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Copyright

Step 1 – Eligibility for CopyrightWhat does copyright protect? The Copyright Act 1968 states copyright protects; Copyright will subsist in any

original literary, musical, dramatic and artistic works or other subject matter (other subject matter includes; sound recordings, cinematographic films and radio broadcasts and published editions of works)

In a material form by a qualified person Do not require the symbol copyright or “All Rights Reserved” as part of the

Burne Convention

What is the Duration of Copyright?The duration of copyright is quite long, 70 years in the case of films, sound recordings and broadcasts and even longer for such things as books, music and art works.

Do I qualify for copyright?s 32. – Must be an original literary, dramatic, musical or artistic work where the creator is a qualified person

1. What is a qualified person? Qualified person means an Australian citizen, an Australian protected

person or a person resident in Australia s 35(2) - Author of a work = owner of the copyright provided the author is

a qualified person:

2. Am I copyrighting the Expression and NOT THE IDEA? Copyright is not designed to protect ideas, but rather the way in which

those ideas are expressed in some material form

Case: Donoghue v Allied NewspapersOutline:

1. Donoghue was a famous UK jockey2. 1931 an English paper printed a series of articles based on Donoghue 3. Articles NOT dictated by Donoghue 4. Rather created by Felstead (author) from conversation he had with Donoghue5. D was paid £2000 for his contribution.6. In 1936 Felstead convinced the defendant to publish a story7. D refused permission & when the story appeared he sued for breach of copyright.

Decision:1. Donoghue was rejected2. Copyright belongs to the creator & Donoghue was not this person

Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs.

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Step 2 – Requirements of Copyright

Requirement 1 – Originality 1. Copyright only subsists in original works2. Originality means that the work must originate from the author and not be copied3. Copyright protects the skill, labour and judgement involved in the production of

the work rather than any creative merit - Sands & McDougall Pty Ltd v Robinson

If the work originates from the author in the sense that it is the result of his or her ‘skill, labour or experience’, and it is not copied from another, it will satisfy the test for

originality.

CASE: London Press v University Tutorial Press The ‘Sweat of brow’ doctrine sets a low level of originality. Originality lies not in the data itself, but in the expense and labour involved in

collecting, verifying, storing or presenting the data Meaning so long as a person uses their own skill and effort to create the work

ANDDO NOT copy another work this test is meet.

Note: It is NOT CONSIDERED TO be original if it is the only way of doing something eg– see Ownit Homes Case

CASE: Sands & McDougall v Robinson (copyright claimed in a map of Europe); CASE: Express Newspapers v News

Requirement 2 – Material Form s 10 - Material form in relation to a work or an adaptation of a work includes:

any form whether visible or not of storage of the work or adaptation or a substantial part of the work or adaptation

o includes storage on a computer i.e. copyright will not attach to a speech unless it is put in writing

or recorded in some way. sculptures, paintings, drawings or engravings, photographs, buildings, models and

works of artistic craftsmanship Musical- notes, sheet music

s 22 - Defines this making as occurring when the work is first reduced to writing or other material form from which the expression can be copied

Things that are not material form Stuff that is transitory Eg fireworks show Sydney Harbour Bridge CASE: Nine Network Australia v ABC

Is facial makeup a material form?CASE: Merchandising Corp of America v HarpbondNotes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs.


Facial makeup applied by the rock singer Adam Ant before each concert DID NOT attract copyright as an artistic work (a painting)This is because it was NOT in a material form:Was NOT reduced to any permanent or fixed surface, which is the essence of a painting.

Requirement 3 – Original Literary Works

Include (in appropriate circumstances): business letters manuals of instructions business and financial reports advertising brochures or circulars catalogues advertising jingles product labels computer program

Other pieces of original material A football fixture (CASE: Football League v Littlewoods A football pools coupon (CASE: Ladbroke v William Hill) A bookkeeping system (CASE: Kalamazoo v Compact Business Systems)

Are COMPILATIONS OF DATA original literary works? s 10 - A literary work includes a compilation, expressed in words, figures or

symbols:o A collection of factual data may have copyright, provided it is originalo Originality lies not in the data itself, but in the expense and labour

involved in collecting, verifying, storing or presenting the data (the so-called ‘sweat of the brow’ doctrine)

CASE: Desktop Marketing Systems v Telstra Outline:

1. Telstra made the phone book2. Substantial labour and expense went into collecting, verifying, recording,

assembling and producing these directories.3. DM reproduced it in a digital form on CD4. Telstra argued infringement of copyright.

Decision:1. Appeal was dismissed.2. Originality in a factual compilation MAY lie in the labour and expense involved

in collecting the information recorded in the work, as distinct from the “creative” exercise of skill or judgement, or the application of intellectual effort.

Other cases where copyright EXISTED:



Case FactsFortutity v Barcza Weight Watchers ProgramFairfax v Consolidated Press A newspaper column detailing births, deaths and

marriagesA-One Accessory Imports v Off Road Imports

A motorcycle parts catalogue

Millwell v Olympic Amusements Prize scales used in a poker video gameSeven Network v Media firm’s internal telephone directory

Are ADVERTISING MATERIAL AND TRADE NAMES original literary works?Exists in advertising material such as in jingles & advertising

Copyright could even subsist in an advertising slogan, although a compilation of commonplace sentences commonly in use will not be original

o CASE: Kirk v J & R Fleming

If trade name is an original literary ‘work’ then YES copyrighto However to be a literary work the matter must be sufficiently substantial

CASE: Exxon Corporation v Exxon Insurance Outline:

1. Multinational oil corporation.2. Chosen name as satisfied 3 criteria set out by the co3. Insurance company also used the name without permission4. Oil sued in passing off and breach of copyright.

