COPYRIGHT

Question 1

IDEA OR EXPRESSION PROTECTION OF COPYRIGHT

Answer 1

• Idea/Expression Dichotomy
• © does not protect ideas, information, or facts per se
   Per se because they can go on to form expression.
• © protects the form of expression of ideas, information or facts as embodied in material form

Question 2

SEPARATION OF IDEA AND EXPRESSION

Answer 2

• Kenrick & Co Ltd v Lawrence & Co (1890) 25 QBD 99 per Wills J
   …a square can only be drawn as a square, a cross can only be drawn as a cross, and for such purposes as the plaintiff’s drawing was intended to fill, there are scarcely more ways than one of drawing a pencil or the hand that holds it”
   “voting card pencil instructions”
• Also relates to question of infringement (which we will revisit)
• Kenrick & Co Ltd v Lawrence & Co (1890) 25 QBD 99 per Wills J
  o [A]lthough every drawing of whatever kind may be entitled to registration, the degree and kind of protection given must vary greatly with the character of the drawing, and that with such a drawing as we are dealing with the copyright must be confined to that which is special to the individual drawing over and above the idea
• Zeccola v Universal City Studios Inc (1982) 46 ALR 189
   Jaws vs Great White
   Found they had copied beyond the idea to the expression (not the idea of a deadly shark, but copy of events/characters etcs).
   Combination of the principal situations, singular events and basic characters may be sufficiently protected

Question 3

COPYRIGHT PROTECTION ELEMENTS

Answer 3

• Material form
• Originality
• Authorship
• Last two i.e. Originate from an author

Question 4

MATERIAL FORM

Answer 4

• idea must be expressed in some tangible embodiment or material form
• See s 22: ‘when…first reduced to writing or to some other material form.’
• Consider e.g. - improvised musical performances?
• Not a material form. Didn’t capture it, no protection.

Question 5

CATERORIES OF WORKS

Answer 5

• Part III “works”: conventionally the things you would expect a person to make.
   Literary
   Dramatic
   Musical
   Artistic
   Adaptations of literary, dramatic and musical works

Question 6

CATEGORIES OF SUBJECT MATTER WORKS

Answer 6

• Part IV “subject matter other than works”: things companies more likely to own.
   Films
   Sound recordings
   Film and television broadcasts
   Published editions of works

Question 7

ORIGINALITY

Answer 7

• See s 32(1) & (2) – “Original works in which copyright subsists” (express requirement for Part III works)
• A work that originates from an author, and is not copied from an existing work
• Victoria Park Racing v Taylor [1937] Dixon J
• Not novelty/creativity:
• Not a merit test
• No threshold of novelty, inventiveness, or creativity of thought/expression
   A person who carries out the process of reducing the work to a tangible form is the author of the work, even though the ideas or information on which it is based have been provided by someone else: Donoghue v Allied Newspapers Ltd [1938] Ch 106
• Consider e.g. – a map?
   Some expressions on how to display etc, therefore ©
• In ascertaining originality, consider the work as a whole rather than its elements or components
• Coogi v Hysport [1998] per Drummond J
• Desktop Marketing v Telstra [2002] FCFCA per Lindgren J
• Compilation may attract copyright protection by virtue of the selection or arrangement of pre-existing material

Question 8

DESKTOP MARKETING V TELSTRA

Answer 8

• Desktop Marketing v Telstra [2002] FCAFC
   Question: can copyright subsist in a compilation of data, even though the data is arranged in an obvious manner – here, a simple alphabetical listing of telephone subscribers?
   Low threshold under Desktop
   “Sweat of the brow”
• Copyright subsists ‘if there has been sufficient intellectual effort in the selection or arrangement of the facts [or] if the author has engaged in sufficient work or incurred sufficient expense in gathering the facts [although] the cases have not defined with any precision what amount of intellectual effort, labour, etc, is required to justify copyright’
   Cf US Supreme Court approach in Feist Publications Inc v Rural Telephone Co Inc (1991) – ‘some creative spark’
• Minimal degree of creativity.

Question 9

ICETV V NINE NETWORK

Answer 9

 whether IceTV, a subscription-based online program guide infringed copyright in Nine’s weekly TV programming schedules
* (issue of subsistence was conceded by IceTV)
 HC casts doubt on Desktop Marketing :
* ‘It may be that the reasoning in Desktop Marketing with respect to compilations is out of line with the understanding of copyright law over many years’ and should be treated with caution - per Gummow, Hayne and Heydon JJ at [188]
o So they weren’t dealing with but have warned on the future of ‘sweat of the brow’ test.

Question 10

AUTHORSHIP

Answer 10

• Human authorship
• Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16, [84]-[85]
• Highlights importance of identifying an author
• Merely transcribing information or programming software does not amount to authorship in the output

Question 11

LITERARY WORKS

Answer 11

• Not exhaustively defined
   Includes “a table, or compilation, expressed in words, figures or symbols… and a computer program or compilation of computer programs”: s 10(1)
• something in print or writing – refers to the “order of the words”, not the ideas or information
• Has to supply “intelligible information”
   Desktop Marketing (Lindgren J)

Question 12

LITERARY WORKS - COMPUTER PROGRAMS

Answer 12

• protected by copyright as literary works since 1984 amendments to Copyright Act
• Both source code and object code (machine/executable) versions are protected
   Autodesk v Dyason (No 1) [1992] HCA; Data Access v Powerflex [1999] HCA
• Object code – machine-readable (but not otherwise visible/perceptible)
• Source code – human-readable (conveyed meaning to a qualified reader/suitably trained person)
• “Computer program” defined in s 10(1) as
   “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result”
   i.e. Algorithmic/logical relationship between code and function
• But still only protects expression of code, not function
• Does not include content within program
   AVRA v Warner Home Video [2001

Question 13

ARTISTIC WORK

Answer 13

• Defined in s 10(1)
• paintings, sculptures, drawings, engravings, photographs, buildings & models of buildings, plans, diagrams
• copyright applies irrespective of artistic quality
• Includes works of “artistic craftsmanship” –
   Q: Is the form of expression ‘unconstrained by functional considerations’?
   Determined objectively
• Sculptures: Lucasfilm Ltd v Ainsworth [2011] UKSC 39; [2011] 4 All ER 817

Question 14

DRAMATIC WORK

Answer 14

• Includes a choreographic show and a scenario or script for cinematograph film (but not the cinematograph film itself): s 10(1)
• Works intended to be performed or represented, as long as recorded in some form
   Something staged / directed, not real life events: Australian Olympic Committee v Big Fights (1999)
   Cf live fireworks show: Nine Network Australia v ABC [1999] FCA 1864

Question 15

MUSICAL WORKS

Answer 15

• Not defined in the Act
• Generally accepted to refer to the method of production, not artistic / aesthetic qualities of the work
   Note 1905 Act which defined it as ‘any combination of melody and harmony’
• Lyrics protected separately - literary works

Question 16

ADAPTION DEFINED

Answer 16

S 10(1)
- Adaptations defined as
* translations of literary or dramatic works,
* dramatic adaptations of literary works; literary adaptations of dramatic works,
* versions of a literary work where the action is conveyed in pictures; and
* an arrangement of a musical work

Question 17

ADAPTION OF LITERARY, DRAMATIC AND MUSICAL WORKS

Answer 17

• One of the exclusive rights of the copyright owner: s31(1)
• Can in turn be protected by copyright: s 31(1)(a)(vii)
• Infringing adaptation?
   A-One Accessory Imports Pty Ltd & Ors v Off Road Imports Pty Ltd & Ors [1996] FCA 362
• So the adaptation can be protected but you need permission of original owner to produce.
• And if someone reacreated the adaptation they could be infringing both original and adaptations rights.

