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Weeks 2,3,4,5 - Copyright & Related Rights.doc

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

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COPYRIGHT (Weeks 2-6) INTRODUCTION: Balance: - Copyright law aims to encourage creativity by providing an appropriate reward for creators without unreasonably limiting the public’s access to information Idea/expression dichotomy: Copyright law is not designed to monopolise everyday activity (i.e. independent thought is not stopped)  It protects expressions NOT ideas. Art 9(2) TRIPS: copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts. EXAMPLE Zeccola v Universal City Studios Inc Facts: Universal Studios owned copyright in the book, movie, screenplay etc of Jaws; A man made a film about man eating sharks (similar plot to Jaws); Universal Studios sued the man for breach of copyright. Held: Universal had copyright over the Jaws but NOT the idea about man eating sharks. EXAMPLE Baigent & Anor v The Random House Group Limited (The Da Vinci Code) Facts: Dan Brown was sued by 2 authors for infringement of copyright regarding ideas in their books Held: no infringement because the authors did not have copyright over the ideas – they merely had copyright over the expression of the ideas; there was not enough expression to constitute infringement. However: this decision was upheld on appeal (EWCA Civ 247) OTHER EXAMPLES Walter v Lane Journalist owns the © in the words of a speech taken down verbatim Donoghue v Allied Newspapers Journalist owns © in a transcript of interview, even a Q& Property in copyright is intangible: Distinction between object and separate copyright property in chattel owned by one person and copyright is owned by another: Pacific Film Laboratories v FCT E.g. You can have physical ownership of a DVD; although the copyright in the DVD belongs to the Film Company COPYRIGHT 1 - SUBSISTENCE OF COPYRIGHT 1A) Part III (Subsistence) 1B) Part IV (Subsistence) 2 – DURATION 3 – OWNERSHIP 3A) Part III (Ownership) 3B) Part IV (Ownership) 3C) Assignment/Licence 4 – INFRINGEMENT OR THREATENED INFRINGEMENT 4A) Part III (Direct Infringement) 4B) Part IV (Direct Infringement) 4C) Substantial (not optional – must include!) 4D) Authorisation of Infringement 4E) Indirect Infringement 5 – LIMITS TO SCOPE OF EXCLUSIVE RIGHTS (DEFENCES) 5A) Fair Dealing Research/Study Criticism/Review Reporting of News Judicial Proceedings/Professional Legal Advice Parody/Satire 5B) Specific Royalty Free Exceptions 5C) Statutory Licences: 6 – REMEDIES 7 – OTHER SIMILAR ISSUES: 7A) Technological Prevention Measures 7B) Performers’ Rights 7C) Moral Rights 7D) Protection for Indigenous Art/Culture 1 - SUBSISTENCE OF COPYRIGHT Issue: Does copyright subsist in ____ (list all possible sources) a) b) c) d) … A) PART III WORKS (Literary, Dramatic, Musical or Artistic Work) B) PART IV SUBJECT MATTER OTHER THAN WORKS (Sound recordings, cinematograph films, television/sound broadcasts, published editions of works) 1A) IF - PART III WORKS For copyright to subsist the [work] it must be: s32 1. Original 2. a literary, dramatic, musical or artistic work 3. expressed in a material form 4. with a connection with Australia 1. ORIGINAL State: Original works originates from the author – the result of his/her skill, labour and judgement – not copied from another – however the thought need not be original – just the expression (low threshold): Uni of London Press v Uni Tut Press. Here, ________ therefore it will satisfy the test of originality. N.B. Possible that two authors will independently produce a similar work both attracting copyright, and neither infringing copyright. Examples: (facts below) o Compilations: see IF COMPILATION below o Databases: see IF DATABASE below o Exam papers: Uni of London Press v Uni Tut Press o Maps: original even if prepared from the common stock of knowledge in Australia: Sands v McDougall o Title in Chinese characters on newspaper: Aust Chinese Newspapers v Melbourne Chinese Press o Plastic price labelling tags: Dennison Manufacturing v Alfred Holt EXAMPLE University of London Press Ltd v University Tutorial Press Ltd Facts: Condition of appointment for examiners was that copyright in the papers belonged to the University; University subsequently assigned copyright to the plaintiff publisher; defendant publisher then published exams with answers and comments; Plaintiff publisher sued for infringement of copyright. Held: copyright subsisted in the papers as original literary works (Originality does not require that the work be original or inventive thought, as long as there is originality in the expression of the idea) EXAMPLE Sands & McDougall Pty Ltd v Robinson Facts: made a map of Australia Held: map was original even if prepared from the common stock of knowledge in Australia (because independent intellectual effort, judgment and discrimination had been applied to produce a map that was new in the requisite sense) EXAMPLE Australian Chinese Newspapers Pty Ltd v Melbourne Chinese Press Ltd Facts: The title of the newspaper was printed in Chinese characters Held: a masthead logo of a Chinese language newspaper did amount to an original artistic work (due to the skill, thought and judgment that went into the way the characters was expressed. EXAMPLE Dennison Manufacturing Co v Alfred Holt & Co Ltd Held: plastic price labelling tags were original artistic works IF COMPILATION: State: Copyright will subsist in a compilation of information provided that the amount of skill, labour or judgment required in making the compilation is sufficient by looking at the compilation as a whole: Ladbroke (Football) Ltd v William Hill (Football) Ltd. GO ON TO IF DATABASE (i.e. Desktop vs IceTv). Examples: (facts below) o coupons: Ladbroke (Football) o commonplace information: G.A. Cramp o list of football matches: Football League v Littlewoods o blank forms: Kalamazoo o new editions of works: copyright subsists so long as there is more than a trivial difference in the next edition of the work EXAMPLE Ladbroke (Football) Ltd v William Hill (Football) Ltd Facts: Coupons were made for football club; coupons said which teams were going to play on a given day Held: Way in which the coupons were put together attracted copyright, even though there was nothing really original about them. Coupons attracted copyright, even though none of the component parts were original. EXAMPLE G.A. Cramp & Sons Pty Ltd v Frank Smythson Ltd Held: the selection and publication of seven tables of commonplace information in diaries did not attract copyright (pieces of information were common knowledge and didn’t involve a sufficient degree of skill and labour by the publisher) EXAMPLE Football League Ltd v Littlewoods Pools Ltd Held: Copyright did subsist in the chronological list of matches of the football league, having regard to the skill and labour involved. EXAMPLE Kalamazoo (Aust.) Pty Ltd v Compact Business Systems Pty Ltd Held: Copyright subsisted in compilations of blank accounting forms; the way that the forms were compiled were in such a way as to make them an original idea. IF DATABASE: US position is that databases do not possess the minimal degree of creativity required for the work to be original: Feist Publications US POSITION Feist Publications Inc v Rural Telephone Service Co Inc Facts: ‘white pages’ telephone book - alphabetical listing of all telephone subscribers in a certain area Held: Did not reach the required threshold of originality in order to qualify for copyright protection – did not possess the minimal degree of originality. However was not followed by the Full Court of the Federal Court of Australia: Desktop Marketing Held: • No need for creative spark or intellectual effort: Lindgren J @ [204], Sackville J @ [429] • Factual compilations can be protected merely because of substantial labour and expense in their creation (including whole of universe compilations – where no element of selectivity