As Bartier Perry Solicitors partner Matt Crouch explains, misconceptions around copyright ownership can land you in court, so it’s essential to know the ins and outs of what copyright can (and can’t) do for you.
JC (Jasmine Cook): In simple terms, what is copyright?
MC (Matt Crouch): Copyright is a bundle of exclusive rights that spring into existence by virtue of the Copyright Act as soon as a creative work is created. It’s the means by which the piracy of creative work is outlawed and by which the creators of original work have the exclusive rights to reproduce and commercially exploit that work. Traditionally it’s been important in publishing, music and the arts, but is now also acknowledged as an important form of intellectual property for businesses.
JC: And how does it work?
MC: When a person creates an original work, i.e. by writing an original text, creating software code, taking a photo, making a film, drawing plans for a building or a product, or making a sound recording, the Copyright Act states that copyright is created instantly. The important thing to remember here is that the work has to be original to attract copyright protection. If you copied someone else’s work then you’re not creating something original, and indeed you may be breaching that other person’s copyright.
JC: How important is it that the MICE industry is aware of copyright and its restrictions?
MC: If you want to protect and have the freedom to use your copyright material and if you want to ensure that you don’t expose your business to the risk of being sued, it’s critical to have an understanding of what copyright protects and how it works. It’s both an asset and a risk of significant value and importance.
JC: Do these original works need to be a ‘piece of art’ to attract copyright?
MC: Actually, no, the work doesn’t need to have artistic merit to be protected. Copyright protects original ‘literary works’ but the work doesn’t have to be a masterpiece to attract copyright. The back of a bus ticket is copyright, since it has (presumably) original text, but it is hardly Shakespeare.
JC: So for MICE industry participants the design or plan of an event (if original and written down) will be copyright?
MC: Absolutely, and so will the graphic designs, photos, registration forms and other works that make up the documentation and promotional material for the event. There would be copyright in, say, a stage backdrop for the event and in the music that is played as incidental music and also in the website established for the event. MICE players need to consider copyright whenever they create (or have someone else create for them) software, website design, brochures, photographs or film footage or graphic art work – in fact, just about anything creative.
JC: And what does copyright protect?
MC: Once you’ve created a copyright work, copyright prevents other unauthorised persons from copying that work in a material form. Yet there are many misconceptions about this. Copyright doesn’t prevent others from using your ideas – but it does stop others from simply copying your work or adapting it into another form (e.g. making a film from a play using the same or much the same script). In fact there are several other laws that many people confuse with copyright – patent laws, laws of privacy, trade mark laws and passing off, to name a few.
JC: How long does copyright last?
MC: Usually copyright endures for 50 years from the date of the author’s death, assuming that the work was published during the lifetime of the author.
JC: If you paid someone to create a work for you, who owns copyright – you or the creator?
MC: Good question. This is another area where there are many misconceptions. If you engage and pay a software writer to develop software specifically for your business, many people think that they own the copyright in the work that results simply because you paid for it. This is absolutely wrong and causes many, many problems. The rule is that the creator owns the copyright unless he/she signs a written transfer of it. I often see the situation where creative work has been outsourced but the supplier hasn’t been asked to transfer copyright up-front. If the client then wants to copy the work or even sell it to a third party, it may not be possible because the contractor still owns the copyright.
JC: What if an employee designs or writes something for their company, who owns copyright then – the employer or creator?
MC: If an employee creates a work in the ordinary course of their duties, the copyright is owned by the employer, not the employee. However, this isn’t as simple as it sounds and there are often arguments about whether a person did work in their own time, using their own computer and resources, etc. As always, even with employees it’s best to be clear about ownership of copyright from the outset.
JC: Is copyright confined to Australia?
MC: No, most nations have their own copyright laws and by virtue of international conventions your copyright will be enforceable in most other countries. Of course, in any given situation you will need to check that this is the case.
JC: But how simple is it to breach copyright ‘by accident’?
MC: It would be difficult to breach copyright without knowing, at the very least, that you were deliberately copying someone else’s work. But if you are completely ignorant of copyright, you may not know that doing so is a breach of the copyright owner’s copyright. That, of course, will not save you! The big problem I see is that often businesses incorrectly assume they own copyright or that someone in the organisation obtained a licence and proceed to copy, but breach the rights of a third person in the process.
JC: What are the possible ramifications of doing so?
MC: You can be sued for damages, injunctions and an account of the profits you made exploiting the true owner’s work. You’ll also be up for a substantial legal bill! It’s more cost effective to be aware of copyright before taking action, get it documented and avoid the dispute altogether. This may have some legal cost but it will be nothing like the cost of fighting a copyright action in the courts.
JC: How can players in the MICE industry find out more about copyright?
MC: There are some non-profit agencies about such as Copyright Agency Limited (CAL) but in my view nothing beats asking help from a legal practitioner skilled in intellectual property issues. My firm, for example, conducts intellectual property educationals for clients and often perform ‘due diligence’ reviews for clients of their intellectual property, including copyright. A little time and cost invested in educating you and your staff about copyright (and other forms of intellectual property) can save you a lot of money and distress later by keeping you out of the courts!
Confusion lands copycat in hot water >>
Two Australian companies were recently engaged in a legal dispute over copyright ownership after one of the companies accused the other of copying one of their event prop designs.
The dispute began when the creators of the props allegedly found what they believed to be a “duplication” of one of their most popular designs was being distributed by another company.
The company owner said he had previously been approached by the themeing business expressing an interest in buying the original design from him. Given that the original design, which had attracted copyright when it was created years earlier, was one of his most popular, the owner declined to sell it. He was surprised later to discover that the themeing company was allegedly distributing a new prop design that was distinctly similar to the one they had originally wanted to buy from him.
“We put hundreds of costly man-hours into the custom-design and production of our [props], and as such, we claim exclusive use of them,” the owner said.
The owner said there was some misconception that if the themeing company changed at least 10 per cent of the original design they were operating within the legal boundaries of copyright, which is not correct.
The matter was resolved before official court proceedings were required, and the “duplicated” prop was destroyed.
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