Question 18

SOUND RECORDINGS

Answer 18

• Broadly defined
   defined as “the aggregate of the sounds embodied in a record”; and “record” is defined as including “a disc, tape, paper, electronic file or other device in which sounds are embodied”: s 10(1)
• Only protects the actual embodiment of the sounds
   CBS Records Australia v Telmak Teleproducts (Australia) (1987)

Question 19

CINEMATOGRAPH FILMS

Answer 19

• Defined as “the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing … of being shown as a moving picture; or … of being embodied in another article…”
• includes:
   feature films
   videos
   commercials
   TV programs
   multimedia works including interactive computer games

Question 20

SOUND AND TELEVISION BROADCASTS

Answer 20

• Broadcast defined as “a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992”: s 10(1); see also s 91
   i.e. Has to be made by an entity falling within the definition of “broadcasting service” in the BSA
   See also definition of “television broadcast” and “sound broadcast”: s 10(1)
• Deemed to have been made by the person who provided the broadcasting service by which the broadcast was delivered: s 22(5).
• Importance of defining and identifying subject matter
   E.g. Network Ten v TCN Channel Nine (2004) 218 CLR 27
• What is a television broadcast?
  o Taking small snippets was okay??
• A program? Each segment?

Question 21

PUBLIC EDITIONS OF WORKS

Answer 21

• Protects the presentation or typographical arrangements of works in printed form: s 92
• Includes other aspects of presentation such as juxtaposition of text and photographs and use of headlines
   Nationwide News v Copyright Agency Ltd (1996) 34 IPR 53
• Exclusive right to make a facsimile copy of the edition: s88

Question 22

AUSTRALIAN ‘CONNECTING FACTOR’

Answer 22

• Establish a connection to Australia - generally through:
• Author, maker or publisher a “qualified person” = Australian citizen or resident, or Australian body corp
• First publication in Australia: ss 32, 84, 89, 92
• Or depending on the type of work/subject matter, e.g.:
• Buildings/artistic work attached to building situated in Australia: s 32(3)
• Sound recording made in Australia: s 89
• Broadcast made from a place in Australia with licence under Broadcasting Services Act: s 91
• BUT the Act applies in the same way to those first published/made in a Berne Convention country, WCT country, WPPT country, WTO country etc…
• see Copyright Act 1968 (Cth), s 184, and Copyright (International Protection) Regulations 1969 (Cth), reg 4(1)

Question 23

PRESUMPTION OF OWNERSHIP COPYRIGHT

Answer 23

• See s 126-131
• Subsistence and ownership of copyright is presumed: s 126
• Labelling as prima facie evidence: ss 127(1), 126B(2)
• General rule: Usually, the author is the first owner of copyright: s 35(2)
• Author: captures in original form.

Question 24

EXCEPTIONS TO COPYRIGHT OWNERSHIP PRESUMPTION

Answer 24

• Exceptions to the rule:
• employees (s35(6));
• journalists (s35(4));
• Particular commissioned works/subject matter (s35(5)) – NOTE not all works/subject matter
• Subject to exclusion/modification by agreement: s35(3)

Question 25

WHO IS THE MAKER OF COPYRIGHT MATERIALS

Answer 25

• sound recordings
   Owner of the “record”: s 97(2)
• 2005 - expanded to include performers of “live performance”: s 22(3A)-(3C)
• cinematograph films
   Person who made the arrangements necessary for the making of the film : s 98(2)
• Exceptions
  o commissioned sound recordings, films (ss 97(3), 98(3))
• TV and sound broadcasts
   the person who provided the broadcasting service that delivered the broadcast: s99
• published editions
   the publisher: s100

Question 26

EXCEPTION OF COPYRIGHT OWNERSHIP - EMPLOYEES

Answer 26

(1) The relationship: employee vs independent contractor?
* i.e. Contract of service vs contract for services
* Apply general principles of employment law
- Relevant factors include:
* Employer’s power to select workers
* Payment of wages and other remuneration
* Employer’s right to control the method of doing the work
* Employer’s right of suspension or dismissal
- Basic question: does the person sell his/her labour, or the product of his/her labour?
* Konrad v Victoria (1999) 91 FCR 95, 127; TS & B Retail Systems v 3fold Resources [2003] FCA 371
(2) The work: created in pursuance of the terms of her employment?
- Redrock Holdingse v Hinkley (2001) 50 IPR 565 – two categories of outputs:
i. Library of computer code developed largely for work-related purposes and during work hours – owned by employer
ii. Software developed on own initiative at home, outside of work hours, without any direction from the employer and without employer’s knowledge – his own

Question 27

Exception to copyright ownership - Journalists in print media

Answer 27

s 35(4)
- Rights split between publisher and author
* if work produced by author in course of employment by newspaper, magazine or periodical for purpose of inclusion in a newspaper, magazine or periodical
- “Traditional rights” held by journalist, all other rights held by publisher
* Author (journalist) owns copyright for the purposes of
i. reproduction of the work in a book or
ii. reproduction of a hard copy facsimile of a paper edition of the newspaper, magazine or periodical

Question 28

Exceptions to copyright ownership for certain commissioned subject matter:

Answer 28

• No general exception for “commissioned works”
• But if person pays for creation/making of:
• s 35(5): Painting/drawing of portrait or engraving; Photograph for private or domestic purpose
   person paid for it owns it.
• ss 97(3), 98(3)): Sound recordings and cinematograph films
   Owned by person who commissioned the relevant painting, engraving, photograph, sound recording or cinematograph film
• In all other circumstances, general rule applies – owned by the author/creator

Question 29

joint authorship of copyright

Answer 29

• a work that has been produced by the collaboration of two or more authors; and
• Contribution of expression not separable: s 10(1)
• Cf Songs consisting of music and lyrics
• Cf contribution of ideas: Donoghue v Allied Newspapers Ltd
• Ownership held as tenants in common in equal shares (subject to agreement to the contrary)
• Consent of both required to grant license to third party
• Any one owner may sue third parties without joining the other owner as plaintiff
• A joint owner may sue the other joint owner for infringement: Prior v Sheldon (2000) 48 IPR 301

Question 30

communal ownership of copyright

Answer 30

• Communal ownership?
• Bulun Bulun v R & T Textiles Pty Ltd (1998)
• Only recognises individual owners currently.
• Indigenous art
• Note related issue of protection of traditional knowledge under patent law

Question 31

crown copyright

Answer 31

• Copyright is owned by the Crown, in these broad circumstances:
• Works, recordings or films made ‘by, or under the direction or control of, the Commonwealth or a State: ss176, 178; see CAL v NSW 2007
• literary, dramatic, musical or artistic work first published in Australia by, or under the direction or control of, the Commonwealth or the State: s 177
• In 2005, CLRC recommended that provisions be repealed
• In 2009, Government 2.0 Taskforce recommended use of Creative Commons for licensing of Public Sector Information (PSI)

Question 32

EXCLUSIVE RIGHTS

Answer 32

• Copyright owner has the exclusive right to do certain acts in relation to a work, an adaptation of a work or other subject matter: ss 13(1), 31, 85 – 88
• Different rights attach to different categories of copyright material –
• rights attaching to Pt III works are generally more extensive than the rights which attach to Pt IV subject matter
• Each exclusive right includes the right to authorise the doing of that act by someone else: s 13(2)

