#7324 - Subject Matter Other Than Works Pt Iv Cra - Intellectual Property 1 (Copyright)

CBS Records Australia Ltd v Telmark Teleproducts (Aust) Pty Ltd (1987) 17 FCR 48

Facts: The dispute concerned a compilation called ‘Chart Sounds 16 Hit Songs#1’ on a record/cassette. A claim was made for an interlocutory injunction on the basis that the sound recording of CS16 infringed CR in various sound recordings in which CBS had CR. One of the issues was whether a sound alike (a later sound recording by other performers which is an imitation of the original) was within the description of a copy of a sound recording.

Bowen CJ remarked that the CRA and its historical context did not support the equation of the protection afforded to sound recordings with that afforded to musical works. The wording used irt sound recording would make such a reading too complex.

• S 101(1) provides that Pt IV is infringed by a person who (not being the owner or licensed by the owner of the CR) does or authorises the doing of any act comprised in the copyright

• S 89(1) provides that copyright subsists in a sound recording

• S 85(a) provides that CR irt a sound recording is the exclusive right to make a copy of the sound recording

• S 10(3) provides that a reference to a copy of the sound recording shall be read as a reference to a record embodying a sound recording or a substantial part of a sound recording being a record derived directly or indirectly from a record produced upon the making of a sound recording the critical provision in this case

  • S 10(1) defines a

    • record as a disc/tape/paper/other device in which sounds are embodied

    • sound recording as the aggregate of sounds embodied in a record

• Thus a sound alike is not a copy in which the aggregate of the sounds embodied in the original record was obtained

  • This is because ‘embody’ is defined as ‘to give concrete form to….’

• The language of s 10(3)(c) in referring to a ‘record embodying (/a substantial part of) a sound recording is referring to an actual embodiment of the very sounds on the original record – however they may be copied

Galaxy Electronics Pty Ltd & Anor v Sega Enterprises Ltd (1997) 75 FCR 8

Facts: The appeals raised the question of whether computer generated moving images fall within the statutory definition of a ‘cinematograph films’ – if not, no such protection will be afforded to them under CR law

Wilcox J noted that the appeal concerned the display of Virtua Cop and Daytona USA for sale on the appellant’s premises. His honour went on to consider how Virtua Cop worked, in particular the fact that it required the players input and interaction in order for the game to proceed. Thus the “apparatus is designed to screen the simple story only when the correct responses to a series of cues are fed into it by the player”

The key elements of the TJ’s reasoning were set out:

• Burchett J commented that the expert evidence in this case ceased upon the expression ‘the visual images embodied in an article or thing’

  • Here what is seen by the viewer is clearly a moving picture

  • But the appellants contended that what was that there did not exist outside the computer anywhere a 2D image of what appears on the screen. That image is computed by looking at all the 3D vertices of the polygon model and apply arithmetic to it.

• The TJ noted that the crux of the case depended on the word ‘embodied’

• He concluded that embody refers to “an author giving his creation a form in which it could be held for continued existence and use”

  • Embodiment did not require something in the nature of a frame/reel of which the image is a reflection. The legislative history evidences that Parliament intended to take a broad view irt CR in a film.

  • The definition of cinematogrpah film as it is, expressed in terms of the result achieved rather than the means employed, points to an intention to cover new technologies achieving this same result

Conclusions

• (Agreeing with TJ) It would be wrong to interpret narrowly the definition of cinemtograph film in s 10/24 – the provisions were intended to cover new technologies. The focus is on the end product – motion pictures – rather than the means adopted to create those pictures.

• Does the definition apply to this new technology?

  • Cinematograph film refers to the aggregate of visual images embodied in an article or thing

  • Embodied refers to the giving of a material or discernible form to an abstract principle/concept. The abstraction must pre-exist the material manifestation

• Argument: The images of the game don’t exist before the moment of visibility and thus they cannot represent the embodiment of pre-existing images (cf. celluloid videotapes)

• This analysis is unsound

  • Visual images depicted in the video games existed in the minds of their creators (??) and the drawings and models they made. They were embodied in the computer program, built into the VG machine so as to be capable, through a program, to be shown as a motion picture

  • It doesn’t matter that they were embodied in a different form (a 3D polygon) rather than a 2D image – the statutory definition says nothing about the form of the embodiment

  • It doesn’t matter that the images are created only immediately before appearance – though they are ‘new’ they are exact recreations of images previously devised by graphic designers.

  • It doesn’t matter that the images couldn’t be seen on the screen as a moving picture until computer generated any more than it matters that the length of a videotape is incapable of being seen as a moving picture until passed through a video player

• S 24 further puts the matter beyond doubt

  • The visual images constituting the moving picture are taken to be ‘embodied’ in the computer program since that program was so treated in relation to those images as to be capable of reproducing them

  • The difference between this and the suggestion that a piano ‘embodies’ Beethoven’s Moonlight Sonata is that there must have been treatment of the article or thing that is related to the specific sounds or visual images. This can be said of a computer program but not a piano.

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

Facts: The litigation concerned alleged infringement by Ten through its broadcast of the TV programme The Panel which included extracts from programmes previously broadcast by Nine. These segments ranged from 8-42 seconds and were taken from usual advertised programs of 30m-1h length. Nine sought injunctive relief to restrain the re-broadcast of substantial parts of any TV broadcasts by Nine without its consent and a declaration that Ten infringed its broadcast copyright in each of the episodes which Ten aired extracts of. The gravamen of Nine’s claim was that each visual image capable of being observed as a separate image on a TV screen with its accompanying broadcast is a ‘TV broadcast’ in which CR subsists.

McHugh ACJ, Gummow and Hayne JJ

Statutory Interpretation – Their honours made a few general observations around statutory interpretation and how recourse could be had to the broader context of, and mischief a, provision was directed towards in order to engage in interpretation.

The Legislative Context – the Court engaged in an exegesis of the evolution of the current broadcast right concluding:

• The policy and objective in the recommendations of both Committees was to protect the cost to, and the skill of, broadcasters in producing and transmitting their programmes, in addition to what CRs may have subsisted in the underlying works

  • There is no indication that wrt TV broadcasting, the interest for which legislative...