LAWS10-100 Study Guide - Final Guide: Ginger Beer, Contributory Negligence, Consumer Affairs Victoria
PROTECTING INTELLECTUAL PROPERTY
Copyright (p. 437)
Copyright is the legal right to prevent unauthorised
copyrighting of the expression of the idea.
To be protected under the law of copyright
(Copyright act 1968 (cth)
1. The creation is a “work” or “subject matter
other than work”
4 types of work -literary works, musical work,
dramatic work, artistic work.
4 types of “subject matter other than work” –
sound recording, film, television, published
editions.
2. The creation is original
This does not mean that creation must be different
to other creations, only that it must be the result of
the person’s own skill and effort rather than the
result of copying from another source. Minimal
degree of creative is required.
3. The creation is expressed in a material form
Material form such as written down, drawn or
scribbled on paper.
If all of the tree requirements are satisfies, the
creation is automatically protected by the
Copyright Act 1968 (Cth). Upon being expressed in a
material form.
Case studies:
Literary work: Mirror Newspapers Ltd v
Queensland Newspapers Pty Ltd [1982] Qd R305
(bingo numbers)
Fairfax media Publications Pty Ltd v Reed
International Books Australia Pty Ltd (2010) 189
FCR 109 (another newspaper stealing headlines, but
court said that not a substantial part).
Musical work: A&M records Inc v Neapster Inc 239
F 3rd 1004 (9th Cir, 2001) [sharing music online is
infringement]
Artistic work : Clarendon Homes (Aust) Pty Ltd v
Henley Arch Pty Ltd (1999) 46 IPR 309 [build a
home according to the plan of other house]
Other than work: Network Ten Pty Ltd v TCN
Channel Nine Pty Ltd (2004) 218 CLR273
The creation is expressed in a material form case
study:
John Fairfax & son’s pty Ltd v Australian
consolidated Press Ltd [1960] SR (NSW) 413 -
stealing death notices from other newspaper
Donoghue v Allied Newspapers Ltd [1938] Ch 106 –
the jockey was unhappy for other newspapers to
publish his interview.
Infringement (p. 448) – double IRACs
Copyright creation will be infringed if all of those
requirements are satisfied
1) Substantial part of the creation has been
copied
substantial part – there is no fixed rule about the
precise proportion and each situation depends
upon the circumstances. Basically it has to be an
important part of the creation. If whole creation is
copied it is considered a substantial part
2) There is objective similarity between the
creation and the copy
objective similarity- whether the reasonable person
would view the copy as simular to original.
3) There is a causal connection between the
creation and the copy.
causal connection- it must be shown that the
alleged copy of the original creation was in fact
copied and not created independently. To do this it
must be shown that the maker of the copy has
access to the original copy.
Remedies and penalties (p. 452)
In the event of infringement, the owner of
copyright is accorded to wide range of remedies
under the Copyright Act 1968 (Cth).
oDamages to compensate them for any loss
suffered as a result of the infringement.
oAdditional damages if it is established that
the infringement was deliberate and the
court wished to deter others from engaging
in such conduct
Defences (p.454)
Fair dealing
A “Fair Dealing” ( 10%) with a creation does not
constitute an infringement of the copy right in the
creation if it’s for the purpose of:
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- Criticism or review
- Parody or satire
- Reporting news
- Judicial proceedings or professional advice
- Research or study
Other defences
- Reproducing text for the private use
- Reproducing text for a collection in a place
of education
- Public readings and recitations
- Performance at home
- Incidental filming or televising of public
works
Trade marks (p.457)
Trade mark is a distinctive word, phrase or symbol used in
commercial dealings to show a connection between a
particular business and its product.
In Australia, trademarks are regulated by the Trade Mark Act
1995 (cth).
Trade mark will only be registered if:
-Does not contain a proscribed sign
-Is able to represented graphically
-Is distinctive
-Is not scandalous or contrary to law
-Is not likely to deceive or cause confusion
-Is not identical with or deceptively simular to another
pending or registered trademark
*the owner of the trade mark is not entitled to prevent
everyone else from copying and using their trademark.
They are only entitled to prevent a competitor from using
the trade mark to market the product in the same class of
products in which the trademark has been registered.
Infringement (p.462)
X infringes the registered trademark of Y if all of the following
requirements are satisfied:
1) Y’s trademark is registered under the act
2) X uses trademark that is substantially identical with
or deceptively simular to Y’s trademark
3) X uses the trademark in relation to goods or services
that are the same as or closely related to goods/
services in respect of which Y’s trademark is
registered.
Defences (p464)
-The trademark was used for comparative
advertisement
- The defendant can demonstrate that they have been
using the trademark in question since a time before
the owner registered or started using the trademark.
