LWB486 Intellectual Property LawPeter Black

p2.black@qut.edu.au

3138 2734

Roadmap

This week: Criminal provisions Technological

prevention measures Performer’s rights Moral rights Indigenous art &

culture Tutorial questions Review of copyright

Next week: Patents with Ben

McEniery

2.8.7 Criminal Provisions Following the Copyright Amendment Act 2006 (Cth), there are now three tiered offences

for most offences – indictable, summary and strict liability offences relating to copyright piracy.

The most serious offences are indictable. Default fault elements of intention and recklessness.

Maximum penalties of 5 years imprisonment and/or between 550 to 850 penalty units ($60,500 to $93,500) for natural persons.

The summary offences have a lower threshold, with most containing fault elements of intention (by default) and negligence.

Maximum penalties of 2 years imprisonment and/or 120 penalty units ($13,200).

Strict liability offences do not have a fault element. Maximum penalty for a strict liability offence is 60 penalty units ($6,600) for a natural person.

Where a matter goes to court, courts can order that circumvention devices, infringing copies, and devices and equipment used to infringe, be destroyed, or handed over to relevant copyright owners, or otherwise dealt with.

2.8.8 Technological prevention measures There are criminal penalties and civil remedies for

making, importing and commercially dealing in devices and services which circumvent technological copyright protection measures (such as decryption software).

Two key technological prevention measures were introduced in Copyright Amendment (Digital Agenda) Act 2000 (Cth):

1. provisions dealing with circumvention devices and services; and

2. provisions in relation to rghts management information.

These measures were modified by the Copyright Amendment Act 2006 (Cth), which implemented stronger measures as required by Australia’s obligations under the Australia-USA Free Trade Agreement 2004.

2.8.8 Technological prevention measures

There are three anti-circumvention prohibited activities:

1. where a person circumvents an access control technological prevention measure (s 116AN);

2. where a person manufactures a circumvention device for a technological prevention measure (s 116AO); and

3. where a person provides a circumvention service for a technological protection measure (s 116AP).

2.8.8 Technological prevention measures Key definitions in s 10(1):

“access control technological prevention measure”; “circumvention device”; “controls access”; and “technological prevention measure”.

Sometimes a copyright owner can take court action against people who do these things, and sometimes this conduct is a criminal offence where action is taken on behalf of a State or Territory, or for the Commonwealth.

The sanctions implement Australia’s obligations under the AUSFTA, which requires more extensive protection for TPMs than was provided in Australia before 1 January 2007.

2.8.8 Technological prevention measures There are limited circumstances in which a circumvention

device may be legally manufactured, imported or supplied, or in which a circumvention service may be provided. These circumstances are much more limited now than they were

pre-2007.

The new provisions also allow a person to circumvent an access-control TPM to get access to copyright content in certain situations. Some of these situations are set out in the Copyright Act 1968

(Cth); others are in Regulations to the Copyright Act. However, there are no provisions that allow the importation or

supply of circumvention devices, or the supply of circumvention services, in relation to access-control TPMs.

Remedies and penalties relating to circumvention devices and services are mostly the same as for copyright infringement.

2.8.8 Technological prevention measures The second technological prevention measure

introduced in the Copyright Amendment (Digital Agenda) Act 2000 (Cth) which was extended and strengthened by the US Free Trade Agreement Implementation Act 2004 (Cth), makes it an offence for someone to intentionally remove or alter ‘electronic rights management information’ (ERMI).

ERMI is electronic information that is attached to or embodied in a work, such as a digital watermark. It also includes numbers or codes which represent such

information in an electronic format. It acts as a footprint that helps copyright owners track the

uses of their works online.

2.8.8 Technological prevention measures In some situations, copyright owners can take action against

people who remove or alter ERMI from the copyright owner’s copyright material without permission if this would enable or conceal a copyright infringement (s 116B).

In some cases, removing or altering ERMI is a criminal offence.

Copyright owners may also in some cases take action against people who distribute, import or communicate to the public copyright material from which ERMI has been removed or altered (s 116C).

