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  5. Mechanisms for protection in Australia
  6. Copyright Act
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Copyright Act

The provisions of the Copyright Act relating to the visual arts are explained more fully in an information sheet produced by the Australian Copyright Council (go to www.copyright.org.au/publications/infosheets.htm and click on “Artworks G033”). It also has answers to some frequently asked questions.

In general terms, the purpose of the Act is to ensure that the creators of artworks maintain reproduction rights over their materials. This allows copyright owners to exploit their works for economic gain as a reward for their creative activities. It also provides an incentive for further creations.

In order to benefit from copyright protection, artists must demonstrate that their work is original, while the work itself must be in some permanent material form. The requirement that a work be original is not very demanding. Generally a work will be considered to be original enough for copyright protection if it has not been copied or if skill or effort has been put into its creation. The test of originality is, of course, somewhat subjective. In making the assessment a court will seek to determine whether the creator has imparted a degree of labour, skill and judgement to give the work a quality or character that differs from other works. For the artist using elements created by Aboriginal artists, it is quite possible to modify or reinterpret styles and symbols in a way that does not infringe the copyright that protects those Aboriginal works.

Furthermore, copyright protection recognises the individual creators of works, rather than communal ownership.

Copyright is automatic upon the creation of an artwork; it is not necessary to apply, register or pay to obtain copyright protection. Copyright generally remains with an artwork for the author’s lifetime plus 70 years.

Copyright owners have the exclusive right to reproduce their work; to make their work public for the first time; and to communicate the work to the public (broadcast it or perform it live). Copyright owners may grant a licence to use their works to another party. This does not have the effect of relinquishing copyright; rather, it permits the other party to reproduce, market, distribute and sell works under agreed terms. An artist is at liberty to set restrictions and conditions when negotiating such agreements. In giving permission for reproduction, copyright owners may specify limits as to term, territory, quantity and purposes of use. They may also establish or negotiate payment and forms of acknowledgement.

When a person reproduces, communicates to the public or publishes a copyright work without the permission of the copyright owners, this is known as infringement. While it might be relatively easy to establish an infringement of copyright where a work has been directly copied and reproduced in its entirety, the issue can become difficult and complex when parts of a work are copied or incorporated into another work, especially because collage and ‘referencing’ are generally accepted artistic devices. By and large, the ‘borrowing’ artist is under the same obligation as the ‘source’ artist; that is, she or he must create a work that is original. Further, copyright only provides an artist with protection from copying. This means that, when there is no evidence of copying, copyright cannot prevent an artist from creating an artwork that is similar to another artist’s work. To prove copying, the copyright owner must establish that the alleged copier had access to their work at some stage.

Although the extent of copyright protection is open to constant interpretation, one thing is clear: it is not possible for an artist to simply change a certain percentage of an original work in order to avoid infringement. Recent legal determinations have stated that the use of a component that is significant to the character of another work may be infringement of copyright.

Under the provisions of the Copyright Act, a copyright owner has a number of remedies available against infringers. It is possible to obtain damages from infringing parties or damages on account of profits made by an infringer. In addition, a court may order that the infringing works be seized, barred from reproduction, distribution and sale, or destroyed.

Other issues include the following:

  • Copyright law protects individual and commercial interests, rather than communal and cultural interests.
  • One work may contain several different and separate copyrights. For example, a song may contain copyright in the lyrics, in the musical work in the artwork on the CD cover, and in the sound recording embodying the works and music.
  • Artists who use ideas and styles from Aboriginal culture without copying a particular artist’s work are not required under the Copyright Act to acknowledge the source. However, proponents of ICIP rights (see 'Protection: the issues') say that permission should be gained and acknowledgement of sources of Aboriginal styles should be given.
  • Copyright protects forms in which an idea or information is expressed and not the idea or information itself. Copyright will also not protect names, titles or slogans.
  • The antiquity of many rock art images means that they are not protected by copyright because many of the artists have been dead for more than 70 years. Being in the public domain, rock art is susceptible to copying.
  • Since works must be recorded in some permanent material form to attract copyright, body paintings and traditional oral stories are not protected by copyright and may be adopted by artists outside their communities of origin. In Merchandising Corp of America Inc v Harpbond Ltd [1983] FSR 32 the English Court of Appeal decided that make-up on a pop singer’s face would not be protected by copyright, because it could be easily removed. From this decision it follows that tattoos, such as those common in Maori culture, might be protected by copyright as they are more permanent than body paintings but Aboriginal body painting might not.
  • No special protection is provided for secret or sacred material under copyright law although some protection may be available under certain common law principles of confidentiality (see 1.6.5 below).
  • There is an exception in the Copyright Act which provides that sculptures and works of artistic craftsmanship on permanent long-term display in public places (including art galleries) may be reproduced in paintings, drawings, engravings, photographs or films without infringing the creators’ copyright.
  • Copyright collecting societies exist to license or administer certain uses of copyright material on behalf of artists. These not-for-profit organisations collect license fees and distribute them to members. VISCOPY is the copyright collection society for Australian visual artists, craft workers, photographers and designers.
  • Some artistic works, for example images on T-shirts, are eligible for dual copyright and design protection.
  • There are some circumstances in which an artistic work may lose copyright protection. This occurs when the work is embodied as a design in a product and registered under the Designs Act 2003 (Cth). If the design is registered the work loses copyright protection. If the design is not registered and the work is applied industrially (for example, approximately 50 copies of it are made) it loses copyright protection from the date of the first sale of a copy. The artist is then unable to register a design as they no longer meet the requirement that the design is ‘novel’. Although there is an exception to this restriction in the case of works of artistic craftsmanship, buildings and models of buildings, it is unclear which works will be considered to be works of artistic craftsmanship. Given the potential for an artist to be left with no protection against copying at all, it is very important to carefully consider registering a design before applying it industrially. (See also 'Designs Act' below.)
  • There are a number of specific situations in which people can use copyright material without permission as long as certain procedures are followed. For example, reviewers, news reporters and students can use some copyright material without permission as long as their use is ‘fair’ and the artist is acknowledged. There are also special exceptions for copying by libraries, educational institutions and government bodies. There is no general exception for ‘personal use’ or for use by not-for-profit organisations.
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