Copyright

Gathering, reproducing and distributing information is often an integral part of an association's business and activities.  Associations pursuing not-for-profit purposes are not exempt from copyright obligations.  Therefore, it is important for incorporated associations to be aware of copyright protection in order to protect their own material and to avoid infringing the copyright of others.  This chapter deals with some basic aspects of copyright.

 Key Points

  • Copyright refers to the protection of property rights of a creator of a work.  Copyright protection is provided under the Copyright Act 1968.  Material that is produced and published by incorporated associations may also be protected by copyright.
  • Copyright gives the copyright owner exclusive rights to control the copying and distribution of copyrighted work.
  • Copyright is infringed when the exclusive rights of the owner are violated and a copyrighted work is copied, reproduced and used without the owner's permission. 
  • Consumer Protection allows reproduction of this manual.

The information and material used by an incorporated association may be gathered from many different sources, including the Internet, and the association may itself produce its own original material. This might be in the form of documents, records, pamphlets, posters, photographs, drawings, videos, newsletters, books and magazines, to mention just a few.  The information both used and produced by an association is likely to be protected by copyright, which means that the material may not be freely copied, used or distributed.

What is copyright?

Copyright is a type of legal protection for people who express ideas or information in certain forms, such as through writing, music and visual images. Copyright protection is provided under the Commonwealth Copyright Act 1968, which confers certain property rights on the creator of such a work. There are two basic categories of subject matter that are protected:

  • artistic, literary (including computer programmes), musical and dramatic works; and
  • broadcasts, films and sound recordings.

To be protected, a work must be both original and in some tangible or material form (for example, written down or saved to a computer disk). It can’t just be an idea. Original means that the work comes from the author and that it is more than a mere copy of other material. Original does not mean it has to be a completely new invention or creation.

Even a compilation of pre-existing work may have copyright protection, if the author has combined the material in some new way (for example, a new collection of classic poetry).

When a piece of work is created, the person or organisation that owns copyright on the work can decide how the work will be reproduced and/or communicated. Copyright confers various rights allowing the copyright owner to assign, licence or even prohibit the use of their work by another party. Assigning rights gives the copyright to a new owner. Licensing allows a third party to use the material. Both can be undertaken with certain conditions or exemptions agreed to.

In Australia, copyright is automatic once an original work is written down or recorded. It does not have to be applied for, it is free, and in most cases, applies for 50 years after the creator's death.

A copyright notice such as:

© Department of Mines, Industry Regulation and Safety, 2017

It is not necessary, although it can be useful to highlight the copyright of the owner to other people.

Areas protected by copyright include:

  • written material
  • musical and artistic works
  • computer programs
  • compilations
  • film
  • recordings
  • broadcasts
  • publications
  • performances

Areas not protected by copyright include:

  • ideas
  • concepts
  • styles
  • techniques
  • information

Please note that copyright protects the way or form in which an idea or information is expressed, not the idea or information itself.

Who has copyright?

The basic rule is that the author of the work is the first owner of copyright.  For example, the author and first copyright owner is the person who wrote the material for the pamphlet or article, the person who took the photograph, or the person who made the video.  However, there are instances when the author and owner of the copyright is not the same person.  In these cases, the author is the person who creates the work and the copyright owner is the person who owns the rights in the work.  For example, an employee who writes a series of information sheets is the author and the employer is the copyright owner.

Work created by freelancers under a commissioned agreement generally places copyright with the person creating the work (the freelancer). The organisation receiving the work has a licence to use it, unless, by agreement, copyright ownership is assigned to that organisation (i.e. commissioning agency).  The agreement must be in writing and signed by all parties.  The author of a photograph is the person who took the photograph.  However, if the photograph was commissioned for a private or domestic purpose, the client is the copyright owner, unless agreed otherwise.

When an employee of an association completes work in the course of his or her employment, the association generally has the copyright.  For example, if an employee writes a newsletter for the association, or an employee designs and produces a poster, the association owns the copyright.  

Volunteers, however, usually keep copyright of any material that they create, and the association or organisation will normally have a licence or permission to use the relevant material.  If an association is unsure or concerned about this, they should seek specific legal advice.