Decision:1. COPYRIGHT – NO2. A literary work is something that provides either information or instruction or

pleasure in the form of literary enjoyment.a. ‘Exxon’ DOES NOT perform any of those functionsb. It has NO meaning except where used with other words or in a particular

juxtaposition

CASE: Francis Day Hunter v Twentieth Century Fox copyright did not subsist in the words ‘The Man who Broke the Bank at Monte Carlo’.

CASE: Sinanide v La Maison Kosmeo The phrase ‘Beauty is a social necessity, not a luxury’ was held to be TOO trivial

Bottom Line: It is UNLIKELY, therefore, that advertisers will often be able to rely on copyright

to protect product or trade names or sloganso Should use trademark acts or designs act were appropriate

Copyright only protects the original part of the work. If the originality is limited the monopoly provided by the Copyright Act will be correspondingly limited.

Is COMPUTER SOFTWARE original literary works?



1. No mention of computer software in Act & therefore interpreted in same way as any other work

2. s 10 - A ‘computer program’ is now defined to mean a set of statements or instructions to be used directly/indirectly in a comp in order to bring about a certain result:

o i.e. source code is copyrighted because of ‘sweat of the brow’3. Object code should is NOW be protected.

Are Original Dramatic Works literary works?Copyright protects include plays, film scripts and choreographic shows. There is considerable overlap between dramatic works and literary works.

Are Original Music Works literary works?Copyright protects original musical work is a reference to the musical score copyright will subsist in the score for an opera and in the score for an advertisement

Are words in a song copyrighted? The words to a song do not form part of the musical work. They are protected as

literary works.

Therefore, obtaining permission to use a song in an advertisement could involve seeking authorisation from at least two copyright holders.

Are the works Original Artistic Works? (IMPORTANT)Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs.


Section 10 provides that an artistic work includes: (whether of artistic quality or not) (a) a painting ,sculpture, drawing engraving or photograph, whether the work is

of artistic quality or not: (b) a building or a model of a building, whether it is of artistic quality or not; or (c) a work of artistic craftsmanship to which neither or the last two preceding

paragraphs applies

PLUS works of artistic craftsmanship (see section on AC)o Copyright Act requires some element of artistic quality.

Important: As with literary, dramatic and musical works the level of originality required for an artistic work is NOT great.

Are LOGOS AND SIMPLE MARKETING DESIGNS artistic works? If sufficient skill and judgment has gone into its creation, A logo or other distinguishing mark may attract copyright protection as an artistic

workGiven CopyrightCASE: Lott v JBW & Friends & Endeavour Corporate Design

Graphic bar containing the words ‘Opera in the Outback’ Was done in stylistic fashion used on the cover of a brochure for a concert WAS

sufficiently original to attract copyright, Even though the choice of font style was made from a computer program and the

whole design was done in fairly quick time

CASE: Melbourne Chinese Press v Australian Chinese Newspapers The particular way in which the Chinese characters that made up the masthead of

a Chinese language newspaper were written (the calligraphy) was held to be an artistic work

Chinese characters in expressive brush stokes = paintingDenied CopyrightCASE: Cortis Exhaust Systems v Kitten Software

A digitally produced product logo simply using the letters “sim” ‘SIM’ was too trivial to attract copyright NO COPYRIGHT

CASE: Merchandising Corp of America Inc v Harpbond Facial makeup could be an artistic work? ‘2 straight lines drawn with greasepaint with another line in between them drawn

with some other colouring matter, by itself could not possibly attract copyright’

Are PRODUCT DESIGNS, PRODUCTION MOULDS & PROTOTYPES artistic works?



As no artistic merit is required, drawings for industrial products will often be artistic works.The benefit of claiming copyright in product drawings is that copyright will:

protect three dimensional products that correspond to the drawings the protection will last much longer than for a registered design.

Copyright EXISTED:Case Facts

: Compagnie Industrielle de Precontrainte et D’Equipment des Constructions SA v First Melbourne Securities

Joints for bridges

Amalgamated Mining Services v Warman International Industrial pumps

S.W. Hart & Co. v Edwards Hot Water Systems A hot water system

British Leyland v Armstrong Patents An exhaust system for a Leyland motor car

Dorling v Honnor Marine The drawings for a yachtMuscat v Le Dressmaking designs and patterns.

CASE: Wham-O v Lincoln Industries (Mould Case)Outline:Frisbee including the original drawings:

the original wooden model (as a sculpture) the mould or die (as an engraving) the final product produced by an injection moulding process (as a sculpture or

an engraving)Decision:Ctt ACCEPTED most of these submissionsREJECTED that a product made from an injection moulding process was a sculpture.

CASE: Greenfield Products v Rover-Scott Bonnar (Industrially Applicable) Outline:

1. Manufactured ride-on motor mowers2. Developed a new drive mechanism3. Applicant failed either to take out a patent covering the inventive elements of the

drive mechanism, or to register the design of the drive mechanism under the Designs Act

4. Other party copied design and improved on it and defendant sued claiming drawings + artistic works were artistic works.