Question 33

EXLUSIVE RIGHTS FOR PART III RIGHTS

Answer 33

• Part III literary, dramatic or musical works – s 31(1)(a):
• to reproduce in a material form (reproduction)
• to make an adaptation
• to publish
• to perform it in public
• to communicate to the public in electronic form
• rental right
   only for software and literary, dramatic, musical works used in sound recordings

Question 34

EXCLUSIVE RIGHTS FOR PART IV RIGHTS

Answer 34

ss 85-88 materials (“subject matter other than works” – ss 85 - 88:
* sound recordings (s 85):
 to make a copy
 cause it to be heard in public
 communicate it to the public
 enter into a commercial rental deal
* cinematograph films (s 86):
 to make a copy
 cause it to be seen or heard in public
 communicate it to the public
* Sound and television broadcasts (s 87)
 Make a copy of the broadcast;
 Re-broadcast it or to communicate it to the public
* Published editions of literary, dramatic, musical or artistic works (s 88)
 to make a facsimile copy of the published edition

Question 35

DURATION OF DIFFERENT PARTS RIGHTS

Answer 35

• Published literary, dramatic, musical and artistic works = 70 years from the end of the calendar year in which the author died: s 33(2)
• Published films and sound recordings = 70 years from end of year in which first published: ss 93
• Television and sound broadcasts = 50 years from the end of the calendar year n which the broadcast is made: s 95
• Published editions = 25 years from end of year of in which edition was first published: s 96
• Crown copyright = 50 years from end of year in which it was made: s 180

Question 36

DURATION WHEN CREATOR UNKNOWN

Answer 36

• Material never made public – 70 years from when created
• If material made public within 50 years of creation – 70 years from when first made public
   See ss 33 and 93 (applicable to works, sound recordings and films)

Question 37

JOINT WORKS DURATION

Answer 37

consider author who dies last: s 80
* Take longer period of protection.
* Example
 A and B jointly author a published literary work
* A died 31 Jan 2016
* B dies 21 Jan 2020
 When does copyright in this literary work expire?
* 31 December 2090.

Question 38

WHEN DOES PUBLICATION OCCUR

Answer 38

• When does publication occur?
• Works - when reproductions are ‘supplied (whether by sale or otherwise) to the public’: s 29(1)(a)
   ‘supplied’ when offered to the public, not when received/sale carried out: British Northrop v Texteam Blackburn [1974]
• Includes being ‘made public’ – eg communication to the public online, exhibitions of artistic work in public, allowing sound recording to be heard in public: s 29A
   Copyright Amendment (Disability Access and Other Measures) Act 2017(Cth)
• Unauthorised publications disregarded: s 29(6),(7)

Question 39

IS PUBLIC DOMAIN COPYRIGHT PROTECTED

Answer 39

• Public Domain = not protected by ©
• Copyright expires it falls into the public domain.
• Note usage in different contexts

Question 40

WHAT IS COPYRIGHT TRANSMISSABLE BY

Answer 40

• assignment (transfer)
• will
• devolution by operation of law: s196(1)

Question 41

ASSIGNMENT OF COPYRIGHT

Answer 41

• Assignment can be total or partial: s 196
• can be limited in any way, such as:
• Acts - classes of acts (e.g. corresponding to industry practice);
• Territory - a place in or part of Australia; or
• Time - part of the period for which the copyright subsists: s 196(2)
• Assignor, absent provision to the contrary, is divested of control of economic rights
• may be an infringer, and be sued by the new owner
• But note moral rights constraints [TBD]
• To be legally enforceable, an assignment of copyright must be in writing and signed by the person who is assigning the rights: s 196(3)

Question 42

LICENCING AND COPYRIGHT

Answer 42

• Permission to exercise owner’s exclusive right(s)
• not a transfer of ownership
• May be exclusive or non-exclusive
• Exclusive licence
• Defined as one ‘authorizing the licensee, to the exclusion of all other persons, to do an act that, by virtue of this Act, the owner of the copyright would, … have the exclusive right to do’: s 10(1)
   i.e. has to relate to an exclusive right
• must be in writing and signed: s 10(1)
• Exclusive licensee may initiate proceedings: s 119
• May be implied – but in limited circumstances as dictated by necessity
• Acohs v Ucorp (2012)
• Statutory (compulsory) licensing and Collective Administration of Rights
• …TBD under Exceptions and Limitations.

Question 43

DIRECT INFRINGEMENT

Answer 43

• occurs when a person who is not the copyright owner does or authorises someone else to do, without the licence of the copyright owner, any of the acts within the copyright owner’s exclusive rights: ss36(1), 101(1).
• The reference to “any act comprised in the copyright” refers to any act that the owner of copyright has the exclusive right to do under the Copyright Act 1968: s 13(1).
• Strict liability – intention not necessary
• Don’t need to know it was subject to copyright
• Intention not necessary.
• Authorising someone else to do an act within the c/r owner’s exclusive rights: s13(2) –
• see also ss 36(1A) and 101(1A) – UNSW v Moorhouse [1975]

Question 44

KEY COPYRIGHT RIGHTS

Answer 44

• To reproduce or make copies
• reproduction in a material form (Part III works)
• make a copy (Part IV subject matter)
• A fundamental right – preventing others from substantially replicating the protected material
• To communicate to the public in electronic form, i.e.:
• transmit it electronically, or
• make it available to the public in electronic form

Question 45

REPRODUCTION IN MATERIAL FORM

Answer 45

• ¬Ss 31(1)(a)(i) and 31(1)(b)(i)
• “Reproduction” - not defined, but clarified in certain contexts
• a literary, dramatic or musical work is deemed to be reproduced in material form if a sound recording or film is made of the work: s 21(1)
• a work is deemed to be reproduced in a material form if it is converted from
   hard copy into digital form; or
   digital form into hard copy: s 21(1A)
• Computer programs taken to be reproduced in instances of:
   compilation (source code to object code); and
   decompilation (object code to source code): s 21(5)
• Reproducing an artistic work in a different dimension is deemed to be a reproduction: s 21(3)
   2D work to 3D version
   3D work to 2D version

Question 46

2 ELEMENTS OF REPRODUCTION

Answer 46

1. Objective similarity
2. Causal connection
    i.e. no independent creation
    Subconscious copying may be sufficient
    May be inferred in light of striking similarities
   * SW Hart & Co. v Edwards Hot Water Systems;
   * Francis Day & Hunter v Bron

Question 47

NEED FOR CAUSAL CONNECTION

Answer 47

• Could be an independent work. They never had access to the original.
• But can still be inferred if there is a high objective similarity
   No other explanation then that they copied (may not recall they had heard/seen it before).

Question 48

WHAT IS A SUBSTANTIAL PART?