It is often worthwhile to deal with copyright issues at the time materials are being produced. Associations that receive funding to produce a work (for example, a research report) should check what the funding agreement says about copyright.  It is possible for an association to produce some wonderful publications and resources, only to find out that the funding arrangement transfers copyright ownership to the funding body.

Infringing copyright

Copyright gives the copyright owner exclusive right to control the copying and distribution of copyrighted work.  Copyright is infringed when the exclusive rights of the owner are violated, such as when a copyrighted work is copied, reproduced and used without the owner's permission.  This includes downloading, copying and printing material from the Internet. To avoid infringement, it is necessary to obtain permission to copy and use the material from the appropriate person or organization, that is, the copyright owner.

There are some exceptions to copyright infringement.  In the education area, allowances are made to use copyright materials for research and study without permission, although there are still limits on how this can occur.  Only a portion of the material may be used and it must be used for non-commercial purposes.  Therefore, an association may use educational material within those limits for delivering community education programmes, without permission and without infringing copyright.

Community associations often share information with each other, and allow other associations to reproduce material, as long as proper acknowledgement is given.  It is important to understand that the permission to use all or part of a work cannot be assumed, even if acknowledgement is made.  This is particularly the case if the material is going to be part of a bigger work to be sold for profit.  Permission granted for one purpose is not permission to use the material for other purposes.

Some materials will detail in the work itself how the work can and can't be reproduced, in which case permission can be implied as long as the conditions are followed.

An association has received $10,000 to set up a website to promote its projects and the community.  The website consists of information sheets, a newsletter 'Progress', photographs and other promotional information.  The Association includes the following notice on its website.

'All information and material including the newsletter, information sheets, photographs and graphics that appear on this website are protected by the Copyright Act 1968.  The Copyright belongs to the Association.  Apart from fair dealing for the purpose of research, private study, criticism and review as allowed by the Copyright Act, no material may be reproduced without the permission of the Management Council.'

Copyright on the Internet

The Internet has become a vital source of information.  However, material on the Internet is also protected by copyright.  Downloading, copying, saving and printing material from the Internet are covered by copyright.  Some websites will indicate implicit permission by showing 'print' or 'printer friendly version', but that does not necessarily allow unlimited copying, nor does it mean that the material can be distributed, especially for commercial gain.  The Australian Copyright Council, for example, allows one printed copy to be made of information sheets from its website for personal and non-commercial use only. Multiple copies are required to be purchased through the Council.

Please note that, throughout this guide, you are referred to various websites to obtain additional information, forms and policies. In most cases, this information will be protected by copyright and, therefore, may not be used to reproduce multiple copies.  At most, an association will be permitted to make one copy for its own use.  The website will usually state if more copies can be made and distributed.  If in doubt, contact the organisation concerned and ask for permission to use the material.

A further warning – a large amount of material placed on the internet is there without the permission of the copyright owner (for example, many scanned articles and photographs).  Re-using that material without permission of the original copyright owner will breach copyright.

Copyright is an increasingly complex area as technology changes.  Associations should seek legal advice when unclear on copyright rights or obligations.

The Australian Copyright Council provides information and training for the public. 

Australian Copyright Council
PO Box 1986, Strawberry Hills   NSW   2012
Telephone:    (02) 8815 9777
Facsimile:    (02) 8815 8799
Email: info@copyright.org.au  
Website: www.copyright.org.au

Trademarks

Trademarks are pictures, words or symbols that identify goods or services.  Examples could include logos, labels, marketing mascots, banners, catch lines or emblems.  For example, a well-known trademark is the McDonald’s sign. 

Unlike copyright, a trademark must be registered for it to be protected.  Trademarks are protected by the Commonwealth Trade Marks Act 1995.  If an incorporated association has a particular sign or mark that identifies it and that is known to, and recognised by, the public, it is worthwhile protecting its use by registering it as a trademark.  Copying a registered trademark can breach the trademark owner's rights and should be avoided.

IP Australia, a Commonwealth Government agency, can assist with further information about registering and protecting trademarks:

IP Australia
PO Box 200
Woden ACT 2606 

Telephone: 1300  65 10 10
Translating and interpreting service: 13 14 50
Facsimile: (02) 6283 7999
Email: assist@ipaustralia.gov.au  
Email is for general enquiries only. Please see IP Australia’s electronic business rules for details of what can be sent electronically.
Website: www.ipaustralia.gov.au