Whether you are a creative about to enter into a book deal or an editor looking to commission, acquire or licence an existing literary work for publication, an understanding of copyright is essential.
1. How do I receive copyright protection?
There is no procedure or system of registration for copyright in Australia. Your work is automatically protectable from the moment it is written or recorded by you.
2. Who owns copyright?
Copyright normally vests in the “author” or creator of a copyright-protected work. However, the original creator may not be the owner of copyright if:
a. the creator has signed a document granting ownership to someone else (an assignment);
b. the creator is or was an employee journalist (as distinguished from a freelancer or independent journalist) who created the work as part of their employment; or
c. the work was prepared for use by a Commonwealth, State or Territory government or agency.
It is important to understand who has been granted ownership in a work, as an owner maintains the exclusive right to reproduce or publish it. An owner also has the exclusive right to make it available to the public for the first time. A copyright owner can also assign or licence their rights in a work to someone else, including the right to adapt or change the work into something new (for example, a film or television series). This can be with or without remuneration.
Publishers should have a comprehensive written agreement in place that clearly sets out who will own copyright in any material and what the owner is entitled to do with that material, including licensing subsidiary rights, that is the right for the publisher to licence the work to a third party and mechanisms for assignment. Publishers should also take care to have warranties in place to protect them if the contracted author is not the owner of the literary work.
For authors and journalists, it is important to have a detailed understanding of how a contract with a newspaper, magazine or publisher impacts your ability to exploit your work in future, and what income you are entitled to if your work is assigned or sublicensed.
3. Can copyright be jointly owned?
Copyright can be owned jointly if two or more authors have contributed to the creation of a single work. For example, a children’s book may be jointly created by an author and an illustrator.
A publishing agreement should clearly set out how royalties or subsidiary rights income is split between two or more creators, and how permissions are managed when a third party wants to use that material. It may be appropriate to assign the right to sub-licence to a single author, with the co-author maintaining their moral rights and the right to any royalties proportionate to their contribution. Alternatively, each contributor may want to enter into a separate contract with their publisher.
Regardless of which way joint owners may carve out their ownership, collaboration is essential to maintain the integrity of the work.
4. What is a copyright licence?
As copyright is intangible, the rights can be divided and distributed in any number of ways, including by territory or format. As a result, there can be more than one party who holds an interest in the copyright-protected work. These interests are managed through licences.
Under a licence, a copyright owner (or someone authorised to act on their behalf, such as an agent) grants a user (a licensee) some or all of all of its rights to use copyright material for a particular purpose. This is distinguished from an assignment of copyright, which is the complete transfer or sale of rights to a third party.
A publishing agreement can facilitate how different rights are licensed, whether exclusively or non-exclusively. Under some agreements, a licensee may be empowered to enter into new contracts with sub-licensees or take legal action for copyright infringement by third parties.
For example, a novelist may exclusively licence the right to print, publish and sell their book to a publishing house. They may also give their publisher certain subsidiary rights, including the right to licence the manuscript to a translator or to another publisher dealing in audiobooks. The income payable to the author for use of their work under licence would be managed through a publishing agreement.
The novelist may decide to reserve their dramatisation rights, which allows them to negotiate independently with a producer for the licensing of film rights. To make a film, the producer would receive the right to produce and distribute the film adaptation, and often the exclusive right create and distribute merchandise.
The below diagram is an example of the different rights and subsidiary rights that a publisher and a producer may acquire under licence with respect to a literary work.
5. What are moral rights?
Moral rights are the personal legal rights that belong to an author or creator of copyright under Australian law.
An author’s moral rights are:
a. The right to be attributed (or credited) for their work;
b. The right not to have their work falsely attributed to someone else; and
c. The right not to have their work treated in a derogatory manner or in a way that is otherwise detrimental to their reputation.
These rights apply to all copyright-protected literary works and cannot be assigned, licensed or sold. This means that authors retain these rights unless they provide their consent which allows another party to use the work in a way which may breach the author’s moral rights. As these rights are unique to Australia, an agreement to publish, licence or adapt your work in another territory (for example, the United States) may not include these protections.
Here at Sladen Legal, we can work with publishers, producers and authors alike to manage the licensing of copyright, the sale or transfer of copyright works and any copyright infringement disputes.
Sladen IP is dedicated to assisting creative and inventive individuals and businesses in protecting, commercialising, maintaining and enforcing their intellectual property rights.
Our team can work with publishers, agents and authors alike to manage the licensing of literary or other creative works, together the sale or transfer of copyright subsisting in these assets.
To discuss further or for more information please contact:
Michelle Dowdle
Special Counsel
T +61 3 9611 0114| M +61 408 674 256
E: mdowdle@sladen.com.au
Laura Bentley
Lawyer
T +61 3 9611 0120
E: lbentley@sladen.com.au