in organisation/presentation of data) o N.B. Very low requirement of labour and expense (Telstra got data from subscribers – only labour/cost from verification/storage of data) EXAMPLE Desktop Marketing Systems Pty Ltd v Telstra Corp Ltd Facts: Telstra publishes the Yellow Pages and the White Pages; Desktop Marketing produced and sold phone directories in CD-ROMs of varying levels of sophistication with white and yellow pages listings, which could be searched in different ways whether by name, address, postcode, industry and the like; Data used to produce the CD-ROMS was taken from Telstra’s phone books. Held: Copyright subsisted in Telstra’s White Pages and Yellow Pages directories (and was infringed). • Factual compilations can be protected merely on the basis that substantial labour and expense has been devoted to their creation. • Even for ‘whole of universe’ compilation such as the White Pages, where there was no element of selectivity in the organisation or presentation of the data • Even though the labour and expense here had not so much gone into the “collection” of the data (which was in fact simply received from subscribers) as into the development of systems for its verification and storage. However this approach has been questioned by HC in IceTV v Nine Networks; although it only offers obiter because IceTv conceded subsistence of copyright in the timetables. In relation to subsistence: French CJ, Crennan & Kiefel JJ @ [48] • ‘creative spark’ and not ‘sweat of the brow’ is required for subsistence • although Act only requires ‘some independent intellectual effort Gummow, Hayne, Heydon JJ @ [187]-[188] • emphasis on ‘labour and expense’ and ‘misappropriation’ in Desktop needs to be treated cautiously • law has always required some ‘creative spark’ or exercise of ‘skill and judgment’ in a work’s expression Therefore, some ‘creative spark’ or exercise of ‘skill and judgment’ is probably required for copyright to subsist. Here there skill and judgment to be taken into account is the [e.g. skill/judgment of employees in setting the information down into the database/compilation] or simply that used in the expression of the information: French CJ, Crennan & Kiefel JJ @ [52-54]. Here this [will/won’t] have involved any element of ‘skill or judgment’, and copyright [may/may not] subsist in the [work]. 2. LITERARY, DRAMATIC, MUSICAL OR ARTISTIC WORK For [work] to be a Part III Work it must be either a literary, dramatic, musical or artistic work: s32 IF LITERARY WORK: Definition: a work expressed in print or writing, irrespective of quality or style: Uni of London Press v Uni Tut Pres Examples: • Football pool coupons: Ladbroke (Football) • A racing programme: Mander v O’Brien • Chronological lists of football matches: Football League v. Littlewoods Pools • Lists of bingo numbers: Mirror Newspapers v Queensland Newspapers • Accounting forms: Kalamazoo (Aust) v Compact Business Systems • Exam papers: Uni of London Press v Uni Tut Press EXAMPLE University of London Press v University Tutorial Press Ltd Held: exam papers were literary works Peterson J @ 608: words ‘literary work’ cover work which is expressed in print or writing, irrespective of the question whether the quality or style is high. The word ‘literary’ seems to be used in a sense somewhat similar to the use of the word ‘literature’ in political or electioneering literature and refers to written or printed material. IF (work) is a TABLE/COMPILATION: Literary work includes a table, or compilation, expressed in words, figures or symbols (whether or not in a visible form) and a computer program or compilation of computer programs: s10 IF (work) is a COMPUTER PROGRAM: Prior to 1984 amendments copyright did not subsist in computer programs; however now literary work includes a computer program or compilation of computer programs: s10; Autodesk v Dysason. EXAMPLE Autodesk Inc v Dysason Facts: Plaintiff owned copyright in a drafting program used by architects and engineers called “Autocad”; was sold with an electronic device, the “Autolock”, to attach to the computer; Program would not run without the “Autolock”, preventing its use on more than one computer at any one time. Defendant cracked the code and produced a device called “Autokey”, which performed the same function as the “Autolock”. Held: Defendant had infringed copyright in the “Autocad” by reproducing a substantial part of the program in the device. IF just copied idea – not code: However observing a program and developing a similar program without copying the source code or decompiling the program will not infringe copyright: Data Access Corp v Powerflex Services. EXAMPLE Data Access Corp v Powerflex Services Pty Ltd Facts: Data Access had copyright in a computer program “Dataflex”, used by programmers to develop databases; Dr Bennett created a program compatible with “Dataflex”, which was sold by Powerflex Services in competition with “Dataflex”; He did not have access to the “Dataflex” source code, nor did he seek to decompile their program. Held: No infringement of copyright except for the use of a Compression Table which merely reduced computer storage space - observing a program and developing a similar program without copying the source code or decompiling the program will not infringe copyright. N.B. Copyright Amendment (Computer Programs) Act 1999, which introduced a new Division 4A into Part III of the Copyright Act 1968 – “Acts not constituting infringements of copyright in computer programs”. The owner or licensee of a computer program does not infringe copyright by making a reproduction of the program: • in the course of running the program for the purposes for which the program was designed, unless contrary to an express direction or license (s 47B(1) and (2)) • in the course of running the program for the purpose of studying the ideas behind the program and the way it functions (s 47B(3)) • for use in lieu of the original copy, or if the original copy is lost, destroyed or becomes unusable (s 47C). • to obtain information necessary to make independently another program or article to interoperate with the original program any other program, but only to the extent (s 47D): - reasonably necessary to obtain such information and to achieve such interoperability; and - the information was not readily available to the owner or licensee. • for the purpose of correcting an error in the original copy which prevents the program from operating as intended by the author (s 47E) • for the purpose of testing the security of the original copy or network or system of which the original copy is part (s 47F) IF (work) is a TITLE or NAME: Names typically covered by trademark, although may be covered by copyright if: • Name is substantial: Exxon th • Sufficiently original and distinctive: Francis Day v 20 Fox EXAMPLE Exxon Corporation v Exxon Insurance Consultants International Ltd Facts: Oil company adopted the name “Exxon” after considerable research and expense; Time, skill and labour and expense went into developing that name for the company, the font to use etc; The defendant company, with no connection, adopted the name - Exxon sought an injunction. Held: Although original it was not sufficiently substantial for copyright to subsist in the name. EXAMPLE Francis Day and Hunter Ltd v Twentieth Century Fox Corporation Ltd Facts: Francis, Day and Hunter had released a song titled “The Man Who Broke the Bank at Monte Carlo”. Years later, 20th Century Fox put out a movie by the same title, but had no other connections to the song - Francis sued for copyright infringement. Held: Name alone cannot possess copyright unless it is sufficiently original and distinctive. “To break the bank” is a hackneyed (clichéd) expression, and Monte Carlo is or was the most obvious place at which that achievement or accident might take place – therefore name was not sufficiently original and distinctive. However N.B. other actions if name is copied: • Passing off: WH Allen v