Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Intellectual Property > Module 8 - Copyright: Infringement > Flashcards

Module 8 - Copyright: Infringement Flashcards

1
Q

Direct infringement

A

s36(1) - person who is not the copyright owner does, or authorises someone else to do, any act that is the owners exclusive right

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Elements of reproduction

A

Objective Similarity

Causal Connection

Substantial Part

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

s14

A

Infringement requires substantial part of the work/other subject matter

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

EMI v Larrikin

A

Facts: Involves the “Men at Work - Down Under” song and a “Kookaburra Sits in the Old Gum Tree” song that is meant to be sung as a round. Larrikin acquired the rights to Kookaburra song on her death. In 2007, Spicks & Specks uncovered the similarity - and as such Kookaburra brought an action and Men at Work.

Issue: Has an infringement occurred. Issue pertaining to objective similarity and reproduction of a substantial part.

Held: Found that song was an infringement

Reason: Causal connection was clearly found, as band admitted to copying the phrase. Court also found that it also constituted a substantial part of the Kookaburra song. Also, with difficulty, found that the song was objectively similar.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Material Form

A

Any for (whether visible or not) of storage of the work or adaption, or a substantial part of the work or adaption (whether or not the work or adaption, or a substantial part of the work or adaption, can be reproduced)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Exemptions of material form

A

Temporary reproductions in communications

Temp reproductions incidentally made as part of technical process

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

s31(1)(a)

A

Exclusive Rights - Part III: Works

Reproduce in a material form
Make an adaption
Publish
Perform in public
Communicate to public in electronic form
Rental right
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

APRA v CBA (1992)

A

Background music in training video played to 11 bank employees constituted a public performance, and as such breached copyright

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Duck v Bates

A

Play performed in hospital room to 170 people - not a communication

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Telstra v APRA (1997)

A

High Court held that the transmission of hold music was a “transmission to the public”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

s22(6A)

A

Clarifies that accessing or browsing material online that is infringed is is not an act of communication to the public

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Communication to public:

Universal Music Australia v Cooper [2005]

A

Facts: Cooper ran a website that linked to a number of MP3. Did not store any music on the actual website, was stored on remote 3rd party computer.

Issue: Did this constitute “making available online”

Held: Rejected the argument that Coopers “made available online”.

Reason: Not a transmission from the Cooper website itself. Simply made the links available, not the actual material.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Communication to the public

Roadshow Films v iiNet [2011]

A

Facts: Peer-to-peer file-sharing considerations. Argued that the users of peer-to-peer file sharing was authorised by iiNet.

Reason: No need to show that the film had been transmitted or transferred. Just had to show the user had made the file available.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

s36(1)

A

Copyright is infringed by authorising another person to do an infringing act without the licence of the owner

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

University of New South Wales v Moorhouse and Angus & Robertson (1975)

A

High Court held that the actions of the UNSW:
Made a photocopier available
No restrictions on access
No adequate measures to prevent infringement of copyright

Amounted to authorisation of the students infringing copying

“express or formal permission or sanction, or active conduct indicating approval, is not essential to constitute an authorisation; inactivity or indifference, authorisation or permission may be inferred”

“authorise connotes a mental element, and it could not be inferred… mere inactivity, authorised something to be done if he neither knew nor had reason to suspect that the act might be done”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

s31(1A)

A

Codification of Moorhouse

Authorisation:
Extent (if any) of the power to prevent the doing of the act concerned
Nature of any relationship; and
Reasonable steps to prevent or avoid the doing of the act

17
Q

Authorising infringement:

Universal Music Australia v Cooper [2005]

A

Court held that both the website operator and ISP had authorised copyright infringement

Website was established to skirt copyright

18
Q

Universal Music v Sharman (2005)

A

Facts: “Join the revolution”. Small print was ineffective. Financial interest in increased usage. Lack of any filtering mechanisms.

Held: Found to authorise infringement

Reason: Parliament intended to “protect the messenger”, only to the extent indicated by the act. However, courts found Sharman was far more than a messenger.

19
Q

Safe harbour

A

Implemented by US FTA Implementation Act

Limited remedies for Carriage Service Providers (CSP’s) carrying out:
Providing facilities or services for transmitting/routing copyright material
Caching copyright material through an automatic process
Storing, at the direction of a user, copyright material
Referring users to an online location

20
Q

s116AH(1)

A

To qualify for safe harbour, CSP must comply with these conditions:

Adapt and implement a policy for terminating accounts of repeat infringers

Comply with the provisions of any relevant industry codes

21
Q

Safe harbour:

Roadshow Films v iiNet [2011]

A

Safe harbour provisions not satisfied by iiNet

Did not have a repeat infringer termination policy in place

Mere internal discussions not sufficient

22
Q

CCH Canadian Ltd v Law Society of Upper Canada - Canadian Case

A

“Fair dealing exception is more properly understood. Any act falling within the fair dealing exception will not be an infringement of copyright. Fair dealing exception is a users right. In order to maintain the proper balance it must not be interpreted restrictively.”

23
Q

s40(1), s103C(1)

A

Fair dealing exceptions:

Research or study
Criticism or review
Parody or satire
Reporting the news
Judicial proceedings
Legal advice
24
Q

Criticism/Review Exception:

Channel Nine v Network Ten [2001]

A

Words of “wide and indefinite scope which should be interpreted liberally”
Extends to the “thoughts underlying expression”
Involving passing of judgement - must be genuine and not a pretence for some other purpose

25
Q

News Exception:

Channel Nice v Network Ten (2001)

A

News reported with humour still falls within the ambit of fair dealing provisions

26
Q

Royalty Free Exceptions

A 
School performances
Hotels and guest houses
Public sculptures, buildings
Technical process of communication
Temporary reproduction during technical process
Software
27
Q

s111

A

Time shifting

Not an infringement to make film or sound recording of a broadcast solely for private and domestic use to watch at a more convenient time than when the broadcast was made

28
Q

s109A

A

Device shifting

Enables the owner of a copy of a sound recording to make a copy for their private/domestic use

29
Q

s100AA

A

Format shifting

Allows the owner of copyright to reproduce or make a copy in different form:
Books, newspapers and periodicals - reproduced in any format
Photographs - in digital form
Cinema fils - reproduced in any form

30
Q

NRL v Singtel Optus [2012]

A

Facts: Cloud based technology that allowed for recordings to be accessed by clients on mobile devices. Some could even watch it live, with a few second delay.

Issue: Did this fall within new provisions

Held: Optus was in breach

Reason: Maker was OptusTV in conjunction with users. Optus was not making recordings for private or domestic use, so could not take advantage of new provisions.

31
Q

Civil Remedies

A

Injunction
Damages
Account of Profits
Punitive Damages

32
Q

s115(4)(b)

A

In determining damages court has regard to:

Flagrancy of infringement
Need to deter similar infringements
Conduct of the defendant
Whether involved a conversion
Any benefit shown to have accrued to the df
All other relevant matters
33
Q

s202

A

Person aggrieved may seek declaration, injunction or damages for any unjustified/groundless threat

Df may counterclaim for infringement

34
Q

s202(2)

A

Notification of existence of copyright is not a threat

35
Q

Offences

A

Three types of offences:

Indictable (100k, 500k, 5 years)
Summary (fine or 2 years)
Strict Liability (fine and forfeit)

Intellectual Property (3 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions