Detailed Discussion

Intellectual Property (IP) relates to the property rights that protect creations such as artworks, designs and inventions. Copyright is one of these rights. 

These rights are legal tools that creators can use to protect their work from unauthorised use. They also help to protect the reputation or brand of creators and to generate income. 

Creators need to be aware and respectful of other creators’ rights and should also have a strategy to protect their own. 

Creators can observe others’ rights and protect their own even if they are not in full agreement with the system. Copyleft is an organisation, symbol and system by which creators permit others to reproduce, adapt or distribute their work provided that the user then allows others to reproduce, adapt or distribute the resulting work on the same basis. The organisation Creative Commons has published a number of free agreements that creators can use to provide blanket permission for some uses of their work at the same time as reserving others.

Indigenous Cultural and Intellectual Property (ICIP) refers to the rights of First Nations peoples to their heritage. The knowledge is generally regarded as pertaining to a particular First Nations group or territory and is communally owned and transmitted from generation to generation. So, when First Nations artists incorporate ICIP into their art practice they are generally guided by cultural protocols. 

ICIP remains the property of the Traditional Custodians. Use of ICIP must follow the cultural protocols of the source community. It includes the right of attribution, the right of integrity and the right to benefit sharing.

Use of ICIP without the consent of the First Nations artist who created the work, undermines the principle of self-determination. The artist and their community have the right to control the use of communally owned knowledge. This control is their right, and is necessary to ensure that the integrity of the knowledge is maintained through cultural protocols.

Misuse of ICIP can result in cultural harm to the artist, their family and their community. Though not protected by law, the observance of ICIP is a good practice ethical standard.

The term originates from the 1992 United Nations Draft Declaration on the Rights of Indigenous Peoples and is detailed in the Australia Council's Protocols for Using First Nations Cultural and Intellectual Property in the Arts, and by Dr Terri Janke in her book True Tracks® (2021). 

For more information, see First Nations.

In Australia, intellectual property (IP) rights legislation includes Copyright Act 1968 (Cth), Designs Act 2003, Patents Act 1990 and Trade Marks Act 1995. Creators working or exhibiting internationally or presenting their work online should be aware that IP laws vary from country to country. The World Intellectual Property Organisation manages the international IP system and Australia is party to a number of international treaties dealing with copyright protection. As a result, artworks created overseas generally entitle the copyright owner to rely on the laws in Australia and artwork created in Australia may be protected by the laws in another country if they are a party to the treaty.    

Copyright

Copyright protects certain types of works from being copied or used in particular ways without the copyright owner’s permission. The Copyright Act 1968 (Cth) gives creators control over their work (e.g. how it is used, distributed or reproduced) and allows creators to charge money for their work. This includes all artistic creators, not just those considered ‘professional’.

Copyright only protects original ‘works’ including literary work, dramatic works, musical works and artistic works; and ‘subject matter other than works’ which include sound recordings, films and television. Copyright does not protect ideas and styles. For copyright protection to exist, you must express your idea in a physical, material form.     

If you own copyright in an artistic work, you are usually the only person entitled to:

• reproduce the work

• publish the work

• communicate the work to the public

Ownership of the copyright in a work can be sold or transferred. It can also be held by multiple creators, for example when a work is created collaboratively, which should be outlined in a contract.  

Copyright is: 

• automatic once the work is created and generally lasts for the creator’s lifetime and for up to 70 years after their death.      

• free and with no registration required. Creators are encouraged to put the copyright notice (©) on their work, however there is no legal obligation to do so, a work is protected equally under Australian law whether the work carries the notice or not. The advantage of using the copyright symbol is that it puts people on notice of your copyright.

• legally enforceable and the failure to seek permission to reproduce, publish or communicate a work protected by copyright may have legal consequences.

Photography

Copyright in photography is complicated by a number of factors including the relationship between the photographer and the client, and the first date of publication. Photographers should read the Australian Copyright Council's fact sheet on Photographers and Copyright.

A creator who has their work photographed should make themselves aware of issues around copyright of the photograph, ownership of the negatives, or digital files and the photographer’s moral rights.

Copyright Exceptions

Copyright is not automatically held by the creator in cases of:

• commissioned portraits or engravings

• photographs commissioned for private and domestic purposes

• material created or first published under the direction or control of state, territory or federal governments and agencies

• material created as an employee for employer

The Copyright Act 1968 (Cth) includes very limited and specific exceptions to copyright infringement which allows the use of copyright material without permission.

