Copyright: the basics
What is copyright?
Copyright is a set of rights that provide protection for all kinds of artistic products. It protects them from being copied, changed or exploited and acknowledges that the artistic product belongs to someone.
In Australia copyright is free and exists automatically once an artistic product is created.
It is determined by the Copyright Act 1968.
Copyright can be denoted using the © symbol. Failing to display the © symbol does not extinguish copyright.
Who has it?
Copyright is owned by the creator and/or by a collecting institution.
If the creator is commissioned or contracted to make the work, or if it is made under normal employment, the standard copyright rules can change. For example:
- When a work is created as part of regular employment the copyright is generally owned by the employer.
- When a work such as a painting or photograph is commissioned or made under contract the commissioning organisation/person usually holds copyright. However this may not apply if the artist is working freelance.
- With films and sound recordings the producer usually own copyright though in some situations performers can share copyright.
It is critical to have a contract which clearly specifies the terms of copyright.
How long does it last?
In Australia copyright begins when the work is created and generally lasts 70 years after the death of the creator.
Exceptions occur: copyright on sound recordings last 70 years from the date of the first publication and copyright on published written work is 25 years post publication date.
Once copyright lapses the work is considered in the ‘public domain’ which means that anyone can use it.
For example, copyright has expired on photographic images and negatives (although not their digitised copies) taken before 1955. For any photographs taken from 1955 on, copyright is for 70 years after the death of the creator.
Other countries have different copyright rules and timeframes.
There are two main ways of managing copyright which are used when an organisation or an individual want to reproduce or use a copyrighted work which is not their own.
The copyright owner can either assign or licence a third party which transfers all, or some of the rights associated with copyright to that person/organisation.
Both these transfers must be done in writing and the process is best done with legal advice and a formal contract.
Be aware that it is not necessary to register something for copyright, though there are organisations in Australia who can manage licencing fees resulting in use and publication of work. See Copyright Agency, Viscopy, and the Australasian Performing Right Association (APRA).
What about Indigenous work?
Copyright and intellectual property rights of Indigenous cultural product may vary from the Copyright Act because ownership is often intergenerational and group-owned.
Appropriation of Aboriginal imagery such as pattern, motifs, spiritual figures, or story by non-Indigenous artists is considered as cultural theft and a breach of cultural protocols.
There are specific protocols and permissions around using and taking photographs of Aboriginal people that should be observed and having signed model release forms is desirable.
Arts Law suggests that Indigenous copyright be clarified through contract. They are specialists in the field with an Aboriginal liaison officer who can provide advice and the dedicated Artists in the Black website. Arts Law offers workshops which provide an in-depth explanation of Indigenous copyright issues and the implications of breaching protocols.
Provisions for collecting institutions
Under Australian copyright law collecting institutions are allowed to copy material in their collections to maintain and conserve the collection as long as the collection is not-for-profit.
Museums and galleries fall under the definition of an ‘archive’ which is considered by law to be “a collection of material of historical significance or public interest, being maintained for the purpose of conserving and preserving the material.” (Australian Copyright Council, Information Sheet G068v07)
Key collection institutions (defined as those holding an archive of material which is of historical or cultural significance to Australia) can make three preservation copies of original material, editions, films and sound recordings. Other collecting institutions can make one copy of the original version for preservation.
These images, usually photographs, also carry copyright which is owned by the collecting institution.
Moral rights are different to copyright and exist as a complementary set of rights or obligations that must be observed when collecting, displaying or exhibiting artworks or objects.
Moral rights include correctly and accurately attributing the creator of the work and caring for, or displaying the work in a way that does not prejudice the creator’s reputation or honour.
What’s the public domain?
When copyright has formally expired the material is considered to be in the public domain. This means that people can use it without seeking permission.
Exceptions exist: all digital copies of old photographs currently attract copyright under Australian law, as digital images are considered to be an artistic product in their own right.
Collecting institutions own copyright on these images and are entitled to charge for reproductions/prints of them.
It’s important not to confuse online availability with something being in the public domain. Online images are often subject to the same copyright rules and have restrictions on their use.
What is a Creative Commons licence?
Providers such as Google Images, Flickr and Wikipedia Commons offer access to digitised material through the Creative Commons licence. A range of licences are available, most of which require attribution to the creator and a declaration if changes have been made to the work. Creators are able to limit the type of use or adaption.
For more information: Creative Commons Australia
What if it’s on social media?
Standard copyright law usually applies: users own and retain copyright of what they post, create, or contribute to a website, social network or other online service.
There are exceptions. Tweets, comments and short phrases of text are usually considered to be outside copyright because they are of general usage and no significant individual contribution to ownership can be demonstrated.
Best practice in using this kind of material is to request permission from the contributor and to document the response. If an organisation is using shared material via social media it is a good idea to ensure the Risk Management Policy outlines responses to copyright breaches.
In signing up to, or opening an account on many social media platforms such as Twitter, Facecbook and YouTube, users agree to give permission for their material to be shared. In most situations privacy settings can be altered to control some of the ways the provider uses and distributes the material.
Social media is a complex copyright area and in many cases the technology means that copyright and breaches of it is difficult to control.
Be aware that …
Copyright does not protect ideas, information, techniques or style. It does not protect names, slogans or titles.
While all care has been taken to ensure information is accurate at the time of publication, all information in this resource is intended as a guide only. You should obtain professional advice if you have any specific concerns.
Galleries, Museums and Copyright
This book, published by the Australian Copyright Council, provides a clear guide to the importance and operation of copyright law for galleries, museums and other collecting and exhibiting organisations.
For further information, visit the Australian Copyright Council, Arts Law Centre of Australia and the Copyright Agency. These agencies provide excellent factsheets and resources on all aspects of copyright.