How is Copyright Commercialised in the Media and Creative Industries?

by LegalVision

Copyright protection is a valuable asset for the media and creative industries, including the music, publishing, art, news, television and film industries. For example, the stories aired by Channel 7 are subject to copyright protection as are the stories published in The Sydney Morning Herald. In many ways, the commercial aspects of these industries are driven by access to and the re-production of copyright protected material.

If your business is in the media or creative industry space it is important to understand who owns the copyright in each piece of work that is produced and how it can be exploited or commercialised to advance your commercial interests. This article explores the key copyright concepts that are relevant to the media and creative industries in Australia.

The Scope of Copyright Protection: Australia and Beyond

Copyright protects the “material form” in which an idea is expressed, rather than protecting the idea itself. For example, there is no copyright infringement if someone takes your idea for a novel and then writes the novel based on your idea. This is because copyright protection was never attached to the idea itself. In essence, an idea is not a “material form” for the purposes of copyright protection. One way to protect an idea before it is converted into a material form is through a Confidentiality Agreement. Copyright also does not apply to speeches unless they have been written or recorded and are therefore in “material form.”

Unlike other forms of intellectual property, there is no formal system of registration for copyright in Australia. Material is either protected by copyright or it isn’t. Contrary to popular belief, there is also no legal requirement to use the © symbol for copyright protected material. However, in many cases using the symbol acts as deterrence for copyright infringement by putting others on notice that copyright is being asserted by the owner of the work.

For Australian copyright law to apply to a piece of work, the material must be produced by a “qualified person” or first published in Australia. The Copyright Act 1968 (Cth) (Copyright Act) defines a qualified person as an Australian citizen or a body incorporated under Australian law. Australian copyright law also protects material that was created in a country that is a signatory to the Berne Convention for the Protection of Literary and Artistic Works. This means that Australian copyright law can protect films, sound recordings or broadcasts created overseas, granted that the country is a signatory to the Convention. 

Categories of Copyright Protection in Australia

The Copyright Act lists eight statutory categories for different forms of work that are protected by copyright. While other relevant factors are used to determine if work is protected (discussed further below), falling within at least one of these categories is the first threshold to meeting the “material form” requirement. The eight statutory categories are separated by subject matters that are defined as Works and subject matters other than Works. They include:  

Subject matters defined as Works:   

  • Literary Works: As this term is not exhaustively defined in the Copyright Act, it is likely that text or writing based material may potentially fall within this category;
  • Dramatic Works: Examples include choreography, scripts and film scenarios;
  • Musical Works: This includes the notes of the music. By contrast, the lyrics will fall under literary works as they are a text; and
  • Artistic Works: Examples include sculptures, photographs, paintings, drawings and even a business logo can fall within this category.  

Subject matters other than Works: 

  • Sound Recordings: This protects the mechanical record of sounds, including digital formats. The sound recordings should be distinguished from the underlying musical work, which can have a different owner (see Copyrighted Music in a Video Game);
  • Cinematographic Films: A film is an aggregate of the visual images (including the sound) that allows the film to be shown as a moving image. This category has also included computer and video games;
  • Broadcasts: This category covers television and radio broadcasts; and
  • Published Editions: This category covers typesetting and layout of hardcopy editions.

The Requirement for Originality

Australian law requires that the material be original in order to attract copyright protection. This does not mean that it needs to be novel or inventive, which is the case with patents. Rather, it must be the own original work of the author and does not rely upon any form of plagiarism. It also requires that the author put sufficient intellectual effort in the translation of their idea into a final material form. This follows a decision of the Federal Court of Australia which established that a computer could not be a copyright owner, as it cannot produce the intellectual input provided by humans. 

Commercialisation of Copyright Protected Material

Licensing and Assigning Copyright

One common way of commercialising copyright is by selling copies of the protected material i.e. a novel sold by a publishing agency or a magazine sold by a media organisation. However, if your business decides to sell the actual copyright (as opposed to copies of the material) this will be regarded as an “assignment” and you will no longer have any rights that are attributed to the owner. In contrast, your business can “licence” the copyright to allow others to use, access or reproduce the copyright material (this is often for specific purposes and subject to certain limitations) for a fee known as a “royalty”. Ownership does not change hands with a licence and for this reason it can be more appealing than an assignment for a business. The decision of whether to assign or licence ultimately rests on the commercial objectives of the business. Television channels usually have a licence to air a particular film and the conditions of airing the film would be set out in a Licence Agreement between the owner and the channel. A licence can be exclusive or non-exclusive, express or implied. The common terms of a Licence Agreement include: 

  • Permitted Use: In which ways can the material be used?
  • Territory: In which area can the licence be exercised?
  • Term: How long is the licence valid?
  • Any Sub-licensing Rights: Does the licensee have the right to allow others to use the material subject to the same conditions?  
  • The Nature of the Licence: Is the licence exclusive or non-exclusive?

When considering a licence or assignment, it is important to bear in mind that there is potential for a piece of work to be covered by more than one of the statutory categories of copyright. As such, each form of copyright that is licensed or sold should be set out clearly in a written agreement between the parties.  

In addition to voluntary licences, there are also statutory imposed compulsory licences. For example, the Copyright Act sets out a statutory licence that requires educational institutions to make copies of copyright protected content for enrolled students. Fees are typically paid to collecting societies and the collecting societies pass on the payment to the copyright owner. 

Creative Commons

A creative commons licence allows free use of copyright material for certain purposes. The permitted use varies depending on what use each licence allows. For example, an author can use this type of licence when they want to give others the right to use, share or build upon the work they have created. Creators, companies or institutions can use creative commons licences and it generally sets out the permitted uses and the conditions of use. While some allow unlimited uses, a creative commons licence should be checked to avoid unauthorised use of material. 

Key Takeaways

Copyright is a valuable asset in the media and creative industry space as it allows businesses to protect and monetise their creativity. If your business is seeking to assign or licence its copyright to a third party, you should engage a specialised intellectual property lawyer to draft the relevant contract. This will ensure that your interests are protected. As discussed in this article, a piece of work can attract more than one category of copyright and it is important to confirm the category of copyright that is being assigned or licensed and the conditions of use.   

If you have questions about how to protect and commercialise your copyright, get in touch with our Intellectual Property Lawyers today. Call LegalVision on 1300 544 755. 


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