Before creating content, whether as a content creator, a startup or a business owner, it’s essential to respect and be aware of copyright laws. This is crucial, especially when designing your company logo, creating marketing materials, developing a product and more. You’ll need to understand the fine line between copyrighted material and those in the public domain to avoid legal pitfalls.
What is a Copyright?
Copyright is the exclusive legal right of the creators of an original work to control certain activities regarding their original piece. These include copying and re-use, like publication, performance, adaptation, and making the work available to the public.
Copyright applies to many different types of work, including literature, art, music and software. In Australia, all creative works are automatically covered for a limited period – generally, the creator’s lifetime plus an additional 70 years.
What is the Public Domain?
The public domain refers to creative work no longer protected by intellectual property laws such as copyright, trade marks and patents. This is often the result of expired copyright or exceptions wherein copyright may not apply. It could also be that owners have allowed their work a limited release of public usage rights.
Works in the public domain allow you to use the material royalty free and without having to seek permission. However, it’s important to note that online availability does not automatically mean materials are part of the public domain. More often than not, images found online are subject to the same copyright rules and have restrictions on their use.
How To Identify Copyrighted Material
Startups need a fundamental understanding of what constitutes copyrighted material. Any content not explicitly labelled as public domain or explicitly allowed for use falls under the umbrella of copyright protection. This includes text, images, videos and code.
Here are some things you can do to identify whether creative work is copyrighted material or not.
Check for copyright notices.
To know who owns copyright in a work, look out for a copyright statement on the work itself. Oftentimes, it will look like this: © John Smith 2023.
On books, this typically appears on the back of the title page. If you cannot find the copyright statement, try to contact the publisher to find out who owns the copyright. For books and printed materials, this would typically be the author, illustrator, translator or publisher.
Some agencies also represent copyright owners. You may contact them instead, and they can authorise you to copy, perform or broadcast a work on behalf of the copyright owners. This would typically require a fee.
For websites, most major websites will indicate that they own the copyright or have rights to use any material found on their website. Common words used are “Copyright,”, “Conditions of Use,” “Terms and Conditions,” “Terms of Use,” “Legal” or “Disclaimer.”
Explore licensing terms.
Providers like Google Images and Wikipedia Commons offer access to digitised material through a Creative Commons licence. These licences allow others to use their content in various ways for free, with certain restrictions outlined within the licence. Ensure you have carefully reviewed the terms of the licencing agreement to ensure compliance and avoid infringing on the material.
Perform a copyright search.
In some instances, the copyright owner may be hard to trace. To find heirs named in an Australian creator’s will, you may contact the Probate Division of the Supreme Court in the State where the creator died. Suppose you’re looking to find out what happened to the assets (copyright is an asset) of an Australian company that has gone out of business — in that case, you may contact the Australian Securities and Investments Commission (ASIC) for information.
What if I really can’t locate the copyright owner?
It is your decision whether you will use the material and risk infringing copyright. In some instances, individuals or businesses may opt to proceed with usage but include a statement inviting copyright owners to come forward. If you decide to go this route, ensure you have kept detailed records of your attempts to clear rights and consult a lawyer about your exposure to the potential risks. Under the current law and Copyright Act, you are not protected from legal action even though you have made good faith attempts to identify and contact the copyright owner.
When does copyrighted material become part of the public domain?
Calculating the copyright term for a given work can be complicated as copyright legislation has changed over time. However, there are some materials where it is fairly straightforward. For example, as of 1 January 2019, the following materials are in the public domain in Australia:
- Photographs taken before 1955
- Published literary, dramatic, musical or artistic works or engravings if the author died before 1955
- Computer programs if author died before 1955
- Sound recordings made before 1955
- Unpublished works with a known author who died before 1 January 1949
- Works where the creator is unknown that were made public before 1 January 1949
How Do I Protect Myself From Infringement?
The copyright of a creative work is infringed when any act, which the copyright owner has the exclusive right to do, is done by a person in Australia who is not the copyright owner. To protect yourself and your startup from potential lawsuits, here are some best practices to consider.
Document, document, document.
Keep a record of the sources and permissions for all content used in your business. This documentation can serve as evidence of compliance in case of any legal concerns.
Educate your team.
Ensure that everyone on your team is aware of copyright laws and the importance of using content responsibly. Training sessions and regular updates on copyright issues can help build a culture of compliance within your organisation.
Seek legal advice.
Copyright is just one area of intellectual property law, so consulting with an experienced lawyer can help startups and businesses navigate the complex issues that may arise and ensure they are on the right side of the law.
How Do I Protect My Copyright?
There is no registration system for copyright in Australia, and copyright protection is free and applies automatically when material is created. If you want to protect your copyright, you should see it as valuable property – keep dated copies of material such as manuscripts, negatives, footage and recordings, as well as copies of letters or other communications with people who have access to the work, should the need to prove your copyright arises.
It is also crucial for any copyright agreements to be in writing. Talk to a lawyer and get legal advice before signing any document dealing with copyright or before finalising any other agreement relating to it.
Intellectual property law is tricky, so you need a good lawyer to walk you through it and defend you when things go south. Lazarus Legal can help you deal with these legal matters and requirements so you can focus on growing your startup. Contact us today or sign up for our newsletter to stay informed about legal news, business trends, and more.
