copyright in all other commissioned works, such as works commissioned for a commercial purposes, vests in the author. Recall, however, that copyright ownership can always be modified by agreement.

With respect to the taking of photographs, “private or domestic purpose” is defined in s 35(7) to include a portrait of family members, a wedding party or children.

Under section 35(5), if the person who commissions the relevant artistic works makes known to the author, either expressly or impliedly at the time of making the agreement commissioning the work, the purpose for which the work is required, then the author can restrain the person from using the work for other purposes.

Blackwell v Wadsworth

  • The plaintiff artist was commissioned to make a drawing of a hotel. Two years later, ads in the paper for the sale of the hotel included a reproduction of the drawing. The plaintiff sued for infringement of copyright.
  • Held, the defendant’s had infringed copyright – there was no implied license for the defendants to reproduce the work.

Joint Ownership

One or more people can own copyright in a work jointly. They may become joint owners by written agreement or by virtue of how the work was created.

Section 10 of the Copyright Act 1968 defines a “work of joint authorship” as “a work that has been produced by the collaboration of two or more authors and in which the contribution of each author is not separate from the contribution of the other author or the contributions of the other authors“.

This definition does not mean that all jointly produced works withh result in joint authorship. This will only be the case where each author's contribution cannot be separated from the others'. Where each person supplies a distinct part of the work, then they will not own copyright in the work as a whole jointly. Instead, they will own copyright separately in their respective parts. Supplying ideas for a work does not give rise to a claim of joint authorship over the expression.

Donoghue v Allied Newspapers Ltd

  • Held, where a person communicates an idea to an author and the author clothes the idea in the form of an article or articles, the copyright is owned by the author.

Joint authors take ownership as tenants in common – each has title to sue and can sue each other: Prior v Sheldon.

Olivia Wright - tenants in common and copyright

Sound Recordings

Ownership of copyright in sound recordings is governed by s 97 of the Act. This section vests ownership of a sound recording in the “maker” of the recording.

Section 22(3) provides that a sound recording, other than a sound recording of a live performance, shall be deemed to have been made at the time when the first record embodying the recording was produced. It also provides that the maker of the sound recording is the person who owned that record at that time. Usually, this will be the recording company.

For recordings of live performances, the sound recording is owned jointly bt the person who made the recording and the performer/s who performed the performance: s 22(3A). This arranged can be modified by contract, such as the performer's employment contract.

Under section 97, where a person commissions a sound recording for valuable consideration, then the person who commissioned the recording is the copyright owner, subject to any agreement to the contrary.

Cinematographic Films

The first owner of copyright in a cinematograph film is the maker of the maker of the film, under s 98(2).

Section 22(4) of the Act provides that a maker of a film is the person who undertook the necessary arrangements for the production of the first copy of the film. This person will generally be the producer of the film.

Under section 98(3), where a film is commissioned under an agreement for valuable consideration, then the person who commissioned the film will be the owner of copyright in the film. This rule can be altered by agreement.

Directors are given very limited economic rights with respect to cinematograph films. Under section 98(4)-(6), where a director is not an employee, then he or she is also a copyright owner in the film but only with respect to the right to include the film in a retransmission of a free-to-air broadcast.

Television and Sound Broadcasts

Under section 99 of the Copyright Act, the maker of a television broadcast or sound broadcast is the owner of any copyright subsisting in the broadcast.

Section 22(5) provides that a broadcast is taken to have been made by the person who provided the broadcasting service by which the broadcast was delivered.

Published Editions of Works

The owner of copyright in a published edition is the publisher: s 100.

Proof of Ownership

In a copyright case, unless ownership is put in issue, copyright is presumed to subsist and the plaintiff is presumed to be the owner: s 126.

Labels or marks indicating the year and place of the publication or the making of a work are admissible as prima facie evidence of copyright subsistence: ss 126A and 126B.

The name appearing on a work is presumed to be author and first owner of the work: s 127. If section 127 does not apply, then the name of the publisher appearing on a work published in last 70 years is presumed to be the owner: s 128.

Section 132A applies these same presumptions with respect to the criminal provisions of the Copyright Act (except s 132AM). It also introduces new presumptions to recognise industry-specific labelling practices.

Video overview by Kylie Pappalardo on crown copyright.

The term “crown copyright” refers to Government (or “Crown”) owned copyrights. These include:

  • works made by or under the direction or control of the Crown (s 176);
  • works first published by the Crown (s 177); and
  • sound recording and films made by or under the direction or control of the Crown (s 178).

The duration of Crown copyright is 50 years.

The Copyright Law Review Committed (CLRC) recommended the abolition of special privileges for the Crown in their report, Crown Copyright (2005), but the Australian Government did not implement these recommendations.

Copyright Agency Limited v State of NSW [2007] FCAC 80

The Copyright Tribunal heard a claim by the Copyright Agency Limited (CAL), whose members include surveyors, for orders under ss 183(5) and 183(A) of the Copyright Act 1968 (Cth) in respect of a number of surveyors' plans and the State of New South Wales' 'dealings' in respect of them. Following the determination of the Tribunal, questions of law were referred to the Full Federal Court.

Held, that the New South Wales Government did not own copyright in the surveyors' plans. The court stressed that, when considering the issue of Crown copyright, it is important to understand the relevant legislation under which the works are created and its history.

Finkelstein J on Crown copyright:

  • “As regards to work made by the Crown, we are necessarily dealing with a fiction. Generally for copyright purposes a work is made by its author. What s 176 contemplates is that, in certain circumstances, the act of the author in making a work is to be attributed to the Crown. An attribution of this kind is a concept well known in the law.”