Smartcopying

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• Contract - the rights given under the Copyright Act may be varied by agreement (eg the copyright owner may assign the copyright to someone else).
• Employment - copyright in works made by an employee in the course of employment under a contract of service is usually owned by the employer (eg course materials produced by a teacher for use in the classroom will generally be owned by their employer, such as a Department of Education, the Catholic Education Commission or an Independent School ).
• Commissions - copyright in photographs, portraits and engravings commissioned for a private or domestic purpose will be owned by the commissioning party, provided the agreement is in exchange for some 'valuable consideration' (meaning money or something else offered in exchange for the commission). For all other commissions the general rule will apply - that is, that the author or maker is the copyright owner; unless the contract for the commission provides otherwise.

  [NB: prior to July 1998, where a photograph was commissioned, the person commissioning the photograph was the copyright owner of the photograph. This means the commissioning client will usually be the copyright owner of photographs for photographs taken after 1968 until 1 July 1998, unless the contract for the commission provides otherwise.]

• Co-authorship - copyright may be owned by several authors jointly. Joint owners cannot deal with their copyright without the consent of the other authors. In order to qualify as a joint author, a person must have done more than merely supplied ideas or suggestions.
• Crown copyright  - where copyright material is created under the 'direction' or 'control' of the Crown, or where it is first published by the Crown, the copyright will be owned by the Crown. The 'Crown' includes a wide range of government bodies, including government libraries and departments, but does not usually include independent statutory bodies such as the Australian Broadcasting Corporation.
• Performer's Rights in Sound Recordings - unless otherwise agreed, the copyright in a sound recording made of a performance will be owned equally between the performer and the record company.

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Special copyright ownership issues for schools/TAFE institutes

1. Staff copyright
   1. Government Schools and TAFE Institutes

      Government school and TAFE teaching staff are generally employed by the relevant State or Territory Department of Education. As the relevant Department of Education is a direct instrument of the Crown (government), the Crown copyright ownership provisions apply to works created by the relevant Department's permanent employed staff and casual teachers.

      The Crown copyright provisions provide that the Crown owns copyright in all works, films, sound recordings and broadcasts for works:

      • created or made under the direction or control of the Crown; or
      • first published in Australia by the Crown

      All works created under a consultancy or commission agreement will generally be considered to be created 'under the direction or control of the Crown' and therefore the Crown will own copyright in such works, unless it is agreed otherwise (eg in a written consultancy agreement).

   2. Independent Schools

      Where a teacher is employed directly by an Independent School , then the employer ownership provisions under the Copyright Act apply. This means that the Independent School, as the teacher's employer, owns copyright materials produced by the teacher in the course of their employment, unless there is an agreement to the contrary.

      Course notes, syllabuses and other teaching materials are likely to be owned by employers. On the other hand, if a teacher wrote a text book or article on the subject they teach, copyright ownership of the text book will belong to the teacher unless the school had required the teacher to write the book.

   3. TAFE Institutes

      Employment of TAFE teachers varies across Australia. Some are employed directly by the institution, others are employed by the State or Territory administering body or Department of Education. Where TAFE teachers are employed by the State or Territory, the Crown copyright provisions will apply, in the manner described above. Where TAFE teachers are employed by TAFE institutions that are independent statutory bodies, the employer ownership provisions will apply as described above for Independent Schools .

2. Student copyright
   1. Copyright ownership of student works

      Generally, the student, as an author of a work, will own copyright in works they make while enrolled in a school or TAFE.

      It is unlikely that the provisions relating to Crown copyright would apply to works created by students in government schools .

   2. Assignment of student copyright

      Some TAFE institutes require as a condition or term of enrolment that all copyright in works created by their students while enrolled in the institution will vest in the institution. This is a form of assignment of copyright and must therefore be in writing and signed by the student to be effective. The signing of the enrolment form by the student will most likely meet these requirements.

3.  Copyright in school photographs

   In general, copyright in photographs taken by an external photographer of individual students and classes will be owned by the photographer, unless there is an agreement to the contrary.

   Educational institutions should obtain a licence from the photographer in the contract of engagement with the photographer to:

   • reproduce the photographs in their publications
   • make the photographs available on the school intranet
   • limit the photographer's use of the images to the sale to parents and students

   Alternatively you should contact your relevant copyright officer for advice or assistance in preparing a written licence.

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