Some exceptions include:

• a person's study or research

• reporting news about the work

• publishing a critique or review of the work

• creating parody or satire using the work

People can paint, draw, photograph or film three-dimensional work such as sculptures that are on permanent public display and use the resulting images commercially without seeking permission. This exception doesn’t extend to other artistic works, such as paintings, murals or mosaics. A work is on permanent public display if it is in a public place, or in premises open to the public. 

There are also a number of provisions in the Act which allow educational institutions and state, federal and territory governments to use copyright material without permission of the artist. However, payment through a statutory licensing scheme is made for this use and these payments are distributed by collecting agencies such as the Copyright Agency and Screenrights. 

Moral Rights

Moral rights are personal rights that belong to the creator of the work, whether the creator owns copyright or not, and apply to the physical work, and any reproductions or images of the work. Moral rights are included in the Copyright Act 1968 (Cth).

The creator has the legal right to:

• be attributed as the creator of the work

• not have work falsely attributed (i.e. for someone else to be attributed as the creator of the work)

• have the integrity of their work respected (to not have the work subjected to derogatory treatment)

As moral rights are personal and belong to an individual, companies and other entities do not have the same rights as individuals to enforce them. Generally, moral rights continue until such time that copyright ceases to exist in the work.

Designs

Under the Designs Act 2003, a design showing the appearance of a product, including its shape, configuration, pattern and ornamentation may be registered for a total of 10 years (initially five years and extendable by a further five years). Registration gives the owner the exclusive right to use or sell the design, and to authorise others to use the design. It also enables the owner to take legal action against unauthorised uses of the design by having the design examined and certified. 

A creator can only register a design if it is ‘new and distinctive,’ that is, the design must not have been used publicly or published in Australia or overseas (subject to a 12 month grace period). It must also differ from designs already in use in Australia or that have already been published. 

Creators should be aware that where an item is either registered as a design or eligible for such registration, copyright protection will be limited. Under the Designs Act 2003, if a creator intends to make 50 or more objects of the same design, copyright protection may be lost. Under these circumstances, to ensure protection of their IP, artists may wish to register the design prior to producing the objects. If the design is not registered prior to its production, it will no longer be regarded as ‘new’ and therefore will not be protected.      

To obtain protection for a design under the Designs Act 2003, the creator must lodge a design application with the Designs Office at IP Australia. 

The Australian Copyright Council publishes a number of relevant fact sheets, including Designs for Functional Articles which is particularly useful for explaining the interaction between copyright law and design law in relation to functional articles. 

Patents

A patent is an IP right for protecting a new invention that is commercially useful. A patent is legally enforceable and gives the patent holder the exclusive right to commercially exploit their invention in Australia for the term of the patent. A standard patent gives long-term protection and control over an invention. It lasts for up to 20 years from the filing date of the application. It is also possible to obtain patent protection overseas.

To be patented, the invention must:

• be ‘a manner of manufacture’ meaning it must belong to the useful arts rather than the fine arts and provide some economic advantage

• be ‘novel’ meaning the invention is not already publicly known

• involve an ‘inventive step’, which means that the invention must not be an obvious thing to do, to someone with knowledge and experience in the technological field of the invention

• be ‘useful’, the invention must do what it says it will do

• not have been previously used by the applicant (or someone authorised by the applicant) even if that previous use was secret

A patent may be granted only for a tangible invention such as a device, machine, substance, a process, or computer hardware or software, but not an artistic creation, a theory, idea, or purely mental process. For art, design and craft creators, patents are particularly relevant for materials innovations, for example, a ceramicist might obtain a patent for developing a particular type of clay but would not be able to patent any of the objects made from it.

IP Australia is the government body responsible for registering and administering of patents.    

Trade Marks

A trade mark is a recognisable sign that aims to distinguish certain goods and services from those of another business. It can include a phrase, word, name, logo, sound, colour, symbol, smell or an aspect of packaging or shape. A trade mark can be established by using the symbol ™ after the sign or by registration in respect of a particular category of goods and services. The ™ is generally used for a trade mark that is not (or is not yet) registered.

To be eligible for registration (i.e. to be a ‘registered trade mark’), the intended sign must not already be in use by someone else. You can check for existing trade marks by searching the records of the Australia Trade Marks Office for applications and registrations, the Register of Business Company Names, databases relating to your particular industry, or an internet search. The trade mark must be distinctive and not merely descriptive. A registered trade mark becomes a transferable business asset and is distinguished by the use of the symbol ®. Registration confers exclusive rights in respect of the use of the registered trade mark as a brand name in relation to the goods or services specified in the registration and also to authorise others to use the registered trade mark in relation to that category of goods and services. This registration applies in Australia, but it is possible to use this registration as a basis to register the trade mark internationally. Trade marks may continue indefinitely so long as the trade mark is used in the category for which it is registered and the registration is maintained.