Answer 48

• Infringing act need not be done in relation to whole of the work or other subject matter
• “Substantial part” of the work/other subject matter – s 14
  (a) a reference to the doing of an act in relation to a work or other subject matter is read as including a reference to the doing of that act in relation to a substantial part of the work or other subject matter;
  (b) a reference to a reproduction, adaptation, or copy of a work is read as including a reference to a reproduction, adaptation or coy of a substantial part of the work
• Substantial part: s 14
• Qualitative, not quantitative consideration
   Consider quality of the work taken in relation to the work as a whole, a question of fact to be determined in the circumstances
   IceTV v Nine Network Australia (2009) – particularly, the originality of the particular form of expression:
• ‘more simply or lacking in substantial originality the copyright work, the greater the degree of taking will be needed before the substantial part test is satisfied’ [40]
• Really basic = have to take a big part. Very original = very small part could be an infringement.
• “What is worth copying is worth protecting”
• University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601, per Peterson J
• Network Ten v TCN Channel Nine [2004] HCA, per McHugh ACJ, Gummow and Hayne JJ:
• The dangers in the use of the remarks in University of London Press were explained by Sackville J in Nationwide News Pty Ltd v Copyright Agency Ltd as follows:
   [T]he test has a certain “bootstraps” quality about it. The issue of substantiality, in relation to a literary work, arises only where the work has been reproduced or published, at least in part. If applied literally, the test would mean that all cases of copying would be characterised as reproducing a substantial part of the work. It is therefore unlikely to be of great assistance in determining whether a particular reproduction involves a substantial part of a work or subject matter of copyright.

Question 49

KOOKABURRA CASE

Answer 49

• Men at Work’s Down Under – Flute riff
• Beginning
• Interlude
• Marion Sinclair’s Kookaburra Sits in the Old Gum Tree
• Sang in a round
• Objective Similarity ?
• Causal Connection 
• Reproduction of a Substantial Part ?
• 2 bars = substantial part of kookaburras song
• Doesn’t matter its only sml part of down under.
• Probably is objectively similar.
• [100].
• Kookaburra ended up getting 5% royalties from the song.

Question 50

REPRODUCTION OF ‘MATERIAL FORM’

Answer 50

• Reproduction has to be in material form or its not a reproduction.
• Previous definition – “any form (whether visible or not) of storage from which the work or adaptation, or a substantial part of the work or adaptation, can be reproduced”
• temporary reproduction in RAM was held not to be making a copy:
• computer game being played on a Sony PlayStation: Sony v Stevens [2002] (Sackville J) and [2003] (French and Lindgren JJ)
• Playing of a DVD on an ordinary DVD player (no recording of the DVD): AVRA v Warner Home Video [2001] FCA 1719
• 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)”: s 10(1)
• definition amended by the US Free Trade Agreement Implementation Act 2004 – this definition applies to works and adaptations of works.
• “of storage” – means that definition is intended to operate broadly
• Note exemptions
• Ss 43A/111A – temporary reproductions in course of communication
• Ss 43B/111B – temporary reproductions incidental and necessary part of technical process
• For Pt IV subject matter, the right is to “make a copy”
• “copy” is defined in s 10(1) only for cinematograph films - means any article or thing in which the visual images or sounds are embodied.
• s 21(6) - a sound recording or film is deemed to be copied if it is converted from
   hard copy into digital form; or
   digital form into hard copy
• More restricted concept due to limited nature of Pt IV subject matter – only copying in like form

Question 51

PART III MATERIAL EXCLUSIVE RIGHTS

Answer 51

S 31(1)(a)
- to reproduce in a material form (reproduction)
- to make an adaptation
- to publish
- to perform it in public
- to communicate to the public in electronic form
- rental right
* only for software and literary, dramatic, musical works used in sound recordings

Question 52

right to publish

Answer 52

• Ss 31(1)(a)(ii) and 31(1)(b)(ii)
• to make public that which has not previously been made public in the copyright territory: Avel v Multicoin Amusements (1990) 171 CLR 88
• *NOT s 29, which does not control meaning of “publish” here

Question 53

rental right

Answer 53

• ¬Exclusive right to enter into a commercial rental agreement
• Limited to
• Sound recording: s 85(1)(d)
• Literary, musical, or dramatic work reproduced in a sound recording: s31(c)
• Computer program: s 31(d)
• Program must be ‘essential object of the rental’: s 31(5)
• For e.g. not DVD – essential object is AV content, not computer program

Question 54

right to perform in public

Answer 54

• s 31(1)(a)(3)
• “perform” includes
• any mode of visual/aural presentation: s 27(1)(a)
• delivery by lecture, address, speech or sermon: s 27(1)(b)
• “public” - Is the audience bound together by a domestic or private tie or by an aspect of their public life?
• APRA v Commonwealth Bank of Australia (1992) per Gummow J
• E.g.:
   Background music in training video played to 11 bank employees: APRA v CBA
• To the public.
   Play performed in hospital room to 170 employees: Duck v Bates
• Not to the public.

Question 55

right to communicate to the public

Answer 55

• This is a separate right to the right to perform in public.
• Introduced by Digital Agenda Act 2000 (required for accession to WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty)
• Broad
• technology neutral (no wired/wireless distinction)
• applies to all copyright materials (Pt III & IV, except published editions)
• S 10(1)”communicate” means make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matter, including a performance or live performance within the meaning of this Act.
• Note s s 27(2) - communication ≠ performance

Question 56

what does it mean to communicate ‘to the public’

Answer 56

to the public:
* means to the public within or outside Australia: s 10(1)
* A relatively small number of individuals
 A communication may be “to the public” even though it is made to a relatively small number of individuals, if the recipients are part of the copyright owner’s public in the sense that he could expect to be remunerated for permitting the work to be communicated to that audience
* Telstra Corporation Ltd v Australasian Performing Right Association Ltd (1997) 191 CLR 140 - High Court held that transmission of music on hold to users of mobile phones was a transmission to the public

Question 57

who is the ‘maker’ of a communication

Answer 57

• A communication is taken to have been made by the person responsible for determining the content of the communication: s 22(6)
• To avoid doubt…a person is not responsible for determining the content of a communication merely because they take steps in order to gain access to what has been made available online by someone else or to receive the electronic transmission of which the communication consists: s 22(6A)

Question 58

what constitutes communication online

Answer 58

Communicate includes “make available” online:
* Made it accessible is enough to infringe even if no one downloaded it or watched it etc. You still communicated it.
* Linking?
 Universal Music Australia Pty Ltd v Cooper [2005] FCA 972, per Tamberlin J
* Posting links to music, did he communicate it.
* Rejected he communicated it.
* Not liable for primary infringement (he was secondary, but look at that later).
* Peer-to-peer file-sharing?
 Roadshow Films v iiNet [2011] FCAFC 23
* Illustrates the expansion - difference between ‘making available’ vs ‘electronically transmit’.
o It is enough to show that one person uploaded it to the system to show they made available, ‘electronically transmit’ would have to show someone else downloaded it after it was made available..
 (in s 10(1) definition of “communicate”)

Question 59

CAN COPYRIGHT INFRINGEMENT BE AUTHORISED, WHAT IS NEEDED.

Answer 59

• copyright is also infringed by authorising another person to do the infringing act without the licence of the owner: ss 36(1) and 101(1).
• because authorising others to do an act in relation to a copyright in a work or other subject matter is one of the owner’s exclusive rights (s 13(2))
• Proof of primary infringement needed
• necessary to establish a primary act of infringement that has a causal connection to the act or acts of authorisation

Question 60

UNIVERSITY OF NSW V MOORHOUSE

Answer 60

• “sanction, approve, countenance”
• Gibbs J explained at para [10]:
   Express or formal permission or sanction, or active conduct indicating approval, is not essential to constitute an authorisation; inactivity or ‘indifference, exhibited by acts of commission or omission, may reach a degree from which an authorisation or permission may be inferred’: Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR, at p 504.
  However, the word ‘authorise’ connotes a mental element and it could not be inferred that a person had, by mere inactivity, authorised something to be done if he neither knew nor had reason to suspect that the act might be done.
• Gibbs J set out the following test for ascertaining whether infringement of copyright has been authorised. Where a person –
   has under his or her control the means by which an infringement of copyright may be committed; and
   makes it available to other persons; and
   knows or has reason to suspect, that it is likely to be used for the purpose of committing an infringement; and
   omits to take reasonable steps to limit its use to legitimate purposes,
  the person may be said to have authorised any infringement that results from the use of that means of infringement. The question of whether the respondent has authorised infringement is a question of fact, according to the circumstances of the case.
• Codified in ss 36(1A) and 101(1A) Copyright Act 1968 as part of the Digital Agenda reforms in 2000.