Distributing, importing or communicating to the public this kind of material may also be a criminal offence.

Remedies and penalties for these actions and offences are mostly the same as for copyright infringement.

Copyright-like protection

Overview of “copyright-like” protection: Performers’ rights; Film director’s copyright; Moral rights; and Copyright protection for indigenous

art and culture.

2.9 Performers’ rights Until 1989, performers had no specific protection for their live

performances under Australian law. There was nothing that a performer could to to prevent others from recording

and using their performances where they had no already been fixed in a material form.

Overview: A performer’s consent is generally needed to film or record a performance, and

to broadcast or otherwise communicate a performance.

Performers have extensive rights in relation to unauthorised films, recordings and broadcasts of their performances.

From 1 January 2005, the Copyright Act 1968 (Cth) has provided that performers co-own copyright in sound recordings of their performances - this provision may in some cases allow performers to exercise additional control over sound recordings of their performances.

Since 26 July 2007, the Copyright Act has given performers moral rights in relation to live performances and performances recorded in sound recordings.

In practice, performers’ rights are often determined by industry agreements and other contracts, rather than by the provisions in the Copyright Act.

2.9 Performers’ rights

There are three separate areas of rights relating to performers:

1. the right to grant or refuse consent to the reproduction and communication of a performance (Part XIA);

2. co-ownership of copyright in a sound recording of a performance (ss 22(3A), 22(3B) and 22(3C); and

3. moral rights.

2.9 Performers’ rights What is a “performance”? See s 248(1):

"performance" means:

(a) a performance (including an improvisation) of a dramatic work, or part of such a work, including such a performance given with the use of puppets; or

(b) a performance (including an improvisation) of a musical work or part of such a work; or

(c) the reading, recitation or delivery of a literary work, or part of such a work, or the recitation or delivery of an improvised literary work; or

(d) a performance of a dance; or

(e) a performance of a circus act or a variety act or any similar presentation or show; or

(f) a performance of an expression of folklore;

being a live performance:

(g) that is given in Australia, whether in the presence of an audience or otherwise; or

(h) that is given by one or more qualified persons (even if it is also given by one or more persons who are not qualified persons), whether in the presence of an audience or otherwise.

2.9 Performers’ rights Note, however, s 248A(2):

(2) The following shall be taken not to be performances for the purposes of this Part:

(a) a performance referred to in subsection 28(1) - classroom performance;

(b) a reading, recital or delivery of any item of news and information;

(c) a performance of a sporting activity; or

(d) a participation in a performance as a member of an audience.

Certain recordings are also exempt for the purposes of performers’ rights (s 288A(1)). These include recordings made solely: for reporting the news; for criticism or review; or where the person making the recording reasonably believed the

performer had consented to the recording of the performance, due to a fraudulent or innocent misrepresentation.

2.9 Performers’ rights Performers have the right to grant or refuse consent for their performances to

be recorded (audio or video) or communicated to the public (via radio or TV broadcast, or over the internet, for example).

Someone who does any of the following things without permission may infringe a performer’s rights: makes an unauthorised recording;

makes a copy of an unauthorised recording, where the person knew or ought to have known that the recording was unauthorised;

uses an audio recording on a soundtrack where the performer did not consent to this use at the time the performance was recorded and the person knew this;

deals commercially with an unauthorised recording, if the person knew or ought to have known that the recording was unauthorised; or

makes an unauthorised communication of the performance to the public.

A use is unauthorised if the performer has not consented to it. The performer’s consent is not legally required to be in writing.

There are civil remedies and criminal penalties for activities that are unauthorised.

2.9 Performers’ rights The amendments made to the Copyright Act

1969 (Cth) under the US Free Trade Agreement Implementation Act 2004 (Cth) also gave performers part ownership of copyright in sound recordings of their live performances. See 22(3A), 22(3B) and 22(3C). These rights came into force on 1 January 2005 and

gave performers the possibility of exercising some rights in relation to sound recordings on which they performed.

In the absence of an agreement to the contrary, the first owners of copyright in a sound recording of a live performance are the performer and the person who owns the recording medium (the master, for example).

