Understanding copyright ownership and licensing is essential for anyone creating or using intellectual property in Australia. Whether you’re an artist, employer, business owner or creative freelancer, knowing how copyright works can protect your rights – and help you avoid legal headaches.
In this article, our copyright lawyer, explains who owns copyright, discusses protecting copyright and how to choose the right path for a copyright license.
Key takeaways
Copyright is automatic upon creation in Australia—no registration needed.
The author usually owns copyright unless created in employment or under contract.
Copyright can be licensed (exclusively or non-exclusively) or assigned to others.
Written agreements are strongly recommended to avoid disputes.
Moral rights are separate and protect an author’s reputation and attribution.
What is Copyright?
Copyright is a legal right that protects original works like books, music, films, images, software, and more.
In Australia, copyright arises automatically under the Copyright Act 1968 (Cth) once the work is created in a material form. You don’t need to register it.
There are two categories:
Works: literary, dramatic, musical, and artistic creations.
Subject Matter Other Than Works: such as sound recordings, films, and broadcasts.
Who Owns Copyright in Australia?
The creator is generally the copyright owner. However, there are exceptions:
Employment: If an employee creates the work in the course of their job, the employer usually owns it.
Contracted Work: If you’re hired to create something, ownership may transfer to the client (depending on the agreement).
Government works: The Crown may own materials first published by a government body.
You can have joint authorship when two or more people contribute inseparably to a work.
Moral Rights
Separate from copyright ownership, moral rights protect:
The right to be credited (or not credited).
The right to object to derogatory treatment of your work.
The right to prevent false attribution.
Even if you assign your copyright, you retain your moral rights unless explicitly waived (which may not always be enforceable).
Assigning Copyright (Transferring Ownership)
Copyright can be transferred (assigned) through a written agreement. Once assigned, the new owner gains full legal rights, including the ability to license or sell the work.
Important: Selling a physical object (like a painting or manuscript) does not transfer copyright unless specified in writing.
Licensing Copyright
A licence allows someone to use your copyright without transferring ownership. You can grant:
Exclusive licences: Only one party can use the copyright in a specific way. Even the owner is restricted.
Non-exclusive licences: The copyright can be used by multiple parties, including the owner.
Licences can be written, verbal, or implied, but a written intellectual property agreement or licence agreement is highly recommended for clarity and enforcement.
Sublicensing
A licensee can sometimes grant further rights to others through a sublicence. This is only allowed if the original licence permits it.
The licence may state ‘The owner grants the licensee the ability to grant sublicenses on the same terms as this copyright licence’.
Sublicensing is commonly used to:
Monetise rights through broader distribution.
License to local partners in international markets.
Always seek legal advice before sublicensing, as it can limit the original owner’s control.
Implied Licences
An implied copyright license is created by law without an actual contract between the parties. The licensee gets the right to use the copyrighted work. But their right may be limited.
For example:
You commission an illustration for your book.
The artist owns copyright, but it’s implied that you may use it for publication.
However, relying on implied rights is risky – written agreements protect everyone.
When Copyright Ownership is Unclear: Orphan Works
Sometimes, it can be hard to find out the owner of a copyrighted work.
Orphan works are materials where the copyright owner cannot be identified or found. Using these works without permission carries legal risk. Learn more about orphan works and how to handle them here.
Case Law on Copyright Ownership
Hadley v Kemp
The court held that two or more people can own copyright jointly if they are joint authors of copyright material. People are joint authors when they cannot separate their contribution to the work from the contribution of the other.
To be a joint author or co-author, a person needs to make a significant and original contribution. This contribution combines their work with copyrighted material.
Bourke v Filmways Australasian Distributors Pty Ltd
The Court looked at the rights of a film producer.
The court determined that the film producer had permission from the writer/director to distribute the film. This permission was not in writing, but it was still valid.
No formal agreement transferred the film’s copyright to the producer. The producer and the writer/director agreed on the fees the producer had to pay. However, there was no written contract.
De Garis v Neville Jeffress Pidler Pty Ltd
The Court looked at the rights of media outlets. Freelancers and journalists often allow media outlets to publish their content even if they are not employed by them. They permit the outlet to use their work. This means that the outlet can publish the content that the freelancers and journalists submit.
If you need legal advice regarding copyright protection, you should contact a copyright lawyer.
Read more about Australian Entertainment Law in our guide.
Frequently Asked Questions
Who owns copyright in Australia?
The creator, unless the work is created under employment or transferred by contract.
Can copyright be licensed without a contract?
Yes, but written licences are safer. Oral or implied agreements are harder to prove.
What is the difference between assignment and licence?
An assignment transfers ownership. A licence grants permission to use the work but the owner retains rights.
What happens if someone uses my work without permission?
You may have grounds for a copyright infringement claim. Legal remedies include damages and injunctions.
How long does copyright last in Australia?
Generally, for the life of the author plus 70 years.
What is the Australian Copyright Council?
The Australian Copyright Council is a not-for-profit organisation. The ACC is a community legal centre that promotes the benefit of copyright for the common good. It does this by providing information and assistance to creators and consumers of copyright material.
What should an Intellectual Property Agreement include?
An intellectual property agreement should state:
- who is the owner of the copyright
- the person who has the right to use the copyrighted work
- how the licensee may use the copyrighted material
- whether there will be a distribution of profits if the work generates income during the licencing period
- whether the licensee can transfer the licence to others (sublicense)
- whether the owner can revoke the licence
- how long the licence will last
If you need legal advice regarding copyright protection, you should contact a copyright lawyer.
