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Ownership Duration And Exploitation Notes

Law Notes > Intellectual Property 1 (Copyright) Notes

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Ownership, Duration and Exploitation

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Often its easy to fall into the trap of thinking that copyright consists of a single block of rights but often that's not the case - for e.g. a song is often composed of literary work (lyrics), musical work (original song), subsidiary works (samples) a sound recording (digital recording) etc. Each of these individual parts can be assigned to different parties.

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In order to effectively exploit copyright all the potential owners of various rights must be known

Ownership

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Economic efficiency favours limiting the number of possible claimants to the status of author - s 35(6) CA reflects this by allowing the copyright of employee authors to be owned by the employer when the literary, dramatic, artistic or musical (LDAM) work is produced under a contract of service/apprenticeship

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But outside of employment often creators don't advert to copyright ownership until much later and when issues as to distribute of royalties etc. arise can put pressure on the relationships between them

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Ownership is formally determined by an inquiry into the personal contribution to the expression, not necessarily entailing consideration of the creative or market value of the particular contribution. Some very significant contributions might not be the right kind of contributions. o

What is a significant may well depend on the type of copyright subject matter

Works: Joint authorship S 10(1) provides that a "work of joint authorship" means a work that has been produced by the collaboration of two or more authors and in which the contribution of each author is not separate from the contribution of the other author ro the contribution of other authors S 35(2) provides that s.t. to the rest of the section the author of a LDMA work is the owner of any copyright subsisting in the work by virtue of this Part

Milwell Pty Ltd v Olympic Amusements Pty Ltd [1999] FCA 63 Facts: Milwell and Olympic made video poker games. O claimed M infringed their copyright in prize scales for its 'Wildcard 5' and 'Wildcard 14' games. The prize scales drew on the skill of mathematicians regarding strategy/probability calculations in light of desired percentage returns on player investments. It was argued that the work of the mathematicians, being extensive and complex, was quite separate from the first reduction into writing of the first column of figures in each prize scale and didn't amount to authorial contribution.

Lee, von Doussa and Heerey JJ began by quoting s 10(1) and noting what was said in Cala Homes:

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Having regard to just who pushed the pen is too narrow a view - it is both the words or lines and the skill and effort involved in creating, selecting or gathering together the detailed concepts, data or emotions which those words or lines have fixed in some tangible form which is protected

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It isn't only the person who carries out the mechanical fixation that is the author - there can also be skill and expertise involved in drawing clearly and well

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Where two or more people collaborate in the creation of the work and each contributes a significant part of the skill and labour protected by the copyright, then they are joint authors

Argument: Any of the numbers in the Wildcard 5 prize scale were derived from a person at O, and that in the case of W14 there was no evidence that O employees put any input into the creation except for changing a single number

Wildcard 5
? His honour relied on the trial judge's reliance on Dr Brown's (a mathematician) evidence - a credible witness who maintained that the prize scales were derived from joint efforts of both mathematicians and O's employees. He further said the prize scales were determined in consultation with O's employees. o

After the mathematicians arrived at calculations there would be a detailed discussion with O on how appealing particular price scale may look to players etc.

Wildcard 14
? The W14 scale was developed in response to changes to the Liquor Administration Board regulations and was developed by employees of O by reference to the prize scale in W10 and a report produced by Dr Dickson.
? To argue that only a single number was changed is an oversimplification - a number of changes were made. Further, single numbers can't be looked at in isolation. What was created was a whole new prize scale that continued to work within the regulatory

and commercial constraints governing the industry o

The evidence thus demonstrated that a change of one prize in the table could significantly alter the returns to players and the operator's margin - these prizes were decided upon after considerable calculations by the mathematicians

? The evidence thus demonstrated that a change of one prize ion

Comparative Law Brighton v Jones [2004] EWHC 1157 Facts: The case involved a play (Stones in His Pockets). Ms Brighton (B) was a stage/TV/radio director and Miss Jones (J) was an actress and highly regarded author. They founded a theatre production company of which B was the 'Artistic Director. The concept for SIHP was developed by theatre management including B and actors. J was then contracted to write the script. B drafted pages of the opening scenes and notes about characters and themes but J wrote the full draft and was noted on the script as sole author. Rehearsals led to revisions of the script. After the success of the play B claimed joint authoriship

Park J The Law: I.

