Therese Catanzariti

separate copyright from the chattel right
◦ Pacific Film Laboratories Pty Ltd v. Commissioner of
Taxation (1970) 121 CLR 154
◦ re Dickens, Dickens v Hawksley [1935] 1 Ch, 267
Therese Catanzariti
11/3/09
2
Copyright only protects the
particular way that the idea is
expressed
 NOT an accounting system
– Baker v Selden
 NOT how to make rabbit’s pie
 NOT who won the horse race
- Victoria Park Racing v Taylor (1937) 58

CLR 479
Therese Catanzariti
11/3/09
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
Donoghue v. Allied Newspapers Ltd

a jockey is paid for a series of interviews
published by the interviewing journalist

Jockey can’t stop publication of articles based
on these interviews

Jockey provided the ideas – but jockey didn’t

journalist wrote the ideas down so journalist
create the written form
is the author and owns the copyright
Therese Catanzariti
11/3/09
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

whether a physical object is an infringing copy of a
drawing depicting the object
“Of course, it is trite law that there is no copyright in
ideas, and it may be that if all the respondents were
shown to have copied from the appellants was the
idea of some sort of external latching of the moulded
corner pieces and clips to the extrusions this would
have been a sound enough conclusion. But, of course,
as the late Professor Joad used to observe, it all
depends on what you mean by “ideas.” What the
respondents in fact copied from the appellants was
no mere general idea” – Lord Hailsham
Therese Catanzariti
5





A television show
A television show set in an office
A television show set in an office with a really
smarmy boss
A television show set in an office with a really
smarmy boss and an “everyman” character
A television show set in an office with a really
smarmy boss an an everyman character which
is shot in mock documentary style
Therese Catanzariti
11/3/09
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1
2
3
4
5
6
7
8
9
Idyllic beach town setting
Untroubled by sharks
Person in water vanishes
Audience aware of big
shark
Townsfolk unaware of
shark
It dawns on some townsfolk
There’s
conflict/suppression
Proper precautions not
taken
Shark attacks made public
10 Posse try to catch/kill it
11 Measures inadequate
12 They think normal shark
13 Audience knows big
shark
14 Townsfolk ‘cop on’
15 Fearless fisherman called
16 Fisherman hunts shark
17 Shark eats fisherman
18 But shark is blown up
7

“The exclusive rights comprised in the
copyright in an original work subsist by
reason of the relevant fixation of the original
work of the author in a material form. To
proceed without identifying the work in suit
and without informing the enquiry by
identifying the author and the relevant time
of making or first publication, may cause the
formulation of the issues presented to the
court to go awry.”
Gummow, Hayne, Heydon at para 109
Therese Catanzariti/
Professor Natalie Stoianoff
19/3/11
8
Original works in which copyright subsists
(1) Subject to this Act, copyright subsists in an original literary, dramatic,
musical or artistic work that is unpublished and of which the author:
(a) was a qualified person at the time when the work was
made; or
(b) if the making of the work extended over a period--was a
qualified person for a substantial part of that period
(2) Subject to this Act, where an original literary, dramatic, musical or
artistic work has been published:
(a) copyright subsists in the work; or
(b) if copyright in the work subsisted immediately before its first
publication--copyright continues to subsist in the work; if, but only if:
(c) the first publication of the work took place in Australia;
(d) the author of the work was a qualified person at the time when the
work was first published; or
(e) the author died before that time but was a qualified person
immediately before his or her death.
Therese Catanzariti
Professor Natalie Stoianoff
19/3/11
9

connecting factors

Subject matter

material form

originality

duration
Therese Catanzariti
10

first published in Australia

national/resident in Australia



Copyright (International Protection)
Regulations
first published in Convention country
national / resident of Convention Country
Therese Catanzariti
11/3/09
11

I will treat your citizens and residents
just like I treat my own
 even if you have more rights and more



protection in your home country
even if you have less rights and less
protection in your country
contrast reciprocity
You only get what you get at home
Therese Catanzariti
Professor Natalie Stoianoff
11/3/11
12






literary, artistic, musical, dramatic
sound recordings, films, broadcasts,
published editions
NOT
NOT
NOT
NOT
fashion designs (contrast France)
boat hulls (contrast US)
circuit layouts
database (contrast Europe)
Therese Catanzariti
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



Work must be recorded in material form
Copyright protects expression not idea
“material form” - any form of storage
includes temporary storage (eg computer RAM)
Nine Network Australia Pty Limited v Australian
Broadcasting Corporation (Y2K fireworks)
2000 48 IPR 335

Therese Catanzariti
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
Originate from author, not creativity, novelty, merit
Some intellectual effort

Link to authorship

Link to infringement
Whether copied / communicated “substantial part”
Substantial part assessed by originality of what taken



Therese Catanzariti
Professor Natalie Stoianoff
19/3/11
15
The word “original” does not in this connection
mean that the work must be the expression of
original or inventive thought. Copyright Acts are
not concerned with the originality of ideas, but
with the expression of thought, and, in the case of
“literary work”, with the expression of thought in
print or writing. The originality which is required
relates to the expression of the thought. But the
Act does not require that the expression must be in
an original or novel form, but that the work must
not be copied from another work — that it should
originate from the author.
Therese Catanzariti
Professor Natalie Stoianoff
19/3/11
16


French, Crennan, Kiefel at para 33
The requirement for copyright subsistence that a literary work be
"original" was first introduced into the Copyright Act 1911 (Imp),
although it had already been recognised at common law.
Originality for this purpose requires that the literary work in
question originated with the author and that it was not merely
copied from another work. It is the author or joint authors who
bring into existence the work protected by the Act. In that
context, originality means that the creation (ie the production) of
the work required some independent intellectual effort, but
neither literary merit nor novelty or inventiveness as required in
patent law.
There has been a long held assumption in copyright law that
"authorship" and "original work" are correlatives

The requirement of the Act is only that the work originates with
an author or joint authors from some independent intellectual
effort.
Therese Catanzariti
Professor Natalie Stoianoff
19/3/11
17

skill, labour and effort- industrious collection, sweat of the
brow
Some intellectual effort

Walter v Lane – shorthand verbatim transcript of public




speech, skilled and time consuming activity, more mere
transcribing or writing from dictation
University of London Press – maths exam papers, drew upon
the stock of knowledge common to mathematicians, small
amount of time preparing questions, common type of
questions
Ladbroke (Football) Ltd – football coupons, more than
negligible work, labour or skill
A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd
(1996) – motor spare parts catalogue, indexing not unique
but work putting catalogue together
Therese Catanzariti
Professor Natalie Stoianoff
19/3/11
18

Feist v Rural Telephone (US) – required some modicum of

Desktop Marketing v Telstra (Full FC) – industrious collection,


creativity, not just sweat of the brow
undertaken substantial labour and incurred substantial
expense
Icetv v Nine (Telstra as amicus) - independent intellectual
effort
“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. These reasons explain the
need to treat with some caution the emphasis in Desktop
Marketing upon "labour and expense" per se and upon
misappropriation.”
Telstra v Phone Directories – no human author
Therese Catanzariti
Professor Natalie Stoianoff
19/3/11
19