Module 7 - Copyright: Overview

Question 1

Copyright Act 1968 (Cth)

Answer 1

The act has grown to more than five times it original length

Has been amended and expanded over 50 times since originally introduced

Question 2

Overview of Copyright:

IceTV v Nine Network [2009]

Answer 2

“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”

Question 3

Overview of Copyright:

Roadshow Films v iiNet [2012]

Answer 3

“Complexity of the characteristics of modern copyright law, it is inevitable that the legislation will give rise to difficult questions of construction”

Question 4

Basic Principles of Copyright

Answer 4

Expression

Material Form

Originate from an author
Originality; and
Authorship

Question 5

Kenrick v Lawrence (1890)

Answer 5

“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”

Question 6

Zeccola v Universal City Studios (1982)

Answer 6

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

Question 7

Baigent v Random House (The Da Vinci Code) [2006]

Answer 7

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

Question 8

s22

Answer 8

Material Form = When first reduced to writing or to some other material form

Question 9

Part III - Works

Answer 9

Literary

Dramatic

Musical

Artistic

Adaptions of literary, dramatic and musical works

Question 10

Part IV - Subject matter other than works

Answer 10

Films

Sound Recordings

Film & Television Broadcasts

Published editions of works

Question 11

Nine Network Australia v ABC [1999]

Answer 11

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

Question 12

s32(1), s32(2)

Answer 12

Must be an original work for copyright to subsist

Question 13

Victoria Park Racing v Taylor [1937]

Answer 13

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

Question 14

Donoghue v Allied Newspapers Ltd [1938]

Answer 14

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

Question 15

Sands & McDougall v Robinson (1937)

Answer 15

Map is original, even if prepared from common stock of knowledge

Requires independent intellectual effort, judgement and discrimination to produce a map

Question 16

Coogi v Hysport [1998]

Answer 16

Even though parts may separately not attract copyright, it does not mean that the work as a whole is not protected - Drummond J

Question 17

Desktop Marketing v Telstra [2002]

Answer 17

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

Question 18

Feist Publications v Rural Telephone Co Inc (1991) - US Case

Answer 18

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

Question 19

IceTV v Nine Network Australia [2009]

Answer 19

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”

Question 20

Burge v Swarbrick [2007]

Answer 20

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

Question 21

Lucasfilm Ltd v Ainsworth [2011]

Answer 21

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.

Question 22

Australian Olympic Committee v Big Fights (1999)

Answer 22

Dramatic works must be something staged/directed, not real life events

Question 23

s31(1)

Answer 23

Adaption is one of the exclusive rights of the copyright owner

Question 24

s31(1)(a)(vii)

Answer 24

If the adaption is original and meets the criteria for copyright protection, it will in turn be protected by copyright

Question 25

A-One Accessory Imports v Off Road Imports [1996]

Answer 25

Copyright can subsist in an infringing adaption

Question 26

CBS Records Australia v Telmak Teleproducts (1987)

Answer 26

Copyright only protects the actual embodiment of the sounds

Question 27

Connecting factor

Answer 27

Author, maker or publisher is a qualified person

First publication in Australia

Question 28

s126

Answer 28

Subsistence and ownership of copyright is presumed

Question 29

s126B(2)

Answer 29

If ownership is put into issue by df - name, label, mark, container, etc is admissible as prima facie evidence

Question 30

s35(2)

Answer 30

Usually, the author is the first owner of the copyright

Question 31

Exceptions to rule of ownership

Answer 31

Exceptions to the rule:

Employees

Journalists

Commissioned Works

Question 32

s35(3)

Answer 32

Ownership is subject to exclusion or modification by agreement

Question 33

35(6)

Answer 33

Employee ownership exception

Question 34

Redrock Holdings v Hinkley (2001)

Answer 34

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

Question 35

s35(4)

Answer 35

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

Question 36

s35(5)

Answer 36

Painting/drawings of portrait or engraving, or photograph for private/domestic purpose often owned by the person who commissioned the work

Question 37

Bulun Bulun v R&T Textiles (1998)

Answer 37

Indigenous art case. Copyright law recognises individual authors, therefore fails to recognise communal ownership.

Held: Able to extend to indigenous community.

Question 38

s13(1)

Answer 38

Copyright owner has the exclusive right to do certain acts in relation to a work, an adaption of a work or other subject matter

Question 39

s13(2)

Answer 39

Each exclusive right includes the right to authorise the doing of that act by someone else

Question 40

Duration of Copyright

Answer 40

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