Copyrights

Copyrights are useful in safeguarding branding features but also in innovation.

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What is Copyrightable?

A copyright may exist in ORIGINAL:

  • literary works
    – advertising copy
    – software
    – compilations of data
    – advertising material
    – logos
  • dramatic works
  • musical works
    – recorded sounds
    – works in musical notation
  • artistic works
    – images including moving
    – logos and marketing design if sufficiently artistic
    – product design and engineering drawings
    – moulds and prototypes
    – works of artistic craftmanship
    – buildings and models of buildings
  • subject matter other than works
    – broadcasts to name a few.

A copyright exists in a product having a physical form, including digital form.

A copyright safeguards against others copying the expression into a fixed medium.

The work must be original and as a result of utilisation of skill, judgement and independent intellect.

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FAQs

A copyright does not protect an idea. A copyright attaches to an expression in a material form.

Designs and Patents can safeguard ideas as they do not require a reduction to practice (no need for a working model) and trade secrets may also safeguard secret ideas.

Requirement for copyrights: utilisation of skill, judgement and independent intellect.

It is important to determine if a work is copyrightable. There are some grey areas.

A style is not copyrightable (but style can be an intangible asset such as ‘trade dress’ or ‘get up’ and may be actionable under passing off and unfair competition laws.)

A business model or set of equations is not copyrightable as these are ideas.

Typically, the creator of the work owns the copyright.

However, ownership of a copyright will depend on whether the work was created under a contract.

A contract can be, for example, an employment contract or for contracted services.

An employment contract will typically specify duties of an employee.  If the work was made while carrying out these duties, the employer will own the copyright under Copyrights Act 35(6 ).

A contractor contract, on the other hand, must specifically state that the contractor assigns the copyright to the purchaser of the services. Otherwise, the copyrights in the work are owned by the contractor.

In building software products, oftentimes programmers rely on open-source software.

Each of these has license agreements for use.

In utilising open-source software, it is advisable to maintain a register of the open-source software and the license agreements for compliance and in the event of due diligence.

Registering a design instead of relying on copyright depends upon the type of goods for which coverage is sought.

In Australia, in most situations, registering a design eliminates a copyright in a product.

Except for example, artistic works that are applied to a surface being two-dimensional patterning (i.e. fabric ornamentation), a depiction (for example, furniture) an item of a registered design does not have dual protection by copyright. Copyright is not applicable to a design that goes into production of 50 items or more.

A copyright’s term (for published works, the term is life of the author plus 70 years) is substantially longer than a design term (10 years from the filing date).