Authorship is central to copyright protection. The Courts have recently dealt with the issue a number of times to the detriment of the party attempting to rely upon copyright.
The issue of authorship, and particularly "joint authorship", has had an important role to play.
A common theme emerging from recent cases is that technological developments in the way people work can make it more difficult to meet the authorship requirements for copyright protection under the Australian Copyright Act 1968 (the Act). This has been an unpleasant surprise for some who have tried to rely on copyright protection.
Under the Act, the general rule is that the first owner of a copyright work created is the "author" of that work (i.e. the person that produced or created that work).
Where two or more authors have contributed to the creation of a work, they may have produced a "work of joint authorship".
A "work of joint authorship" is defined in the Act as "a work that is produced by the collaboration of two or more authors and in which the contribution of one author is not separate from the contribution of the other authors." To meet this requirement, there needs to be some collaboration between the authors.
Identifying the authors is crucial in determining whether copyright consists in a work. Recent cases have clearly illustrated the difficulties that can arise where authorship is not properly established.
How authorship has caused problems
Authorship issues are arising not only for companies whose businesses are wholly technology-based or technology-driven, but also where companies simply use technology to automate parts of their business.
Software developers, those who create or rely heavily upon directories or databases, as well as businesses that typically use or publish material that has been created by a number of different people should have regard to the lessons that can be learned from cases the Federal Court has passed judgement on this year.
The position that some applicants have found themselves in when trying to prove "authorship" in recent cases could become the rule rather than the exception for those operating in similar businesses.
Some common themes have emerged from recent cases dealing with this issue.
The importance of identifying the authors
One of the essential elements of copyright protection Australia is that the work must have been authored by a "qualified person", meaning an Australian citizen or a person resident in Australia. The ability to identify the author(s) of a work is, therefore, essential. In Telstra's recent battle in relation to its White and Yellow Pages directories, the Court held that copyright did not subsist in the directories. Telstra could not identify all the joint authors and, as summed up by the Court, "This is essential for copyright to subsist in the Works". While it is arguable that the Court in this case over-emphasised the need to identify every author, this emphasis is (for now at least, pending the result of Telstra's appeal) good law, and should encourage best practice from the creators of copyright works.
The importance of collaboration
Where Telstra was able to identify some of the authors of the directories, it was still unable to demonstrate that there had been the requisite level of collaboration between these authors to produce a "work of joint authorship". These authors, while contributing to the same work (i.e. the directories), were performing their functions separately from, and oblivious of, the functions of the other authors. This problem was echoed in Primary Health Care's (PHC) attempt to demonstrate ownership of copyright in patient records. The Court held that the patient records owned by PHC did not attract copyright protection as a "work of joint authorship", because each record was made up of individual entries in relation to that patient, and each entry was made independently and not by way of collaboration.
The problems caused by automation
In the Acohs case, the Court held that copyright did not subsist in the source code of a program developed by Acohs to generate Material Safety Data Sheets for hazardous products. The problem was that the source code as a complete entity was not written by any single human author, but was generated by a computer program. Acohs sought to overcome this problem by arguing that the source code was a "work of joint authorship", created by a variety of people in different roles providing input and using the computer program as a tool to generate the code. The Court was not persuaded by this argument and determined that there was insufficient collaboration between those identified by Acohs as authors of the source code. As the source code was not the work of any one human author, and was not a "work of joint authorship", it could not be regarded as an original literary work attracting protection under the Act.
Copyright not properly assigned
An issue common to the Telstra, PHC and Acohs cases was the fact that where each of these parties had attempted to identify authors of what they believed to be their copyright works, not all of these authors were employees of those parties. Under the Act, where an author creates a work pursuant to a contract of service, their employer is the owner of the copyright. However for copyright in a "work of joint authorship" to vest in an employer, it is necessary either that all the authors be employees of that employer or that non-employees have assigned their rights in the work to the party claiming ownership. In some instances, not all authors were employees, and even where authorship could have been established to satisfy the requirements of the Act, ownership of the copyright works in which the parties were trying to assert their rights had not automatically passed to these parties by way of the employer-employee relationship. Failure to obtain proper assignments from the third-party authors precluded a valid claim of ownership.
So what should you do?
Copyright can be a powerful, long-lasting right. It is important to put in place the appropriate practices and procedures to maximise your ability to validly claim and enforce copyright protection. The Courts currently appear to be placing a greater emphasis on the foundational elements of copyright, such as proving authorship of copyright works. This is encouraging litigants to be more reluctant to concede formal elements such as the subsistence of copyright. Where the type of work created by your business is at risk of falling through the same gaps in copyright protection as Telstra's directories, PHC's patient records and Acohs' source code, you should consider the following:
- Keep full and accurate records of all authors, detailing each of their contributions to the work, and keep a detailed record of who did what.
- Ensure that copyright (and other intellectual property rights) are properly assigned to your business by all authors using well-drafted contracts, even for employees.
- Encourage collaboration in team meetings and briefings to make each author aware of their specific role in creating the copyright work, and the role of all other authors. This could reduce the risk of authors being seen as working independently of each other.
- Where automation forms part of the creative process, be aware that this poses the risk that the work will not have been created using the necessary human element. Maximise and document the human element.
Although these steps will not guarantee copyright protection, forethought, planning and implementing appropriate procedures from the outset are necessary to maximise your prospects in enforcing and protecting your rights.
For more information, or if you would like to discuss further, please contact us.
 Telstra Corporation Limited v Phone Directories Company Pty Ltd  FCA 44
 Primary Health Care Limited v Commissioner of Taxation  FCA 419
 Acohs Pty Ltd v UCorp Pty Ltd  FCA 577
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.