Decision:1. Utilitarian products made from a moulding process were NOT sculptures.2. Rejected the notion that a ‘sculpture’ included machinery3. Contrast to the Frisbee case, the court rejected the argument that a mould or die

for producing machinery was an engraving.4. Although copyright subsisted in the drawings, it was unenforceable against the

defendant because of the defence provided by s 77 of the Copyright Act because the artistic work had been applied industrially.

Are BUILDINGS AND MODELS FOR BUILDINGS artistic works?



Copyright clearly subsists in the floorplan for a house as a drawing provided the plan is original.

CASE: Eagle Homes Pty Ltd v Austec Homes The floor plan for a house as a drawing - YES

s 66. - The Copyright Act specifically provides that it is not a breach of copyright to photograph, draw, paint or include in a film or tv broadcast a building or model of a building.

Are WORKS OF ARTISTIC CRAFTMANSHIP artistic works?**IMPORTANT**Must prove that works of artistic craftsmanship are:

works which require some skill to produce (craftsmanship) which appeal to aesthetic (artistic) tastes even though they may also serve a useful purpose

Examples of Artistic Craftsmanship Hand-crafted vase Piece of pottery Silver candelabra

NOT Artistic Craftsmanship Most machine-produced goods are not Artistic Craftsmanship - Guild v Eskandar

Limited The importance of works of AC is that unlike other artistic works (eg design

drawings) - they DO NOT lose copyright protection once they have been industrially applied

CASE: Greenfield Products v Rover-Scott If the product copied in had been a work of Artist Craftsmanship, the plaintiff WOULD have been able to sue for breach of copyright EVEN though the work had been applied industrially.

Burge v Swarbrick Burge produced boat and gave one to Swarbrick for good work Swarbrick copied boat and produced many copies of the boat Burge did not have design or patent available, and therefore filled under copyright

for infringement of a boat plug.Decision

Ruled that in works of artistic craftsmanship, there must be some ‘artistic’ factors which contain atheistic elements, and some actual work.

‘a work of artistic craftsmanship does not turn on assessing the beauty or aesthetic appeal of a work or on assessing any harmony between its visual appeal and its utility. The determination turns on assessing the extent to which a particulars works artistic expression in its form is unconstrained by functionality considerations. The more substantial the requirements in a design brief to satisfy utilitarian considerations indicated with the design of the yacht, the less the scope for that encouragement of real or substantial artistic effort.’ basically, the



more “functional and less artistic”, it is not going to be a work of artistic craftsmanship.

Thus, ruled against Burge that the work was not of artistic craftsmanship and therefore had not infringed.

What is Craftsmanship? Simple machine-made garments are NOT works of craftsmanship: Although there must be an element of craftsmanship, it is probably not necessary

that the work be entirely hand-crafted

CASE: Guild v Eskandar LimitedCommonplace physical activities = NOT Artistic Craftsmanship

CASE: Cuisenaire v Reed1. Court held that there was no element of craftsmanship involved in cutting strips of

wood into predetermined lengths and then painting them in different colours so as to produce a set of wooden rods for the teaching of mathematics

2. NOT Artistic Craftsmanship

CASE: Bonz Group v CookeCertain garments, designed by the manufacturer’s principal designer and then made up by the manufacturer’s employee hand knitters

YES are works of Artistic Craftsmanshipo However, no Australian court has yet gone so far.

What is Artistc?Basic principles to guide the courts in working out Artistic Craftsmanship.

CASE: Muscat v Le (a case involving dress designs)

1. The work MUST have an element of genuine artistic quality that “[appeals] to the aesthetic tastes of those who observe it” even if it is also utilitarian.

2. The level of artistic appeal required is greater than mere visual appeal.3. The level of aesthetic appeal is to be judged objectively on the basis of the

evidence before the court.4. Evidence that the creator intended to make an article possessing aesthetic qualities

is important, but NOT essential.5. Finally, just because a “...segment of the public can be found which may have

been persuaded by advertising or by a transient fad to want to own the work because of its visual appeal does not necessarily mean that it must have the requisite minimum level of aesthetic value”

CASE: Muscat v Le1. A sample garment was NOT a work of Artistic Craftsmanship2. The purpose of the sample was not to appeal to aesthetic tastes, but to allow the

designer to make any changes before production commenced.

CASE: Sheldon & Hammond Pty Ltd v Metrokane Inc (CORKSCREW)



A corkscrew was NOT Artistic CraftsmanshipThe product lacked the necessary aesthetic features, although it was stylish & attractive.

CASE: George Hensher Ltd. v Restawile Upholstery (PROTOTYPE)1. The prototype of an armchair 2. NOT a work of Artistic Craftsmanship

CASE: Coogi Australia Pty Ltd v Hysport International (Machinery Case)Outline:

1. Coogi Design Team created a new fabric design which had both a distinct pattern and weave.

2. Spent considerable time customising machinery to get look – Didn’t register under designs act

3. Hysport Copied the design to some degree.4. Coogi argued that there were so many similarities between the stitch structures of

the two fabrics that Hysport had reproduced a substantial part of the structure of the XYZ fabric.

