COPYRIGHT Flashcards

Question

WHO IS THE MAKER OF COPYRIGHT MATERIALS

Answer 1

* 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

Answer 2

(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

Answer 3

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

Answer 4

- 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

Answer 5

- 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

Answer 6

- 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

Answer 7

- 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)

Answer 8

- 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)

Answer 9

- 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

Answer 10

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

Answer 11

- 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

Answer 12

* 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)

Answer 13

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.

Answer 14

* 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)

Answer 15

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

Answer 16

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

Answer 17

- 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)

Answer 18

- 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.

Answer 19

- 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]

Answer 20

- 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

Answer 21

- ¬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

Answer 22

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

Answer 23

* 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).

Answer 24

- 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.

Answer 25

- 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.

Answer 26

- 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

Answer 27

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

Answer 28

- 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

Answer 29

- ¬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

Answer 30

- 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.

Answer 31

- 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

Answer 32

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

Answer 33

* 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)

Answer 34

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”)

Answer 35

- 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

Answer 36

* “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.

Answer 37

- “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

Answer 38

- 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)

Answer 39

- 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

Answer 40

- 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

Answer 41

(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

Answer 42

(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.

Answer 43

- ¬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.

Answer 44

- 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

Answer 45

- 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)

Answer 46

- 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)

Answer 47

- 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

Answer 48

- 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

Answer 49

- 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

Answer 50

- 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.

Answer 51

- 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.

Answer 52

- “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).

Answer 53

* 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).

Answer 54

* (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).

Answer 55

- 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

Answer 56

- 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?

Answer 57

- 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”

Answer 58

- 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.

Answer 59

- 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

Answer 60

- 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)

Answer 61

- 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)

Answer 62

- 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.

Answer 63

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

Answer 64

- 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.

Answer 65

- 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

Answer 66

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])

Answer 67

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.

Answer 68

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

Answer 69

- 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

Answer 70

* 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

Answer 71

- 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.

Answer 72

- MUSIC INDUSTRY - EDUCATIONAL INSTITUTIONS - PRINT MATERIALS - SCREENRIGHTS

Answer 73

- 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

Answer 74

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

Answer 75

- “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

Answer 76

- 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.

Answer 77

- 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)

Answer 78

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)

Answer 79

- 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.

Answer 80

- 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)

Answer 81

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)

Answer 82

- 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)