Copyright License Agreement
A Copyright Licence is when an author grants a license to publish a work within a specified territory for a specified time.
- Territory, term and other variables are located in a schedule
- Copyright Licence is exclusive
- Copyright Licensee must keep the work in publication
- Author has first right of refusal for new editions
- A copyright license for individual or company
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This commentary is a general summary explaining how copyright comes into existence, who owns it and how to assign or license it. It is not intended to be a detailed treatment of the subject of copyright.
Copyright refers to the rights acquired when creative effort is reduced to a material form. No registration is required. Copyright ‘subsists’ when the creation is rendered in material form. The rights are regulated by the Copyright Act 1968 (Cth). The Act contains a number of important provisions dealing with assignments and licences. The general principles of common law and equity also apply. Definitions and explanatory provisions are included in sections 10, 15, 16 and 30.
References to sections are references to Copyright Act 1968 (Cth).
Assignment and Licensing
Section 196 of the Copyright Act 1968 contains general provisions as to the nature and form of assignments and licences. Section 197 gives the author the power to assign copyright in a work before the copyright comes into existence. That is, future copyright may be assigned.
Assignments of copyright must be in writing, signed by or on behalf of the assignor (s 196(3)).
An assignment may be absolute or partial: s 196(2). A person who acquires a limited copyright (license) is treated as the owner of a separate copyright for that particular purpose: s 30.7. Future copyright may also be assigned. The relevant copyright vests in the assignee when the work comes into existence: s 197(1).
The nature of Copyright
Section 196(1) of the Copyright Act 1968 (Cth) defines copyright as personal property. It subsists subject to the Copyright Act 1968(Cth). It is transferrable by:
iv. operation of law.
Copyright is the exclusive right to copying, publication, performance, licensing, broadcasting and other forms of transmission of a work. The general principle is that copyright refers to the right to exclude others from unauthorised use of the author’s work.
Note provisions of the Copyright Act 1968 (Cth) relating to commissioned work and works produced in the course of employment discussed below under ‘ownership’.
Copyright arises or ‘subsists’ on the creation in a material form any of the following categories of original works:
- artistic works;
- sound recordings;
- films; radio broadcast;
- television broadcasts;
- published works.
Copyright does not protect ideas. The copyright owner has no monopoly over knowledge. Only the material form in which the ideas are expressed are protected. The right is to prevent others copying the way in which the knowledge is presented in material form. Therefore it is not an infringement of copyright to use the ideas rather than the form of a work.
Literary, dramatic, musical and artistic works must be “original” in order to be protected by copyright. The idea behind the work need not be creative or even new. The test is originality of expression. So long as a work includes distinguishable variations or significant changes from another work, it will not matter if a similar work has been independently created, or even if the author has copied some (but not all) of the work from somewhere else.
Duration of Copyright
Copyright subsists for the following periods:
- Literary, dramatic and musical works — 70 years, either from:
- the end of the year of the author’s death or
- from the first year in which the work is published, performed in public, broadcast or sold in recorded form, whichever is the later (s 33(2), (3), (5)). In the case of joint authors, the relevant death for calculating the copyright term is that of the author who dies last: s 80.
- Artistic works— 70 years from the end of the year of the author’s death (s 33(2)); 2.
- Engravings — 70 years from the end of the year of the author’s death or of the year of first publication, whichever is the later (s33(2), (5));
- Recordings and films — 70 years from the end of the year of first publication (ss 93, 94);3.
- Broadcasts — 50 years from the end of the year in which the broadcast was made (s 95(1)); 4.
- Published editions of works — 25 years from the end of the year of first publication (s 96).
The duration of copyright was extended from 50 to 70 years by the US Free Trade Agreement Implementation Act 2004 (Cth). These changes came into operation on 1 January 2005. The extended protection period only applies to material created after 1 January 2005. Copyright has not been extended retrospectively.
Where the Crown owns copyright, the relevant duration is 50 years from the year of first publication.
Ownership of Copyright
As a general rule, the first owner of copyright in a work is its “author” (s 35(2)). The term ‘author’ is not defined in the Act. The person who exerts skill and labour to render a work in its material form is regarded as its author.
The Act provides a number of exceptions to the general rule that the author of a work also owns its copyright, though each exception may be excluded or modified by agreement: s 35(3).
- Section 35(4) gives the owner of a newspaper, magazine or periodical copyright in works produced by a journalist pursuant to employment with the exception that the journalist owns copyright for the limited purposes of reproduction in a book.
- Section 35(5) provides that a person who commissions a photograph for private or domestic purposes, or a portrait or engraving, owns the copyright in the artistic work. Where the purpose for which the work is required is communicated at the time of commission, the author has a limited right to restrain use of the work for any other purpose.
- The copyright in any work made pursuant to a contract of employment belongs to the employer: s 35(6).12.
In order to receive protection under the Act, there must be a factor connecting the work or subject matter with Australia.
Copyright Tribunal of Australia
The Copyright Act 1968 (Cth) establishes the Copyright Tribunal of Australia. The Tribunal has a wide jurisdiction to determine matters in relation to the grant of copyright licences and the determination of royalties and remuneration. The Tribunal has an important jurisdiction in the control of the granting of licences and of the charges and terms required in licence agreements. The relevant provisions are contained in Pt VI of the Act.
There are a number of situations where the Copyright Act 1968 provides statutory licences that arise automatically. Statutory licences arise in the following cases:
- Recording a literary, dramatic or musical work, for the sole purpose of the broadcast: s47(3)
- Making a film of a work for television broadcast : s70(3)
- Copying a sound recording for the purpose of broadcast: s107(3)
- Copying of films or sound recordings for the purposes of simulcasting. ss 47AA, 110C
- The manufacture of recordings of musical works ss 54–64, 215
- Playing sound recordings in public: s 108
- Broadcasting sound recordings. s 109
- Making a sound adaptation of a work by a holder of a print disability radio licence. s 47A
- Reproduction of hardcopy works for teaching purposes Pt VB, Div 2
- Reproduction of electronic works for teaching purposes. Pt VB, Div 2A
- Reproduction by institutions assisting persons with a print disability, including Braille, large print, or sound versions of published works. Pt VB, Div 3
- Reproduction of works by institutions assisting people with an intellectual disability. Pt VB, Div 4
- Copying of broadcasts by educational and other institutions. Pt VA
- Retransmission of free-to-air broadcasts. Pt VC
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