Decision:1. Rejected the notion that something HAD to be hand-crafted to be Artistic

Craftsmanship2. There is NO necessary difference between a skilled person who makes an article

with hand-held tools and a skilled person who uses those skills to set up and operate a machine which produces an article

3. “It is a manifestation of the creator’s skill with computer-controlled machinery, knowledge of materials and pride in workmanship.”

a. HOWEVER, Coogi FAILED in its action b/c Hysport had NOT substantially copied the work.

Are Subject Matter other than works Artistic? (IMPORTANT)

Are Television Broadcast’s Artistic?The Copyright Act also extends copyright protection to:

sound recordings; cinematograph films; television and sound broadcasts; and published editions of works.

Unlike other forms of copyright material, television and sound broadcasts do not have to be in a material form to attract copyright. Copyright exists once the broadcast is made, whether or not the broadcast is recorded.

CASE: Network Ten v TCN Channel Nine The Panel, a comedy talk show on Channel Ten, regularly recorded and broadcast short clips (8 to 42 seconds) from Channel Nine programs without Nine’s permission.

Each image broadcast by a television station was not a television broadcast.Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs.


Two out of three judges thought that the Glen McGrath segment was anInfringement was substantial part of programme.



Step 3 – Rights of CopyrightWhat are the rights assigned by Copyright?The Copyright Act gives the owner the exclusive right to do certain things with respect to the copyright material.

THE RIGHTS (S 31)

LITERARY (EXCL. SOFTWARE)

DRAMATIC & MUSICAL WORKS

ARTISTICWORKS

COMPUTER PROGRAMS

To reproduce the work in a material form • • • To publish the work • •

To perform the work in public • • To communicate the work to the public • • •

To make an adaptation of the work • • To enter into a commercial rental arrangement

where the work is reproduced in a sound recording • To enter into a commercial rental arrangement •

Sound RecordingsThe copyright owner of a sound recording has the exclusive right to make a copyof the recording, to cause the recording to be heard in public, to communicate the recording to the public and to enter into a commercial rental arrangement in respect of the sound recording: s 85.

Film RecordingsThe copyright owner of a film has the exclusive right to make a copy of the film, to cause the film to be seen or heard in public and to communicate the film to the public: s 86.

Television or Sound BroadcastsThe copyright owner of a television or sound broadcast has the exclusive right to make a film or sound recording of the broadcast as the case may be, and to re-broadcast the broadcast, or to communicate the broadcast to the public other than by rebroadcasting: s 87.

S85-s88 sets out the exclusive rights for each form



Step 4 – Determining Ownership of CopyrightWho owns the Copyright?s 35(2) - Author of a work = owner of the copyright provided the author is a qualified person: Rule is that the owner is the maker of subject matter other than works, except if made for valuable consideration; eg s97(3) sound recording s98(3) films

What is a qualified person?A qualified person includes an Australian citizen as well as a person resident in Australian (as per first page)

Creator vs Person who thought up the idea?The author of the work is the person who creates the original expression NOT the person who conceived the idea.

CASE: Donoghue v Allied Newspapers Journalist who wrote life story on jockeyOwner = Journalist

What about dictation?A person who merely takes down dictation is not an author nor is a translator the author of the work.

GOTO NEXT PAGE



Do Employees vs Employers own copyright? (IMPORTANT)

Does an agreement with the employee exist?s 35(3) - Where there is an agreement modifying the operation of these qualifications orexceptions, copyright shall subsist according to the terms of that agreement:

Employeess 35(6) - Where the author is an employee and the ‘work’ is made pursuant to the contractof employment, copyright belongs to the employer:

To satisfy this MUST satisfy 2 questions (like patents) MUST HAVE BOTH Os the author an employee? Was the work created pursuant to the contract of employment?

****BIG CASE VERY IMPORTANTCASE: Redrock Holdings Pty Ltd & Hotline Communications Ltd & Ors v HinkleyOutline

1. Hinkley was a comp programmer who developed some software (a toolkit for developing other software – library code)

2. Employed by bedrock and produced numerous programs using this code3. After 3 yrs and without warning he quit to work for another software company

(Hotline). Before leaving, he deleted all copies of the source code version of the library code.

4. This effectively crippled R’s ability to service its clients.5. Redrock claimed that it owned the programs developed by H during his time with

Redrock, which of course included the source AND object code versions of the library code.

6. Hinkley claimed that he was hired as a contractor, and that, as there was no written or oral agreement covering the transfer of the library code, copyright in the code belonged to him. Hinkley argued that Redrock only had a licence to use the object code and not the source code. He additionally claimed that any modifications to the library code made during his time at R were made in his own time and for his own purposes and not R’s.

Decision:1. Changes to the library code were so substantial that the updated library code

AMOUNTED to a new work.2. There was NO agreement covering the issue the matter depended first on whether

Hinkley was an employee.3. Held that he was an employee and NOT a contractor since the company provided

him all the same entitlements they provided to a fulltime employee a. Sick leave, holidays, etc etcb. Hinkley’s work was also central to the development of Redrock’s

business, that is, it was integrated into Redrock’s business NOT an accessory to it.

4. Hinkleys’s claim that the code was developed largely at home in his own time, the evidence suggested that MOST of the work was done at Redrocks’s.

5. HOWEVER, the MOST important evidence pointing to the conclusion that Redrock owned the copyright was the fact that Hinkley’s library code was a



CORE ELEMENT in the programs that Hinkley had been hired to develop for R’s clients.

