#7330 - Subsistence And Literary Works - Intellectual Property 1 (Copyright)

(6.1) Copyright protection is usually said to be given for the form in which an idea Is clothed, but not for the information itself (Hollinrake v Truswell).

• This idea that copyright protection exists not in the idea itself but the concrete form in which it is expressed (and thus anyone can use the basic idea) is a difficult concept in CR.

  • Thus, if one person, independently arrives at the same result as another (book, play, painting etc.) or other expression of an idea, there is no breach of copyright. This principle that information itself isn't protected unless incorporated into a special head of protected interest is fundamental to copyright law.

• [Do courts protect information?] The closest courts have come to protecting information is an action for breach of confidence – but even then courts have been reluctant to protect someone against sharp practices of another where the impugned behaviour amounts to taking information not protected in a way recognized by the law (Victoria Park Racing)

• [Straining the concept]

  • [Computer programs] The Audodesk case showed that it may be difficult to maintain the distinction between the idea and form when the function of a computer program is replicated (Desktop Marketing v Telstra)

  • [Factual compilations and databases] The same can be said of these – if protection is claimed not for the effort that has gone into collecting the information rather than for the form of expression of the work

• [Dual relevance of the dichotomy] The idea/expression dichotomy is relevant to both subsistence of copyright but also infringement since a substantial part will not have been taken by an alleged infringer if only the underlying idea or concept has been used

(6.2) In Victoria Park Racing Dixon J drew a distinction between rights over intangible or incorporeal property and rights over goods.

• In Pacific Film Laboratories v FCT the plaintiff, a photograph processing company, objected to paying sales tax on prints processed by it and paid for by customers, arguing that there was no sale of goods (on which tax was payable) since the customers owned the negatives and the plaintiff had no general property in the prints

• Held: There is a distinction between copyright in the negative (owned by the customer) and property in the prints (owned by the plaintiff until sold). Property in the chattel can be in one person and copyright in the other.

  • Thus the agreement was for the sale of a print or duplicate to the owner of the copyright, who had no property in the print viewed as a chattel before delivered. Sales tax had to be paid

(6.3) The law will cast its protection around information sufficiently embodied in a material form – not just information per se (Victoria Park Racing).

• [Requirements] The material form must be within one of the 8 categories of subject matter recognized under the Act (either a work or a subject matter other than a work)

  • [Exception] Sound and TV broadcasts are the exception to this requirement of fixation in a material form

  • Thus s 10(1) defines

    • television broadcast as ‘visual images broadcast by way of television together with any sounds broadcast for reception along with those images’

    • sound broadcast as ‘sounds broadcast other than as part of a television broadcast’

    • [Victoria Park] This would have prevented the defendants here from intercepting and relaying a broadcast about events at the race track but not over information or events observed

• [Material form] There are some doubts here expressed about the ‘material form’ requirement in respect of photographs (for e.g. the work is created when the photograph is taken but the material form only later) and digital works (since it is hard to decide when the work is complete – it is the interaction between user/hardware/program writer which creates the simultaneous expression)

(6.4) In fleshing out the idea of a ‘material form’ it is inevitable to refer to the concept of a work.

• Pt IV subject matter have definitions in the CRA

• But works aren’t defined per se – though s 10(1) provides a work is a literary, dramatic, musical or artistic work.

  • S 22(1): An idea becomes a work when it is first reduced to writing or to some other material form

  • S 10(1):

    • Material form, in relation to a work or an adaptation of a work, includes any form (whether visible or not) of storage of the work or adaptation or a substantial part of the work or adaptation (whether or not the work or adaptation, or a substantial part of the work or adaptation can be reproduced)

    • Writing means a mode of representing or reproducing words, figures or symbols in a visible form (and “written” has a corresponding meaning)

  • [Published works] s 32(2) Copyright is to subsist in published works

  • [Unpublished works] s 22(1): To be subject to copyright before publication, the work must have taken a material form within s 22(1).

    • If not s 29(1)(a) provides ‘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

  • [Redundancy?] The publication of the work would generally assume it to be in material form

    • S 29(3) provides that publication doesn’t take place when the work is performed which doesn’t account for this purpose. It is thus unclear what the difference here is.

(6.5) This dichotomy is complicated but various cases illustrate the operation of copyright statutes in refusing to protect work that has not been made into material form

• Donoghue v Allied Newspapers Ltd

  • Facts: The plaintiff agreed to give interviews about his racing career to a journalist. Several articles were published. The journalist subsequently got permission from the newspaper to publish abridged versions of the interviews in another paper. The plaintiff sought damage for breach of copyright assuming that he was the owner of the copyright since the stories originated with him.

  • Held: The journalist was the author of any material in which copyright subsisted and the plaintiff supplied only the ‘incidents in his life’.

  • Principle: There is no copyright in ideas

    • A person may have a brilliant idea that appears original but if he communicates it to another, the production that is the result of that communication is the copyright of the person who clothed the idea in form. Copyright exists in the particular form of language by which the information is to be conveyed.

  • Qualification: If an author employs a writer to take a shorthand of a story which the author is composing, word for word, the person is a mere amanuensis and doesn’t become the owner of the copyright.

    • Implication: Since s 22(2) provides that a work in the form of sounds can be reduced to material form by being embodied in an ‘article or thing’, presumably the person owning copyright will be the person that embodies the sounds in the tape/record/article/thing.

    • But if the skill involved in recording is just pressing a button, then that person may be regarded as a ‘mere amanuensis’ and the author will be the person supplying the expression

(6.6) Discussion about whether someone goes beyond a ‘mere scribe’ for one communicating the expression raises ideas about who supplies the requisite effort to make the work original. It is the originator/author of the work who is, prima facie, the first owner of any copyright.

• Therefore it may be that putting an idea into material form implies the exercise of the degree of original endeavour required for the subsistence of copyright protection

• Walter v Lane

  • Question: Were reporters who took down speeches in shorthand and then transcribed them to be published verbatim ‘mere scribes’ or did they exercise sufficient effort to be CORs

  • Answer: No, the reporters were not authors (therefore they must have been mere scribes?)

• Cummins v Bond illustrates a situation where the person clothing certain communications in material form was the owner of copyright in the resulting written form, rather than the defendant who claimed to be instrumental in producing the document [not sure if this is meant to be a joke??]

  • Facts: The plaintiff was a spiritualist/medium at séances during which she practised automatic writing while in a transe. The defendant was an architect interest in discoveries at the Abbey of Glastonbury and automatic writings related to them. In Seances between the two, the plaintiff produced ‘The Chronicle of Cleophas’ in automatic writing – the script was archaic 16^th/17^th century writing. A dispute arose as to the CR of the Chronicle.

  • Defendants claim: The writings were addressed to him and inspired by his presence or they were not susceptible to CR protection at all since they were communicated in form by a psychic agent

  • Held:

    • Though the spirit spoke in Aramaic, he selected a medium capable of translating his messages into an appropriate language 16-17 centuries after his death.

    • The language of the communications was not so antiquated as not to be understood by excavators and others engaged in these discoveries but not so up to date to make the spirit appear to modern

    • But the communications couldn’t have “reached us in this form without the active co-operation of some agent...