18 Jul Copyright subsists, even without ©
Every piece of creative work, whether it’s literary, artistic or musical will have copyright protection subsisting within it. Copyright protection crystallises at the moment of creation – so if I were to doodle a flower on the notepad in front of me, I would automatically become the copyright owner and be afforded the protection this offers.
Voila. Instant copyright protection! (Please note that an artistic work need not have any artistic merit for copyright to subsist within the work, as evidenced by my flower). But if it’s that easy, what then becomes of the ubiquitous © symbol?
Many of my friends who are entrepreneurs, musicians and artists ask me about copyright registration and the formalities required. It goes to show that there is a great deal of confusion in the community when it comes to the copyright registration and notice.
Australian copyright law is governed by the Copyright Act 1968 (Cth) (“Act”). Australia is a signatory to the two principal international copyright conventions, the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”) and the Universal Copyright Convention (“UCC”).
In line with the Berne Convention, the Act does not require formalities such as publication, registration or the payment of fees in order to obtain protection in Australia or any country which is also a signatory to the Berne Convention. Copyright protection, as discussed, is granted automatically from the time an original work is created.
What can cause confusion is the fact that the other intellectual properties – patents, trademarks, designs and plant breeder’s rights – do require registration for protection to be granted.
But when it comes to copyright, a work need not be registered for it to be protected. Further, there is no legal requirement to include a copyright notice (©). Whether a notice is used or not will not change the fact that copyright subsists within the work.
Prior to 1989, the USA law reflected the UCC, which would only recognise a work having copyright protection if a notice was placed in such a manner and location as to give reasonable notice of the claim to copyright. The United States became a signatory to the Berne Convention and changed its copyright law on 1 March, 1989, to make the use of a copyright notice optional.
So with regard to the copyright notice, the UCC has become redundant. The Berne Convention does not require any formalities. Further, the Berne Convention actually prohibits formal requirements that affect the ‘exercise and enjoyment’ of the copyright.
If a copyright dispute arises, a Court will take into account evidence of the person who created the work and other people who knew of the creation of the work. And since there are very few countries who are members to the UCC and not to the Berne Convention, there is little legal advantage in including a copyright notice.
But there are some benefits. A copyright notice is a reminder to the world at large that copyright subsists within the work. It identifies the copyright owner and may help people locate the copyright owner and obtain permission to use it. And at the very least, it shows the work’s first year of publication.
So now you’ll understand that that I don’t need register this article to gain copyright protection, and nor do I need to include that familiar notice at the bottom (but I’m choosing to anyway!).
© J Vagnoni, Media Clerk 2016