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Law Notes Intellectual Property 1 (Copyright) Notes

Direct Infringement Notes

Updated Direct Infringement Notes

Intellectual Property 1 (Copyright) Notes

Intellectual Property 1 (Copyright)

Approximately 262 pages

Detailed cases and materials summary which were instrumental in securing top of subject in 2012. Structure of notes:

Class 1: introduction to Copyright: History, Basic Principles and Subsistence
Class 2: Subsistence Continued; Literary Works
Class 3: Dramatic, Musical and Artistic Works
Class 4: Subject matter other than works
Class 5: Ownership, Duration and Exploitation
Class 6: Direct Infringement
Class 7: Authorisation of Infringement; Indirect Infringement; Paracopyright
Class 8: E...

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The following is a more accessible plain text extract of the PDF sample above, taken from our Intellectual Property 1 (Copyright) Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Direct Infringement

  1. Infringement requires the taking of a substantial part of the work and thus less than a substantial taking should be permissible

  2. But the legislation is silent about the preferred method of identifying a substantial part of the protected expression which created ambiguity and flexibility about what is and isn't

    • The HCA in Ten v TCN Nine attempted to clarify these principles

Direct Infringement

Relevant Provisions

S 14(1)

S 36(1)

Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14

McHugh ACJ, Gummow and Hayne JJ

Copyright and copying

Their honours noted that whilst copying is an essential element of infringement which provides a causal connection between the plaintiff’s IP and the alleged infringement, copying doesn’t necessarily constitute infringement. Their honours noted the language of people in characterising infringement as ‘theft’, ‘piracy’ etc. which if taken literally would incorrectly indicate that by proving copying, proof of ‘appropriate s.m. for copyright and taking of a substantial part’ would be proved in one go.

Substantial part

Their honours noted that the taking of something less than the whole part of any species of copyright will do – this degree of exploitation is found in s 14(1) as a ‘substantial part’ and thus “acts done in relation to insubstantial parts do not constitute an infringement of copyright and defences of fair dealing only come into operation to substantial parts or more”

Causal connection

  1. Proving infringement involves more than just alleging copying but the plaintiff generally doesn’t have knowledge of the circumstances leading to the production of similar work. All they can prove is:

    • The two works are substantially similar; and

    • The likelihood that the defendant was aware of the plaintiff’s work and had access to it

      • Proof of intention to copy isn't necessary but there has to be a causal connection b/w the plaintiff’s work and the defendant’s work

      • Thus independent creation without copying will not involve infringement

  2. Francis v Bron it was suggested that evidence of a probably causal connection creates a rebuttable presumption of copying (even though Diplock said this was an unsophisticated approach)

    • A defendant may rebut a presumption of copying with reference to evidence of independent creation, lack of familiarity with the plaintiff’s work and familiarity with works other than the defendant’s that may otherwise explain the alleged similarity

  3. The psychological fact of the possibility of unconscious copying puts defendants in a difficult position. The potential unfairness to defendants who are genuinely unaware of cultural references is exacerbated by the absence of ‘fair use’ provisions permitting transformative uses of copyright works

Larrikin Music Publishing Pt Ltd v EMI Songs Australia Pty Ltd [2010] FCA 29

Facts: The case concerned Marion Sinclair’s popular song ‘Kookaburra sits in the old gum tree’ and the 1981 iconic Australian song ‘Down Under’. It was alleged that the flute riff from Down Under was taken from Kookaburra in the hook and later. A few preliminary matters as to the law were noted by his honour as well as some points as to the musical and expert evidence:

  • The musical context in which the bars were reproduced are quite different

  • Expert Musicologist for Larrikin Dr Ford said the harmony of the two songs were different, and there are other differences, but the melody of the flute riff when playing the bars is the same as the melody of the first two bars of Sinclair’s round but has a different feel

    • He also said the two bars were the ‘signature’ of the work

  • Mr Amigier for the respondent agreed but the debate was as to whether or not this constituted a ‘substantial oart’ under the legislation

Jacobson J:

The relevant discussion of the legal principles

His honour relied on the principles stated by Gibbs CJ in SW Hart:

  • What is required is a sufficient degree of objective similarity between the two works AND some causal connection between the plaintiffs’ and the defendant’s work

    • The question of objective similarity of musical works is not to be determined by a note for note comparison but is to be determined by the eye as well as the ear (Wilmer LJ citting Austin v Columbia Gramophone)

The reproduction of the copyright work need not be identical with the original – the test is whether the substance of the work has been taken. Thus…

  • If these two elements are satisfied then the question arises as to whether the infringer has copied a substantial part of the copyright work – in answering this question ”much more depends on the quality rather than on the quantity of what he has taken” (This was affirmed in IceTV)

    • What amounts to a reproduction of a substantial part cannot be defined more precisely than to say it is a question of fact and degree which depends on the circumstances of each case

    • “It must depend on whether the air taken is substantially taken with the original” (even if you don’t take the whole – D’Almaine v Boosey

    • “the more simple or lacking in substantial originality the copyright work, the greater degree of taking will be needed before the substantial part test is satisfied” (IceTV quoting Copinger and Stone)

The steps in an action for copyright infringement

  • The first step is to identify the work in suit in which the copyright subsists

  • The second is to identify in the allegedly infringing work the part that is said to have been derived or copied from the copyright work

  • The third is to determine whether the part taken is a substantial part of the copyright work

    • The copied features must be a substantial part of the copyright work but need not be a substantial part of the infringing works, the overall appearance of which may be very different from the original (Russell William Textiles)

    • The comparison involves an examination of the similarity between the works to see whether they are sufficiently close, numerous or extensive so as to be...

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