#8563 - Copyright Notes - Foundations of Intellectual Property

LAWS3021 Foundations of IP 2 Copyright Notes 1

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

(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

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
Copyright protects only the form in which the ideas and information are expressed: Plix Products v Frank W Winstone
Copyright confers a right of derivation, as opposed to a right against independent creation: Corelli v Gray; Antocks

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 to which the action relates if the defendant does not put in issue the question whether copyright subsists in the work or other subject‑matter; 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

Summary of when identifying if something is a literary work	Summary: Look for print or writing or symbols that form a mode of communication (s 10(1) CA def) - not necessary that its quality be high: University of London Press Note s 10(1) CA definition of a literary work as including a table or compilation expressed in words, figures or symbols. Not required that the quality or style be high: University of London Press v University Tutorial Press Test: function of a literary work is to provide information instruction or pleasure in the form of literary enjoyment: Hollinrake v Truswell 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 Look for semiotic meaning: Elwood v Cotton On. Excludes: Single words, slogans or headlines – too insubstantial Includes: Compilations expressed in words figures or symbols: s 10(1) Includes: Computer programs: S 10(1) Then consider the other requirements: Originality Recorded in material form Substantial enough to merit copyright protection. (not just a name or title): Exxon - applying Hollinrake v Truswell Then consider part 2 requirements: author’s eligibility to hold copyright
1 Look for print/writing	Look for print/writing. Or symbols that form a mode of communication (eg brail). Note s 10(1) CA definition of a literary work as including a table or compilation expressed in words, figures or symbols. 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) 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 provide info?	Intended to provide information, instruction, or pleasure in form of literary enjoyment (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 because it had no meaning in itself.)
3 disregarded test of exercise of labour	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. 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 meaning	Look for semiotic meaning (Elwood v Cotton On) Designs that incorporated words and numbers...

#8563 - Copyright Notes - Foundations of Intellectual Property

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