6. The court therefore determined that copyright in the new library code belonged to Redrock.

Do Journalists or their publishers own copyright?If a Journalist is employed by a newspaper or magazine The newspaper proprietor owns the copyright in any literary, dramatic or artistic work

ExceptionsThe journalist is the owner of the copyright in so far as the copyright relates to either:

the reproduction of the work for the purpose of inclusion in a book, or reproduction of the work in hard copy, or facsimile (making photocopies) UNLESS the copying is connected with publication of the newspaper, magazine

or similar periodical: s 35(4).

It WOULD be a breach of the journalist’s copyright for a person who supplies press clippings for a fee to make copies of newspaper articles without the journalist’s permission.

Who own copyright to Photographs, Portraits and Engravings?Usually author = person who took the photo or created the portrait or engraving

Exceptionss 35(5) - If commissioned for value and for a private or domestic purpose, copyright belongs to the person commissioning the photograph, portrait or engraving

What has the Equitable (beneficial) ownership of copyright?Although person X may own the legal copyright in a work, the equitable or beneficial rights might belong to someone else

1. i.e. work is produced for someone else with knowledge they will be using it

CASE: Griggs Group Ltd & Ors v Evans & Raben FootwearOutline

1. Griggs was the UK manufacturer and distributor of Dr Martens footwear.2. Commissioned an advertising agency to produce a new logo3. Advertising agency hired Evans, a freelance commercial artist, to do the work. 4. There was no written agreement between any of the parties covering the issue of

copyright ownership of the logo.5. Evans asserted copyright ownership and then purported to assign the copyright to

Raben Footwear, an Australian company that, while not a competitor of Griggs, was hostile to Griggs.

Decision1. Evans produced the logo as a freelance contractor, not as an employee of Griggs

or the advertising agency.2. Evans was the legal owner of the copyright3. However, the terms and nature of the arrangement made it clear that the parties

must have intended Griggs to be the beneficial owner.4. Evans could not assign copyright to a third party without authorisation from

Griggs.Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs.


Two or more people involved - Joint authorshipSubject to the provisions of s 35, the authors own the copyright jointly

Step 5 – Usage RightsAre either exclusive or non-exclusive.

2 steps: exclusive licence must be in writing although the courts have the power in their

equitable jurisdiction to enforce an unwritten exclusive licence Where necessary the terms of the licence will be inferred from

the surrounding circumstances, or implied on the basis of commercial necessity, industry custom or past dealings.

o i.e. where an architect produces the drawings for a house, there is generally an implied licence that the commissioning the drawings may use them to build the house – HOWEVER, cannot build multiple houses.

CASE: Wilson v Weiss ArtOutline:

1. Wilson did artwork for Weiss through an advert agency for clothing, merchandise and advertising

2. No written agreement3. No attempt to get written agreement in this deal4. Later used his stuff without Wilson’s permission on products other than Weiss

clothes5. Wilson sued for breach of copyright. 6. Weiss claimed it had an implied right to use the artwork.

Decision: 1. The court held that Wilson had granted Weiss an exclusive and irrevocable right

to use the artwork in advertising2. However,Wilson had not licensed Weiss to use theartwork on any merchandise

not connected with Weiss clothes.3. BREACH of copyright

How Long Does Copyright Last?Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs.


70 years

TYPE OF COPYRIGHT DURATION OF COPYRIGHT

MATERIALLiterary, dramatic, musical,or artistic works which have been published 70 years from the end of the year in which the author died (s 33(2)) Engraving 70 years from first publication (s 33(5))

Unpublished work

70 years from the end of the year in which the work is first published, performed in public, broadcast, or records of the work are first offered or exposed for sale (s 33(3))

PART IV MATERIAL Sound recordings 70 years from the end of the year in which the copyright material is first published (s 93) Films 70 years from the end of the year in which the copyright material is first published (s 94) Television & radio broadcasts 70 years from the end of the year in which the copyright material is first broadcast (s 95) Published editions of works 25 years from the end of the year in which the copyright material is first published (s 96)



Step 6 – Direct Copyright InfringementsHow do I know if my copyrights have been infringed?Copyright in original works is infringed (s 36) where a person, without the copyright owner’s permission:

reproduces the work in a material form OR publishes the work OR communicates the work to the public OR (in the case of literary, dramatic and musical works) performs the work in public

OR adapts the work.

Important: In each case copyright is only infringed if the impugned act involves the whole or a substantial part of the copyright work: s 14.

What is a ‘substantial part of the work’?1. Not defined in act BUT refers to the quality (in the sense of originality) of the

work, not quantity. 2. Infringement of copyright exists where a vital or material part of

the work has been copied: Cummins v Vella Milpurrurru v Indofurn Pty Ltd

In assessing whether a substantial part of the work has been copied the courts have regard to four principal matters:

the amount of material taken, bearing in mind that quality is more important than quantity;

how much of the material taken is copyright material and how much is not; whether the defendant’s intention was to take the plaintiff’s work for the purpose

of saving himself labour; the extent to which the plaintiff’s and the defendant’s works compete.

CASE: Hawkes & Son (London) v Paramount Film ServiceOutline:

Defendant used 30 seconds of the four minute song as part of newsreelDecision:

Held to be an infringement because the part that was copied contained the melody of the song.

IMPORTANT :When determining whether a substantial part of the work has been copied it is necessary to keep in mind the distinction between the idea and the expression. It is fundamental to

copyright law that copyright does not subsist in an idea. Therefore, copying an idea cannot amount to an infringement of copyright.

