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Introduction To Copyright Notes

Law Notes > Intellectual Property 1 (Copyright) Notes

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Introduction to Copyright: History, Basic Principles and Subsistence Introduction to Copyright Law


The CB writers note the general familiarity of copyright law to the public in providing protection to those making literature/art/music etc. but also note that it covers a much broader sweep of commercial, technological and cultural activities


They note that copyright law itself is very complex and an understanding of matters of legal characterisation, technical definitions, legislative presumptions and statutory exemptions is key. The hard part isn't the cases but mapping it all together

History and justifications The origins of copyright

* The CB writers note that the distinction between 'oral culture' (transmitted through stories, legends, myths) which represent the deep history of the people who transmit them and 'print culture' which enables individual ownership of expressions to be documented and the origin of ideas attributed to individual authors may have led to the emergence of copyright.


This distinction still remains of legal significance since exclusive rights are offered mainly to fixed expressions like those in writings whereas oral expressions of 'ideas' remain common property free for all

The first literary property statute

* This was the Statute of Anne 1710 but prior to its enactment a number of other practical methods for securing publication rights developed such as Crown Patents granted over essential titles (Bibles, prayer books etc.), rights granted to members of the Stationer's Company (exclusive rights over printing), and contracts between printers and publishers (through equity and common law concepts such as natural justice) o

Yet still there remained a large, legitimate and clearly significant licensed book trade which was intensified by the Union with Scotland (since they were unaffected by London trade arrangements). It was this that led to the London Stationers successfully petitioning for law recognizing exclusive right to property


The Preamble to the Statute of Anne provides, inter alia

"Whereas printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting and publishing, or causing to be printed, reprinted and published, books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families; for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write useful books; may it please your Majesty that it may be enacted

That from and after the tenth day of April, one thousand seven hundred and ten, the author of any book or books already printed, who hath not transferred any other the copy or copies of such book or books, share or shares thereof, or the bookseller or booksellers, printer or printers, or other person or persons, who hath or have purchased or acquired the copy or copies of any book or books, in order to print or reprint the same, shall have the sole right and liberty of printing such book and books for the term of one and twenty years, to commence from the said tenth day of April and no longer"


The CB writers note three key things from this: o

It granted a right in the public interest - incentives created to encourage the supply of future works


Acknowledgement of the author as the original owner of the literary property right, but the interests of the author and printer are somewhat conflated


The right granted is only for a limited term

Philosophical justifications for Copyright

* The CB writers note the importance of the Enlightenment at this time - encouraging the pursuit of truth and raising education levels of the population. John Locke's theory that one should have a natural right to own the fruits of their own labour was adapted later by Blackstone and extended into intangible rights into a case for the natural right of authors to perpetual copyright


During this time Romanticism was also an influential movement which led to preoccupation with the 'creative genius of the modern author' - leading to presumptions that copyright rewards original creative endeavours and not just useful works.

Common law authorial rights

* Millar v Taylor o

Facts: Millar claimed he purchased rights to The Season a work by a Scottish Poet and thus he obtained a perpetual CL right to republish it. Taylor claimed that under the Statute of Anne copyright expired and there was thus no infringement.


Held (Wiles J): The records of Chancery prove the existence of a common law right of the author - the statutory provisions do not affect pre-existing CL rights and the statute was primarily of application to situations like University publishing


Held (Aston J, Lord Mansfield): Their honours agreed that Taylor was a stranger attempting to reap the benefits of another man's labour and that

perpetual monopoly was essential to encourage the 'painful researches of learned men'. o


Dissent (Joseph Yates):To succeed Millar had to prove that compositions of authors were property and property rights cannot exist beyond the boundaries of property (like the pages between the covers of a book and not the rights to reproduce it)He rejected the possibility of acquiring property by labour alone because it assumes people can sustain a private right just by working on it - this would mean that another person who had the same ideas could not presume to publish them.Blackstone's Lockean justification was rejected because it begs the question in dispute. It presumes that ideas are capable of being privately and exclusively owned

This case was effectively overruled in Donaldson v Beckett which, though there is considerable uncertainty surrounding the propositions that it stands for, is generally accepted to affirm the existence of copyright at common law but which had been supplanted by the Statute of Anne.

Limited Rights

* The CB writers note three key features of the Statute of Anne which have changed over the years since then: o

Limitations in time


Limitations in geography (i.e. only extended to works in Britain)


Limited in subject matter


Limited in scope - how far the right to copy extended beyond prohibiting others from making identical copies

Copyright today

* The Copyright Act 1968 (the Act) is an exclusive criterion of copyright rights but unfortunately key concepts in the Act are not defined which makes for interpretive complexity by allowing reference to a range of legal and cultural meanings to influence interpretation. Provisions have also constantly been added to the Act to cover conceptual weaknesses as they arise.


Reproductive technologies and practice have also made the law broader and as has the internationalisation of rights due to the importance of intellectual property in global trade (e.g. the WIPO Copyright Treaty and AUSFTA)


The CB writers also note that the Allen Consulting Groups report on copyright records a net deficit in earnings for Australia - most of the benefits going to the US and UK


There is also a thinness in the constitutional justification, economic analysis and consistent policy development in Copyright Law

Copyright Principles


The Act is complex legislation but there are some general principles and broader notions underpinning copyright logic including the concepts of: o

The public domain;


The nature of copyright as property;


The idea/expression dichotomy;


The author;


Material form; and



Public Domain

* The preamble to the WIPO Copyright Treaty suggests that copyright's exclusive rights are balanced with 'the larger public interest, particularly education, research and access to information'. Public domain is often used to provide a reference point defining the public interest side of the copyright balance. o

For e.g. the impact of copyright term extensions can be measured with reference to the book titles that will subsequently be unable to be reproduced without permission and accessed by the public at no cost


But legally the public domain is ascertained against the backdrop of positive rights - it is the sum of things not protected by copyright.