Though the work claimed by a joined author need not be equal in magnitude to the author it needs to be significant - sometimes they can be held to be joint author in a one-third share (Bamgboye v Reed).

II. The contribution made must be one to the creation of the work a. Fylde Microsystems - contributions made to software by extensive testing and ensuring it would achieve the desired performance was held not to amount to authorship - this was like a proof reader's skill not an authors. b. Hadley v Kamp - one member of a song group wrote but all of them performed equally well. The other members weren't joint authors - these contributions to performance, though skilful, were not to the creation of the musical work rather than their performance/interpretation c. Stuart v Barrett - music produced by collective jamming by all members - found to be joint authors

III. A person can be joint author without putting pen to paper - e.g. telling someone else to do it a. Cala Homes - physical drawings prepared by a one business but their staff

were closely instructed, verbally and sometimes through sketches by the director of Cala Homes - they were joint authors. b. Robin Ray Case: but this is a fairly narrow concept because the architects in that case were basically acting as scribes - in practice this type of situation was exceptional

The Facts

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Evidence showed: o

B and J worked together extensively on rehearsals and constantly discussed and interchanged opinions

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The play was essentially written when the rehearsals first began - during rehearsals there was no time in which they had to improvise etc.

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During rehearsals there was constant dialogue regarding parts of the script - e.g. inserting episodes etc. This occurred between both B and J as well as the actors

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But when J came to discuss the rehearsals with B and the Actors she would at times consent tot eh change but if not content would not. She was also the one who ended up making the change - she chose the words herself etc.

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B was never entitled to give J instructions about what to write and even if she did J made up her own mind. Under the contract with Dubbeljoint J had the ultimate say about the contents of the script and didn't allow her position to be overborne by B

Discussion and Conclusions Their honours noted that extensive changes were made to the original script from the experience of the rehearsals, discussions etc. and B was involved in the rehearsals all throughout but there are several reasons why she wasn't a joint author. I.

Close to or 100% of the words spoken were actually composed by J even though B at some points flagged certain parts as undesirable a. The actual words used aren't decisive and a person who develops the plot may also be a joint author - but the script provided in advance of the rehearsal contained a complete plot for the play. Any changes made throughout it weren't enough to amount to a change significant enough that a different dramatic work of join authors was created

II. B played a large part on the changes made to the script but hasn't established these were contributions to the creation of the work rather than to the expression or interpretation of the theatrical presentation. They weren't the 'right sort of

contributions' (Flyde Microsystems) III.

It can't be said that, whenever B wanted to make a change, J acquiesced. She did accept a lot of suggestions and was prepared to consider/agree to them and in fact did. But it is clear from the evidence that she wouldn't make any changes that she didn't agree with

IV. It's also impossible to distinguish between what B and what the actors did - they don't claim to be joint authors but it seems like they basically did the same thing

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Also the contract with J addressed the possibility of changes being made otherwise than by J but with her consent to the script and provided that the they were to be part of the play, the entire copyright of which was meant to be with J.

