LAWS3021 Foundations of IP 2 Copyright Notes

Table of Contents

LAWS3021 Foundations of IP 2 Copyright Notes 1

Copyright principles 2

Overview: (1) subsistence (2) owner (3) infringement (4) exceptions/defence? 2

(1) Issue 1#: Subsistence: does copyright arise? Ie is subject matter protected by Aust copyright? Note s 126 CA presumption. Need 1 + 2 (connecting factors) to exist. 6

1a. ‘Works’, recorded in material form, original, substantial 7

(i) Types of Works 7

Literary 7

IceTV case 11

Dramatic 13

Musical 14

Artistic works (s 10(1) CA) – covers (a) painting, sculpture, drawing, engraving, photograph (b) building, or model of building, (c) work of artistic craftsmanship 14

(a) def – Painting, sculpture, drawing, engraving or photograph, whether of artistic quality or not 15

(b) definition – building or a model of a building whether of artistic quality or not 17

(c) def > Work of artistic craftsmanship: Coogi Australia; Burge v Swarbrick 18

(ii) Recorded in a material form: s 22 (work is made when work is first reduced to a material form) 20

Works Recorded in a material form: ss 22(1)-(2), 29(1), 32(1)-(2) 20

(iii) Original (s 32(1) – (2) CA) 23

(iv) Substantial enough to merit copyright protection 24

1b. ‘Subject matter other than works’ (sound recs, cin. films, broadcasts, published eds) + not copied from a previous work of the same sort (Part IV CA) 25

(i) Sound recordings (aggregate of sounds embodied in record, which includes a device in which sounds are embodied) s10(1) 25

(ii) Cinematograph films – aggregate of visual images + sounds associated with such images: s 10(1) def; Galaxy Electronics 28

(iii) Broadcasts (don’t need material form) 31

(iv) Published editions 35

- Performances: 37

2. Author’s eligibility to hold copyright 45

Duration of copyright 45

Qualification / connecting factor: s 32 and s 84 47

For Works: s 32 47

For SMOW: s 84 (also note s 22(3)-(7), 29(1)(b)-(c)) 48

International works / Other subject matter - (if person doesn’t meet resident requirement) 51

Have to identify the author: Phonebooks case 53

Authorship/publication 53

Can you identify the author(s) 54

Joint authorship 54

Joint ownership 54

Community ownership (issue with indigenous copyright) 54

3. No denial of copyright protection on basis of it being obscene or offending community standards or values (Venus) 56

(2) Issue 2#: Owner of the copyright? 58

(i) general author = owner: s 35(2) 58

(ii) journalist exception: s 35(4) 58

(iii) Commissioned work: s 35(5) 59

(iv) Under contract of employment exception: s 35(6) 60

(vi) joint ownership 60

(vii) community ownership? Bulun Bulun 60

(viii) Crown ownership? Ss 176 – 8 61

(3) Issue 3#: Infringement 63

1. Direct infringement 63

(1) Req 1#: Has the D done or authorized the doing of an act comprised in the copyright? 64

Definition of infringement: doing acts comprised in the copyright: s 36, 101 64

(2) The D does an act or authorizes an act comprised in the copyright of the work: s 36 – for what the acts are see s 31 and 101 65

‘Reproducing’ of works? 66

Publication of Works (only applies to first production) 67

29 Publication 67

Performing works in public (ss 31(1)(a)(ii); 27(1); APRA v Tolbush; APRA v CBA) 68

Communication of works to the public (s 31(1)(a)(iv); 31(1)(b)(iii); TELSTRA Corp v APRA; UMA v Cooper) 70

Make an adaptation 70

Direct infringement of SMOW: 71

(3) Req 2#: ‘Substantial Part’ of original subject matter involved: s 14(1); Network Ten 71

2. Indirect infringement of copyright – authorization of infringement 74

Authorisation of infringement ? s 13(2); 36(1)-(1A); 101(1)-(1A) 74

Imported an infringing copy for sale or hire: s 37 76

37 Infringement by importation for sale or hire 76

Sold, hired out or otherwise traded an infringing copy: s 38 77

38 Infringement by sale and other dealings 77

Permitted (for profit) public entertainment premises to be used for a public performance that infringes copyright? s 39 77

39 Infringement by permitting place of public entertainment to be used for performance of work 77

Engaged in unauthorized parallel importation? 78

Technological protection measures (TPMs) 78

Division 2A—Actions in relation to technological protection measures and electronic rights management information 20 78

Did the D have actual/constructive knowledge of wrongdoing 81

(4) Issue 4#: Exceptions or Defence to the Infringement? 82

A. Fair dealing 82

Req 1#: Fairness requirement: 82

Req 2#: Purpose 82

Research or study: s 40 82

Criticism or review: s 41 83

• Fair dealing for purpose of criticism or review under s 41: A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of criticism or review, whether of that work or of another work, and a sufficient acknowledgement of the work is made 83

For reporting news: s 42 85

Req 3#: Sufficient acknowledgement: s 41; 42(1)(a); 103A; 103B(1)(a) 85

B. Performed under License 85

C. Permitted under the Act 85

D. In the Public Interest or Against Public Policy 85

Copyright principles

1. Rights of property in an object in which a copyright work or subject matter is embodied are distinct from copyright in that same object: Pacific Film Laboratories

2. Copyright protects only the form in which the ideas and information are expressed: Plix Products v Frank W Winstone

3. Copyright confers a right of derivation, as opposed to a right against independent creation: Corelli v Gray; Antocks

Overview: (1) subsistence (2) owner (3) infringement (4) exceptions/defence?

(1) Issue 1#: Subsistence: does copyright arise? Ie is subject matter protected by Aust copyright? Note s 126 CA presumption. Need 1 + 2 (connecting factors) to exist.

	For litigation: Presumptions as to subsistence and ownership of copyright: s 126 CA In an action brought by virtue of this Part: (a) copyright shall be presumed to subsist in the work or other subject‑matter...

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