Patents (p.466)
A patent is a form of legal protection granting the creator of a
new technology the exclusive right to use and exploit that new
technology for a limited period.
The requirements for patent protection
1) The new technology is a manner of
manufacture
2) The new technology is a novel
3) The new technology involves an inventive
or innovative step
4) The new technology is useful
Designs (p.474)
The design is the overall appearance of the product resulting
from one or more visual features of the product.
Registration criteria
1) The design is new
2) The design is distinctive
Breach of confidence (p. 477) TORT
When one person uses information disclosed to
them on a confidential basis without the consent of
the owner of the information, the breach of
confidence is committed.
X will have committed a breach of confidence and
will be liable to Y if:
1) Information is given by X to Y in a
circumstances where an obligation if
confidence is explicitly make known and
accepted, or is implied from the context.
An obligation of confidence will usually be assumed
to exist in the relationship between employee and
employer. Some degree of secrecy required.
2) The information is of a confidential nature
A reasonable person would classify this information
as confidential.
3) There is an unauthorised use or threatened
use of information by X.
If you are not going to do X, I am going to tell
everyone your confidential information.
NP Generations Pty Ltd v Feneley (2001) 80 SASR
151 (the client book, and wanted to take it with
her. The courts said that she can’t keep it.)
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Causing Harm.
*tort- civil wrong (other than breach of contract)
*trespass- is direct (contact, touching) and
intentional interference
*Battery- is intentional or negligent conduct that
directly causes contact with the body of the plaintiff
without their consent or lawful justification.
*nuisance- is an act by the defendant that is
directly interferes with the plaintiff’s use and
enjoyment of private or public land
*defamation- is the publication by the defendant
to a third party, in spoken, written form, of a
statement about plaintiff that would damage their
reputation of the plaintiff.
*deceit- a tort committed when one person makes
a fraudulent misrepresentation to another
*negligence -a tort committed when one person
fails to exercise reasonable care and cause harm to
another person
DIAGRAM ON THE PAGE 169
Deliberately causing harm
Tort of trespass (direct) (p171)
1. Trespass to land
- X interferes with Y’s exclusive possession of
land
It does not have to be physical contact with land;
interference with the airspace above the land is still
a trespass.
- X’s interference is direct
Direct – contact, touching.
- X’s interference is either intentional or
negligent
- There is no consent by Y or lawful
justification for the interference
KELSEN V IMPERIAL TOBACCO CO [1957] 2 QB 334
Advertisement in the air space of kelsen. Court said
yes, it is trespass to land
2. Trespass to good
-X interference with Y’s possession of goods
-X’s interference is direct
-X’s interference is either intentional or negligent
-There is no consent by Y or lawful justification for the
interference
NO CASE STUDY
3. Trespass to person
The tort of battery is committed by X if:
- X causes some sort of physical interference
with the body of Y
- X’s act is direct
Direct- there is contact.
- X’s act is either intentional or negligent
- There is no consent by Y or lawful
justification for X’s act
RIXON V STAR CITY PLT LDT [2001] 53 NSWLR 98
-security guy put a hand on Roxin and he claimed it
was tort of batter, the court said no.
* as part of sport, players accept the level of risk,
they consent to being touched (rules of the game)
The tort of assault is committed by X if:
-X causes Y to develop a reasonable apprehension of
imminent physical contact
-X’s act is direct
-X’s act is either intentional or negligent
-There is no consent by Y or lawful justification for the
act
NO CASE STUDY
The tort of false imprisonment is committed by X if:
-X causes Y to be totally restrained
-X’s act is direct
-X’s act is either intentional or negligent
-There is no consent by Y or lawful justification for the
act
DEFENCES (p176)
Accident- the interference was neither intentional
nor neglect
Consent – the plaintiff had either expressly or by
implication voluntarily consented to the trespass
Necessity- the trespass was necessary to protect life,
land, or goods from imminent and real harm
Self-defence- the trespass (usually to the person) was
reasonably necessary to protect the defendant.
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Document Summary
Queensland newspapers pty ltd [1982] qd r305 (bingo numbers) upon the circumstances. Basically it has to be an important part of the creation. If whole creation is copied it is considered a substantial part. Copyright is the legal right to prevent unauthorised copyrighting of the expression of the idea. To be protected under the law of copyright (copyright act 1968 (cth: the creation is a work or subject matter other than work . 4 types of work -literary works, musical work, dramatic work, artistic work. 4 types of subject matter other than work sound recording, film, television, published editions: the creation is original. This does not mean that creation must be different to other creations, only that it must be the result of the person"s own skill and effort rather than the result of copying from another source. Minimal degree of creative is required: the creation is expressed in a material form.
