Ownership of copyright
Who is the first owner?
The Copyright Act sets out who is automatically the first owner of the copyright in the different types of material, but the parties can always agree to a different ownership arrangement.
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The author of a work is normally the first copyright owner. However, there are some exceptions (Copyright Act s 35).
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In general, copyright in a work made by an employee in the course of their employment is owned by the employer, unless there is an express or implied agreement that the employee owns the copyright.
Employee journalists own the copyright of their work in relation to its reproduction for some purposes only, while the employer owns the remainder of the copyright.
If you wish to control the use of substantial works produced by you in the course of your employment, you should try to negotiate an agreement with your employer. For example, you could agree that although your employer owns the copyright, you must be identified as the author, and may also reproduce the work (possibly after a period of time has passed since its completion).
Or you could agree that you will own the copyright, but grant your employer a perpetual royalty-free licence to reproduce the work. Such agreements should be in writing, and signed by both parties.
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The fact that a person has paid for a work to be made (other than a photograph for domestic purposes, or a portrait or engraving) does not mean that they own copyright in it, although they may be permitted to copy it, or exercise other rights of the owner. For example, if an organisation commissions an artist to prepare a drawing for a flyer, the artist will own copyright in the artwork and the organisation will have an implied licence to reproduce it in the flyer (see ‘Licensing copyright’, below). This means the artist could allow someone else to use the artwork for another purpose. If the organisation wants to control the use of the artwork, it should require the artist to assign copyright in the artwork to the organisation as a condition of the commission (see ‘Assignment of copyright’, below).
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A person who commissions a private or domestic photograph (or the making of a portrait or engraving) (e.g. wedding photos) owns the copyright in the work, but the artist or photographer can prevent the owner from dealing with the work other than for the purpose for which it was commissioned. A photographer is the first owner of photographs commissioned for a commercial purpose.
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The first owner of copyright is the maker of the sound recording or film, unless the maker has been commissioned to make the recording or film for another person for payment. In that case, the other person owns the copyright (Copyright Act ss 97, 98).
The maker of a sound recording is the person who owns the first record containing the recording (s 22(3)(b)). This means the owner of the copyright in a sound recording is usually the recording company. However, performers in live performances (including musical and dramatic performances and readings or recitals of literary works) (or their employer) are co-owners of the copyright in a sound recording of the live performance with the owner of the first record containing the recording (ss 22(3A), (3B)).
The maker of a film, and therefore the owner, is the person who made the necessary arrangements for the making of the film (s 22(4)(b)). This is normally the film company or the producer. A film director (or the director’s employer) is also an owner of the right to include the film in a re-transmission of a free-to-air broadcast (but not other copyright rights) provided that the film was not commissioned by another person (s 98).
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Copyright is owned by the broadcaster (e.g. the ABC) or the person holding a licence under the Broadcasting Services Act 1992 (Cth) (Copyright Act s 99).
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The publisher of an edition of a literary, artistic, dramatic or musical work owns the copyright in the published edition (s 100).
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The Commonwealth and the Australian states own the copyright in works made or first published by, and sound recordings and films made by, or under the direction or control of, the Commonwealth or state (ss 176-178). This means that copyright in works prepared by independent contractors for the Crown is owned by the Crown, although it would not if the work were done for a non-government body.
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Where two or more authors collaborate on a work, and the contribution of each author is not separate from that of the others, they are joint authors, and joint owners of copyright in the work (s 78). This means neither can exercise any of the rights of the owner (such as publishing the work) without the consent of the other.
However, one owner can sue for copyright infringement without the participation of the other owner. Where the contributions of the authors are separate (e.g. in a book where different chapters are written by different people) the copyright in each individual contribution is owned by its author.
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Where there is more than one type of copyright in material, each type may have a different owner. For example, in a published song, the person who wrote the words owns copyright in them, the person who wrote the music owns copyright in it, and the publisher owns the edition copyright. Copyright in the sound recording is owned by the record company, unless it was made for payment on behalf of another person. The owner of the radio station owns copyright in the sound broadcast of the recorded song.
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There is no system for registering copyright in Australia, although copyright registration exists in some countries (e.g. the United States and China). Ownership of copyright is automatic on the creation of the copyright material.
However, it is a good idea to include a copyright notice in the copyright material. A copyright notice should set out the owner’s name, and the year and place of creation/first publication (e.g. ‘© Fitzroy Legal Service Inc. Melbourne 2021’). Such a copyright notice will require anyone who copies your work to prove that the facts stated in the copyright notice are not true (ss 126A, 126B).
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Copyright can be transferred from the initial owner to another person. Assignment of copyright must be in writing and signed by the person assigning the copyright. It is possible to assign the copyright in a work the author has not yet created (e.g. when an artist is commissioned to make a particular work). When copyright material is created, ownership of the copyright automatically transfers to the person acquiring the copyright (s 197).
Ownership of copyright
Chapter: 7.6: Copyright
Contributor: Margaret Ryan, Lawyer and Trade Marks Attorney, IP by Margaret®
Current as of: 1 September 2024
Law Handbook Page: 673
Next Section: Duration of copyright