Question 61

S 36(1A) and 101(1A)

Answer 61

• “Authorisation” – ss 36(1A) and 101(1A):
  1. the extent (if any) of the person’s power to prevent the doing of the act concerned;
  2. the nature of any relationship between the person and the person who did the act concerned; and
  3. whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice: ss 36(1A) and 101(1A) Copyright Act 1968.
• Factors not exhaustive
• do not prevent the court from taking into account other factors, such as the respondent’s knowledge of the nature of the copyright infringement

Question 62

SAFE HARBOUR PROTECTION

Answer 62

• Limitation of remedies (NOT LIABILITY) for Carriages Service Providers (CSPs) and certain other organisations* carrying out these categories of activities:
  a. Providing facilities or services for transmitting/routing copyright material
  b. Caching copyright material through an automatic process
  c. Storing, at the direction of a user, copyright material on the CSP’s system/network
  d. Referring users to an online location
• Carriage service provider (CSP) defined in Telecommunications Act 1997 (Cth): see s 10
• a provider to the public of a service with a connection to Australia for carrying communications by guided or unguided electromagnetic energy over a carriers network
• “service provider” defined in s 116ABA
• CSP;
• Organisation assisting person with disability; and
• Body administering library, archives, key cultural institutions, educational institution (and other service provider, but limited to activities that the service provider carries out because of its relationship to the relevant bodies/institutions)

Question 63

TO QUALIFY FOR SAFE HARBOUR

Answer 63

• To qualify for safe harbour protection, CSP must comply with conditions in 116AH(1) - eg
• Adopt and implement a policy for terminating the accounts of repeat infringers; and
• Comply with the provisions of any relevant industry code for accommodating and not interfering standard technical measures that protect and identify copyright material
• C and D storage and referral – not receive financial benefit from activity

Question 64

REMEDIES FOR SAFE HARBOUR

Answer 64

• If conditions satisfied, court cannot grant monetary relief
• no damages, account of profits or additional damages
• Remedies for category A limited to:
• CSP to block access to online locations outside Australia or terminate account of infringing subscriber
• Remedies for categories B-D limited to:
• CSP to remove/block infringing material and references to those materials, terminate the account of infringing subscriber or another less burdensome but comparably effective non-monetary order

Question 65

WHAT IS INDIRECT INFRINGEMENT

Answer 65

(ss 37, 38, 102, 103):
- ¬Indirect infringement occurs when a person
* imports a copyright article into Australia without the authorisation of the copyright owner or
* deals in infringing articles

Question 66

INFRINGRING COPIES (INDIRECT)

Answer 66

(ss 38 and 103):
- It is an indirect infringement for a person to deal with an article by selling it, letting it for hire, offering or exposing it for sale or hire by way of trade, or exhibiting it in public by way of trade –
* without the licence of the owner of copyright; and
* with the requisite mental element, namely the person dealing with the article knew or ought reasonably to have known that to make the article infringed copyright (or, if the article was imported, the making of it in Australia by the importer would have infringed copyright).[2]
- Articles regarded as sold if distributed
i. for the purpose of trade; or
ii. For any other purpose to an extent that prejudicially affects the owner of the copyright concerned: ss38(2), 103(3)
- “article” defined as including “a reproduction or copy of a work or other subject-matter, being a reproduction or copy in electronic form”: ss 38(3), 103(3)
- definition was amended by the Copyright Amendment Act 2006 to overcome uncertainty - to make it clear that it includes an electronic reproduction of an electronic copy of a work or other subject matter.

Question 67

NON INFRINGING COPIES (INDIRECT)

Answer 67

• ¬What about non-infringing copies?
• Once you sell the first copy, you can’t control what that person does with it, i.e. sells it on to another person.
• Note the US “First Sale Doctrine”: 17 USC §109
• Australian copyright law does not give owners a general right to distribute articles embodying copyright works/other subject mater.

Question 68

PARALLEL IMPORTATION

Answer 68

• Importation (ss 37 and 102): It is an indirect infringement for a person to import an article into Australia for the purpose of selling it, letting it for hire, offering or exposing it for sale or hire by way of trade, distributing it for the purpose of trade or any other purpose to an extent that will affect prejudicially the owner of copyright, or exhibiting the article in public by way of trade -
• without the licence of the owner of copyright in the work or other subject matter; and
• with the requisite mental element, namely, the importer knew or ought reasonably to have known, that the making of the article would have infringed copyright if the article had been made in Australia
• Relaxed for:
• sound recordings and underlying literary, dramatic & musical works;
• books and periodicals;
• legitimate (non pirate) computer programs
• Importation or consequent sale of ‘non-infringing accessory’: ss 44C, 112C
• Medicine labels: s 44BA

Question 69

CIVIL REMEDIES FOR COPYRIGHT INFRINGEMENT

Answer 69

• Contained in Pt V, but Act is not exhaustive of the available remedies
• Any remedy which a court hearing a copyright matter may award in its inherent jurisdiction is available, e.g. a declaration: WEA International v Hanimex Corp
• Injunctive relief
• Damages or account of profits: s 115(2)
• Damages not available against innocent infringer: s 115(3)
• i.e. at time of infringement, Df not aware and no reasonable grounds for suspecting infringement
• Action for conversion/detinue of infringing copy/device used for making infringing copies as if plaintiff were owner: s 116
• Conversion damages
• No damages/pecuniary remedy against innocent infringer: S 116(2)
• No double counting - Inconsistent with account of profits under s 115
• Anton Piller order
• Ex parte order that Df “permit” Pl’s solicitors to enter premises to inspect and remove defined articles and documents, where likely that Df will destroy evidence: Anton Piller KG v Manufacturing Processes; Polygram Records v Monash Records (Australia)

Question 70

UNJUSTIFIABLE GROUNDLESS THREATS

Answer 70

• s 202 – person aggrieved may seek declaration, injunction and/or damages
• Df may counterclaim for infringement
   Breach of copyright is a complete defence to s 202
• Mere notification of existence of copyright ≠ threat: s202(2)

Question 71

OFFENCES WITH COPYRIGHT

Answer 71

• 3 levels
• Indictable
• Summary
• Strict liability
• General
• Ss 132AC to 132AO create general indictable, summary and strict liability offences
• Recordings
• ss 248PA to 248QH create indictable, summary and strict liability offences relating to recording etc of performances
• Electronic Rights Management Information (ERMI)
• ss 132AQ to 132AS create indictable, summary and strict liability offences relating to electronic rights management information
• Technological Protection Measures (TPMs)
• ss 132APC to 132APE create indictable offences relating to circumvention of technological protection measures, manufacture and other dealings in circumvention devices and the provision of circumvention services

