Copyright and other publishing issues for CLCs

Robyn AyresArts Law Centre of Australia

8 April 2008

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Outline

About Arts Law Copyright Moral Rights Licensing A practical example

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About Arts Law

CLC for the arts– Free telephone advice – Legal advice nights for subscribers– Publications including sample agreements– Educational workshops– Advocacy on law reform issues – Indigenous service – Artists in the Black

Further info www.artslaw.com.au

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What do you publish at your CLC?

Website Publications

– Brochures– Information or fact sheets– Reports– Books– Newsletters

DVDs Audio recordings Plays/scripts Posters

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Who contributes to your publications?

CLC staff Volunteers – law students, pro bono law firms, lawyers,

writers, others? Contractors (paid) – designers, writers, editors,

publishing company, cartoonist, photographer, artist Audio-visual products – actors, musicians, crew eg

camera person 3rd party materials eg sound recording What are your relationships– do you have contracts in

place?

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Copyright

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TRUE or FALSE

1. Copyright protects ideas2. Copyright protects styles.3. You need to register your material to get copyright.4. It is OK to copy up to 10% of someone else’s work.5. It is OK to reproduce work for a non-profit purpose. 6. It is OK to copy things on the internet – they are in the public

domain7. When you buy an artwork you also own the copyright 8. Copyright protects names. 9. Copyright lasts forever. 10. Copyright does not protect Indigenous art.

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What is copyright?

– Exclusive rights to copy, use and circulate particular materials, and to allow others to do this, for a limited time

– Bundle of rights

– ‘Economic’ right

– Automatic/no registration requirements

– Different from rights in physical thing

– Copyright notice ©, Eg © Robyn Ayres 2008

– Contained in Copyright Act 1968 (Cth) and court decisions

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What does copyright protect?

Works– Literary (includes books, lyrics, computer programs)– Artistic – Musical (the composition, melody)– Dramatic (plays, scripts)

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What does copyright protect?

Subject-matter other than worksFilms, DVDs, videossound recordingsTV and sound broadcastspublished editions

Usually no artistic merit required Note for music – often 3 separate copyright elements Note for film – separate protection for film, then

components of film eg script, music, costumes

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Copyright: essentials summary

Country

original

record

Subjectmatter

©

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Owners

Who owns copyright?– Authors – the poet, painter, songwriter, playwright– Makers

For film - usually the producer ie. the person who makes arrangements to make film. Directors – small interest

For sound recordings - person who owns recording medium and performers

– Joint owners Exceptions:

– Contracts – Crown copyright– Employment– Some commissioned works eg, portraits, where films or sound

recordings commissioned for valuable consideration

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Rights

For works: Reproduction Publication Performance Communication Adaptation Commercial rental

arrangements

For films: Make a copy Cause it to be seen or heard

in public Communicate it to the public

For sound recordings:

Make a copy Cause it to be heard in public Communicate it to the public Commercial rental

arrangements

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Duration of copyright

Duration: often– Life of author plus 70 years– 70 years from first publication

or other act

When copyright expired = public domain

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Copyright infringement

Use of the whole or a substantial part of a copyright work without the copyright owner's permission generally isn't allowed under Australian copyright law

Substantial part means a vital or important part. It does not mean that the whole of the work is copied

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Copyright: infringement exceptions

But a person is sometimes allowed to use someone else's copyright material without consent eg:

– for fair dealing purposes eg research and study; criticism and review; and parody and satire

– for incidental use in film and television broadcast– for certain uses of artwork eg sculptures that are

permanently in place in a public space– if an insubstantial amount is used

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Dealing with copyright

If you own copyright in protected material: Assignments (transfer or sale) Licences (exclusive, non-exclusive, sole) –

permission to use

If you want to use someone else’s copyright protected work, consider:

Has the copyright in the work expired? Do you fall into one of the exceptions? How can you obtain permission (a licence) to use the

work? (and try to get this in writing).

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MORAL RIGHTS

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MORAL RIGHTS

“Moral rights” has a legal meaning

Personal (non-economic) rights that protect individual creators

Cannot be given away, sold or transferred

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What are Moral Rights?

3 types:– right of attribution – to be named– right against false attribution – to ensure someone

else is not named– right of integrity – to ensure work not treated in

way prejudicial to creator’s honour or reputation.

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Moral rights: who has them?

For works: the creator (writer, artist, designer)

For films: the producer, director and the screenwriter

For performances: the performer (includes a conductor).

NB no moral rights for maker of sound recording who is not performer

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Copyright + moral rights in practice

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Publication case study

Business Structures for the ArtsCreators Adaptation of outdated publication by Australia

Council Text written primarily by a casual employee and a

volunteer lawyer who has done the work at her law firm

Designer – layout and cover design Cartoonist – 6 cartoons for publicationPublisher Arts Law Centre of Australia

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Case study – what agreements should you have?

Licence to adapt Australia Council publication – will depend on how different it is to original

Employee – ALCA owns © but there may be issues about moral rights – consider consent to infringe moral right of integrity eg editing

Volunteer lawyer – need assignment (with lawyer and firm) and consent to infringe moral rights (with lawyer)

Designer – licence or assignment of © in design Cartoonist – licence or assignment of © in drawings

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Other issues

Self-funded publication -consider distribution agreement with publishing company eg Federation Press. What % will they take?

Online publication – all © and moral rights issues apply

Creative commons licencesV

Publishing agreement – get legal advice

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Disclaimer

This presentation is intended as a guide to the law only. It is not legal advice and should not be used as a substitute for legal advice. Although all care has been taken in preparing this presentation the Arts Law Centre of Australia does not guarantee the accuracy, adequacy or completeness of any information and is not responsible for any errors or damage suffered as a result of it being relied upon. Legal advice should be sought on the specific legal issues affecting you.

This information reflects the law as at April 2008. This information applies to people who live in, or are affected by

the law as it applies in NSW. These materials cannot be reproduced without the permission of

the Arts Law Centre of Australia.

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