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ausip:copyrightownership [2018/11/02 16:50]
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ausip:copyrightownership [2019/03/10 12:07] (current)
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 # Copyright Ownership # Copyright Ownership
  
 +This chapter explores copyright ownership and the different situations which may effect ownership of copyright content. ​
  
 ## Ownership of Original (Part III) Works ## Ownership of Original (Part III) Works
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 ### Work Produced in the Course of Employment ### 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. ((//CA// 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//​)) ​+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. ((//CA// 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// ​[1984] AIPC 90)) 
  
  
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-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) ))+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)) __//Beloff v Pressdram Ltd//__ (([1973] FSR 33))
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 The below table is a guide for students when considering copyright and ownership. The below table is a guide for students when considering copyright and ownership.
  
-Copyright Ownership for Students - a step by step guide adapted from " Copyright Ownership for Students"​ by Laura Falkner and Harriet Salisbury CC-BY 4.0 +Copyright Ownership for Students - a step by step guide adapted from "​Copyright Ownership for Students"​ by Laura Falkner and Harriet Salisbury CC-BY 4.0 
  
 ^ Question ^ If No ^ If Yes |  ^ Question ^ If No ^ If Yes | 
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 | 3. Have you agreed to assign all or part of your copyright to your institutional provider or anyone else? To answer this question you should familiarise yourself with the task sheet, the submission process for the assessment item, your intellectual property policy for your institutional provider. If you work for your institutional provider you may need to additionally consult your employment contract. | If you do not think you have assigned any of your copyright, proceed to question 4.  | If you have assigned some or all of your copyright to your institutional provider (or to some other person or entity) they may own all or part of the copyright in your output. This will depend on what you have assigned, your institutional provider'​s intellectual property policy and any employment contacts you may have that pertain to the output. | | 3. Have you agreed to assign all or part of your copyright to your institutional provider or anyone else? To answer this question you should familiarise yourself with the task sheet, the submission process for the assessment item, your intellectual property policy for your institutional provider. If you work for your institutional provider you may need to additionally consult your employment contract. | If you do not think you have assigned any of your copyright, proceed to question 4.  | If you have assigned some or all of your copyright to your institutional provider (or to some other person or entity) they may own all or part of the copyright in your output. This will depend on what you have assigned, your institutional provider'​s intellectual property policy and any employment contacts you may have that pertain to the output. |
 | 4. Do you own copyright in your work? | If you said no to question 4. you own the copyright in your work. As the copyright owner you have the exclusive right to cause your output to be seen, heard, reproduced, or communicated to the public. Your lecturer, teacher or someone else might want to make use of your work in some way - perhaps as an example in future teaching.| You have assigned some or all of your copyright to someone else. You no are no longer the copyright owner (or the sole copyright owner) in some or all of the output. | | 4. Do you own copyright in your work? | If you said no to question 4. you own the copyright in your work. As the copyright owner you have the exclusive right to cause your output to be seen, heard, reproduced, or communicated to the public. Your lecturer, teacher or someone else might want to make use of your work in some way - perhaps as an example in future teaching.| You have assigned some or all of your copyright to someone else. You no are no longer the copyright owner (or the sole copyright owner) in some or all of the output. |
-| 5. Do you want to give someone permission to use your work in a particular way? Has anyone asked you permission to use your work? | If no, any unauthorised use of your work may amount to copyright infringement. | If yes, you have the ability to agree to let someone use your work in a particular way. You can provide a license to a person to make use of your work in a set way for a specific period of time.  | +| 5. Do you want to give someone permission to use your work in a particular way? Has anyone asked your permission to use your work? | If no, any unauthorised use of your work may amount to copyright infringement. | If yes, you have the ability to agree to let someone use your work in a particular way. You can provide a license to a person to make use of your work in a set way for a specific period of time.  | 
  
  
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 * the painting or drawing of a portrait; and * the painting or drawing of a portrait; and
  
-* the making of an engraving. ((//CA// s 35(5) of the //Copyright Act//))+* the making of an engraving. ((//CA// s 35(5) ))
  
 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. 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.
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-__//​Blackwell v Wadsworth//​__+__//​Blackwell v Wadsworth//​__ ​(((1982) 64 FLR 145 ))
  
 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. 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.
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 Section 10 of the //Act// 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"​. Section 10 of the //Act// 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 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.+This definition does not mean that all jointly produced works result in joint authorship. This will only be the case where each author'​s contribution cannot be separated from the other. 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//__+__//​Donoghue v Allied Newspapers Ltd//​__ ​(([1938] Ch 106))
  
 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. 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.
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-**Video overview by Olivia Wright on [Tenants in Common and Copyright](https://​youtu.be/​SuR0HoFVO2Y).**+**Video overview by Olivia Wright on [Tenants in Common and Copyright](https://​www.youtube.com/watch?v=SuR0HoFVO2Y).**
  
  
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-Pursuant to s 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. ((//Copyright Act 1968// (Cth )) +Pursuant to s 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. ((//CA//)) 
  
  
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 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 ((//CA// ss 126A and 126B)) 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 ((//CA// ss 126A and 126B))
  
-The name appearing on a work is presumed to be author and first owner of the work.((//​CA//​ s 127)) If s 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. ((//CA// s 128))+The name appearing on a work is presumed to be the author and first owner of the work.((//​CA//​ s 127)) If s 127 does not apply, then the name of the publisher appearing on a work published in the last 70 years is presumed to be the owner. ((//CA// s 128))
  
 Section 132A applies these same presumptions with respect to the criminal provisions of the //Copyright Act//. The exception to this is found in s 132AM. This section also introduces new presumptions to recognise industry-specific labelling practices. Section 132A applies these same presumptions with respect to the criminal provisions of the //Copyright Act//. The exception to this is found in s 132AM. This section also introduces new presumptions to recognise industry-specific labelling practices.
  
-### Crown Copyright ​+## Crown Copyright ​
  
 The term “crown copyright” refers to Government (or “Crown”) owned copyrights. ​ The term “crown copyright” refers to Government (or “Crown”) owned copyrights. ​
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 * works first published by the Crown; ((//CA// s 177)) and * works first published by the Crown; ((//CA// s 177)) and
  
-* sound recording and films made by or under the direction or control of the Crown. ((//CA// s 178))+* sound recording and films made byor under the direction or control of the Crown. ((//CA// s 178))
  
 The duration of Crown copyright is 50 years. The duration of Crown copyright is 50 years.
  
-The Copyright Law Review Committee (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.+The Copyright Law Review Committee (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)) __//​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.+In the case of [Copyright Agency Limited v State of NSW](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCAFC/​2007/​80.html) 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. 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.
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 **Video overview by Kylie Pappalardo on [Crown Copyright](https://​www.youtube.com/​watch?​v=EqxyEZwLGUI).** **Video overview by Kylie Pappalardo on [Crown Copyright](https://​www.youtube.com/​watch?​v=EqxyEZwLGUI).**
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