Question 72

GENERAL OFFENCES

Answer 72

• Sections 132AC to 132AO:
• commercial-scale copyright infringements that have a substantial prejudicial impact on the owner of copyright: s 132AC
   In determining whether an infringement has occurred on a commercial scale, the volume and value of any articles that are infringing copies and any other relevant matter can be taken into account: s 132AC(5).
• making an article which is an infringing copy of a copyright work or other subject matter, with the intention of selling or hiring it or obtaining a commercial advantage or profit: s 132AD
• selling or hiring an article which is an infringing copy of a copyright work or other subject matter: S 132AE
• offering or exposing an article for sale or hire, and offering or exposing an article for sale or hire, with the intention of obtaining a commercial advantage or profit, where the article is an infringing copy of a copyright work or other subject matter: s 132AF
• publicly exhibiting an article which is an infringing copy of a copyright work or other subject matter and publicly exhibiting an infringing copy with the intention of obtaining a commercial advantage or profit: s 132AG
   s 132AA defines “profit” as not including any advantage, benefit or gain that (a) is received by a person and (b) results from, or is associated with the person’s private or domestic use of any copyright material
• Indictable offences are typically subject to a fine of up to 550 penalty units and summary offences are punishable by a fine of up to 120 penalty units
   For indictable offences, corporations may be fined up to 5 times the amount for individuals, 2,750 penalty units
   penalty unit currently = $170; maximum fine per offence is $93,500 for individuals and $ 467,500 for corporations
• terms of imprisonment of up to 5 years (in the case of indictable offences) or two years (in the case of summary offences) can be imposed instead of or in conjunction with a fine

Question 73

STRICT LIABILITY OFFENCES

Answer 73

• attract a penalty of up to 60 penalty units
• based on an infringement notice system - details are set out in regulations made under ss 133B(1) and 248SA(1)
• As an alternative to prosecution, for offences under ss 132AC to 132AS, a person who is alleged to have committed a strict liability offence may:
• pay a penalty to the Commonwealth: s 133B(1)(a), or
• forfeit to the Commonwealth:
   each article that is alleged to be an infringing copy of a work or other subject matter that has allegedly been involved in the commission of the offence; or
   each device that is alleged to have been made to be used to make an infringing copy of a work or subject matter and that has allegedly been involved in the commission of the offence: s 133B(1)(b)
• Prosecutions for summary and strict liability offences – Federal Court: ss 133A(3), 248R(3)
• Indictable offences heard in state and territory courts and may be tried by jury
• The Federal Court does not have jurisdiction to deal with indictable offences: ss 133A(2), 248R(2)
• Some offences are subject to defences
• acts by certain public sector bodies
• anything lawfully done for the purposes of law enforcement or national security by or on behalf of the Commonwealth, or a State or Territory, or
• anything lawfully done by non-profit libraries, archives, educational institutions and public non-commercial broadcasters: ss 132AC(6), (7) and 132AT
• Section 132AT applies to the offences relating to electronic rights management information set out in ss 132AQ to 132AS

Question 74

FREE USE EXCEPTIONS V STATUTORY LICENCES

Answer 74

• Free use exceptions:
• Fair dealing – ss 40-43, 103A-103C, 103AA, 104, 113E.
• Specific royalty free exceptions: ss 43A, 111A, 45, 46, 47, 47AA
• Statutory licences:
• Not an exception unless you pay a fee.
• For education purposes, for visually impaired users, for government use – s 183.

Question 75

FAIR DEALING EXCEPTIONS

Answer 75

• A fair dealing with a Pt III work or adaptation or a Pt IV audio-visual item (that is, a sound recording, film, sound broadcast or television broadcast) does not infringe if done for one (or more) of the following five purposes:
• research or study (ss 40 and 103C);
• criticism or review (ss 41 and 103A);
• parody or satire (ss 41A and 103AA);
• reporting of news (ss 42 and 103B); or
• judicial proceedings or the giving of professional legal advice (ss 43 and 104).
• Access by persons with a disability (s 113E) [latest addition]
• Cf fair use - Specific purpose not required for open-ended exception
• Not in Australia anytime soon.

Question 76

RESEARCH OR STUDY

Answer 76

• “research” and “study” not defined – given dictionary meaning
• “research” means “a diligent and systematic enquiry or investigation into a subject in order to discover facts or principles”: De Garis v Neville Jeffress Pidler Pty Ltd (1990)
• Who is researching or studying?
• the relevant purpose is that of the person making the dealing, not the purpose to which the reproduction or adaptation is ultimately put
• See De Garis v Neville Jeffress Pidler Pty Ltd
   Commercial purpose not for research or study. (they were providing it to subscribers, so subscribers could do research).

Question 77

RESEARCH OR STUDY NON-EXHAUSTIVE FACTORS

Answer 77

• the purpose and character of the dealing
• the nature of the work or audio-visual item
• the possibility of obtaining the work or audio-visual item within a reasonable time at an ordinary commercial price
• the effect of the dealing upon the potential market for, or value of, the work or audio-visual item
• where only part of a Pt III work, adaptation or audio-visual item is reproduced or copied, the amount and substantiality of the part copied in relation to the whole item: ss 40(2), 103C(2).

Question 78

RESEARCH OR STUDY - SPECIFIC GUIDELINES

Answer 78

• (if these specific guidelines apply, wont necessarily have to consider the fairness factors).
• For literary, dramatic and musical works and adaptations
   DO NOT apply to audio-visual items: s 40(3) – (8) (inserted by the Copyright Amendment Act 2006)
  1. IF contained in AN ARTICLE in a periodical - taken to be a fair dealing for the purpose of research or study, UNLESS another article in the same publication is reproduced for the purpose of different research or a different course of study: ss 40(3) and (4)
  2. IF NOT AN ARTICLE - taken to be a fair dealing if it does not involve the taking of more than a “reasonable portion”: s 40(5)
   Depends on form of publication - see table accompanying s 40(5).

Question 79

QUANTUM TESTS FOR DETERMINING REASONABLENESS OF USE

Answer 79

• Quantum tests for determining reasonableness of use: ss 40(5) – (8) and 10(2) – (2C)
• Works, adaptations and reasonable portions: s 40(5)
   A literary, dramatic or musical work (except a computer program), or an adaptation of such a work, that is contained in a published edition of at least 10 pages
• Amount that is reasonable portion
  (a) 10% of the number of pages in the edition; or
  (b) if the work or adaptation is divided into chapters–a single chapter
   A published literary work in electronic form (except a computer program or an electronic compilation, such as a database), a published dramatic work in electronic form or an adaptation published in electronic form of such a literary or dramatic work
• Amount that is reasonable portion:
  (a) 10% of the number of words in the work or adaptation; or
  (b) if the work or adaptation is divided into chapters–a single chapter

Question 80

CRITICISM OR REVIEW

Answer 80

• there may be a fair dealing for the purpose of criticism or review provided sufficient acknowledgment is made: ss 41, 103A
• must identify the work or audio-visual item by its title or other description, as well as the author: s 10(1)
• not defined in the Act
• involve the passing of judgment - may be strongly expressed but, provided they are genuine and not a pretence for some other purpose, need not be balanced: TCN Channel Nine Pty Ltd v Network Ten Ltd [2001] FCA 108 per Conti J
• Criticism or review - Includes all kinds of criticism – it is not restricted to literary criticism
• TCN Channel Nine Pty Ltd v Network Ten Ltd [2001] FCA 108 per Conti J
• words of “wide and indefinite scope which should be interpreted liberally”
• extend to “the thoughts underlying the expression of copyright works or subject matter”
• Criticism or review – not pretence
• In TCN Channel Nine Pty Ltd v Network Ten Ltd [2002] FCAFC 146 Hely J (Sundberg and Finkelstein JJ agreeing) said the test is:
   [I]s the program incorporating the infringing material a genuine piece of criticism or review, or is it something else, such as an attempt to dress up the infringement of another’s copyright in the guise of criticism, and so profit unfairly from another’s work?
• See also De Garris at [55] – consider:
  1. Use - carrying a rival purpose?
  2. Proportion - long extracts and short comments?
• short extracts and long comments?

