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2. Copyright

1 LAWS3021 Foundations of IP 2 Copyright Notes Table of Contents

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

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2. Copyright

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

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3 (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 subjectmatter to which the action relates if the defendant does not put in issue the question whether copyright subsists in the work or other subjectmatter; and (b) where the subsistence of the copyright is established---the plaintiff shall be presumed to be the owner of the copyright if he or she claims to be the owner of the copyright and the defendant does not put in issue the question of his or her ownership

1a. 'Works', recorded in material form, original, substantial

(i) Types of Works a. Literary Summary of Summary: when

1. Look for print or writing or symbols that form a mode of communication (s 10(1) CA identifying if def) not necessary that its quality be high: University of London Press something is o Note s 10(1) CA definition of a literary work as including a table or a literary compilation expressed in words, figures or symbols. work o Not required that the quality or style be high: University of London Press v University Tutorial Press

2. Test: function of a literary work is to provide information instruction or pleasure in the form of literary enjoyment: Hollinrake v Truswell

3. Disregard likely overturned test that looks at whether there has been an exercise of knowledge, judgment, labour or skill: ladbroke and express Newspapers possibly overturned by IceTV

4. Look for semiotic meaning: Elwood v Cotton On.

5. Excludes: Single words, slogans or headlines - too insubstantial

6. Includes: Compilations expressed in words figures or symbols: s 10(1)

7. Includes: Computer programs: S 10(1)

8. Then consider the other requirements: o Originality o Recorded in material form o Substantial enough to merit copyright protection. (not just a name or title): Exxon applying Hollinrake v Truswell o Then consider part 2 requirements: author's eligibility to hold copyright 1 Look for

1. Look for print/writing. Or symbols that form a mode of communication (eg brail). print/writing a. Note s 10(1) CA definition of a literary work as including a table or compilation expressed in words, figures or symbols. b. Not required that the quality or style be high: University of London Press v University Tutorial Press (eg includes papers set by examiners, betting forms, accounting forms) c. Can include codes : D P Anderson ( there was a big selection of five letter words from an enormous number of candidates to form a suitable code for cabling purposes. D argued that these words were meaningless except so far as they were fixed with the arbitrary meaning given to them by the code's devisor, they could not eb a literary work. No - the words are for use for telegraphic purposes and to each of them a meaning can be attached by the person sending the message and also by the addressee. 2 intention to

2. Intended to provide information, instruction, or pleasure in form of literary enjoyment provide info?
(Hollinrake v Truswell). (Function of a literary work is to afford pleasure instruction or information in form of literary enjoyment so a single word 'Exxon' ws not a literary work

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3 disregarded test of exercise of labour 4 look for meaning

5 single words

6 compilations

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4 because it had no meaning in itself.)

3. Disregard possibly overturned test: IceTV has possibly overturned the test in ladbroke and express Newspapers that whether there has been an exercise of knowledge, judgment labour or skill is key to determining whether something is a literary work. a. In these cases - works were found to be literary works as a result of their being the result of an exercise of knowledge, judgment, labour or skill.

4. Look for semiotic meaning (Elwood v Cotton On) a. Designs that incorporated words and numbers that did not have a 'semiotic' meaning (ie they could not be read as a text) were artistic not literary: Elwood b. Example - brail - could be an appropriate form for literary work. Anything could be expressed in some way that could be read as a text.

5. Excludes: Single words, slogans or headlines - because of insubstantiality? ( Possibly can be protected under trademarks) a. Single words: single word or title or phrase can be too insubstantial to qualify as a literary work because it has no meaning in itself: Exxon (relying on Hollinrake test); Francis Day; State of Victoria; Fairfax Media Publications ('headlines case') i. Single words names and titles not likely to be protected by copyright: Francis Day b. Slogans: literary works are intended to afford information, instruction and pleasure in the form of literary expression. Titles and other short phrases do not generally involve literary composition and are not sufficiently substantial to warrant copyright protection: State of Victoria v Pacific Technologies i. eg "HelphelpDriverinDangercallpolicePh.000' - ii. Judge said it had semiotic meaning, but is it substantial in nature? Literary in nature, but is it a literary work? No. too short. iii. Semiotic meaning - but it was a simple instruction, did no more than state the obvious words for use in drawing attention to a taxi driver requiring urgent assistance. iv. Note merging of idea/expression: With this slogan it stated an idea (that taxi driver required urgent assistance) and it was inseparable from its expression so there was a merger of idea/expression, so copyright could not be claimed int eh expression. c. Headlines case: Fairfax had its headlines entirely copied by an abstracting service. But this was not a substantial part of the works. FCA held: "generally, headlines (like titles) are "simply too insubstantial and too short to qualify for copyright protections and literary works": Fairfax Media Publications v reed International. (cf UK Meltwater holding that headlines were literary as it consists of words + can be original if result of author's intellectual creation). i. Fairfax suggested it was possible that copyright could subsist in headline
- but unlikely given insubstantiality. ii. (In addition the author of headlines was not identified. Evidence given by Fairfax did not delineate independent contributions made by identified journalists and/or sub editors. From reasoning in Phonebooks neither authorship nor joint authorship thus demonstrated.)