It is also possible to register a trade mark that distinguishes goods and services of a particular standard or characteristic. For example, an artist collective may use a collective trade mark to distinguish their work from the work of other artists. A certification mark certifies that a good or service is manufactured according to certain agreed standards or principles. Two well-known Australian certification marks are the ‘Label of Authenticity’ and the ‘Label of Collaboration’, in relation to works made by or in collaboration with First Nations creators respectively. 

Protecting Ideas

Creators develop information as they develop their practice. This may range from lists of contacts such as a mailing list, to details of materials innovation or specific designs. Much of this information provides a competitive advantage, and accordingly it is best kept confidential. Any situation in which a creator works with others can lead to the loss of this confidential information and may lead to business losses. 

Arts Law has a very useful Confidentiality Deed available for purchase.

When you own copyright in a work you can give others permission to reproduce, publish or otherwise communicate that work to the public under certain terms through a licence. 

Creators should not grant a licence on terms broader than necessary. The person or organisation requesting the licence should be able to articulate why, in all the circumstances, the terms and conditions of the licence, including payment, are reasonable. 

Where copyright in a work is held by multiple creators, it is recommended that creators come to an agreement as to how copyright is to be managed i.e. how permission will be sought and fees divided up.

Licences or agreements should state:

• whether the licence is exclusive, non-exclusive or a sole licence 

• the time period for the licence

• whether use is confined to a particular territory

• how the copyrighted material will be used

• any agreed ways in which the copyrighted material may be altered such as cropping, colour adjusting, other images being overlayed etc.

• the payment for the licence

• confirmation that the creator’s moral rights will be respected

• any specific permissions or limitations on the use of the work to ensure its use is culturally respectful and appropriate. Where the artwork includes ICIP, there should be a separate ICIP clause addressing cultural protocols. See First Nations for further information

Where an artist is licensing a work for commercial use they should consider negotiating royalty payments, see Payment Standards.

Any agreement should be communicated in a format that is accessible for the person providing licensing permission.

For more information, see Arts Law's information sheet on Licensing.

Where it is important that information is kept confidential, creators should take active steps to keep that information secret.

Confidentiality agreements can be particularly important where creators are working with manufacturers or others in high turnover positions. Confidentiality agreements also make the other person aware of the creator’s rights and that the creator actively protects their rights.  

Creators should take steps such as:

• making it clear when talking to people that the conversation is confidential

• asking people being let into secrets to sign a confidentiality agreement

• marking documents and correspondence ‘confidential’

• maintaining security such as password protection, locking doors and files etc. 

Where an artist takes steps to keep information confidential and secret and that information accrues commercial value because it is secret, the information constitutes a ‘trade secret’ and is protected against ‘misuse’ at common law. 

People working with a creator or their work must get permission if they wish to reproduce, publish or communicate the work to the public, they should not assume permission has been given through the creator’s involvement in a project. Fair payment, reflecting the work’s value, should be made for any authorised use of the work, see Payment Standards.

Copyright in a work can be assigned or transferred to someone else, however there are very few circumstances where users should request an assignment of copyright. Any party requesting copyright has a responsibility to obtain free, informed and considered consent, and not place a creator under pressure to assign copyright. 

Users of copyrighted material must uphold the moral rights of creators and not alter images of works in any way without permission from the copyright holder and creator including cropping, colour adjusting, overlaying other images etc. Creators should not be subjected to undue pressure to consent to something which would infringe their moral rights.

Creators should be wary about assigning copyright unless they have assessed that it is in their interests to do so or that it is reasonable in all the circumstances. If a copyright assignment is made, creators should ensure it is for a payment reflecting the value of the work and should consider any ways it can be limited. 

If a creator feels that their copyright has been infringed, they should seek legal advice before taking action.

If the creator of the work has transferred copyright to a new copyright holder, the copyright holder must meet moral rights obligations to the creator. This includes the right to attribution as the creator of the work, to not have work falsely attributed to someone else and to have the integrity of their work respected.

Creators must respect other creators’ moral rights. For example, a creator who has their work photographed should make themselves aware of issues around copyright of the photograph, ownership of the negatives, or digital files and the photographer’s moral rights.