LEGALLY SPEAKING -PAUL SUGDEN

Protection, Teaching Courses and Materials

So far in this series of articles we have examined the protection given to techniques and styles; now we look at the protection given to a creator who utilises the ideas and techniques of weaving, quilting, appliqué, etc and develops a course to teach individuals how to also use these skills to produce similar articles.

The production of materials generally falls clearly within the confines of copyright as the materials are usually in the form of works that copyright protects. Courses tend to necessitate the development of written materials, diagrams, graphics and photographs etc for the teaching of the techniques - for example the production of the drawing of the blocks used to produce different forms of quilts - or creating instructions on how to use a particular technique, for example tie dyeing - "Clump parts of the fabric together and bind with a rubber band; vary the tightness of the rubber bands, positioning etc to vary the overall result." These forms of expression are either literary or artistic works that copyright will protect. As we saw in the previous article, copyright will not protect the techniques or styles inherent in the course.

The existence of copyright in the materials means that if another person who is not the owner of the copyright copies the work without permission then an infringement of copyright occurs when a substantial part has been copied. This means if you develop a course and it involves diagrams, photos etc of the techniques, then if someone copies your course materials you have an action in copyright infringement.

The popular belief that if you change the material by 10% to avoid infringement is a fallacy. This is because the issue of infringement and substantial part is not just an assessment of the amount copied by is also an examination of the essential quality of the material.

Now if a competitor comes out with a similar course, but they use different diagrams, different blocks for the beginner quilts, etc there is not infringement of your course. The infringement only occurs when your course materials have been copied. The fact that the course teaches the same techniques is not a copyright protected matter. The participants have the right to make the articles, for example the quilt, to the design that was given as the beginners' quilt, but cannot then use that design for their own class with others. The exception to this is if they are teaching a traditional quilt design that would already be out of copyright, something handed down through the generations such as some Amish designs for example.

However, a more complex concept arises with regard to courses, concerning the issue of ownership of the copyright because there are three general ways teaching courses come into existence. First is where the creator runs the courses as part of their business, for example, where a quilting shop will run classes for the teaching of quilting techniques. The second situation arises when the Department of Education (a TAFE college, etc) requests you to develop a course for them to teach a set of skills, techniques etc. The third is when you are employed by a teaching institution to develop courses, or employed by a business to develop courses relating to the techniques.

Each of these situations has a different consequence for the consideration of the ownership of the material produced.

The first situation follows the general rule of copyright ownership whereby the creator or author of the work owns the copyright in the work: s35(2) Copyright Act. The third situation is also simples as s35(6) states if an employee as part of their employment produces the work then their employer owns the copyright in the work. The second situation is the one that often causes the most problems because there is an exception: s176 of the Copyright Act states that if the work is produced at the direction or instruction of the Crown (which means a department of the government such as the Department of Education) then the Crown owns the copyright, not the author. The concept that you were commissioned to write the work does not exist.

The way round any disputes on the issue of ownership is to have an agreement to the contrary written before you do the work, specifically stating who owns the copyright in the materials provided.

This series of articles says that if you have innovative ideas then consider the issue of patents if you are producing courses - then copyright will provide protection but copyright will NOT provide protection to the issues of style or technique. Considerations of style and technique are often believed wrongly to be plagiarism. The law aims to protect originality and innovation, so the best advice is to be creative and innovative always, not a copyist.