Question 81

CRITICISM AND REVIEW DEFINED

Answer 81

• In De Garis v Neville Jeffress Pidler Pty Ltd (1990) Beaumont J referred to the Macquarie Dictionary definitions of “criticism” and “review”
• “criticism” - “the act or art of analyzing and judging the quality of a literary or artistic work; the act of passing judgment as to the merits of something; [and] a critical comment, article, or essay, a critique”;
• “review” - “a critical article or report, as in a periodical, on some literary work, commonly some work of recent appearance; a critique”

Question 82

PARODY OR SATIRE

Answer 82

• ss 41A and 103AA
• inserted by Copyright Amendment Act 2006
• no definition of “parody” or “satire”
• Parody = imitation
• Satire = ‘ironic, sarcastic, scornful, derisive or ridiculing criticism of vice, folly or abuses’
• AGL Energy Limited v Greenpeace Australia Pacific Ltd [2021] FCA 625
• Called AGLs Logo and said ‘Australias Greatest Liability’
• This was considered Satircal. (their claim of criticism of review failed though’
• Universal Music Publishing v Clive Palmer (No 2) [2021] FCA 434
• No other purpose through using there music.

Question 83

REPORTING NEWS

Answer 83

• Applicable to Part III work/adaptation or Part IV-audio visual item
• in a newspaper, magazine or periodical, provided sufficient acknowledgement is made of the work or audio-visual item
• by means of an electronic communication
• in a cinematograph film: ss 42 and 103B.
• covers music incidentally recorded in the course of reporting news by means of broadcast or film
• music playing in the background as news is being reported.
• does not extend to music added to the soundtrack which does not form part of the news being reported: s 42(2).
• Reporting news
• May be interesting, entertaining or humorous
• Provided still “news” – currency relevant
   TCN Channel Nine Pty Ltd v Network Ten Ltd (2001) per Conti J and TCN Channel Nine Pty Ltd v Network Ten Ltd (2002) per Hely J

Question 84

PROFESSIONAL LEGAL ADVICE

Answer 84

• It is not an infringement to make a fair dealing with:
• Pt III works - for the purposes of giving of professional advice by a legal practitioner, a registered patent attorney or a registered trademark attorney: ss 43(2)
• Part IV subject matter – purpose of receiving or giving professional advice of a lawyer, patent attorney or trademarks attorney: s 104(b) and (c)

Question 85

JUDICIAL PROCEEDINGS

Answer 85

• Part III works - Any act done in relation to a literary, dramatic, musical or artistic work for the purpose of a judicial proceeding or the report of a judicial proceeding is exempted from copyright infringement: s 43(1)
• For Part IV subject matter – see s 104(a)

Question 86

ACCESS BY PERSONS WITH DISABILITY

Answer 86

• purpose of one or more persons with a disability having access to copyright material (whether the dealing is by any of those persons or by another person): s 113E(1)
• Consider fairness factors under s 113E(2):
  a. the purpose and character of the dealing;
  b. the nature of the copyright material;
  c. the effect of the dealing upon the potential market for, or value of, the material;
  d. if only part of the material is dealt with–the amount and substantiality of the part dealt with, taken in relation to the whole material.
• See also s 113F – use of copyright materials by organisations assisting persons with a disability not an infringement
• The person with the disability might not be able to make it themselves.

Question 87

UNPUBLISHED WORKS

Answer 87

• consider relevance to fairness factors
• Note also public interest defence

Question 88

PUBLIC INTEREST DEFENCE

Answer 88

• Defence of justified disclosure in the public interest: Cth v John Fairfax (1980); cf Collier Constructions v Foskett (1990)
• e.g. breach of national security or other matters involving danger to the public
• what’s in the public interest v in the interest of the public.

Question 89

SPECIFIC ROYALTY FREE EXCEPTIONS

Answer 89

• Examples of miscellaneous exceptions throughout Copyright Act 1968 (Cth)
• School performances: s 28
• Reception equipment in hotels and guest houses: ss 46, s 106(1)
• Painting, drawing or photographing public sculptures, buildings and incidental filming of artistic works: ss 65-67
• Recitation of published literary/dramatic work – in public or in broadcasts: s 45
• Reconstruction of buildings: s 73
• Limited exceptions for libraries, archives and cultural institutions: s 200AB
• Software copying exceptions – running program or studying its functions (s 47B), making back up copy (s 47C).
• Software reverse engineering exceptions – interoperability (s 47D), correcting an error (s 47E), security testing (s 47F)
   Note various provisos – eg not infringing copy

Question 90

TIME SHIFTING

Answer 90

s 111
 It is not an infringement of copyright to make a cinematograph film or sound recording of a broadcast, provided the film or recording is made “solely for private and domestic use by watching or listening to the material broadcast at a more convenient time than when the broadcast was made”
* “Private and domestic use” is defined as use on or off domestic premises: s 10(1)
 NRL v Singtel Optus Pty Ltd [2012] FCAFC 59
* Who is the “maker” of a reproduction?
o Free to air and recorded for them by Optus TV rather than them having to do it themselves at home.
o User initiated the process of reproduction.
o But no maker was either Optus or Optus and the user jointly.
o Couldn’t rely on s 111 because commercial purpose.
* Would it cover a service outsourced by consumers to commercial providers?
* On technological neutrality:
o “We are conscious that the construction which we are satisfied the language of s 111 requires is one that is capable of excluding, and does in fact in this instance exclude, a later technological development in copying. However, no principle of technological neutrality can overcome what is the clear and limited legislative purpose of s 111.” (at [96])

Question 91

DEVICE SHIFTING

Answer 91

s 109A
 applies to sound recordings - enables the owner of a copy of a sound recording to make a copy of it for their private and domestic use on a playing device they own
 exception applies irrespective of the format of the earlier copy or the later copy, which may take the form of tapes, vinyl records or CDs.

Question 92

FORMAT SHIFTING

Answer 92

ss 43C, 47J and 100AA
 Want to make a book into digital form. Disc to USB.
 allow the owners of copyright materials in certain forms (such as books, photographs and films) to reproduce or make a copy of the material in different form: ss 43C, 47J, 110AA
 permit the following activities:
* books, newspapers and periodicals can be reproduced in any format: s 43C
* photographs in hard copy form can be reproduced in digital form, and hard copy reproductions can be made of photographs in digital form: s 47J
* cinematograph films on videotape can be reproduced in digital form (e.g. copying a VHS tape to DVD): s 110AA

Question 93

STATUTORY LICENCES

Answer 93

• Not an infringement of copyright to use copyright material in a way that involves an exercise of the exclusive rights, without having first obtained permission to do so
• BUT arrangements must be put in place so that the copyright owner receives equitable remuneration or is otherwise compensated for the exercise of his or her rights

Question 94

TYPES OF STATUTORY LICENCES

Answer 94

• State use
   Use of copyright material “for the services of the State”: ss 183 and 183A - C
• Print disability use by educational institutions and radio stations
   educational institutions and institutions assisting persons with a print disability or an intellectual disability - copy and communicate sound and television broadcasts (Pt VA) and to reproduce and communicate works and published editions (Pt VB),
   the making of sound broadcasts of literary and dramatic works by the holders of a print disability radio licence: s 47A
• Cover songs
   re-recording of musical works, as long as the subsequent recording does not debase the work: s 55
• Broadcasts
   retransmissions of free-to-air broadcasts: Pt VC
   public performance and broadcasting of sound recordings: ss 108(1) and 109(1)
• on condition that equitable remuneration is paid to an approved collecting society

Question 95

COLLECTING SOCIETIES

Answer 95

• Middle person to address difficulties/practicalities of collecting this money from all the potential people that use their stuff.
• You pay a blanket fee to them.
• The collecting societies break it down and apportion it to the right holders.