Brown Watson • Breach of Trade Practices Act 1974 (Cth), ss 52, 55: McWilliam’s Wines v McDonald EXAMPLE WH Allen v Brown Watson Held: passing off where “My Life and Loves” book and “Frank Harris: My Life and Adventures” book. EXAMPLE McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd Facts: A wine company brought out a wine called “Big Mac” - McDonalds claimed that this was a breach of s 52 because people would be misled into thinking that the wine had some connection with McDonalds. Held: No breach - McWilliam’s conduct might confuse people but this was not the same as being misled. IF DRAMATIC WORK: State: Dramatic work includes a [choreographic show, other dumb show (i.e. mime) and a scenario or script for a cinematograph film]: s10(1) N.B. Does not include film - it is a Part IV subject matter. State: A dramatic work must be intended to be performed AND able to be performed; and cannot merely be a number of disparate (unrelated) elements without sufficient unity: Green v Broadcasting NZ. IF merely parts of a performance: Disparate (unrelated) elements without sufficient unity do not amount to a dramatic work: Green v Broadcasting NZ EXAMPLE Green v Broadcasting Corporation. of New Zealand Facts: Hughey Green, longstanding host of British television talent quest “Opportunity Knocks”; Features of the show, such as the use of a “clapometer” and various catchphrases to address the audience and the competitors, were replicated by New Zealand television, without reference to Green. Held: repetitive elements alone did not constitute a dramatic work – by themselves they were meaningless since the greater part of the show, which gave meaning to the different stock elements, consisted of audience participation, varying from program to program. IF public event: Currently unclear whether copyright can subsist in scheduled public events (such as firework displays). However the difficulties in enforcing and protecting this right would be difficult. Additionally ‘fair dealing for reporting the news’ exceptions may be activated by the alleged infringer. EXAMPLE Nine Network Australia v ABC Facts: Nine Network paid $450,000 to Council of the City of Sydney’s fireworks display to welcome the new millennium; tried to restrain the ABC from broadcasting in Australia anything featuring the fireworks, the procession of lanterns on Sydney Harbour and decorations on the Harbour Bridge. Held: weak argument - schedule of the fireworks not a work, since the reduction to material form was fraught with difficulties as to whether the schedule would in practice be adhered according to the planned sequence. “It is, one would think, common place in at least a half of the present decade that firework shows with music are planned. It has never been suggested to my knowledge, and there is no reported case in which the matter has been subjected to legal analysis which has suggested that copyright subsists in a fireworks show set to music just because the sequence of events is scripted. That does not mean that copyright might not exist. It may merely be the result either of difficulties of enforcing the non filming of such events or it may be that no one has thought deeply about the issue. At the heart of the problem may well be that copyright is a monopolistic right existing not to protect ideas as such but the physical manifestation of some original literary, artistic or dramatic work.” IF MUSICAL WORK: Musical is not defined. However does refer to the method of production and not to any artistic or aesthetic qualities which the work should possess (i.e. the musical score not the recording!). N.B. Just because sounds do not sound like music in the ‘normal’ sense (e.g. a song), it does not necessarily mean that the piece is not a musical work. IF ARTISTIC WORK: s 10(1) provides that artistic work includes: (pick) • a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not; • a building or a model of a building, whether the building or model is of artistic quality or not; • a work of artistic craftsmanship to which neither of the last two preceding paragraphs applies; BUT does not include a circuit layout within the meaning of the Circuit Layouts Act 1989 (Cth). IF Painting: No definition of painting, however ordinary English suggests “an object in permanent form”. Thus if it can be removable it is not fixed and not a painting: Merchandising Corp v Harpbond EXAMPLE Merchandising Corp of America v Harpbond (Adam Ant Makeup Case) Facts: Adam Ant sought to protect his facial makeup as artistic work Held: No statutory definition of “painting” but a word in the ordinary usage of the English language and it is a question of fact in any particular case whether the subject matter under discussion is a painting or not; A painting is not an idea, it is an object, and paint without a surface in permanent form is not fixed; The fact that makeup is removable meant that it was not ‘fixed’ – therefore claim failed. IF Drawing: Drawing includes ‘a diagram, map, chart or plan’: s10(1). E.g. Architects plans: Ancher, Mortlock, Murrary v Hooker Homes. IF Sculpture: Sculpture includes a cast or model made for purposes of sculpture: s10(1) Examples: • wooden model made for the manufacture of dies and moulds for casting of Frisbees = sculpture: Lincol Industries v Wham-O • mower clutch assembly = NOT sculpture: Greenfield Products v Rover-Scott IF Building: Building includes a structure of any kind: s10(1). Examples: • A half-tennis court = building: Half Court Tennis Pty Ltd v Seymour • Garden consisting of a layout including steps, walls, ponds and other structures in stone was “a structure”: Darwin Fibreglass v Kruhse Enterprises IF Artistic Craftsmanship: A work of artistic craftsmanship includes articles by craftsman – jewellery, metalwork, pottery etc. Traditional Test: Whether the author in making the article had the main object of creating an article which will have a substantial appeal to the aesthetic tastes of those who observe them: Cuisenaire v Reed. Now: Test is now objective, whether there is sufficient aesthetic appeal (not on observer or intention of author): Coogi Australia v Hysport International EXAMPLE OLD SUBJECTIVE TEST Cuisenaire v Reed Facts: Cuisenaire set of variously coloured tubes used for the purpose of teaching primary school children arithmetic as a work of artistic craftsmanship. Held: No copyright subsisted as a work of artistic craftsmanship as cutting up pieces did not constitute craftsmanship and it wasn’t a work of artistry. EXAMPLE OLD SUBJECTIVE TEST George Hensher Ltd v Restawhile Upholstery (Lancs.) Ltd Facts: Prototype of a furniture suite for manufacture as a work of artistic craftsmanship; consisted of pieces of wood with canvas attached (no drawing) - design was “boat shaped” with a flimsy appearance. Held: Not artistic - evidence it was regarded as vulgar, brash and horrible Lord Morris: although the intention of the author may be provide a pointer (not decisive), it should be assessed in a “detached and objective way”. Lord Reid: artistic if a substantial section of the public genuinely admires and values it for its appearance and gets pleasure or satisfaction, whether emotional or intellectual from looking at it, even though others may think it meaningless or vulgar. IF MASS PRODUCED: Work of artistic craftsmanship can be mass produced; although the author must use a highly sophisticated machine with creative skill, knowledge, and pride in workmanship: Coogi Australia v Hysport International EXAMPLE Coogi Australia Pty Ltd v Hysport International Pty Ltd Facts: Designed and manufactured a distinctive machine knitted fabric and garments – highly textured surface, complex, abstract, multi-coloured design; alleged the defendant had infringed copyright in ‘XYZ’ designs + computer program used for manufacture by computerized knitting machines. Held: stitching did not infringe + computer program obtained by reverse engineering to replicate. The reverse engineering consists of enough skill, labour etc to be an artistic work. However the two elements (artistic and craftsmanship) must be united in the same person: Burke v Spicers Dress Designs. EXAMPLE Burke & Margot Burke Ltd v Spicers Dress Designs Facts: Plaintiff was dress designer; designed a dress and sketched it out onto paper - defendant took the sketch and mass produced that dress; Q was copyright in the mass produced dress? Held: Plaintiff was artistic side and defendant was craftsmanship side; need to be united in the same person – thus no copyright. 