Intellectual Property Principles

The rights of the copyright owner

Right to copy/reproduce

This includes photocopying, recording and scanning. However, for literary, artistic, musical and dramatic works, the right to reproduce is not limited to instances of just exact copying. It also covers instances of copying that produce something substantially, though not exactly, similar to the original work. The test for determining whether a work has been copied is to look not just at how much has been copied (quantity), but also the importance of what has been copied (quality).

Australian courts have said that quality will be more important than quantity. For example, it may be an infringement of copyright to copy two lines from a song, if those lines are the most memorable and important in the song, even though two lines are only a small quantitative part of the song.

Right to publish

Allows the work to be made available to the public for the first time.

Right to publicly perform

Allows the work to be performed in public either live or for recording (for example, so that it can be included as part of a film). This is the right that governs performances at concerts and theatres and in any public space.

Right to ‘communicate to the public’

This is the right that allows the work to be electronically distributed through various mediums such as internet and broadcast. When a work is shared online, such as on a website or via peer-to-peer (p2p) file sharing, the communication right is used.

Right to adapt

Allows the work to be translated or adapted into a different form. For example, an adaption would include translating a literary work into another language, or writing a screenplay for a movie (a cinematographic work) based on a novel (a literary work). There is no right of adaptation for artistic works.

Right to use for economic gain either by selling or licensing

Allows the owner to either transfer (commonly known as “assign”) or license (give permission for) all or any one of their rights. Assignments and licences are often granted for monetary payment. In the case of an assignment, the rights transfer to the purchaser/new owner, and the creator is not left with any residual rights. In the case of a licence, the copyrighted material can be used for the purpose for which the licence is granted, while ownership continues to remain with the creator/owner.

Important note

The purpose of copyright is to protect and promote creativity. The law does not permit the copying of a copyrighted work without the permission of its owner or without a legal exception. Copying (or publishing, performing, or communicating) without permission or excuse is known as “infringement” of copyright. If a copyright is infringed either knowingly or unknowingly, the owner has a right to stop further use and/or claim compensation under the law. 

Intent is not an element of copyright infringement, so it is possible to infringe copyright without intending to.

Allowed or not allowed?

Here are three common situations where copyright infringement may occur.

  1. Anuradha photocopies an entire book to sell it at her bookstore.

    This is not allowed as this is an instance of direct copying.
  2. Linda is a dress designer and owns a boutique. She reproduces a one-of-kind dress from her favourite designer by adding some of her own elements and puts it on sale.

    This is not allowed as this is an instance of substantial copying. The original design of the dress does not belong to Linda and adding new elements does not change that.
  3. Chanly watches a documentary on an islander’s life and decides to produce a new documentary using the same location and similar situations.

    This is allowed because there is no copyright in a location or similarities in an islander’s life situations. An important takeaway is that Chanly did not reproduce or use the whole or any part of the original documentary in any manner.