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It is thus clear that if the case were between J and Dubbeljoint, with Dubbeljoint claiming to be joint honour, they wouldn't succeed. They agreed in a binding contract that she would be the onwner

Thus the claim as to joint authorship fails

Subject matter other than work: joint ownership Relevant Sections S 97 : Ownership of copyright in sound records (s 22(3) for sound recordings; s 22(3A-3C) sound recordings of live performances S 98: Ownership of copyright in cinematograph films s 99: Ownership of copyright in TV broadcasts and sound broadcasts s 100: Ownership of copyright in published editions of works Seven Network (Operations) Ltd v TCN Channel Nine Pty Ltd [2005] FCAFC 144 Facts: There was an oral agreement between Mr Murray (M), the founder of 'Camp Dare' for troubled youth, and CH7 under which the TV station's camera artists and sound recordist accompanied M and troubled youths along the Kokoda Track for TT. It was agreed that CH7 could use the raw footage for TT but after the ariing fot he program they had no further use of the tapes and gave them to M who sought to make a documentary using the tape footage in development with TCN 9.

Lindgren J noted the relevant statutory provisions ss 98(2)-(3) which provided that:

(2) Subject to the next succeeding subsection, the maker of a cinematograph film is the owner of any copyright subsisting in the film by virtue of this Part. (3) Where:

(a)

a person makes, for valuable consideration, an agreement with another person for the making of a cinematograph film by the other person; and

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the film is made in pursuance of the agreement;

ss 22(4) which provided that: (4) FTPO this Act (a) A reference to the making of a cinematograph film shall be read as a reference to the doing of the things necessary for the production of the first copy of the film; and

(b) the marker of the cinematograph film is the person by whom the arrangements necessary for the making of the film were undertaken

His honour also noted Professor Lahore's statements that s 22(4) essentially provided that the owner is therefore the producer who arranges the production of the negative of the film and also Ricketson who suggested that the subsections reference to the doing of things necessary for production include both physical acts as well as making, direction, shooting and editing.

His honour made his conclusion clear at the outset that the arrangement here was similar toa joint venture

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M's contribution was significant - he selected the school boys, got consent from their parents, arranged the trip, accommodation etc.

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Seven remunerated the camera operator, sound recordist, supplied a script, camera etc.

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M's contributions were just as high in terms of total value

? It is true that a person's contributions can be too distant from the production of the first copy of the film but it wasn't here - M arranged for the trip, came to arrangement with 7 for filming - without him there would have been no expedition and no filming. The filming was his idea from the outset and even made arrangements for another camera operator. He also suggested various shots (even though the camera operator had the final say)
? Ordinarily joint-co-owners of copyright take as tenants in common - thus M and Ch7 owned the copyright in the tapes as TIC but the court didn't determine in what shares.

? Unless 7 assigned its interest in the copyright to M, or they have a license binding on 7, they threaten to infringe copyright and 7 are thus entitled to an injunction Ownership via contract

* S 35(3) preserves the freedom of contract and permits owners the right to vary statutory presumptions about ownership. Journalists' copyright

* S 35(4) reflects certain industry developments - it is a provision that applies exclusively to journalists in newspaper, magazine or periodical [these were defined according to their popular usage in De Garis v Neville Jeffris - though prior to digital publishing) employee journalists and apprentices.

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The section was changed after the introduction of digital services, leading to a reduction in the rights retained by newspaper and magazine journalists.

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For works created pre-30/7/98 the employer owns only the newspaper and magazine publication rights, while the journalist has the copyright for all other purposes (online, reproduction, republication in a book, educational copying etc.)

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For works created after this date, the journalist owns only the copyright for the photocopying of the work directly from a hardcopy original or for reproduction for inclusion in a book. The employer owns the copyright for all other purposes including online and magazine publishing

Journalists working outside magazine, newspaper and periodicals (TV, radio, online) are in the same position as all other employer authors unless there is an agreement to the contrary.

Commissioned works

* S 35(5) deals with ownership of copyright in original works

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It deals with commissioned artworks where there is no agreement as to copyright ownership. Earlier provisions gave ownership of copyright to the person commissioning the work (the commissioner)

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The current provision (30/6/98) limits this situation to particular artistic matter:

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Private and domestic photographs and portraiture in the form of paintings

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Drawings

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Engravings'

s 35(5) now effectively protects the privacy of the commissioner who, retains control over public/commercial use of commissioned images of a private and domestic nature.

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