3. MATERIAL FORM A work is made at the time it is reduced to a material form: s22(1) Material form includes any form (whether visible or not) of storage of the work or adaptation (whether or not the work or adaptation, or a substantial party of the work or adaptation can be reproduced): s10(1) Here, ___________. 4. CONNECTION WITH AUSTRALIA IF work is UNPUBLISHED: The author must be a qualified person at the time it was made: s32(1) If work made over a period of time: Author must be a qualified person for a substantial part of that period: s32(1) Qualified person = Australian citizen, an Australian protected person, or a person resident in Australia: s32(4). IF work is PUBLISHED: The publication must have first took place in Australia OR the author must be a qualified person when it was first published: s32(2). Work is published = reproductions have been supplied to the public: s29(1)(a) • ‘First publication’ is deemed to be in Australia if a book is published in Australia within 30 days of publication overseas: s29(5) Qualified person = Australian citizen, an Australian protected person, or a person resident in Australia: s32(4). IF work is a BUILDING/ETC: Copyright subsists in an original artistic work that is a building situated in Australia OR an original artistic work that is attached to, or forms part of, such a building: s32(3). 1B) IF - PART IV SUBJECT MATTER OTHER THAN WORKS Subject matter other than works is contained in Part IV for: 1) Sound recordings: s89 2) Cinematograph films: s90 3) Television and sound broadcasts: s91 4) Published editions of works: s92 This copyright is in addition to + independent of copyright subsisting in the work via Part III: s113(1). (e.g. sound recording – protected under Part III for lyrics (literary work) + score (musical work) and Part IV recording) Copyright Act 1968 (Cth) introduced new categories of subject matter in order to protect entrepreneurial investment. It aims to protect “new” technology. Exclusive rights are given to “makers” of certain types of material and the investment of resources in the production of media and content is protected. There is no requirement of authorship or originality. 1) SOUND RECORDINGS Record means a disc, tape, paper or other device in which sounds are embodied: s10(1). Copyright subsists via ss 84, 89, 184. 2) CINEMATOGRAPH FILMS A “cinematograph film” means the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing: (a) of being shown as a moving picture; OR (b) of being embodied in another article or thing by the use of which it can be so shown; and includes the aggregate of the sounds embodied in a sound-track associated with such visual images: s10(1) Copyright subsists via: ss 84, 90. The definition is not to be interpreted narrowly and is intended to cover new technologies, with an emphasis on the end product being a moving picture: Galaxy v Sega (game = film). Here, __________. EXAMPLE Galaxy Electronics Pty Ltd v Sega Enterprises Ltd Facts: Sega wanted to stop parallel imports of its video games; as there is no restriction on importing non-infringing computer programs (at the time), Sega argued that the games were “films”. Games looked like films – there was a plot, characters, ending - Argued that a computer game is just slightly different because it involves human interaction. Held: moving images in a computer-generated video game was a film - definition should not be interpreted narrowly, but is intended to cover new technologies, the emphasis being on the end product rather than the means adopted to create those pictures. IF copied general idea / situations / characters: Similarly to in Zeccola v Universal, here the defendant has copied (principal situations/singular events/basic characters) from the film. Copyright would likely be found to exist in these: Zeccola v Universal. EXAMPLE Zeccola v Universal City Studios Inc Facts: Universal owned copyright in film Jaws, screenplay Jaws, and novel Jaws; Zecolla made a film about man eating sharks called Great White - Universal sued for copyright infringement. Held: No copyright in the “general idea” of a film about man eating sharks, copyright subsisted in “the combination of the principal situations, singular events and basic characters”. 3) TELEVISION & SOUND BROADCASTS Broadcast: a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992 (Cth): s10(1). • Television broadcast: visual images broadcast by way of television, together with any sounds broadcast for reception along with those images • Sound broadcast: means sounds broadcast otherwise than as part of a television broadcast Note: Copyright subsists via: s91. To the public: conveys a broader concept than “in public” in that the place where the relevant communication occurs is irrelevant. • There can be a communication to individual members of the public in private or domestic setting, which is nevertheless a communication to the public: Telstra Corp v Australasian Performing Right Association • There is no need for copyright in the underlying material (e.g. there is no copyright in a sporting match or spectacle, but the maker can get the copyright rights to that broadcast). State: Copyright is only infringed if you rebroadcast the program, or a substantial part of the program: Network Ten v TCN Channel Nine. EXAMPLE Network Ten v TCN Channel Nine (“The Panel”) Facts: Ten’s show broadcast clips taken from other networks, Nine sued under right to re-broadcast. Held (FCFCA): any unauthorised re-broadcasting of a broadcast would be an infringement of copyright (subject to any defence of fair dealing that Ten might have had) Held (HC 3:2): a single image appearing on a television screen with accompanying audio does not constitute a television broadcast - taking one small snippet or images is not broadcast. Majority at [74]: “There can be no absolute precision as to what in any of an infinite possibility of circumstances will constitute ‘a television broadcast’. However, the [twenty] programmes which Nine identified in … its pleading … answer that description. These broadcasts were put out to the public, the object of the activity of broadcasting, as discrete periods of broadcasting identified and promoted by a title, such as The Today Show, Nightline, Wide World of Sports, and the like, which would attract the attention of the public.” Majority at [77]: • “… the circumstance that a prime time news broadcast includes various segments, items or ‘stories’ does not necessarily render each of these ‘a television broadcast’ in which copyright subsists …” • Copyright is only infringed if you rebroadcast the program, or a substantial part of the program. Otherwise broadcast makers would get much more protection than other copyright owners. Dissent: (Kirby J & Callinan J): separate judgments that any short series of images will be a broadcast, so any re-broadcasting of any images must be re-broadcasting of a broadcast, regardless of length. HELD: The Panel was allowed to broadcast without breaching copyright. 4) PUBLISHED EDITIONS OF WORKS Subsistence of copyright: s92. This type of protection was only introduced with the 1968 Act, so no protection for a published edition exists in a book published before the commencement of that Act: s224. Here, __________. 