#8560 - Copyright Infringement Notes - Foundations of Intellectual Property

Infringement: has copyright in the work been infringed? Either (1) direct OR (2) indirect infringement

1. Direct infringement (a) direct infringement and (b) substantial proportion of the work (c) causal connection between the copyright work and copy.

1. Literary, dramatic or musical work? ( s 31(1))

   • Reproduce the work? (s 31(1)(a)(i))

   • Publish the work (s 31(1)(a)(ii))

   • Perform the work in public?(iii)

   • Communicate the work to the public (s 31(1)(a)(iv)

   • Made an adaption of the work ( s 31(1)(a)(vi)

   • To do in relation to an adaptation o the work any of the above acts (s 31(1)(a)(vi))

   • If not a computer program: literary (other than a coputer program, musical or dramatic work) – copyright includes right to enter into commercial rental agreement: s 31(1)(c).

   • For computer programs: right to enter into commercial rental agreement see s 1(1)(d).

2. Artistic work? S 31(1)(v) –

   • reproduce the work in a material form s 31(1)(b)(i)

   • publish the work (s 31(1)(b)(ii))

   • communicate the work to the public (s 31(1)(b)(iii)

3. Performances?

4. SMOW?

AND

1. Has a substantial proportion of the copyright work been copied? ( s 14(1); Autodesk

   1. State test: s 14(1)(a)

   2. Meaning of ‘substantial part’ is decided by quality rather than quantity: Autodesk (For SMOW – use Panel case (TCN Channel Nine v Network Ten))

   3. Remember facts/idea expression distinction – (Half Court Tennis v Seymour ; Zeccola ; Baigent v Random House Group; Ce TV)

AND

2. Is there a casual connection between the copyright work and the copy?

• Is there evidence of direct infringement of the copyright work? Or

• Has the work been indirectly reproduced? Or

• Has the work been subconsciously reproduced?

OR

2. Indirect Infringement (Authorising infringement)

   1. Has the D dealt with infringing copies of copyright works? (has the D:

      1. Imported an infringing copy

      2. Sold, hired out or otherwise traded in an infringing copy?

      3. Permitted (for profit) public entertainment premises to be used for a public performance that infringes copyright?

      4. Engaged in unauthorized parallel importation?

   2. Did the D know or have reason to believe that s/he was dealing with an infringing copy or performance? Offences may require actual/constructive knowledge of wrongdoing by the offender.

• Strict liability offence in that intention to infringe is irrelevant. However degree of knowledge can affect the remedy: s 115 CA

• Direct infringement: occurs when one of the acts comprised in the copyright is done by someone (or authorized) without authority from the copyright holder (proprietor or licensee): ss 36(1), 101(1) CA

Template for answer: Direct infringement has three elements – first, the defendant must have done or authorized an act comprised in the copyright (ss 36(1), 101(1); second, the act must have been done in relation to at least a substantial part of the work (s 14 CA); and third, there must be a causal connection between the copyright work and the copy (Ladbroke).

First element: Has the D done an act comprised in the copyright? Infringement is doing acts or authorizing the doing of acts comprised in the copyright without authority: s 36(1) for works ( see s 36(1A) for authorizing infringement) and s 101 for SMOTW

1. Nature of copyright in original works: 31

   1. For literary, dramatic or musical works:

   2. Artistic works:

2. Nature of copyright in SMOW:

   1. Sound recordings – s 85(1) right to: (a) make a copy (b) cause it to be heard in public (c) communicate it to the public and (d) enter a commercial rental arrangement in respect of the sound recording

   2. Cinematograph films – s 86 right to (a) make a copy of the film (see def of copy in s 10(1)); (b) cause film to be heard or seen in public and (c) communicate the film to the public

   3. Tv and sound broadcasts – s 87 right to (a) make a film of a TV broadcast; (b) make a sound recording of a sound broadcast or of the sounds contained in a tv broadcast; and (c) re-broadcast the broadcast.

   4. Published ed of work (literary, dramatic, musical or artistic work, or of two or more of them) s 88 right to ‘make a facsimile copy of the edition’.

3. Copyright in Performances?: Rights of performers to bring civil actions for ‘unauthorisde uses’ of their performances are set out in s 248G and s 248J.

Second element: was it done in relation to a substantial part of the work or SMOW?

4. Note that the acts only have to be done in relation to a ‘substantial part’ of the work or SMOW: under s 14(1) CA

   1. (Reference to doing of act in relation to work/SMOW includes act in relation to substantial part of work/SMOW: s 14(1)(a) – same for reproductions adaptations or copies: s 14(1)(b)).

   2. ‘Substantial part’ decided by quality not quantity: Autodesk

5. Summary from Alexandra: Is a ‘substantial part’ of the original subject matter involved?

Third element: was the substantial part copied from the copyrighted work or SMOW?

6. Was it copied? (an infringing copy must be derived from the P’s subject matter, so this q is assessed by whether the alleged infringed had access to the subject matter)

• Doesn’t include independent work: Reproduction means copying and does not include cases where an author or compiler produces a substantially similar result by independent work without copying: Ladbroke (Football) v William Hill