2.10 Moral rights Copyright is about the economic

exploitation of a work or subject matter.

Moral rights are personal rights inherent in the author.

These rights are common in civil law system.

They reflect the unique personality of the author.

2.10 Moral rights Background:

In July 1988 the Copyright Law Review Committee recommended that moral rights not be introduced into Australia.

The CLRC was of the view that the existing laws sufficiently, though indirectly, protected moral rights.

The quandary that the Australian Government faced was that whilst there was internal opposition to moral rights, Australia was in fact obligated under treaty to implement those rights.

Moral rights were seen as a European invention – they belong in the civil law system.

The existence of moral rights in Article 6bis of the Berne Convention owes itself to the dominance of the Europeans in this treaty.

Could Australia have evaded its treaty obligations? The view of the majority of the CLRC was not that Australia should

evade its obligations. The majority view was that existing laws provided effective protection

of moral rights. However, the fact that the protection in question was indirect would

have left authors in a difficult position – after all a contract is an imperfect vehicle for guaranteeing the moral rights of a weaker party.

2.10 Moral rights

Following the Copyright Amendment (Moral Rights) Act 2000 (Cth), Part IX of the Copyright Act 1968 (Cth) now provides: a right of attribution of authorship

(Div 2); rights against false attribution of

authorship (Div 3); and a right of integrity (Div 4).

2.10 Moral rights Right of attribution:

An author must be identified where attributable acts are done in respect of the work (s 193).

Creators have a right to be attributed (or credited) when their work is used in certain ways.

Creators of copyright in literary, dramatic, musical and artistic works can take action for any failure to attribute them that take place on or after 21 December 2000 (regardless of when the works were originally created).

The right of attribution applies to films made on or after 21 December 2000 and to literary, dramatic, musical and artistic works “as included in” films made on or after this date.

This means that creators of such works completed before 21 December 2000 cannot take action for failure to attribute them.

2.10 Moral rights Right of attribution:

Creators of copyright material have the right to be attributed when the work is:

reproduced (such as by making photocopies, copying it by hand, reciting it onto an audio tape, scanning it onto a computer disk or printing out a copy of a digital file);

published (made public for the first time); exhibited in public (in the case of artistic works and

films); communicated to the public (such as by putting the

written work onto a website, broadcasting or faxing it or emailing digital files containing the work); or

adapted (translated, adapted from a literary to a dramatic work, or, for a musical work, arranged).

If a creator has not stated the way in which he or she wishes to be identified, any clear and reasonably prominent form of identification may be used.

2.10 Moral rights Right of attribution:

It is not necessary to attribute the creator if:

the creator has consented in writing not to be identified; or

it is reasonable in all the circumstances not to identify the author.

2.10 Moral rights False attribution:

Authors of literary, dramatic, musical and artistic works and films have the right not to have the authorship of their works falsely attributed.

False attribution means: crediting the wrong person as the creator of the

work; or crediting the creator of a work that has been

altered without acknowledging the alterations. It is also an infringement of this right to

knowingly deal with or communicate a falsely attributed work.

2.10 Moral rights Right of integrity:

The right of integrity is the right not to have your work subjected to derogatory treatment .(see ss 195AJ-195AK).

Derogatory treatment means doing anything in relation to the work which prejudices the creator’s honour or reputation.

This could include: distorting, mutilating or materially altering the work in a way

that prejudices the creator’s honour or reputation; and in the case of artistic works, destroying the work or exhibiting

it in public in a way that prejudices the creator’s honour or reputation.

Simply altering a work, or treating it in a way the creator is not happy with, will not necessarily infringe the creator’s moral rights: there is also a requirement that the treatment of the work prejudices the creator’s honour or reputation.

To date, there have been no cases in Australia to clarify what this might mean.

2.10 Moral rights Right of integrity:

There are special exceptions to infringement of the right of integrity in relation to artistic works (including buildings and architectural drawings).