2 – DURATION The subsistence of copyright in these works and subject matters will last: IF Part III Work: IF published or artistic work or computer program: 70 years after the death of the author: s33 (i.e. literary, dramatic, musical, or artistic work) IF unpublished: 70 years after first publication: s33 (i.e. unpublished literary, dramatic, or musical work - excluding computer programs) IF Part IV Subject Matter: IF sound recording/cinematograph film: 50 years from year of publication: s93, s94. IF broadcast: 50 years from year broadcast was made: s95 IF published edition: 25 years from year of first publication: s96 3 – OWNERSHIP A) Part III B) Part IV C) Assignment/Licence 3A) IF PART III WORK: General rule is that creator ‘author’ is first owner of copyright: s35(2). No definition, but author = ‘creator of the work, from whom the form of expression originates’: Donoghue v Allied Newspaper. Here the author is ______. IF PHOTOGRAPH: Author of photograph is the person who takes it: s10(1) IF CONTRACT modifying ownership: Ownership of copyright can always be modified by contract. IF JOINT AUTHORSHIP: IF each supplies a distinct part: Joint authorship does not apply where each author supplies a distinct part: s10(1). IF only supplied ideas: Where a person communicates an idea to an author and the author clothes the idea in the form of an article or articles, the copyright is in the author: Donoghue v Allied Newspapers. Therefore here, (person who communicated the idea) would not take ownership, and only (author) would have ownership. Here, the (work) will be jointly owned by (authors) because ‘it has been produced by the collaboration of (two/more) authors whose contributions were not separate from each (other/of the other authors): s10(1). As joint authors (authors) take ownership as tenants in common (each has title to sue and can sue each other): Prior v Sheldon. IF CLAIMING EQUITABLE OWNERSHIP: A number of cases have examined the possibility of equitable ownership, and although it has not yet been recognised, a number of cases have suggested that where other duties are owed and breached copyright may be vested in the form of a constructive trust: Bulan Bulan; AG v Guardian. (N.B. try to refer to all the below cases (Bulan Bulan; AG v Guardian; ABC v Lenah) if possible!) IF COMMUNITY CLAIMING OWNERSHIP: (e.g. aboriginal art) In Bulun Bulun, the artist painted an artistic work embodying ritual knowledge derived from the ancestors of the Ganalbingu people, with their permission in accordance with customary law. They sued R & T Textiles as equitable owners of the copyright of the painting. This claim of community ownership was rejected. Although court did recognise a fiduciary relationship between the artist and the community – that the artist could not exploit the work in a manner contrary to customary law, and was bound to take appropriate action against third parties to restrain and remedy any infringement of copyright – and if the artist failed an action in personam or constructive trust could be imposed (didn’t in this case). Here, ____________. EXAMPLE Bulun Bulun v R & T Textiles Pty Ltd Facts: John Bulun Bulun, an Aboriginal artist, painted an artistic work in 1978, with permission of senior members of the Ganalbingu people (in Arnhem Land), in accordance with customary law. Respondent imported and sold fabric that infringed the copyright in the artistic work. Bulun Bulun sued as copyright owner and George Milpurrurru sued as a representative of the Ganalbingu people – as equitable owners of the copyright. Held: Court rejected a claim of “community ownership” – although recognised a fiduciary relationship. The Ganalbingu people permitted Bulun Bulun to create the artistic work that embodied part of their ritual knowledge derived from their ancestors, but Bulun Bulun could not exploit the work in a manner contrary to customary law, and was bound to take appropriate action against third parties to restrain and remedy any infringement of copyright - did not grant equitable interest in copyright, but if Bulun Bulun breached the fiduciary duty, an action in personam or a constructive trust could be imposed. IF CROWN CLAIMING OWNERSHIP: (e.g. state secrets) In AG v Guardian Newspapers (No 2), a former UK spy breached his duty of confidence by publishing secret information in Australia. In obiter it was suggested that copyright in the book, written in breach of his duty of confidence may vest in the crown in equity. Here, __________. IF PREMISE OWNER CLAIMING OWNERSHIP: In ABC v Lenah Game Meats, it was suggested in obiter that a trespasser may hold copyright in a film on a constructive trust in the favour of the owner of the premises. Here, __________. CHECK! Four exceptions to general rule: • Work produced in the course of EMPLOYMENT • JOURNALISTS • COMMISSIONED artistic works • CROWN ownership IF work made by EMPLOYEE: Here, if (employee) is under a contract of employment, and the (work) was produced in the course of that employment, then (employer) as employer, will own copyright in the (work): s35(6). Q. Is (employee) an employee under a contract of service OR a contract for services? Test: Whether the employee is employed as part of the business and his work is an integral part of the business, or whether his work is not integrated into the business but is only accessory to it, or, the work is done by him in business on his own account: Beloff v Pressdram. Here, ___________. IF consultant: A person employed as a consultant retains copyright in the work he/she produces, subject to contrary express agreement: Oceanroutes v M C Lamond. IF test fails: In AG v Guardian Newspapers (No 2), a former UK spy breached his duty of confidence by publishing secret information in Australia. In obiter it was suggested that copyright in the book, written in breach of his duty of confidence may vest in the crown in equity. Here, there is scope to argue that there might be a general principle that copyright in material created by an employee in breach of an obligation of confidence is held on trust for the employer, even where the employer would not otherwise be entitled to copyright. EXAMPLE Beloff v Pressdram Ltd Facts: Plaintiff, a political correspondent of the “London Observer”, issued a politically sensitive internal memo to the editor and senior staff on the Prime Minister. Published in full by the “Private Eye” - plaintiff sued for infringement of copyright. Held: Because plaintiff was employed under a contract of service, the copyright in the memo was vested in the owners of the “London Observer” and not in the plaintiff. IF work made by JOURNALIST: (Author) as a journalist is owner of copyright with respect to: s35(4) (pick) 1. Reproduction of the work for the purpose of inclusion in a book; or 2. Reproduction of the work in the form of a hard copy facsimile made from a paper edition of an issue of the newspaper. For all other purposes the owner of the (newspaper/magazine) is the owner of copyright: s35(4). IF reproduced in non-paper form: As the Act now stands, journalists only have a right to sue if photocopies are made – paper reproduction. Press services can negotiate exclusively with the publisher to make and communicate electronic copies, for example. IF press clipping service: Journalists won copyright for the purposes of reproduction in press clipping services: De Garis v Neville Jeffress Pidler. EXAMPLE De Garis v Neville Jeffress Pidler Pty Ltd Facts: De Garis was a university lecturer and occasional contributor to The West Australian - not an employee. Moore (second plaintiff) - was employed by the Sydney Morning Herald. Defendant (Jeffress) operated a press clipping service (media monitoring service –involves cutting out relevant articles to provide to a client). Claim: De Garis and Moore sued the defendant for breach of copyright in respect of pieces written for their respective newspapers which the defendant had subsequently photocopied and distributed to client. Held: Under pre-1988 legislation, publisher only owned rights to make and distribute photocopies in so far as they relate to publication in a newspaper - accordingly, Jeffress infringed Moore’s rights