Reproduction of a whole or part of my work?Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs.


Copying can be done by direct reproduction s 21(1) or indirect S21(2) copying from article it self King features v Kleenman or

importing

‘Reproduction’ is not defined in the Copyright Act, but means copying. Proving an infringement of the reproduction right involves two steps: (S W Hart & Co Pty Ltd v Edwards Hot Water Systems)

1. proving an objective resemblance or similarity between the copyright work and the alleged copy; and

2. establishing a causal connection between the copyright work and the alleged copy.

Direct ReproductionCASE: Cummins v Vella (IMPORTANT)Outline:

1. Vella was a painter who’s paintings were all very similar2. Cummins was inspired by the style and did similar paintings3. There were considerable similarities of style, colour, format and subject matter.4. Vella sued for copyright infringement.

Decision:1. The Court had to decide whether:

a) the latter was a copy of the former, that is to say there was sufficient objective similarity to amount to the latter being a reproduction or adaptation of the former, and

b) the former was in fact the source of the latter and, if so, whether the copy was of a substantial part of the Vella work.

2. To establish breach of copyright the similarities between two paintings must go beyond similarities of style, colour, subject matter and technique.

3. Cummins did not infringe in Vellas copyright

IMPORTANT: Decision Suggested: There must be a causal connection between the copyright work and the alleged

copy. In other words, there is no breach of copyright unless the work has been copied.

CASE: Ferntree Homes v Bohan (CAUSAL CONNECTION) Outline:

1. Ferntree alleged that Mrs Bohan had copied one of its project homes in constructing her house.

Decision:1. Ctt said many similaries 2. BUT failed to prove the 2nd element – causal connection3. Couldn’t show that Bohan had copied features

IMPORTANT: Decision Suggested: Must prove both elements to have a copyright infringement

Subconscious Infringement



CASE: Bright Tunes Music v Harrisongs MusicEx-Beatle George Harrison was found to have subconsciously copied the plaintiff’s musical work, previously recorded as He’s So Fine, in producing the song MySweet Lord.

Indirect Reproduction1. Indirect copying occurs where an infringing work is produced not by copying the

copyright work but by reverse engineering or by following a verbal or written description of the copyright work.

2. Thus, copying the design of a yacht by making a mould from an existing boat of that design would infringe copyright in the original design drawings

i. Shacklady v Atkins

Direct Unlawful reproduction of databases Objective resemblance DOES NOT mean, in the case of compilations, visual

similarity. When determining whether a substantial part of the work has been copied it is

essential to have regard to what was original in the work. Where originality lies in the labour and expense involved in collecting

information (as opposed to presenting it) that becomes the cornerstone for judging whether a substantial part has been taken.

a. CASE : Desktop Marketing Systems Pty Ltd v Telstra Corporation

CASE: Seven Network (Operations) v Media Entertainment and Arts AllianceOutline

1. Ch 7 staff were involved in new employement agrements2. MEAA was the union3. Hired a firm to poll 7’s staff to get feedback4. Obtains 7’s internal phone book and staff list5. Made an annotated directory of all names #’s etc6. 7 sued for breach of copyright

Decision1. Following the DMS case copyright did subsist2. Amounted to reproduction of a substantial part of the copyright work. 3. An injunction was granted. Damages were assessed to be quite minimal

Direct Unlawful reproduction of advertising materialTo what extent can an advertiser prevent another from using its advertising themes?Notes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs.


CASE: Telstra Corporation Limited v Royal & Sun Alliance Insurance AustraliaOutline:

1. GOGO mobile add 1st feat in yellow pages2. 2nd in Shannons insurance 3. Telstra argued that copyright subsisted in its advertisements (the scripts) as

literary and dramatic works, and that Shannons had infringed that copyright. Decision:

1. Shannons were entitled to reproduce the ideas, concepts or theme embodied in the Goggomobil advertisement provided the expression wasn’t copied.

2. Were similarities but its differences included it ‘does not use substantially the same dialogue, and the setting or structure of the first Shannons advertisement is sufficiently different to fall well short of a “substantial” reproduction of the first Goggomobil advertisement’.

3. No infringement of copyright but was infringement of passing off

Direct Unlawful reproduction of computer programs

CASE: Autodesk Inc v Dyason1. Analyse whether the part copied was critical or essential to the program’s

operation.2. The part of the program that had been copied only amounted to 127 bits which is

just enough to create a 16 letter word. The decision was criticised on the basis that it protected an idea rather than the expression of the idea

3. The test for substantiality was criticised as being no more than a ‘but for’ test - but for the part copied the program would not operate as intended.

4. Every part of a computer program is critical to its proper functioning. Therefore, every part of a program, no matter how small, would be a substantial part.

NOTE: Data Access Corporation v Powerflex Services Pty Ltd case argued SUBSTAINTIAL PART OF PROGRAM and not “every part was essential”.

Direct Unlawful reproduction of artistic works1. Reproducing a photograph involves copying the actual photograph, not taking

another photograph of the same scene.2. s 21(3) - Making a three dimensional representation from a two dimensional

work, such as a drawing or a painting, is a reproduction of the two dimensional work:

CASE: King Features v KleemanBrooches, charms, plaster dolls and mechanical toys out of the cartoon character‘Popeye the Sailor’ amounted to an infringement of the copyright in the twodimensional cartoon drawings.