It is not an infringement of moral rights to: destroy a moveable artistic work, if the creator, or the creator's

representative, is given a reasonable opportunity to remove the work; or

change, relocate, demolish or destroy a building of which an artistic work forms part, or to which it is affixed, provided certain conditions (including the giving of notice and provision of access for the purpose of making a record and consultation) are met;

change, relocate, demolish or destroy a building, provided certain conditions (including the giving of notice and provision of access for the purpose of making a record and consultation) are met; or

remove or relocate site-specific artworks, provided certain conditions (including the giving of notice and provision of access for the purpose of making a record and consultation) are met.

It is not an infringement of moral rights to do anything in good faith to restore or preserve a work.

2.10 Moral rights Right of integrity:

A failure to attribute the creator, or a derogatory treatment of copyright work, does not infringe the creator’s rights if the action was reasonable in the circumstances.

The Act sets out a number of factors to be taken into account in working out whether the action was reasonable. These include:

the nature of the work; the purpose, manner and context for which it is used; relevant industry practice; whether the work was created in the course of

employment or under a contract of service; and if there are two or more authors, their views about the

failure to attribute or derogatory treatment.

2.10 Moral rights

Moral rights can be waived. This is not explicitly stated in the Act

but the term consent is used on several occasions.

Remedies for moral rights infringements can include injunctions, damages and apologies or the removal or reversal of the particular treatment.

Moral rights Some cases:

Buffet v Fersing (1962) D jur 570 (Fr) Huston v Societe de l”exploitation de la Cinuieme

Chanie (1991) 149 Revue Internationale du Droit d’Aueteru 197 (Cour de cassation)

Lindon v La Compgnie Brut de Buton (1992) 155 Revue Internationale du Droit d’Aueteru 225

Snow v The Eaton Music Centre (1988) 70 CPR (2d) 105

Morrison Leahy Music Limited v Lightbond Limited [1993] EMLR 144

Mme vve Herge v Didier Wolf (1989) 142 RIDA 344 (Cour d’Appel de Paris)

Gilliam v ABC (1976) 538 F2d 14.

Bulun Bulun v R & T Textiles Pty Ltd 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. The 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. R & T Textiles admitted infringement with respect to Bulun Bulun, but did not admit that the Ganalbingu people were the equitable owners of the copyright.

Held: Rejected a claim of “community ownership”. There was 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.

This 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.

However, Bulun Bulun had not breached the obligations of his fiduciary duty in this case.

2.11 Copyright protection for indigenous art and culture

Problem Questions

LWB486 Exam Semester 2 2009 Question 1(a) Question 1(b) Question 2(b)

Tutorial Question 2(k)

Review of Copyright

Two aspects: Problem solving Future reform?

Problem Solving: Approaching Copyright Questions1. Does copyright subsist?

Part III – is the work: original? expressed in a material form? a literary, dramatic, musical or artistic work? connected with Australia?

Part IV – is it a sound recording, cinematographic film, television or sound broadcast, published edition of a work?

2. Who owns copyright? If under Part III, generally the author of the work owns first

copyright. Check if any exceptions apply. If under Part IV, identify relevant provision. Has any assignment taken place, or has a licence been

granted to the potential plaintiff?

Problem Solving: Approaching Copyright Questions3. Has there been an infringement or threatened

infringement of copyright? Has there been a direct infringement or threatened

infringement of a Part III or Part IV copyright?. Has there been an authorisation of infringement or

threatened infringement ? Has there been an indirect infringement or threatened

infringement – importation or sale?

4. Are there any excuses? Check again for an assignment or license. Is the copyright infringing conduct a fair dealing for one

of the purposes in the Act? Are any of the specific, royalty free exceptions or

statutory licenses applicable?

Problem Solving: Approaching Copyright Questions5. What remedies are available to each of the

potential plaintiffs against each of the potential defendants?

6. Have there been any breaches or potential breaches of moral rights which require consideration?

Future Reform? The Copyright Balance:

Copyright law aims to encourage creativity by providing an appropriate reward for creators without unreasonably limiting the public’s access to information.

Does the Copyright Act strike an appropriate balance?

What changes (if any) would you make to the Copyright Act?