Training and assessment materials are normally protected by copyright in Australia. They are a valuable resource and should be protected from unauthorised copying, which may reduce their value and the value of the business which supplies these resources.
Copyright is automatic
In Australia copyright protection is automatic. As soon is an author records their thoughts in a physical form – whether on paper or in a form of electronic storage – copyright exists, provided that the work has not been copied from somewhere else and at least a minimum amount of effort has gone into the work. There is no system of copyright registration in Australia (although you can register your copyright in some countries such as the USA and China).
Whilst it is not essential, it is recommended that a copyright notice be placed on all valuable copyright works. A common version is:
© [Name of copyright owner] [year of publication] [place of publication] All rights reserved.
This notifies any user that you are claiming copyright in your work and are warning against infringement. It also has other benefits if you sued for copyright infringement.
There are also contractual methods that you can use to protect your training and assessment materials, firstly, when they are being made, and secondly, when they are being used.
1. Commissioning copyright works – It is a little known fact that, if a business commissions someone else to write its training and assessment materials, normally copyright in the materials will be owned by the author or their employer, not the commissioning party, unless the parties have agreed that the commissioning party is to own the copyright.
It is essential that a copyright assignment be included in a written agreement with the author or their employer upfront if the commissioning party wants copyright ownership. Trying to obtain a copyright assignment some time down the track can be met with various obstacles such as: the author cannot be found, or demands an unacceptably high sum for the assignment, or refuses to assign copyright all together.
2. Why would you want copyright ownership? Because it gives you the maximum freedom to use the materials as you wish, including allow others to amend and update them. It also allows you to take action against someone who is copying the materials without your authority.
3. Letting others use your materials – letting others use copyright material is called a “copyright licence” in legal terminology. A licence can be in writing, oral or even implied from the circumstances. But if your materials are valuable, you should set out in a written contract how they can and cannot be used. If you do this and someone misuses the material, you will have a legal right to claim breach of contract. If it is unclear how your materials can be used, you are in a weaker position.
If someone else is using your copyright material
1. Infringement – What if you believe that someone is infringing your copyright? The best thing to do is to speak to a copyright lawyer. I gave more information about what this involves in an article in The VET Sector on 4 October 2021. It is important that you are vigilant in watching out for unauthorised use of your training and assessment materials because this may detrimentally affect your business, especially if you are missing out on sales or licence fees.
2. Educational copying – Some copying of educational materials is permitted under the Copyright Act through an education copying scheme called the Statutory Education Licence. This Licence is administered by the Copyright Agency, which collects licence fees from educational institutions. It distributes royalties to copyright owners and is free to join – www.copyright.com.au Are you a member?
3. Third party websites – Sometimes academic resources are posted by students on third party websites. Two that come to mind are www.coursehero.com and www.scribd.com. These websites operate out of the United States, which means that there is a takedown facility under the USA Digital Millennium Copyright Act (DMCA). You can fill out a form on these websites verifying that you own the copyright in material posted on their sites and that it is infringing content and the material will be removed, although the person posting has a right of reply.
For businesses that develop training and assessment materials, a key component of the value of their business is their copyright, which gives them a level of exclusivity in the use of their materials. But this needs to be protected, firstly, by securing ownership of the copyright, secondly, in taking care when licensing others to use the materials and thirdly, by taking action against those who infringe the copyright.
Margaret Ryan is a lawyer and trade marks attorney with over 30 years’ experience in intellectual property, including copyright, and consumer protection law, working with organisations to find solutions, maximise the value of their IP and protect their business. IP by Margaret® – www.ipbymargaret.com.au