Direct Unlawful performance of a work in public (PUBLIC V PRIVATE)1. The critical factor in determining the public is the character of the audience and

not the number of persons involved.2. If the unauthorised performance was made to the copyright owner’s public or a

part of that public, the performance was made ‘in public’ .

CASE: Rank Film Production Ltd v DoddsTrans vids to motel rooms = public

CASE: Performing Right Society v Harlequin Record ShopsMusic in a shop = public

CASE: Performing Right Society v Rangers FC Supporters ClubMusic at a large private party = private

CASE: Ernest Turner Electrical Instruments v Performing Right SocietyMusic to employees in a large factory = public

CASE: APRA v Commonwealth BankMusic in a training vid (11 employees) = public

Direct Infringement of Audio, Video & FilmCopyright in Part IV material is infringed (s 101) by doing, without the copyrightowner’s permission, any of the things set out in:

s 85 (sound recordings); s 86 (films); s 87 (television and sound broadcasts); s 88 (published edition of works).

1. Making a copy of a sound recording, film or broadcast without permission is a breach of copyright.

2. Communicating the sound recording, film or broadcast to the public without permission is a breach.

3. Causing a recording or film to be heard or seen in public without permission is a breach.



Step 7 – DefencesThe defence of Fair DealingFair dealing means using no more than a reasonable portion of the copyright material.Includes fair dealing for the purposes of:

purposes of research or study, criticism or review, or news reporting is permitted ss 40–42.

Direct Dealing with computer programsSections 47AB–47HIn such cases copyright is not infringed. It is permitted to make a copy of a computer program:

where the copy is made incidentally and automatically as part of the technical process of running the program

– for its normal use, or– for the purpose of studying the ideas behind the program and the way in

which it functions as a back-up copy; for the purposes of ascertaining information about the program necessary to create

interoperable programs; to correct errors; and to test for security.

Direct Dealing with the Copying of industrial productsRelevant provisions are ss 74–77A of the Copyright Act.

Corresponding Design1. Where a corresponding design is registered under the Designs Act Section 75

provides that where copyright subsists in an artistic work and a corresponding design is or has been registered under the Designs Act.

a. A ‘product’ is defined in the Designs Act as a thing that is manufactured or hand made, and may include a component part and a thing of indefinite length.

b. A ‘corresponding design’ in relation to an artistic work means visual features of shape or configuration which, when embodied in a product, result in a reproduction of that work.

i. Excludes ‘pattern or ornamentation designs’ii. Grace v Beaulieu of Australia Limited - a carpet design

featuring ‘a looped carpet having alternate rows of higher, thicker pile and lower, thinner pile ...[in] contrasting colour combinations’ was a design ‘consisting of features of shape and configuration which are incorporated in the carpet’.



Industrially Applied Corresponding Design IMPORTANTWhere a corresponding design is not registered under the Designs Act, and the design has been applied industrially Section 77(2)(a) provides that copyright infringement is not available against a person in the following circumstances:

a. a design corresponding to an artistic work is not registered under the Designs Act or is not capable of being registered; and

b. the person reproduces the work by embodying the design (or any otherc. corresponding design) in a product; andd. the design has been industrially applied and the resulting products offered

for salee. in Australia or anywhere in the world.

Section 77 does not apply to: two-dimensional designs (because they fall outside the definition of a

corresponding design); buildings or models of a building; or works of artistic craftsmanship.

Neither Corressponding or Industrial BUT Patented Section 77(2)(b)–(c) provide that copyright infringement is not available againsta person in the following circumstances:

a design corresponding to an artistic work is not registered under the Designs Act or is not capable of being registered; and

a product made to the corresponding design is revealed in a patent specification or a design application: s 77(1A).

Indirect Infringements It is an infringement of copyright to authorise a breach of the Act by another person: s 36.

To authorise something is to ‘sanction, approve, countenance’ or even permit that thinSection 36(1A) provides that in determining whether a breach of copyright has been authorised the court must take into account all relevant matters including:

a) the extent (if any) of the person’s power to prevent the doing of the act concernedb) the nature of any relationship existing between the person and the person who did

the act concerned;c) whether the person took any reasonable steps to prevent or avoid the doing of the

act, including whether the person complied with any relevant industry codes of practice.

LibrariesCASE: The University of New South Wales v MoorhouseWas successful in alleging authorisation against a university library which took no steps to prevent students and staff from infringing copyright by use of a photocopying machine.



Clubs and other live music venuesCASE: Australasian Performing Right Association Limited v Metro on GeorgeOutline:

1. Metro on George (‘the venue’) was a popular venue in Sydney for cabarets, award nights and theatrical performances.

2. Metro had no control over, or input into, the choice of songs performed3. Despite warnings from APRA music continued to be performed at the venue

without the proper licence from APRA. 4. APRA sued.

Decision:1. The court held that Metro had authorised the copyright infringements because it

was in control of how the premises were used. 2. Metro had not taken any reasonable steps (within the meaning of s 36(1A)(c)) to

prevent or avoid the copyright infringements.

Modern Hardware Technology (i.e. mp3 players)As it is impossible to track down every person who copies a piece of music without permission, copyright owners have concentrated on pursuing those who could be said to have authorised such breaches.

