Introduction

There are a number of different criteria that a creation must meet in order for it to be protected by copyright law. These are the requirements of (1) subject matter, (2) material form, (3) connection to Australia and (4) originality. While copyright arises automatically on creation, a work will only be protected if it satisfies these different criteria (or at least those criteria that apply). The first threshold that must be met is that the creation must fall within one of the categories of subject matter recognised under the Copyright Act 1968 (Cth). Copyright law divides subject matter into two general categories: ‘works’ – literary, dramatic, musical and artistic works – and ‘subject matter other than works’ – sound recordings, cinematograph films, sound and television broadcasts, and published editions of works. Once it has been established that a creation falls within one of the categories of subject matter, it is then necessary to show that it meets the requisite criteria for protection. The particular criteria that need to be met differ depending on the type of subject matter in question. The first of these is that for a work to qualify for protection, it must be recorded in material form. This requirement only applies to literary, dramatic, musical and artistic works. The next requirement that must be satisfied, which applies to all categories of subject matter, is that the creation must be sufficiently connected to Australia to qualify for protection under Australian law.

The final requirement, and the requirement that often requires closest examination, is that the work must be original. This requirement only applies to literary, dramatic, musical and artistic works. Part IV works (that is, subject matter other than works) only need to satisfy the lower threshold that the subject matter has not been copied. Each of these criteria will be examined in turn.