to reproduce in a material form. IF work is a COMMISSIONED ARTISTIC WORK: IF photograph for private or domestic purpose: Here, (author) was commissioned to take the photograph, and did so for the purpose of (purpose) which is a private/domestic purpose, and as such (commissioner) will own copyright: s35(5). IF painting or drawing of a portrait: Here, (author) was commissioned to (paint/draw) the portrait. It will be a portrait under the act because it was a portrait of (family members OR children OR wedding party): s35(7). And therefore (commissioner) will own copyright: s35(5). IF making of an engraving: Here, (author) was commissioned to engrave (words/symbol) into the (object), and as such (commissioner) will own copyright: s35(5). IF NONE of the ABOVE: The copyright in works not included in section 35(5), generally vests in the author, although can be modified by agreement. IF made the purpose of the work clear: Here, (commissioner) knew (expressly/impliedly) because of (statement/conduct) at the time of the agreement that the purpose of the (work) was (purpose). As such (artist) can restrain the use of the work for other purposes: s35(5); Blackwell v Wadsworth. EXAMPLE Blackwell v Wadsworth Facts: Plaintiff artist was commissioned to make a drawing of a hotel, two years later, ads in the paper for the sale of the hotel included a reproduction of the drawing – artist sued for infringement of copyright. Held: defendant had infringed copyright – no implied license for the defendants to reproduce the work. IF CROWN SEEKING OWNERSHIP: Crown ownership includes: • works made by or under the direction or control of the Crown: s176 In Copyright Agency v NSW, Finkelstein J explained that work made by the crown is a fiction, but it contemplates that in certain circumstances the act of the author in making a work is to be attributed to the crown. Here, __________ (analogous to where NSW wanted to use plans = not allowed). Copyright Agency v State of NSW Facts: Claim brought by the Copyright Agency (CAL), for member surveyors for the way in which NSW Government dealt with a number of surveyors’ plans. Held: NSW government did not own copyright in the surveyors’’ plans. When considering the issue of crown copyright, it is important to understand the relevant legislation under which the works are created and its history. Finkelstein J: “As regards to work made by the crown, we are necessarily dealing with a fiction. Generally for copyright purposes a work is made by its author. What s176 contemplates is that, in certain circumstances, the act of the author in making a work is to be attributed to the Crown. An attribution of this kind is a concept well known in the law.” • works first published by the Crown: s177 • sound recording and films made by or under the direction or control of the Crown: s178 Duration crown copyright is 50 years. Extra: CLRC recommends abolition of these special privileges of the Crown. PROOF OF OWNERSHIP (Part III Work): Unless questioned, copyright is presumed to subsist and the plaintiff is presumed to be the owner: s126. IF labels/marks on work: Here, the (labels/marks) indicating the (year/place) of (publication/making) of (work) are admissible as prima facie evidence: s126A, 126B. IF name on work: Here, (authors) name appears on (work), and thus (author) is presumed to be the author and first owner: s127. IF name of publisher: Here, (publishers)’s name appears on (work), and thus if s127 (directly above) does not apply and the publication was in the last 70 years, (publisher) is presumed to be the owner: s128. IF criminal charges: The Copyright Amendment Act 2006 (Cth) adopted these same presumptions relating to subsistence and ownership of copyright for the prosecution for offences against Division 5 (except s 132AM): s132A. N.B. New presumptions were also introduced to recognise industry-specific labelling practices and amend other existing industry-specific presumptions. If copyright owners do not meet the requirements of the relevant industry-specific presumptions, they can rely on the general evidential presumptions in ss 126A, 126B and 132A. 3B) IF PART IV SUBJECT MATTER: IF sound recording: The maker of the sound recording is the owner of any copyright in the recording: s97. The maker is the person who owned the record at the time (usually record company): s23(3). Here, ____________. IF live performance: However here, the recording is of a live performance. As such the performers also get a share of ownership of the recording: s23(3A). IF cinematographic film: The maker of the film is the owner of any copyright in the film: s98. The maker is the producer (the person who organises and pays for the film): s22(4). Here, ____________. IF director seeking ownership: Directors were recently given economic rights. This gives directors limited rights in films that they have directed. But this only applies post-2005: Copyright Amendment (Film Directors' Rights) Act 2005 (Cth). IF television/sound broadcast: The maker of the broadcast, is the owner of any copyright in the broadcast: s99. The maker is by the person who provided the broadcasting service by which the broadcast was delivered: s22(5). Here, ____________. IF published editions of work: The publisher of an edition of a work or works is the owner of any copyright subsisting in the edition: s100. Here, _______________. 3C) ASSIGNMENT / LICENCE As personal property – copyright is transmissible by assignment, will and devolution by operation of law: s196(1). IF future assignment: Future copyright can be assigned, and need not subsist at the time it is made: s197. The copyright will vest in the assignee when the work comes into existence. (e.g. enter into contract with another to produce a certain work – can agree that future copyright will be assigned to someone else). IF limited rights assigned: Can assign or license all copyright, or specific rights, and can limit to specific jurisdictions: s196(2). (e.g. APRA takes performance rights in all present and future music). IF ASSIGNMENT granted: An assignment is a transfer of ownership of copyright: s196. • It must be in writing: s196(3); • May be total or partial • May be future: s197. IF partial: Partial assignments mean that a number of assignees are entitled to copyright in their respective interests: s16. And are treated as separate copyrights: s30. N.B. Assignor (original owner) retains no special rights – i.e. can be sued. IF LICENCE granted: A license is a permission to deal with the copyright subject matter for certain purposes. N.B. Software – you pay for the licence not the product. IF EXCLUSIVE: An exclusive licence is: s10(1) • In writing • Signed by (or on behalf of) owner of the copyright • Authorises licencee • To the exclusion of all others • To do an act • That the owner of the copyright would, but of the licence, have the exclusive right to do Exclusive licences give licensee the power to sublicense and sue for infringement: s119. IF IMPLIED: Licenses do not need to be in writing and can be implied from circumstances; subject to contrary directions. E.G. • A newspaper editor: implied licence to publish letters to the editor • Material on a website: an implied licence to download for local cache to view IF commissioned work: An implied license exists to use commissioned copyright material for the purposes contemplated: Beck v Montana Constructions Pty Ltd. If you go beyond the purposes contemplated, it will exceed the scope of the licence. Here, ___________. EXAMPLE Beck v Montana Constructions Facts: Landowner paid architect to develop building plans; used plans to advertise for sale. Held: Only able to use plans legitimately for the purpose it was commissioned. IF STATUTORY LICENCE (Education/Disabled/Free-to-air/Musical Works): Copyright Act includes statutory licensing schemes that allow use of some copyright material exclusive rights without permission to not constitute infringement in some situations. IF reproduce for school/university: Part VB allows for the reproduction of material, without the permission of the copyright owner, but a statutory licence fee must be paid. Copyright Agency Limited collects the fees – Copyright Tribunal sets the fees. IF disabled people/organisation: Part VA allows for organisations assisting persons with an intellectual disability may make off-air copies of broadcasts – Administered by Screenrights. IF free-to-air broadcast: Part VC allow the retransmission of works, sound recordings and films included in free-to-air broadcasts. IF musical work: (e.g. business playing radio on hold) Sections 54-64 allows for persons to make a sound recording of music or lyrics without permission of the copyright owner but must pay a statutory licence fee; Music must have already been recorded in Australia; There is no such right in relation to the sound recording – sampling is not permissible. -0 Administered by Australasian Mechanical Copyright Owners’ Society (AMCOS).  