Question 96

AREAS WITH COLLECTING SOCIETIES

Answer 96

• MUSIC INDUSTRY
• EDUCATIONAL INSTITUTIONS
• PRINT MATERIALS
• SCREENRIGHTS

Question 97

COLLECTING SOCIETIES COMPETITION CONCERNS

Answer 97

• Aggregation of rights could = market power
• With one source of licensing, can you set a competitive price?
• Regulatory oversight - ACCC authorises the operations of collecting societies
• Conditions incl. transparency as to licence fees
• Voluntary Code of Conduct for Collecting Societies

Question 98

DIGITAL RIGHTS MANAGEMENT

Answer 98

• e.g. Encryption, digital watermarking, embedding of rights management information (e.g. author and terms of use).

Question 99

ERMI

Answer 99

• “ERMI” defined in s 10(1) as electronic information (including numbers and codes representing such information) which is either:
• Attached to or embodied in the copyright material; or
• appears in connection* with a communication or making available of the copyright material
• and this information either:
• Identifies the work/subject matter and its author/owner; or
• Identifies or indicates the terms and conditions of use, or indicates that use is subject to terms and conditions
• Extended by USTFAI Act 2004
• Owner/exclusive licensee may bring action against person for following:
  [1] Removing/altering ERMI: s 116B
  [2] Distributing/Importing content that has had ERMI removed: s 116C
• Includes requirement person knew, or ought reasonably to have known conduct would enable, facilitate or conceal infringement (presumption that they knew).
• Note range of criminal offences: ss 132AQ – AS

Question 100

TPMS

Answer 100

• s 10(1) - A TPM is a technology that either:
• Restricts the doing of an act comprised in the copyright
  OR
• Controls access to copyright works/subject matter (regardless of whether it is an exercise of the exclusive rights) *
• Expansion brought about under USFTAI Act
• S 10(1) - “controls access”: a device, product, technology or component (including a computer program) controls access to a work or other subject-matter if it requires the application of information or a process, with the permission of the owner or exclusive licensee of the copyright in the work or other subject-matter, to gain access to the work or other subject-matter.
• Criticism of access control protection
• Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 – pre USFTAI Act, overturning Federal Court decision
   …its effect is to extend the copyright monopoly by including within the definition not only technological protection measures which stop the infringement of copyright, but also devices which prevent the carrying out of conduct which does not infringe copyright and is not otherwise unlawful.

Question 101

EXCEPTIONS TPMS

Answer 101

• Exceptions:
• Applicable to both civil and criminal infringements
• The exceptions include:
   Acts done with permission
   Interoperability of computer programs
   Encryption research
   Computer security testing
   Online privacy
   Law enforcement and national security (s 116AN)

Question 102

MORAL RIGHTS

Answer 102

Pt IX (ss 189 - 195 AZO)
- personal rights belonging to authors or creators of copyright material
* Only individuals have moral rights: s 190
- exist independently from economic rights
* Continue to exist even after economic rights have been transferred.
* So even if you sell your rights these ones continue because they exist independently.
- Last for duration of copyright, i.e. typically life of author + 70 years: s 195AM
* cf film, integrity last for life of author (s 195AM(1))
* Upon death, exercised and enforced by legal personal representative
- apply to literary, dramatic, artistic, musical works, films (not sound recordings)
i. right of attribution of authorship (ss 193 - 195 AB);
ii. right not to have authorship falsely attributed (ss195AC-195AH)
iii. right of integrity - to object to distortions or modifications or derogatory actions (ss195AI - 195AL)

Question 103

MORAL RIGHTS AND TEST OF REASONABLENESS

Answer 103

• Rights subject to a test of reasonableness: ss 195AR and 195AS
• e.g. 195AR (2) Relevant factors include :
  (a) the nature of the work;
  (b) the purpose for which the work is used;
  (c) the manner in which the work is used;
  (d) the context in which the work is used;
  (e) any practice, in the industry in which the work is used, that is relevant to the work or the use of the work;
  (f) any practice contained in a voluntary code of practice, in the industry in which the work is used, that is relevant to the work or the use of the work;
  (g) any difficulty or expense that would have been incurred as a result of identifying the author;
  (h) whether the work was made:
  (i) in the course of the author’s employment; or
  (ii) under a contract for the performance by the author of services for another person;
  (i) if the work has 2 or more authors–their views about the failure to identify them.

Question 104

EXCEPTIONS TO RIGHT OF INTEGRITY

Answer 104

• Exceptions to infringement of right of integrity for artistic works: s 195AT
• including to
   Destroy of a movable artistic work if author given reasonable opportunity to remove the work: s 195AT(1)
   Change, relocate, demolish a building of which an artistic work forms a part of, or is affixed to, provided certain conditions are met (e.g. cannot discover identity of author; or giving notice, provision of access for the purpose of making a record and consultations in good faith): s 195AT(2), (2A); see also (3), (3A) for authorship in the building e.g. plans
   Remove or relocate a site-specific artistic work that is accessible to the public, provided certain conditions are met: s 195AT(4A)

Question 105

PERFORMERS MORAL RIGHTS

Answer 105

i. right of attribution of performership (ss 195ABA – 195ABE);
ii. right not to have performership falsely attributed (ss 195AHA – 195AHC)
iii. right of integrity - to object to distortions or modifications or derogatory actions in relation to the performance (ss195ALA - 195ALB)
- Generally in force until copyright ceases to subsist
* BUT note difference in duration – right of integrity only for life of performer: s 195ANA(3)
- Note limitation – sounds only
* “recorded performance “ means a performance embodied in a record so as to constitute a sound recording.
* “performer” in a performance…means each person who contributed to the sounds of the performance; … (s 189)
- Performances per se traditionally not afforded copyright protection
* 2 types –
i. Limited ‘neighbouring rights’ (introduced in 1989)
 Part XIA – from s 248A – consent of performer needed to make recording and further deal with it
ii. Economic rights (extended in 1995, USFTAI Act)

Question 106

WHO CAN BRING TPM ACTION

Answer 106

• Action against - Owner/Exclusive licensee may bring action against person for following:
  [1] Circumvention of the TPM: s 116AN(1)
  [2] Provision of a circumvention service: s 116AP(1)
  [3] Manufacturing, importing, distributing etc a circumvention device: s 116AO
• Knowledge requirement - person knows or ought reasonably to know that conduct would result in circumvention/it was a circumvention service/it was a circumvention device (as relevant)
• Note also criminal provisions: ss 132APC to 132APE
• “circumvention device” for a TPM means a device, component or product (including a computer program) that:
  (a) is promoted, advertised or marketed as having the purpose or use of circumventing the technological protection measure; or
  (b) has only a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention of the technological protection measure; or
  (c) is primarily or solely designed or produced to enable or facilitate the circumvention of the technological protection measure: S 10(1)