intellectual property

1. What is intellectual property and is it the same as copyright?

“Intellectual property” is a general term covering a number of areas of law. Copyright is one of these areas so no they are not the same thing.

2. How would you register your design for copyright and how much would it cost?

There is no registration system for copyright in Australia and copyright its free, there is no cost when copyrighting something of your own. Copyright protection automatically applies when something is created.

3. I have an idea about a logo design, is it covered by copyright?

Yes, copyright applies automatically when material is created.

4. What is the name of the federal legislation covering copyright law in Australia?

In Australia, copyright law is set out in the Copyright Act 1968 (Cth). This is federal legislation, and applies throughout Australia.

5. What does Copyright protect?

Copyright pretty much protects anything that has been created by someone, against frauds and people that breech the copyright code. If copyright is breeched the person claiming the piece of work to be their own, when it isn’t, will be charged with an excessive amount of money. Copyright is a legal right, giving the copyright owner the legal right to take action if somebody else uses the copyright material (without permission) in one of the ways reserved to the copyright owner, unless an exception to infringement applies.

6. What is the Copyright notice and its purpose?

The copyright notice consists of the symbol ©, followed by the name of the copyright owner and the year of first publication: for example, “© Gus OʼDonnell 1968”. For sound recordings, the letter “P” (for phonogram) in a circle or in brackets is used instead of the “C” in a circle. The “copyright notice” does not need to be on something to ensure that it is protected by copyright in Australia or in most other countries, but it does remind people that the work may be protected. It also lets people know who is claiming copyright. Copyright owners can put the notice on their work themselves; there is no formal procedure.

7. What evidence could you provide to a court to prove you’re the copyright owner of a logo you’ve designed?

Evidence to prove that any work has been created by you can include sketches, drafts or ideas that were made prior to the completion of the creation. This will prove that you actually worked on the piece, put ideas down, etc.

8. If an artwork appears in an Art Gallery, does the Gallery own copyright for that item?

If the work is held in an art gallery or museum, the gallery or museum may be able to authorize its use or be able to help you to contact the rights owner. The fact that organizations or people own physical items does not necessarily mean that they also own copyright in those items.

9. If I’m employed by a company as their in-house graphic designer, who would generally own the copyright?

The company would generally hold the copy rights unless a written agreement/contract states otherwise.

10. If I’m working as a freelance Graphic Designer and create a logo for a company, who would generally own the copyright for the logo?

The graphic designer would hold the rights in this situation as they would be outsourced, unless they have a written agreement/contract giving the company the copyrights.

11. How much of an artistic work can I safely use without infringing on copyright?

Generally, making changes to something wonʼt avoid a copyright infringement.

If, for example, you want to use something someone else has created – on your website, or in a brochure, or even for purely personal purposes – you might need permission even if you are using only a small part of that material, or if you make changes to it.

When working out whether or not you will need to get permission, it is more important to look at what is still the same, rather than what has been changed. You will usually have a copyright issue to deal with if you are using any important, distinctive or essential part of the original material – this may or may not be a large proportion of that material.

12. If you’ve done everything in your power to identify the copyright owner but they won’t contact you back, is it ok to use the work without permission as long as you use a ‘good faith notice’ stating you were unable to contact them?

You can use work without permission with a ‘good faith notice’ however this does not alter your legal liability for infringement.

13. Who is VISCOPY and what might they come in handy for?

A licence may be available from VISCOPY, the visual arts copyright collecting society, for the reproduction of works of art from Australia or overseas.

14. What are moral rights?

Moral rights are personal legal rights belonging to the creators of copyright works and cannot be transferred, assigned or sold. “Moral rights” are the rights individual creators have in relation to copyright works or films they have created. Moral rights are separate from the “economic rights” of the copyright owner, such as the right to reproduce the work or communicate it to the public. The creator of a work, who holds moral rights, is not necessarily the owner of copyright in the work.

15. How would you go about obtaining copyright clearance for an artwork you want to use that you’ve found on the internet?

The process of obtaining a licence called “clearing copyright” when you contact the person who created the work or holds the copy rights, you would ask for a “licence” to use the material, a licence may be granted subject to conditions like a contract, which may include payment of a fee. However if you cannot find the copy rights holder or they do not contact you back, you can use work without permission with a ‘good faith notice’ however this does not alter your legal liability for infringement.

16. What is a Trademark and how do you register one?

If you are using a name or logo (and in some cases, a colour, sound or smell) in your business, you may be able to register it as a trade mark. Unlike copyright, trade mark protection requires registration and paying a fee. Registration gives you protection against other people using a substantially identical or deceptively similar mark in the course of trade. Trade marks are registered with IP Australia (http://www.ipaustralia.gov.au).

17. What does a Patent protect?

Patents protect inventions, including processes, methods and techniques. However, the protection will only be granted for a device, substance, method or process if it is new, inventive and useful. Patent protection requires registration with IP Australia (http://www.ipaustralia.gov.au).

18. Define Defamation.

The law of defamation protects peopleʼs reputations, and concerns the way you speak about or refer to people and how you use their images. For an introductory overview, see the “InfoSheet” on the website of the Arts Law Centre of Australia (http://www.artslaw.com.au).