Theoretically applies to private individual uses of musical works including small businesses playing the radio. N.B. Doesn’t extend to use in films Other Issues: Open source & contracting in the digital environment Free and Open Source Software: allows anyone to use and modify software • Uses copyright to impose a restriction that they can not distribute modified material without giving changes back to the community • The idea is that software and codes are made available freely so that you are able to use, but any improvements you make have to be licensed back (giving back to the community) • For example, GNU, a UNIX-compatible software system Creative Commons Licences: new form of licence that originated in the US and now being developed for international use; it is aimed at providing an alternative copyright scheme to allow creators to stimulate the dissemination and re-use of their copyrighted works. • Offers significant benefits to internet users wanting to use creators’ works without having to seek permission and offers little to the creative community (Statement by the International Confederation of Societies of Authors and Composers). 4 – INFRINGEMENT OR THREATENED INFRINGEMENT 4A) SUBSTANTIAL (MUST INCLUDE) State: It is sufficient if the infringing act is done in relation to a substantial part of the work: s14(1). Substantial is a Q of Fact – requires a consideration of the quality of the work taken in relation to the work as a whole, rather than just as a question of quantity. Here, ___________(discuss quantity taken) ____________ ______ (discuss quality of the parts taken), therefore _______________. Examples: • copied main theme of a marching band song (20 seconds of 4 minutes): Hawkes (substantial) • copied introduction from a book: Blackie (substantial) • copied screenplay’s general plot: Zeccola v Universal (substantial) • copied advertisement’s dialogue and setting: AGL Sydney (substantial) IF compilation: Previously Desktop held that originality of compilations can be judged by the amount of skill, labour and judgment involved in the preparation, selection and arrangement of the material or the labour undertaken or expense occurred in collecting the material – thus a factual compilation would have the requisite degree of originality providing the author expended substantial labour or expense in collecting the information: Black CJ @ [10], Lindgren J @ [160], Sackville J @ [407]-[409], [423] . Now however, IceTV held only work that should be taken into account is the labour and skill of the employees in setting the information down into the database to create the compilation, or simply, only the labour and skill in expressing the information: French CJ, Crennan & Kiefel JJ @ [52]-[54], Gummow, Hayne & Heydon JJ @ [167]-[170]. IF information basic / incapable of expression in another way: Chief Justice French and Justices Crennan and Kiefel (@ [43]), held the nature of the copied time and title information dictated the way in which it could be expressed, and the “obvious and prosaic” expression of the information lacked sufficient mental effort to satisfy the necessary degree of originality, and therefore could not be regarded as a substantial part of the weekly schedule. Here, ____________. Justices Gummow, Hayne and Heydon (@ [152]), in contrast, found that the originality of the schedules was not in the provision of time and title information which IceTV copied, but instead in the selection and presentation of the work as a whole. They held IceTV had not infringed copyright because it only copied small parts and because the parts copied only required modest skill and labour in their expression, and thus were not substantial. Here, _____________. EXAMPLE Hawkes and Son (London) Ltd v Paramount Film Service Ltd Facts: Defendant’s film was about the opening of a naval school and involved playing part of the march; The marching band was 4 minutes duration - 20 seconds of that was reproduced in the film - The 20 seconds was used as the main theme of the march. Held: Even though only 20 seconds long – reproduction was of the main theme and thus substantial. EXAMPLE Blackie & Sons (London) Ltd v Lothian Book Publishing Co Pty Ltd Facts: Plaintiff published annotated versions of Shakespeare’s Henry V - reproduced an introduction from a previous annotation book. Held: A substantial part (entire introduction) was reproduced. EXAMPLE Zeccola v Universal City Studios Facts: Universal Studios owned copyright in the book, movie, screenplay etc of Jaws; A man made a film about man eating sharks (similar plot to Jaws); Universal Studios sued the man for breach of copyright. Held: Jaws substantially reproduced even though no actual shots were taken from Jaws – it was a substantial reproduction of the screenplay – protected as a literary work. EXAMPLE AGL Sydney Ltd v. Shortland County Council Facts: Plaintiff owned a right in an advertisement for gas heating and cooking - Defendant took the dialogue and setting of the advertisement - Defendant tried to argue that it was a mere parody of the ad. Held: Court rejected this argument. 4B) IF - Part III Work Infringement = do or authorise any of the exclusive rights comprised in copyright without the permission of the copyright owner: s36. Here, (infringer) has arguably: IF literary, dramatic and musical works: s 31(1)(a) (i) to reproduce the work in a material form; (ii) to publish the work; (iii) to perform the work in public; (iv) to communicate the work to the public; (v) to make an adaptation of the work. IF an artistic work: s31(1)(b) (i) to reproduce the work in a material form; (ii) to publish the work; (iii) to communicate the work to the public. Has (infringer) exercised or authorised an exclusive right? IF REPRODUCTION: There is an exclusive right to reproduce the work in material form (ss 31(1)(a)(i) and 31(1)(b)(i)). Whether it has been reproduced, need: 1. Objective similarity: must be a sufficient degree of objective similarity between the plaintiff’s and the defendant’s work; 2. Causal connection: defendant’s work must be derived directly or indirectly from the plaintiff’s copyright work : SW Hart v Edwards Hot Water. IF produced via independent work / NO COPYING: Reproduction does not include cases where the author or compiler produces a substantially similar result by independent work without copying: Ladbroke (Football) v William Hill. IF SUBCONSCIOUS copying: Subconscious copying is sufficient provided there is evidence of copying: Francis Day & Hunter v Bron;. EXAMPLE Francis Day & Hunter v Bron Facts: Plaintiff owned copyright in a song called “In a Spanish town” - 30 years later, the defendant published a play called “Why”. Plaintiff sued the defendant alleging the defendant’s infringed copyright in a musical work, in relation to the last 8 bars of music. Held: Similarities probably coincidental, and there was no evidence that the defendant had copied or heard song. Therefore - unable to infer sufficient knowledge and memory for conscious or