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Copyright Infringement Notes

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Text Ch 5.15.6 & Ch 7 Text Ch 5.75.71 Text Ch 5.725.98 Text Ch 6.15ff

Table of Contents

(3) infringement

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

a.

Has a substantial proportion of the copyright work been copied? ( s 14(1); Autodesk (i) State test: s 14(1)(a) (ii) Meaning of 'substantial part' is decided by quality rather than quantity: Autodesk (For SMOW - use Panel case (TCN Channel Nine v Network Ten)) (iii) Remember facts/idea expression distinction - (Half Court Tennis v Seymour ; Zeccola ; Baigent v Random House Group; Ce TV)

AND

b.

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) a. Has the D dealt with infringing copies of copyright works?

(has the D: i. Imported an infringing copy ii. Sold, hired out or otherwise traded in an infringing copy?
iii. Permitted (for profit) public entertainment premises to be used for a public performance that infringes copyright?
iv. Engaged in unauthorized parallel importation?
b. 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.

(3) Issue 3#: Infringement

1. Direct infringement

*

*

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 a. For literary, dramatic or musical works: b. Artistic works: (2) Nature of copyright in SMOW: a. 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 b. 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 c. 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) rebroadcast the broadcast. d. 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 a. (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)). b. '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 (1) Req 1#: Has the D done or authorized the doing of an act comprised in the copyright?
Definition of infringement: doing acts comprised in the copyright: s 36, 101 For Works

* Copyright in a work is infringed by a person who without being owner or having licence from owner does or authorises the doing in Australia of any act comprised in the copyright: Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright: s 36(1) CA

* Factors to consider when determining whether person authorised the doing of an act comprised in the copyright without license or owning the work: include: o the extent (if any) of the person's power to prevent the doing of the act concerned: s 36(1A)(a) CA o the nature of any relationship existing between the person and the person who did the act concerned: s 36(1A)(b) CA o 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: s 36(1A)(c) CA For SMOTW: (1)Subject to this Act, a copyright subsisting by virtue of this Part is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright. (1A)In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in a copyright subsisting by virtue of this Part without the licence of the owner of the copyright, the matters that must be taken into account include the following: a) the extent (if any) of the person's power to prevent the doing of the act concerned; b) the nature of any relationship existing between the person and the person who did the act concerned; c) whether the person took any other reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice. (2)The next two succeeding sections do not affect the generality of the last preceding subsection (3)Subsection (1) applies in relation to an act done in relation to a sound recording whether the act is done by directly or indirectly making use of a record embodying the recording

(4)Subsection (1) applies in relation to an act done in relation to a television broadcast or a sound broadcast whether the act is done by the reception of the broadcast or by making use of any article or thing in which the visual images and sounds comprised in the broadcast have been embodied.

(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 Summary

For literary, dramatic or musical work (s 31(1)(a)): For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a literary, dramatic or musical work, is the exclusive right to do all or any of the following acts: (i) to reproduce the work in a material form: s 31(1)(a)(i). (the generality of this is not affected by 31(1)(a)(vi): according to s 31(2)). (ii) to publish the work: s 31(1)(a)(ii) (iii) to perform the work in public; s 31(1)(a)(iii) (iv) to communicate the work to the public; s 31(1)(a)(iv) (vi) to make an adaptation of the work; s 31(1)(a)vi) (vii) to do, in relation to a work that is an adaptation of the firstmentioned work, any of the acts specified in relation to the firstmentioned work in subparagraphs (i) to (iv), inclusive; s 31(1)(a)(vii). For artistic works (s 31(1)(b)): For the purposes of this Act, unless the contrary intention appears, copyright in an artistic work is the exclusive right to do all or any of the following act (i)to reproduce the work in a material form; (ii) to publish the work; (iii) to communicate the work to the public; and Literary (other than computer program), or musical or dramatic work: copyright includes the exclusive right to enter into a commercial rental arrangement in respect of the work reproduced in a sound recording; s 31(1)(c) o Paragraph (1)(c) does not extend to entry into a commercial rental arrangement if: o (a)the copy of the sound recording concerned was purchased by a person (the record owner) before the commencement of Part 2 of the Copyright (World Trade Organization Amendments) Act 1994; and o (b)the commercial rental arrangement is entered into in the ordinary course of a business conducted by the record owner; and o (c)the record owner was conducting the same business, or another business that consisted of, or included, the making of commercial rental arrangements of the same kind, when the copy was purchased. In the case of a computer program, copyright includes the exclusive right to enter into a commercial rental arrangement in respect of the program: s 31(1)(d) however: this does not extend to entry into a commercial rental arrangement in respect of a machine or device in which a computer program is embodied if the program is not able to be copied in the course of the ordinary use of the machine or device: s 31(3) However: The reference in subsection (3) to a device does not include a device of a kind ordinarily used to store computer programs (for example, a floppy disc, a device of the kind commonly known as a CD ROM, or an integrated

(5)

circuit). Paragraph (1)(d) does not extend to entry into a commercial rental arrangement if the computer program is not the essential object of the rental: s 31(5)

'Reproducing' of works?
Intro to this table

This table considers what it means to 'reproduce' a work.