The Australian public domain is made up of a range of interests and it is usually straightforward to objectively determine what is in the public domain in relation to: o

Works in copyright that have expired;


Productions not protected (e.g. due to jurisdictional complications); and


Ideas, information and facts

Users can also access works without permission: o

Where the resource fails to meet minimum threshold standard for protection (e.g. lacking originality);


To take insubstantial portions of copyright works (the test of infringement requiring substantial taking); and


To exercise fair dealing in rights


There is a high degree of uncertainty in using these instances to mark out the public domain. Whether unauthorized use would involve a copyright infringement involves consideration of particular facts and circumstances.


Victoria Park Racing demonstrates the role of the public domain in structuring legal reasoning.

Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 59 CLR 479 Facts: The owner of land adjoining a racecourse made an elevated platform on his land where he could see the course and read information about starters, scratchings and race results on noticeboards. The adjoining owner permitted, for money, a broadcasting company employee to use the platform when races were held to use a microphone to describe/announce the results which the company then broadcasts.

The racecourse proprietor sought an injunction to restrain this use of the land on the grounds that use of information appearing on the notice board and its assumed use in connection with a racebook issued by the proprietor amounted to infringement of copyright.

Latham CJ first dealt with the notion of property in a spectacle
? His honour said that this notion was vague and suggested that there was a principle that prevents people, in certain circumstances, from opening their eyes and seeing something and describing what they see o

No authority supported this proposition.


And if it came down to a the degree of interference with the property then it would be difficult to draw lines between large and small interference (telling people or broadcasting it)

? Even if there were a legal principle preventing someone gaining advantage for himself or causing damage to another by describing a spectacle produced by them - the rights of the latter person could be described as property only metaphorically. The appropriateness of such a metaphor would depend on the existence of a legal principle - the principle itself can't be based on the metaphor
? EVEN IF the spectacle was a subject matter of property, for there to be a remedy one would have to show that the description of such property is wrongful or that it is wrongful when widely disseminated. No authority was cited for this proposition

The second argument concerned copyright - this wasn't pleaded but if it was it would have failed
? The first hurdle was that there was no copyright proved in anything - one possibility was the racebook but copyright in this was not shown and it wasn't shown that even if it existed it was infringed o

Even if the defendant used the racebook he did no more than state facts recorded in it. The fact that the horses were individually numbered makes no difference - race results are often announced by reference to the number of horses in some such form.

? There would have to be a lot more to establish that just because the numbers were exhibited on a noticeboard for a few minutes that everyone in Australia was precluded from reproducing them for 50 years from someone's death (s 3)
? The law of copyright doesn't give a person an exclusive right to state or describe facts. Persons cannot, by first announcing that a men fell off a bus (or that a horse won a race) prevent other people from stating that Act
? Copyright protection extends only to original literary/dramatic musical and artistic work - it protects originality in the expression of thought. No such rights in copyright exist here

Ideas and expression

* Though the cases slowly increased the scope of protection under Copyright (e.g. to close copies etc.) it was never clear what the exact boundaries of the protected expression in copyright was.



The courts developed the principle of the 'idea/expression dichotomy' o

To maintain the balance and the notion that the owner's rights are limited to maintain the public domain, it was said that ideas are free for all to use but expression (fixed in some material form) may be protected.


Justifications for this are found in Enlightenment ideals, notions of democracy, competition/economics and evidentiary concerns

In Hollinrake v Truswell the plaintiff argued that protection given by the UK CA wasn't limited to works possessing literary merit but extend to any product of brain work or metnal effort. The court rejected this by evoking the idea/expression dichotomy

Hollinrake v Truswell (1894) Ch 420 Facts: s 2 of the UK CA protected a 'map, chart or plan'. The plaintiff was assigned in writing 'of the copyright in a book, to wit, a map, chart or plan' entitled the 'Cosmopolitan Sleeve

Chart'. The copyright and assignment were registered at Stationers' Hall as required at the time

Lord Hershel LC began by noting that something like a half-inch scale could not be copyright and that the words and figures on the chart in this case don't convey an intelligible idea or suggest any use apart from the ones printed. The point of the CA was to prevent one from publishing a copy of the particular form of expression which an author conveyed ideas or information to the world.
? If someone memorises the context of a book they would be as much in possession of the author's ideas as if the book were physically in his hands o

But words or figures on a sleeve chart are not similar - they can only be used in connection with that upon which they are inscribed. They are not merely directions for use of the cardboard but are part of the actual apparatus itself without which they are completely useless

? The plaintiff sought to protect not a literary production but an apparatus for the use of which certain words and figures have to be inscribed on it.
? Though compilations can be protected by copyright (e.g. post office directory) there is a marked distinction between these and "Words and figures inscribed on and necessarily forming part of an apparatus or tool"

Lindley LJ noted that the 'character'


The character of what is published is the test of copyright o

If what is published isn't separately published, isn't a publication complete in itself, but only a direction on a machine to be understood and used with it, the direction cannot be severed from the machine of which it is a part, and cannot be monopolized by the inventor under the CA


Even if one gets an idea from the chart, you aren't copying any more than the method of measurement. Copyright doesn't extend to ideas, schemes or methods - it is confined only to their expression. If their expression isn't copied, copyright isn't infringed*

Cf Kalamazoo (Australia) Pty Ltd v Compact Business Systems Pty Ltd (1985) 5 IPR 213

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