subconscious copying. Plaintiff could not prove that there was a causal connection between the song and the play – that the defendant had actually heard the plaintiff’s song. IF INDIRECT infringement: An infringement may be indirect: LED Builders v Eagle Homes. EXAMPLE LED Builders Pty Ltd v Eagle Homes Facts: LED and Eagle both built project homes - LED constructed homes in display centres. Claim: LED claimed that Eagle infringed copyright by reproducing a substantial part of their plans (drawings, advertisements, brochures, building the homes). Held: Judge looked at the plans produced by LED and those by Eagle and felt that there were some differences; although the positioning of the rooms and the designs were “almost identical”. Held there was a substantial reproduction (objective similarity) and there was a causal connection (Eagle directed a draftsman to take home the designs and amend them). Held there was indirect infringement). IF a sound RECORDING or film is made OF THE WORK: A literary, dramatic or musical work is deemed to have been reproduced in a material form if a sound recording or film is made of the work: s21(1). IF a 2 or 3 DIMENSIONAL work is reproduced in 3 or 2 dimensions: Copyright in an artistic work in two-dimensional form will be infringed by its reproduction in a three dimensional form and vice versa: s21(3). IF work is a SIMPLE/COMMONPLACE: (e.g. project home) When dealing with a work, such as a project home design, which is by its nature very simple and commonplace, it will be more difficult to prove infringement: Ancher, v Hooker Homes; Ownit Homes v Mancuso. The simpler and more commonplace the design is, the more closely the defendant’s plans must follow the plaintiff’s: Dixon Investments v Hall. Here, ________. Example Dixon Investments v Hall Held: although the defendant’s house had used the plaintiff’s plans as direct inspiration, the constructed house had sufficient differences of a genuine character from the plaintiff’s plans not to constitute an infringement of copyright. IF copied a BUILDING OR MODEL via PAINT/DRAW/ENGRAVE/PICTURE/FILM/TV Copyright in a building or a model of a building is not infringed by the making of a painting, drawing, engraving or photograph of the building or model or by the inclusion of the building or model in a cinematograph film or in a television broadcast: s66. IF PUBLICATION: There is an exclusive right to publish the work (ss 31(1)(a)(ii) and 31(1)(b)(ii)). Publish means to make available to the public in Australia something which has not previously been made available: Avel v Multicoin Amusement. Here, _____________. N.B. Definitions s 29(1)(a) do not apply to s 31(1)(a)(ii). IF PERFORMANCE: There is an exclusive right to perform the work in public (s 31(1)(a)(iii)). A performance of a work given to members of the public is a performance “in public” unless it is shown to be domestic in character. Here, _________(use examples)______. Examples: (All held to be performances) • Playing music to a leagues club: Australasian Performing Rights Association v Canterbury- Bankstown League Club • Playing music in car radios for display in car shop windows: Australasian Performing Rights Association v Tolbush • Music played at a bank opening to 11 people: Australasian Performing Rights Association v CBA • Central VCR player to play movies on for TVs in private hotel rooms; even if just one person was in that room: Rank Film Productions Ltd v Dood IF COMMUNICATION TO PUBLIC: There is an exclusive right to communicate the work to the public (ss 31(1)(a)(iv) and s 31(1)(b)(iii)). Communicate – broad definition - make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matter: s10(1). The communication (other than a broadcast) is taken to have been made by the person responsible for determining the content of the broadcast: s22(6). Here, ___________. N.B. Introduced by the Copyright Amendment (Digital Agenda) Act 2000 (Cth), replacing and extending the former “broadcasting” right. IF ADAPTION OF WORK: There is an exclusive right to make an adaptation of the work (s 31(1)(a)(vi)). Adaptation includes: s10 • the dramatisation of a non-dramatic literary work; • a translation; • a pictorial version of a literary work; • an arrangement of a musical work. Here, _____________. 4C) IF - Part IV Subject Matter Infringement must occur in the same form (can only copy in the same form) IF SOUND RECORDING: Exclusive right to: s85 • make a copy of the recording; Copy means a record embodying a sound recording: s10(3)(c) Making a ‘sound alike’ version of a song doesn’t infringe copyright in the recording, although it may in the underlying works (lyrics/music) • cause the recording to be heard in public; • communicate the record to the public; • enter into commercial rental agreements. EXAMPLE CBS Records Australia v Telmak Teleproducts (Aust) Pty Ltd Facts: Telmak produced recordings and compilation of chart hits by cover bands - CBS, who owned the sound recording copyright, sued for infringement of sound recording copyright. Held: Copyright only protects the actual embodiment of the very sounds on the original record. IF FILM: Exclusive right to (s 86): • make a copy of the film; • cause the film to be seen/heard in public; • communicate the film to the public. Examples: • DVD is not a computer program (controls are but movie isn’t): Aust Video v Warner • Jaws movie case – no copy of visual images (no copy of film): Zeccola EXAMPLE Zeccola v Universal City Studios Inc (Jaws Case) Facts: Universal owned copyright in film Jaws, screenplay Jaws, and novel Jaws; Zeccola made a film about man eating sharks called Great White - Universal sued for copyright infringement. Held: Zeccola had not infringed copyright in the “film” as there was no copy of the visual images. As to whether Zeccola had infringed copyright in the novel and screenplay, the primary judge watched both films (“with some degree of fortitude”) and held there was such a marked degree of similarity between the two films that there was an inescapable inference of copying. Full Federal Court wasn’t as certain, but did not find fault with the primary judge’s opinion. EXAMPLE Australian Video Retailers Association v Warner Home Video Facts: As there are no commercial rental right in films, but there are in computer programs (see s 30A), Warner Home Video argued that DVD movies are also computer programs. Held: The commands which controlled the flow of the DVD were computer programs, but that the audiovisual content was not part of the program – thus when a video store hires out a movie, the essential object of the rental is not the computer program, but the film. Although computer programs can be “films”, films do not suddenly become programs when put on a DVD. IF TV/SOUND BROADCAST: Exclusive right to (s 87): • make a film of a television broadcast; • make a sound recording of a broadcast; • re-broadcast or communicate to the public (Network Ten v TCN Nine) EXAMPLE Network Ten v TCN Channel Nine (The Panel Case) Facts: Ten’s show broadcast clips taken from other networks ; Nine sued under right to rebroadcast. Held: (FCFCA): any unauthorised rebroadcasting of a broadcast would be an infringement of copyright (subject to any defence of fair dealing that Ten might have had) Held: (HC): copyright is only infringed if you rebroadcast the program, or a substantial part of the program – otherwise broadcast makers would get much more protection than other copyright owners. IF PUBLICATION OF EDITION OF WORKS: Exclusive right to make a facsimile copy of a published edition of one or more literary, dramatic, musical, or artistic works: s88. IF Publisher suing: For publisher to sue, must have copied a substantial part of the published edition as a whole; in particular the typography, layout or presentation of the edition. If the intention is only to copy the articles (which are owned by the authors) and not the presentation there is no
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