*

*

Exclusive right to reproduce: Copyright in relation a work is the excusive right in the case of a literary dramatic or musical work to reproduce the work in a material form: s 31(1)(a)(i) Definition of reproduction in s 21 CA: o For a literary, dramatic or musical work: is reproduced in a material form if any sound recording or cinematograph film is made of the work, and any record embodying such a recording and any copy of such a film shall be deemed to be a reproduction of the work: s 21(1) CA. (This also applies to adaptions of a work: s 21(2)). o A work converted into a digital or other electronic machinereadable form is reproduction: A work is taken to have been reproduced if it is converted into or from a digital or other electronic machinereadable form, and any article embodying the work in such a form is taken to be a reproduction of the work: s 21(1A). (This also applies to adaptions of a work: s 21(2)). o An artistic work: is reproduced if: a 2D work is produced in a 3D form (s 21(3)(a)); or 3D in a 2D form (s 21(3)(b)). o Computer programs: reproduced if: (a) an object code version of the program is derived from the program in source code by any process, including compilation; or (b) a source code version of the program is derived from the program in object code by any process, including decompilation; and any such version is taken to be a reproduction of the program: s 21(5). o Sound recording or cinematograph film: For the purposes of this Act, a sound recording or cinematograph film is taken to have been copied if it is converted into or from a digital or other electronic machine readable form, and any article embodying the recording or film in such a form is taken to be a copy of the recording or film: s 21(6)
? Note: The reference to the conversion of a sound recording or cinematograph film into a digital or other electronic machine readable form includes the first digitisation of the recording or film.

Cases:

* Test is whether a nonexpert would recognize reproduction derived from individual: in Burke v Spicer Dress Design - issue of whether SDD had infringed copyright in a dress designed by producing a garment that copied a sketch of the dress. Held: a 3D indirect reproduction of a 2D work may infringe copyright in the work if a nonexpert would recognize that the reproduction was derived from the original.

* Where verbal description of a copyright work leads to a copy of the work, copyright can be infringed: Frank M Winstone v Plix Products

*

*

*

*

Immaterial if copy is bad or inartistic, if it is a copy: Walt Disney Productions v H John Edwards Publishing Immaterial if copy is made from a work which is a derivative of the original work: Walt Disney Productions v H John Edwards Where drawings are substantially similar and no evidence is called to rebut inference of copying: Walt Disney Productions Objective similarity and proof of copying required: Francis Day and Hunter v Bron (Little Spanish Town case) - here sounds sounded similar but there were differences in the musical structure. Unconscious copying alleged because they sounded alike. Unconscious copying requires a reproduction. Was necessary to show that D was familiar with the original work and some causal connection that links that familiarity to the alleged copy.

Publication of Works (only applies to first production)

* s 29

* s 31(1)(a)(ii) o 'to publish' in s 31(1) meant to make public that which had not previously been made public in the copyright territory: Avel v Multicoin Amusements Statute 29 Publication (1) Subject to this section, for the purposes of this Act: (a) a literary, dramatic, musical or artistic work, or an edition of such a work, shall be deemed to have been published if, but only if, reproductions of the work or edition have been supplied (whether by sale or otherwise) to the public; (b) a cinematograph film shall be deemed to have been published if, but only if, copies of the film have been sold, let on hire, or offered or exposed for sale or hire, to the public; and (c) a sound recording shall be deemed to have been published if, but only if, records embodying the recording or a part of the recording have been supplied (whether by sale or otherwise) to the public. (2) In determining, for the purposes of paragraph (1)(a), whether reproductions of a work or edition have been supplied to the public, section 14 does not apply. (3) For the purposes of this Act, the performance of a literary, dramatic or musical work, the supplying (whether by sale or otherwise) to the public of records of a literary, dramatic or musical work, the exhibition of an artistic work, the construction of a building or of a model of a building, or the supplying (whether by sale or otherwise) to the public of photographs or engravings of a building, of a model of a building or of a sculpture, does not constitute publication of the work. (4) A publication that is merely colourable and is not intended to satisfy the reasonable requirements of the public shall be disregarded for the purposes of this Act except in so far as it may constitute an

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