When Are You Not Protected by Copyright?

by Nessim Gabriel Malak

As a copyright owner, you have exclusive rights to use, adapt, publish and exploit your original work. If someone else uses your protected work without permission, they are infringing on your copyright. Before making allegations of copyright infringement, you need to know whether you are protected by copyright in the first place. This article will explain when copyright does not protect your work.

Exclusive Rights

Copyright law gives copyright owners certain exclusive rights. For example, owners of literary, artistic, musical and dramatic works have exclusive economic rights to:

  • reproduce the work in a material form;
  • publish the work;
  • perform the work in public;
  • communicate the work to the public; and
  • adapt the work.

You are also protected if you have created sound recordings, cinematographic films, and sound and television broadcasts. You, therefore, have the exclusive rights to:

  • make a copy;
  • play the material in public; and
  • communicate the material to the public.

Original Ideas Not in Material Form

Copyright in Australia does not protect you unless you meet the following requirements:

  • you have created an original work;
  • the work is in material form; and
  • the work has a sufficient connection to Australia.

A common misconception is that copyright protects ideas. Copyright only covers ideas that you have expressed in written or physical form. For example, you must have written, drawn, photographed, recorded or otherwise saved your idea. This means you are not protected from copyright infringement if someone creates a work based on an idea you have not expressed.

Original Works Used in Fair Dealings

Even if copyright protects you, a person is allowed to use your work without permission if they are engaging in ‘fair dealing’. For example, if they are:

  • conducting research or study using your work;
  • criticising or reviewing your work;
  • creating a parody or satire based on your work;
  • reporting on the news using your work; or
  • providing legal advice based on your work.

You need to consider the following when deciding whether the use is fair dealing:

  • the importance and necessity of copying in relation to your work;
  • the nature and originality of the work;
  • the ease of obtaining a licence to use your work;
  • the effect copying will have on your exclusive commercial rights;
  • the portion of work copied;
  • whether you have been attributed as the original author.

Original Works in the Public Domain

As a general rule, copyright lasts for the lifetime of the author plus 70 years after their death. When copyright has expired, the work becomes part of the public domain. This means anyone can use the work for free without the risk of copyright infringement.

However, if the copyright is subject to an existing licence agreement, a person must still comply with the ordinary rules of contract law.

Original Works Subject to Design Registration

If you intend to mass produce your design, you will only be able to protect your product with a registered design right. This means that copyright will no longer apply. Registration is essential because it means you can legally enforce your rights over the design and prevent others from copying your product.

You should avoid publishing your design before you register your design right. This limits the risk of someone copying your design and improves your chances of securing a design right in future.

Key Takeaways

Copyright protects your exclusive rights in relation to your original work or material. However, copyright does not protect your work in certain situations. For example, your work may not be in material form, may be used in fair dealings or may be subject to design registration. Therefore, to keep up with the status of your copyright, you should monitor and protect your rights.

If you have questions, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.



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