Requirements to gain copyright protection

Importantly, protection of content under copyright law in Australia is free and automatic from the moment it is in a material form (such as the words of a poem being written down or a song is recorded). You do not apply for copyright protection. There is no system of registration. And there are no fees to be paid. Being free and automatic, and not requiring an application, registration or the payment of a fee sets copyright apart from most of the other intellectual property protections.

To get copyright protection in Australia you do not need to publish your material. You do not need to send yourself a copy of the material by registered post. And you do not need to put a copyright notice on it. So there is no need to include the ‘c in a circle’ symbol with your name and date. But it can be useful in evidencing you are the copyright owner and allowing potential users to identify and contact you. If you wnat to know more about copyright notices we have a page with more details about them.

In addition to content being one of the types protected by copyright, content must also meet some minimum requirements. In order to be protected, all material must be:

• An expression, not an idea – Protection is not given to ideas, facts or information: Material outside of the scope of copyright is not protected as is, rather what is protected is the form in which the idea, facts or information is expressed. Justice Farwell in Donoghue v Allied Newspapers [1938] Ch 106 declared that, ‘If the idea, however original, is nothing more than an idea, and is not put into any form of words, or any form of expression such as a picture, then there is no such thing as copyright at all’. The court in the same matter stated that what is protected in news articles is ‘the particular form of language by which the information which is to be conveyed is conveyed.’
  
  
• In a material form – How material is expressed is linked to it being reduced to a material form. Section 10 of the Copyright Act states that material form ‘includes any form (whether visible or not) of storage of the work or adaptation, or a substantial part of the work or adaptation, (whether or not the work or adaptation, or a substantial part of the work or adaptation, can be reproduced).’ Writing something down, making a video or audio recording of it or notating a musical score are examples of reducing something to material form. What is a material form is considered further below.

For literary, dramatic, musical and artistic works the material must also be:

• Original – The material must be original. The Copyright Act does not define ‘original’ but case law has established the originality threshold, which is very low. Basically, the material must not be a mere copy to be original enough to gain copyright protection.
  
  
• Made by a human author – The material must have a human author who has exercised skill and labour in the creation of it. That’s why Naruto was found not to have copyright in her monkey selfies and one of the reasons why the outputs of AI are complicated in terms of copyright!

In copyright terms, a material form is any tangible or physical embodiment of copyright material that can be perceived, reproduced or communicated. There are lots of mediums in which  material can be fixed, including being:

• Written, drawn or otherwise expressed on paper, including blank paper, as well as specialised paper such as art paper, sheet music, blueprint paper, graph paper, etc
• Electronic files, whether stored on a computer hard drive, portable storage such as a portable hard drive, USB stick or floppy disc, on a server or on the cloud
• Computer code, including source code and object code in any programming language or system of notation
• Plates, including stereotypes, stones, blocks, moulds, matrices, transfers, negatives or other similar appliances
• Records, including:
  • Compact discs (CDs), cassette tapes, other types of tape, vinyl record, other tangible media containing audio, etc
  • Blu-rays, Digital video disc (DVDs), cassette tapes, other media containing movies, TV shows or other audiovisual content, etc