6. Includes: Compilations and tables expressed in words, figures or symbols (s 10(1) CA: "Compilations and tables that require a degree of concentration, care analysis, comparison and certain facility in using and adapting the altered forms to a composite can qualify as literary works: Kalamazoo v Compact Business Systems Pty Ltd a. Facts from handout: P's sets of accounting forms (though not the individual forms) were original works as they originated from the P and were more than a copy of other material. In the case of a compilation a simple unordered presentation will not be protected unless some greater coherence or order is imposed on the material by the author: Kalamazoo

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5 b. IceTV case: Consider not only the quantity but the quality of the information

copied. Here the time and title information taken by IceTV was not a substantial part of the work. (The authors fot eh weekly schedule had litte if any choice in the form of expression adopted as this was dictated by the nature of the information). i. Fact not expression being copied ii. The skill and labour of Channel 9 was in making the program not in making programs in a particular order that meant that there could be a tv guide made.

7 Computer programs?

5 More from Kalamazoo:

* Facts: The plaintiff manufactured a system of accounting records using pins and holes to enable onewrite entry. The forms themselves were not original, but the system itself was held to be a compilation of literary and artistic works that itself constituted a literary work of sufficient originality.

* (a) Literary Works: The forms themselves did not provide information. They were writing in that they represent symbols in visible form, but they were not tables which required some content such as a collection of figures or presentation of some information or data. The columns, boxes + lines were drawings and comprise artistic works. A compilation within the meaning of literary works could contain other types of works, + indeed a compilation of artistic works alone may be protected.

* There was no need for literary works to convey as a minimum information, instruction or pleasure in the form of literary enjoyment. Literary merit is irrelevant. This holding suggests that cases dealing with copyright over titles, slogans phrases or advertisements were a matter of substantiality rather than providing pleasure, information or instruction.

* There was intellectual input into the forms in as much as they are designed + presented in a way which will produce meaningful results for the user. Although the forms + the system itself could not be protected, they could have been presented in more than one way to achieve the objectives of meeting the changing needs of the business + professional communities. So each of the systems was a literary work.

* Consider: that it is unnecessary that the components of a compilation be explicitly or exclusively literary, and these might include artistic components such as drawings and the like: Kalamazoo.

7. Includes: Computer programs or compilations of computer programs? S 10(1) a. Definition - "computer program means a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result": in s 10(1) definition CA section. b. Single word in computer language not a literary work: data access corporation v Powerflex Services i. In Data - held that individual command words not themselves computer programs because not individually considered to be a set of instructions that would cause the computer to function as intended. ii. Held: something is not a computer program within meaning of s 10(1) unless it intendeds to express either directly or indirectly an algorithmic or logical relationship between the function desired to be performed and the physical capabilities of the device having digital information processing capabilities. c. Computer programs on DVD discs constituted program instructions, including commands and did not extend to the audio, visual and caption content of the discs: Australian video retailers association v Warner Home video (So AV and caption content of DVD discs weren't computer programs as they were not program instructions) d. A computer game was a literary work: Kabushi Kaisha Sony Computer Entertainment Systems (Someone has had to program the game in the first place -

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6 even though players have to sit down and play it out and can play it out in different ways. Eg choose your own adventure games.) e. Infringement of works in a computer program - ie infringement of screen display of software, but not of computer program. StatusCard Australia v Rotondo

1. A case about works within computer software, rather than software as a literary work

2. Screen display was simply a series of lines heading and coloured backgrounds

3. It was not a table nor was it a compilation of the inforatmion used to display that was constantly updated

4. Even if table or compilation lacked sufficient originality to be protected by copyright.

5. Copyright in the manual was infringed. More facts from Data Access case:

* In Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49 (30 September 1999) the High Court upheld the Full Federal Courts decision that merely using the same commands from another program, even though they had identical functions, was not an infringement of copyright.

