Module 7 - Copyright: Overview Flashcards
Copyright Act 1968 (Cth)
The act has grown to more than five times it original length
Has been amended and expanded over 50 times since originally introduced
Overview of Copyright:
IceTV v Nine Network [2009]
“Copyright legislation strikes a balance of competing interest and competing policy considerations”
“Concerned with rewarding authors with commercial benefits who in turn benefit the reading public”
“The social contract envisaged by the Statute of Anne… was that an author could obtain a monopoly, limited in time, in return for making a work available to the reading public”
Overview of Copyright:
Roadshow Films v iiNet [2012]
“Complexity of the characteristics of modern copyright law, it is inevitable that the legislation will give rise to difficult questions of construction”
Basic Principles of Copyright
Expression
Material Form
Originate from an author
Originality; and
Authorship
Kenrick v Lawrence (1890)
“A square can only be drawn as a square, a cross can only be drawn as a cross”
“There are scarcely more ways than one of drawing a pencil or the hand that holds it”
“Although 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”
“The copyright must be confined to that which is special to the individual drawing over and above the idea”
Zeccola v Universal City Studios (1982)
Jaws vs Great White film - two films about a shark terrorising a community
Court held that the story line was not an “idea”, as the combination of all the elements of Jaws constituted enough of an expression to be protected by copyright
Baigent v Random House (The Da Vinci Code) [2006]
Central theme was based on years of research by the plaintiff
Court made the distinction between the idea and the expression
The research was not protected in terms of the actual idea, only the expression
Did not extend to the information, facts, idea’s that were expressed
s22
Material Form = When first reduced to writing or to some other material form
Part III - Works
Literary
Dramatic
Musical
Artistic
Adaptions of literary, dramatic and musical works
Part IV - Subject matter other than works
Films
Sound Recordings
Film & Television Broadcasts
Published editions of works
Nine Network Australia v ABC [1999]
Nine Network had paid for the exclusive right to broadcast the firework display
Argued that the firework was a “dramatic work”
Court held that even though it was a planned sequence, there would be many deviations from actual plan and actual performance - therefore not successful in copyrighting the firework display
s32(1), s32(2)
Must be an original work for copyright to subsist
Victoria Park Racing v Taylor [1937]
Some original result must be produced
Does not require a new or inventive idea
Must simply originate with the author and be more than a copy of other material
Donoghue v Allied Newspapers Ltd [1938]
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 info it is based may have been provided by someone else
Sands & McDougall v Robinson (1937)
Map is original, even if prepared from common stock of knowledge
Requires independent intellectual effort, judgement and discrimination to produce a map
Coogi v Hysport [1998]
Even though parts may separately not attract copyright, it does not mean that the work as a whole is not protected - Drummond J
Desktop Marketing v Telstra [2002]
Facts: Related to the white and yellow pages telephone directories. Consisted of a compilation of names, addresses and numbers.
Issue: Was this an original literary work protected by copyright. Can copyright submit in a compilation of data, even if it arranged in an obvious manner
Held: Held that copyright subsisted in directories
Reason: Sufficient intellectual effort in the selection or arrangement of the facts. The author had engaged in sufficient work and expense in gathering the facts.
Principle: Reinforced the low threshold for degree of originality required
Feist Publications v Rural Telephone Co Inc (1991) - US Case
Original means only that the work was independently created by the author, possesses at least some minimal degree of creativity…
Requisite level of creativity is extremely low; slight amount will suffice - no matter how crude, humble or obvious it might be
IceTV v Nine Network Australia [2009]
Facts: IceTV was a subscription based online programming guide
Issue: Did it infringe on Nine weekly TV programming schedule
Decision: Cast doubt on the Desktop Marketing Case
Reason: The reasoning in Desktop Marketing is out of line with the understanding of copyright law, and should be “treated with caution”
Burge v Swarbrick [2007]
Determination of whether a work is a work of artistic craftsmanship
Not an assessment of beauty or aesthetic appeal, or an assessment of harmony between visual appeal and utility
Assessing the extent to which the particular works artistic expression, in its form, is unconstrained by functional considerations
Lucasfilm Ltd v Ainsworth [2011]
Facts: Df was making and selling stormtrooper helmets.
Issue: Did Lucasfilm own the copyright over the stormtrooper helmets.
Held: No copyright
Reason: Argument that fictional character should be protected as a artistic work was rejected.
Australian Olympic Committee v Big Fights (1999)
Dramatic works must be something staged/directed, not real life events
s31(1)
Adaption is one of the exclusive rights of the copyright owner
s31(1)(a)(vii)
If the adaption is original and meets the criteria for copyright protection, it will in turn be protected by copyright
A-One Accessory Imports v Off Road Imports [1996]
Copyright can subsist in an infringing adaption
CBS Records Australia v Telmak Teleproducts (1987)
Copyright only protects the actual embodiment of the sounds
Connecting factor
Author, maker or publisher is a qualified person
First publication in Australia
s126
Subsistence and ownership of copyright is presumed
s126B(2)
If ownership is put into issue by df - name, label, mark, container, etc is admissible as prima facie evidence
s35(2)
Usually, the author is the first owner of the copyright
Exceptions to rule of ownership
Exceptions to the rule:
Employees
Journalists
Commissioned Works
s35(3)
Ownership is subject to exclusion or modification by agreement
35(6)
Employee ownership exception
Redrock Holdings v Hinkley (2001)
Copyright in computer code developed largely for work related purposes and during work hours belongs to the employer (even though created by employee prior to commencing employment)
Copyright in software developed on own initiative at home, outside of work hours, without direction from the employer, without employers knowledge - held to belong to the employee
s35(4)
Journalist exception:
Copyright is split between publisher and author
Author/journalist owns copyright for the purpose of:
Reproduction in a book; or
Reproduction of exact copy
s35(5)
Painting/drawings of portrait or engraving, or photograph for private/domestic purpose often owned by the person who commissioned the work
Bulun Bulun v R&T Textiles (1998)
Indigenous art case. Copyright law recognises individual authors, therefore fails to recognise communal ownership.
Held: Able to extend to indigenous community.
s13(1)
Copyright owner has the exclusive right to do certain acts in relation to a work, an adaption of a work or other subject matter
s13(2)
Each exclusive right includes the right to authorise the doing of that act by someone else
Duration of Copyright
Published literary, dramatic, musical and artistic works
70 years from end of year in which author died
Published films and sound recordings
70 years from end of year first published
Television & sound broadcasts
50 years from the end of the calendar year of broadcast
Published editions
25 years from end of year first published
Crown copyright
50 years from end of year first published
Anonymous and pseudonymous publication of literary, dramatic or musical work
70 years from end of year first published; or
70 years from end of year in which author dies IF identity can be ascertained
Unpublished or unperformed literary, dramatic or musical work
70 years from end of year since event
Unpublished computer programs
70 years from end of year in which author died
Joint authorship works
70 years from end of year after the death of the last author