CASE: CBS Songs Ltd v AmstradOutline:

1. CBS alleged that Amstrad had authorised illegal taping by manufacturing and selling twin-deck tape recording machines.

Decision: 1. The House of Lords rejected the argument. ‘Authorising’ meant to ‘sanction,

approve or countenance’ twin-deck tape recorder had legitimate uses. 2. Amstrad had no control over the use to which the recorders were put after

purchase

SoftwareCASE: Napster in A&M Records Inc v Napster Inc

1. Where a person distributes a device with the purpose of promoting its use to infringe copyright (as evidenced by clear expression or other affirmative steps taken to foster infringement, which goes beyond mere distribution) he or she is liable for breach.

2. Further more, it had the power to control access by its users.3. BREACH UNDER s36

Website linkingCASE: Universal Music Australia Pty Ltd v Cooper

1. Cooper ran a website that linked users of his website to MP3 music files.2. Links provided by users and not stored on his comp3. The court held that Cooper knowingly approved of and permitted his website to

be used to infringe copyright. 4. Cooper had sufficient control of his own website to take steps to prevent the

infringements but failed to do so.



Indirect Infringement – Importing and Dealingss 37Copyright is infringed by a person who, without the licence of the owner of the copyright:

imports an article into Australia for the purpose of selling, hiring, distributing or exhibiting by way of trade the article if the importer knew, or ought reasonably to

have known, that the making of the article would, if the article had been made in Australia by the importer, have constituted an infringement of the copyright:

CASE: Milpurrurru v IndofurnOutline:

1. Indofurn imported to Australia some carpets which were made in Vietnam2. Designs based on abo paintings3. The carpets did not follow the paintings exactly. They were altered to make them

less ‘complicated’ and more marketable.4. BUT essential and distinctive features were taken.

Decision:1. Held liable under s 37 of the Copyright Act for knowingly importing infringing

works and was ordered to pay damages2. Had the intention of taking from the applicants’ paintings so as to save the time

and labour of creating an appropriate work itself.

Parrell ImportingParallel importing occurs where an article (embodying copyright material) is lawfully made and purchased overseas, but is then brought into Australia without licence, express or implied, from the Australian rights holder.

CASE: Interstate Parcel Express Co Pty Ltd v Time-Life International Outline:

1. Copyright owner of cookbooks as Time-Life as exclusive licensee for Australia2. Another importer purchased books from US, and sold them for half-price on

Australian Market3. Time-life sued for breach of s374. Importer said had US commercial licence and world-wide book distribution

licenceDecision:

1. There was no implied licence to import the books into Australia for the purpose of dealing with them in a commercial way.

2. The mere fact that the books had been purchased lawfully in the United States did not create a licence to deal in the copyright material.

Accessories to imported ArticlesSection 44C (and 112C) now provides that the importation of accessories (in which copyright subsists) is not a breach of s 37 (or 102) provided the accessory is a non-infringing accessory.



What is an accessory?1. Under s 10 an accessory includes any label, packaging or

instruction (whether written or contained in a sound recording or a film)

a. This means that products such as enhanced CDs can now be imported without seeking permission from the Australian copyright holder.



Step 8 – Remedies and DamagesThe following court orders are available in appropriate circumstances:

damages or an account of profits; injunction; delivery up of infringing materials.

Damages or an account of profits - s 115A successful plaintiff may claim damages: s 115. A breach of copyright is treatedas a tort:

CASE: WEA International Inc v Hanimex Corp

1. The essential function of damages is to compensate the owner for the loss in value of the copyright caused by the infringement.

2. If the defendant is able to prove that he did not know and had no reasonable grounds for suspecting that an infringement of copyright was occurring the court may refuse to award damages (s 115(3)), although an account of profits would still be available.

a. If a copyright notice is attached to the work, then difficult to prove : i. CASE: Kalamazoo v Compact Business Systems

3. To establish the defence the defendant has to prove that he or she has undertaken reasonable enquiries as to whether copyrights exists.

CASE: FNH Investments Pty Ltd v SullivanOutline

1. Photographer commissioned to take a few snaps2. FNH was not happy with the work and refused to pay3. But ended up still using the prints on the brochures and websites

Decision1. FHN was ordered to pay the plaintiff’s account of $7,425 plus additional damages

of $15,000.

Conversion Damages – s1161. A conversion is a tort and occurs where one party, without

authority, deals with the property of another person in a way that is inconsistent with the owner’s ownership

a. i.e. it is conversion to sell another’s property without his or her permission

b. The damages are the sale price of the property sold. i. No deduction is made for the wrongdoer’s costs. ii. This makes conversion a worthwhile remedy.

Other remedial powers, including interlocutory ordersCASE: Anton Piller KG v ManufacturingNotes by All Things Law – http://law.timdavis.com.au - A Law Forum to discuss everything about Studying Law - from Law Subjects, Notes and Questions to Law Clerkships and Jobs.


The court may grant interim injunctions, Mareva injunctions and make AntonPiller orders.

Criminal penalties and seizure powers1. s 132. - There are criminal penalties for a number of acts including selling,

making, hiring, exhibiting or importing an article in breach of copyright where the seller knew or ought to have known that the sale was a copyright infringement:

2. s 135. - Customs has the power to seize infringing material



Documents

patents and confidential information protect ideas, · Web viewREJECTED that a product made from an injection ... the court rejected the argument that a mould or ... Hinkley’s