In essence, copyright is the protection applied to published and unpublished works in the literary, dramatic, musical or artistic arena.
Copyright allows the creator to benefit financially from their work and to retain some control over how that work is used. The source for Australian copyright law is the Copyright Act 1968, which is Commonwealth Law.
Under that law, the owner of the copyright has the right to publish, re-produce, adapt or broadcast the particular work in public. Copyright exists for 50 years after the death of the “author.”
However, copyright does not protect the idea or the facts upon which a creative work is based. An idea cannot be copyrighted, only the resulting work from that idea.
Copyright protection is automatic. A copyright does not have to be registered like patents or trademarks. The work is protected from the moment it is created. It may not have even been published yet.
There is no system of regulation in Australia. If the original work was yours then it is automatically protected under the Australian Copyright Act 1968. It is important you protect your business’ and your information from being infringe upon. You can do this by making sure all information contains the generally accepted template “Copyright © 20XX-20XX, Your Company Name”. The notice should be updated to reflect the current year.
This copyright notice is not vital for protection, but will help an author prove ownership. It will also help alleviate any avenue for an offender to claim in court that he/she did not know the work was copyrighted.
This makes it much easier to win a copyright infringement case and perhaps win damages. You should consider putting a copyright statement with any copyright material. The statement should include:
Who owns copyright to the material (and there may be a few people depending on the nature of your business)
Clearly state what the copyright owners will allow and will not allow with the material
Directions as to who to contact to get a copyright clearance.
What can be copyrighted?
To claim protection under the Copyright Act 1968, the work must be in a tangible form and it must be original.Copyright can be applied to everything from newspaper articles to business directories, advertisements, books; photographs, engravings, drawings, paintings, computer programs, published editions of works and so on.
It provides an exclusive right over the work and generally belongs to whoever creates the work. This includes the moral right to the work. In other words, while you as the business owner may hold copyright over the work, an employee who created, or helped to create, it has the right to have the work attributed to him or her. Although moral rights has yet to be tested in the courts, it is advisable to have a lawyer draw up a document for employees and contractors to sign which gives you the right to “infringe” on their moral rights. This is covered further below.
Be aware, if you are creating your own ads or designing your own logo, for example, you must be careful not to infringe someone else’s copyrightable work. You can only reproduce work, protected by copyright, when the copying can be described as a ‘fair dealing’.
For example, you can reproduce a work as part of a newspaper or magazine article so long as the originator is acknowledged. Although it is ‘fair dealing’, if the reproduction of a work is for the purposes of a critique or review, it is generally advisable to get permission, just to be on the safe side.
Obviously, facts are not subject to copyright, so you are free to use them, provided you write about them in an original way and provide your own interpretation of them.
The whole area of copyright is extremely complex legally and great care should be taken to familiarise yourself with it. Reading Media Law in Australia: A Manual by Mark Armstrong, Michael Blakeney and Ray Watterson (Oxford University Press) will give you a good introduction to some of the complexities.
A relatively new guideline to come under the Copyright Act pertains to Moral Rights, mentioned previously. While you, as the business operator, may own copyright of your information/material, the person, say a staff member, who created that work has a “moral right” to that work.
This could be a body of text, cartoon, artwork, logo etc. Under the Moral Rights clause, the created work should be attributed to the creator.
Copyright and moral rights also apply to a contractor hired to develop the work. The contractor effectively owns the copyright of the work unless he/she signs it over to you. Even if they do this, they still have a moral right to the creative work.
In its most extreme or literal sense, this means you may have to obtain permission to change the work or even pay a fee to continue to use the material in other areas.
However, if you own the copyright, they cannot profit from the information being used or use it themselves elsewhere.
As this amendment to the Copyright Law only came into effect at the end of 2000, this law has yet to be tested in the Australian courts. An agreement between you and the contractor should cover who has copyright of what and have clear instructions when it comes to dealing with changes to the material.
Licenses and permits
There are many government regulations, including federal, state and local. As many of the regulations are made by local and state authorities, they vary significantly.
The first place to contact is the relevant Small Business Advisory Service in your state, Department of State Development or their equivalents (there is one in each State) – they should be able to tell you which licences and permits are required for your business.
CHECKLIST FOR REGULATIONS FOR NEW BUSINESSES
Zoning (Local Council)
Sign Permits (Local Council)
Registration of shops, business name, food premises.
Local Council Permits (building, alternations and extensions)
Health & Safety Requirements
Safety Precautions (flammable liquids, chemicals, poisons, inspection of machinery, use of safety helmets)
Weights & Measures (labelling and packaging)
Parking Facilities (local council)
This is a list of possible sources of information for the regulations listed above:
Business Licensing Centre
National Safety Council
Power Supply Authorities
Chamber of commerce
Small business development corporations
State environment protection authorities
Commonwealth Department of Industrial Relations
Commonwealth Department of Employment, Education & Training
State Departments of Labour, Industry & Health.
Obtaining legal advice
Finding the right lawyer early is a critical task for you. Among the most important qualities to look for in a lawyer are experience in your field and availability. Keep looking until you find a lawyer you are comfortable with.
A lawyer will tell you if your requirements are outside their principal line of practice and should refer you to someone who will do a better job for you.
Choose a lawyer who has the time and is willing to sit down and talk to you or discuss a legal problem over the telephone when you need to. If you keep calling your lawyer only to be told that he will get back to you (and if he does, it’s days or weeks later), find another who appreciates your business and has the time to attend to your needs.
There is no point employing a “top lawyer” if they are inaccessible or can’t be reached when you need them most.
Closely related to availability is dependability. Make sure your lawyer follows through on your problems. Lawyers are selling a service, just as you and other business owners are. If they can’t provide services on time and in good order, at a price consistent with its value, find one who can.
Make certain you understand your lawyer’s fee schedule, since this is the area of greatest misunderstanding between clients and lawyers.
Lawyers usually charge on a time basis and charge for all phone calls, meetings and other work done. It is best to have an agreement in writing.
Generally, lawyers who are expert in the commercial area can’t be retained inexpensively. If you want excellent legal advice, you must be prepared to pay for it.
Once you have established a firm relationship with a good lawyer, you have found an invaluable associate.