* The Court emphasised that it is not an abstract idea, algorithm of mathematical principle that is protected as a computer program but a particular expression of that abstraction. The selection, ordering combination and arrangement of instructions within a computer program is important for copyright. It is a question of "the originality of the algorithmic or logical relationship between the functions desired and the capabilities of the computer."

8 Other reqs.

Irrelevant note on history: a. First case: Computer Edge Issue: HCA held that computer program in source code is a literary work, but object code (which was a series of electrical impulses not visible or intelligible to humans and not intended to be capable by themselves of conveying a meaning that could be understood by humans) was not a literary work. After this CA amended to include def of comp programs. b. This def accords with Art 10(1) TRIPS that comp programs whether in source or object code shall be protected as literary works under the Berne Convention. Also consider the other requirements for it to be a work protected by copyright:

1. Recorded in a material form: s 32 CA

2. Original: s 32 CA

3. Substantial enough to merit copyright protection

4. Then other requirement - author's eligibility to receive copyright protection.

IceTV case






6 Consider not only the quantity but also the quality of information copied. Noted the importance of originality in the expression fo the time and title information of TV programs (per French, Crennan and Kiefel JJ) The authors of the weekly schedule had little, if any, choice in the form of expression adopted as it was essentially dictated b the nature of the information. Thus, the time and title information taken by IceTV was deemed not to be a substantial part of the work. There is a distinction between the skill and labour that went into the creation of the compilation and that involved in the particular form of expression of the copyright work. The copyright Act only affords protection to skill and labour so far as it is directed to the expression of a copyright work. Facts:

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7 o Ice TV decided to offer alternative service where people could timeshift tv programs. Advanced video recorde.rp opel could program things to be recorded every week. What they needed was tv guides. Channel 9 didn't want to give program guides. Cahnnel 9 release program guides to certain people. o Ice TV decided to be ingenious. Hired a hotel room. And put a person in there. And put a tv in there. And said watch tv and write down what you see, time, date etc. So they had a computer set up with a predictive capacity to figure out what shows would eventually be on later. And when shows came out o Argument - (1) no subsistence - so can't be copyright. o Issue - it was fact and not an expression being copied. What was being copied? Type of program, channel, date, time, length, name. Is this the fact, information/idea or expression of those things? How else can you say 6pm view. Court said that this is fact. It is not expression. It is information. Can't hold copyright in information. o Next issue - not original? It was fact. Not much choice in how to express. When IceTV took it it wasn't original. o Next issue - skill and labour? Channel 9's business was in making the program and screening it in an order where customers will view it - it wasn't in making programs in a particular order that means that there could be a tv guide made.

* Policy implciations: This caused al ot of concern for businesses with databases.

* Issues Post IceTV: a state of uncertainty. (1) greater focus on identifying the author (less reliance on presumptions) (2) may need to identify all joint authors - not just one of them - before subsistence will be recognized: Phonebooks, headlines i. note - this is probably unworkable. So many things are made by faceless people. (3) authors need to be human: Phonebooks (4) info in databases not protected; only the original way its arranged is covered: Acohs. o Example of (1) and (2) are hard to satisfy - newspaper organisations where one person in the US office can work on the story and then it can be sent over to another office overseas. Journalists bad at keeping record of this. o How long does copyright last? Life of author + 70 years. o Also see (3) - authors need to be human. (check with case - may have missed this - think she said that in phonebooks it was only one judge who considered this). ", French CJ said that it may be that "too much has been made, in the context of subsistence, of the kind of skill and labour which must be expended by an author for a work to be an 'original' work", because the Act only requires that the work originate with the author." Here, French CJ stated that the time and title information, being in chronological order, which was obvious and prosaic, was not in a form that required any kind of mental effort. The expression lacked the requisite originality for it to constitute a substantial part. Nine submitted that it expended a great deal of skill and labour in preparing the schedule of programmes, an argument that had won favour in the Full Federal Court. This was said to be irrelevant for two reasons. Firstly, the skill and labour had to be directed to the originality of the form of expression, and secondly, although consideration of the amount of skill and labour might help determine whether the expression was original, the latter is the ultimate question b. Dramatic Overview from class:

1. Does it fall within s 10(1) CA definition? Includes: a. choreographic show; b. screenplay/script for film (excludes film based on screenplay or script)

2. Capable of performance or representation

3. Other requirements: a. Originality of expression b. Recorded in a material form: i. script

7 2. Copyright


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