Last updated 16 August 2022
The general rule is that the person who creates a work under Part III is the first owner of copyright (s 35(2) Copyright Act 1968 (Cth) (Copyright Act)). It is important to note that this general rule does not apply to employees (particularly employees of newspapers, magazines and periodicals) nor to commissioned photographers, portraitists, film makers, engravers and sound recorders (ss 35(4)–(6)). It is equally important to note that each of these exceptions to the general rule of ownership can be excluded or modified by agreement (s 35(3)).
An employer is the first owner of copyright when a work is produced by an individual who is employed on a contract of service, and the work is created in the course of employment as part of normal duties (s 35(6) Copyright Act). This general rule may be modified or varied by agreement between an employee and employer (s 35(3)). Such an agreement can be made expressly or can be implied from the conduct or arrangements that exist between the employer and employee.
Employees of newspapers, magazines and periodicals
In the case of employees of newspapers, magazines and periodicals, copyright is divided between the author and publisher (s 35(4)). When works of literary, dramatic or artistic nature are produced by an author employed by newspapers, magazines and periodicals, the copyright is owned by the author for the purposes of reproducing the work in a book and/or in hard copy facsimile of an issue of the newspaper, magazine or periodical (ss 35(4)(a–c)). However, the owner of the magazine or newspaper retains ownership in all other instances (s 35(4)(d)).
Commissioned photographs, portraits, films, engravings and sound recordings
When a work is commissioned, the copyright usually remains with the author, rather than the commissioner. In some cases, the copyright is transferred by agreement. According to the Copyright Act, there are special exceptions including commissioned:
- sound recordings and films, where copyright belongs to the commissioner of the work (ss 97(3), 98(3)) unless otherwise agreed
- photographs for private and domestic purposes, paintings, engravings and drawings, where copyright belongs to the commissioner of the work unless otherwise agreed. Domestic purpose includes portraits and photos taken of weddings, families or children (s 35(7)). However, where the work is commissioned for this purpose, and the purpose for which the work is to be used is made known to the photographer, they may prevent that work being used for any other purpose (s 35). For example, if a person commissions a photographer to take photos at a wedding, the copyright belongs to the person who commissioned the work but the photographer may prevent that person from publishing the work in a publicly sold book.
Commissioned photographs for any other purpose belong to the photographer. In the case of Part IV ‘Other Subject Matter’, copyright ownership is, as a general rule, designated to the producer or manufacturer.
Subject to any agreement to the contrary, the owners of the copyright in a sound recording (not a visual recording) of a live performance are both the recording company/producer of the sound recording and the performer(s) who contributed the sounds to the performance. Exceptions to these rights exist in circumstances where performers were performing under the terms of a contract of employment, the sound recording was commissioned or an agreement has been entered into by the performer varying the rights.
For sound recordings made before 1 January 2005, the performer(s) and producer own the sound recording in equal shares (50% each), but rights of performers in those pre-existing recordings are limited.