Chapters

Copyright

In its simplest form, copyright is the right to copy or reproduce a written work. This section covers copyright and what it is, the difference between assigning copyright and licensing copyright, Internet publishing – its advantages and drawbacks, and where you go for expert, free legal advice. Copyright is the author’s form of ownership. However, it means a good deal more than the simple ownership of a physical manuscript and the right to photocopy and sell it. In its complex form, copyright is a bundle of rights, including the exclusive right to:

Reproduce the work in a material form
Publish the work
Perform the work in public
Broadcast the work
Cause the work to be transmitted to the subscribers of a diffusion service (for example, sent by email)
Make an adaptation of the work.

Each of these rights can be treated separately, and can be sold or licensed to different people. The important thing to keep in mind is that copyright can only exist for a work which has a concrete form, such as a newspaper article, a novel manuscript, a playscript. It doesn’t apply to any work that is still in the ‘idea stage’. For example, if you discuss a story idea with a friend, that friend is under no obligation to recognise your ownership of that story idea. If you want to protect it, you have to write or record it. But be aware that, while copyright infringements do occur, they are relatively rare.

Australia is a signatory to the Berne Convention for the Protection of Literary and Artistic Works. This means that the author of a work automatically owns the copyright on it. Put simply, if you write it, it belongs to you.

There is one important exception to this. If an author is creating the work in the course of his or her regular employment, copyright will usually belong to the employer, not to the author. This generally applies to journalists, but is equally true for employees writing letters, reports, articles for work-related publications, and so on.

The copyright symbol © followed by your name and year is an assertion of your ownership. Although unnecessary to establish your legal rights, it tells anyone who reads it that you know your rights of ownership. This is usually written © Anne Author 2002.

Over seventy countries are signatories to the Berne Convention. The World Intellectual Property Organisation has a complete list of signatories and detailed information on international copyright available on their website at World Intellectual Property Organisation.

Proving authorship

The Australian Copyright Council advises that: ‘If there is a dispute about who created a copyright work, which cannot be resolved by negotiation, it may need to be resolved by a court. A court considers all the relevant evidence when determining a dispute. The most important evidence is usually the creator’s evidence and the evidence of the witnesses to the creation of the work. Such cases are extremely rare.’

In Australia, people who want to give themselves some insurance against copyright infringement will mail the manuscript to themselves by Registered Post, and when it arrives, leave the envelope unopened and put it somewhere safe. The date on the envelope provides some proof that the manuscript had been written before that date. Whether or not this is enough of an insurance is unknown; it has never been tested in an Australian court.

It also helps to keep all the drafts of the piece of work.

The Australian Writers' Guild provides a registration service for scripts.

Contracts: Assigning and licensing copyright

The author of the work can either assign or license any of the rights to their work.

Assigning copyright means selling it, like selling a house or a car. Once you sell the copyright on a piece of your work it no longer belongs to you. It is customary in the film industry, for example, for a screenwriter to assign the rights of their film script to a film company, meaning the film company then owns it and can do what they like with it. This is not customary in the world of book publishing, however, so if anyone offers you a contract that asks you to assign the copyright to another party you should seek legal advice before you do anything else.

Licensing means that the author keeps the copyright or ownership of the work but allows someone else to exercise those rights under agreement without infringing copyright. A book publishing contract, for example, is an agreement between the author and the publisher which licenses the publisher to publish the author’s book in a form specified in that agreement. The author might license the publisher to publish the book in hard copy only, and withhold the licence to publish it, say, as a talking book. The contract will also specify whether the book can be published in a particular country or part of the world.

It is important to realise that in each case the writer might choose to withhold other rights. The scriptwriter might keep the rights to the novelisation of his or her film. The novelist might keep the rights to serialise the novel in newspapers and magazines.

If a publisher offers you a contract and you don’t have a literary agent to protect your interests you can contact any of the organisations listed below for help. Be sure to talk to someone with expertise in this area before you sign a contract.

Links for more information:

Arts Law Centre
Australian Copyright Council
Australian Writers' Guild (film, television, theatre and radio scripts)
Australian Society of Authors (literature)

Copyright in the United States of America

It is still possible to register a work with the Copyright Office of the Library of Congress, and doing so has some advantages under United States' law.

Registration establishes a public record of the copyright claim. Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.

If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

Registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies

More information about copyright registration can be obtained from: Library of Congress Copyright Office Register of Copyrights 101 Independence Avenue Washington, D.C. USA 20559-6000

Good Reading:

Between the Lines: A Legal Guide for Writers and Illustrators, by Lynne Spender
Australian Book Contracts, by ASA