Therese Catanzariti 1
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Therese Catanzariti Therese Catanzariti 1 Therese Catanzariti 2 Works – section 32 literary works dramatic works musical works artistic works Part IV other subject matter Sound recordings – s 85 Cinematographic films – s 86 Television broadcasts and sound broadcasts – s 87 Published editions of works - s 88 Subject matter may include works ◦ film includes script, costume designs, song ◦ sound recording include music and lyrics Therese Catanzariti 3 sometimes stretched Computer program – literary work Computer game – cinematograph film Electronic poker machine game – cinematograph film?? Fireworks display schedule – dramatic work?? contrast ◦ France (fashion designs) ◦ US (boat hull) Therese Catanzariti 4 May be short “literary work” includes: Japanese haiku 5/ 7 / 5 Mohammed Ali – “Me / We” (a) a table, or compilation, expressed in words, figures or symbols; and (b) a computer program or compilation of computer programs don’t need literary merit bills of sale, exam papers, computer compression table, betting coupon, weight watcher’s program, railway timetables, compatibility table printers and toners Therese Catanzariti 5 Hollinrake v Truswell – cut-out of woman’s arm ◦ “literary work is intended to afford either information and instruction, or pleasure, in the form of literary enjoyment”. Exxon Corporation – one word “Exxon” ◦ needs to be “original literary work” ◦ not just original and literary (in writing) ◦ Convey no meaning and suggest nothing in itself Elwood v Cotton On – words / numbers suggesting US college teams ◦ Such semiotic meaning as the words and numbers convey (they do convey such meaning to some extent, being well recognised symbols that "stand for" something else) is so insubstantial and vague that they do not constitute literary works. Fairfax v Reed – newspaper headlines ◦ too slight, insubstantial and too short to qualify as literary works ◦ May represent only facts and ideas ◦ Metawork of information about work, not work itself Therese Catanzariti 6 7 Therese Catanzariti 7 Computer Edge v Apple – literary work included computer program Digital Agenda reforms (2000) expressly include computer program Computer program: ◦ set of statements or instructions to be used in a computer to bring about a certain result, ie, the language not the application is protected. NOT include data / content in program – AVRA v Warners NOT include functions / language – Data Access Therese Catanzariti 8 software tools to write code - C++ tools But a computer program is a tool and it is natural to think that the author of a work generated by a computer program will ordinarily be the person in control of that program. However, care must taken to ensure that the efforts of that person can be seen as being directed to the reduction of a work into a material form. Software comes in a variety of forms and the tasks performed by it range from the trivial to the substantial. So long as the person controlling the program can be seen as directing or fashioning the material form of the work there is no particular danger in viewing that person as the work’s author. But there will be cases where the person operating a program is not controlling the nature of the material form produced by it and in those cases that person will not contribute sufficient independent intellectual effort or sufficient effort of a literary nature to the creation of that form to constitute that person as its author: a plane with its autopilot engaged is flying itself. In such cases, the performance by a computer of functions ordinarily performed by human authors will mean that copyright does not subsist in the work thus created. Telstra v Phone Directories (2010) 194 FCR 142 per Perram J at [118] Therese Catanzariti, 13 Wentworth Chambers (c) 2014 includes choreographic or “other dumb show”, and a scenario or script for a film (s.10(1)) choreagraphic work – Laban notation Intended to be performed or presented (Ricketson) Jesus Christ Superstar – originally no stage show The Kings Speech – first performance was a readthrough Therese Catanzariti 10 Norowzian v Ark Ltd Aristocrat Leisure Industries Pty Ltd v Pacific Gaming Pty Ltd ◦ Jump cut edited tv commercial can’t be performed ◦ written specifications of digital poker machine not dramatic work ◦ Lack element of performance ◦ Australian Olympic Committee Inc v Big Fights Inc Nine v ABC (Year 2000 fireworks) (1999) ◦ action must be staged, contrived or directed ◦ not simply recorded, so no copyright in sporting events ◦ schedule how fireworks would be performed ◦ interlocutory so bal of convenience ◦ dramatic work “not strong” as may be discrepancy between what planned and what happen - performance may not comply with script Therese Catanzariti 11 Endemol – Big Brother BBC Worldwide – The Office Shine – Masterchef, Biggest Loser (sold to News US $690M) format rights – combination copyright /confidential information Green v Broadcast Corp of NZ (1989) “clapometer” “make up your mind time a dramatic work must have sufficient unity to be capable of performance and that the features claimed as constituting the ‘format’ of a television show, being unrelated to each other except as accessories to be used in presentation of some other dramatic or musical performance, lack that essential characteristic Therese Catanzariti 12 distinct from ◦ lyrics – literary work ◦ sound recording – other subject matter “sound recording” ◦ performance – performer’s rights can include adaptations, arrangements, samples if sufficient originality CBS Records Australia Ltd v Guy Gross ◦ Colette, demo of “Ring My Bell” ◦ arrangement not sufficiently original to be new original work Therese Catanzariti 13 paintings, sculptures, drawings, engravings, photographs; buildings and models of buildings. works of artistic craftsmanship; not circuit layouts no need for ‘artistic quality’ unless work of artistic craftsmanship. Therese Catanzariti 14 Millar and Lange Ltd v Polak Roland Corporation v Lorenzo ◦ Logo Elwood v Cotton On ◦ Stylised representation of a single letter on a Christmas card ◦ Lott v JBW & Friends- “Opera In The Outback” ◦ Four words as part of a graphic ◦ Where words and numerals used for visual look and feel not semiotic reasons Therese Catanzariti 15 Cotton On Elwood Therese Catanzariti 16 NZ Ct Appeal: Lincoln Industries case (plastic frisbee) Greenfield Products v Rover-Scott Bonnar (moulds for pulleys and clutch plates for ride on mower) Copyright Act not distinguish between industrial and aesthetic works but limited protection for registerable designs Sculpture as haphazard collection of items Tracy Emin – “My Bed” (shortlisted Turner Prize) Arte povera– 1960’s radical artists using found objects Joseph Beuys – Tate Modern, Kunstmusem Liechtenstein Creation Records v Newsgroup Newspapers – Oasis cover scene itself not copyright and merely assembly of ‘objets trouvés. Photograph not copy of official photograph, but merely shot of same scene Therese Catanzariti 17 Therese Catanzariti 18 Therese Catanzariti 19 arts and crafts movement / anti-industrial John Ruskin, William Morris, Tiffany – V&A Needs artistic quality exception to copyright – design overlap George Hensher v Restawhile – chicken wire Coogi v Hysport- commercial fabric Burge v Swarbrick –plugs and mouldings prototype ◦ doesn’t need to be handmade ◦ whether artistic expression unconstrained by functional concerns Therese Catanzariti 20 “wall of sound” Phil Spector Stock Aitken Waterman – record music using synthesisers, drum machines, sequencers and vocal track sound recording - aggregate of the sounds embodied in a record – s10 record – disc, tape, paper, electronic file or other device in which the sounds are embodied – s10 Therese Catanzariti 21 mobile phone ringtones ◦ monophonic instrumental ◦ polyphonic instrumental ◦ truetones Sound recording associated with a film is deemed not to be a sound recording but forms part of the cinematographic film - s 23(1) PPCA v FACTS –exists and entitled to copyright Therese Catanzariti 22 Aggregate of visual images embodied in an article capable of being shown as a moving picture Galaxy Electronics Pty Ltd v Sega Enterprises ◦ Computer game held to be cinematograph film ◦ even though order of play could change with each game ◦ because limitations in the range of outcomes preconceived by the authors Aristocrat v Pacific Gaming ◦ Pacific Gaming conceded that poker machine game was film ◦ may not be because need real progression France - film is “work” not “other subject matter“ Therese Catanzariti 23 Published editions of works – includes newspapers, magazines and books Presentation, layout, typographical arrangement Not defined in Copyright Act Nationwide News Ltd v Copyright Agency Ltd “protects the presentation embodied in the edition” US – West Publishing – page numbers of legal reports Therese Catanzariti 24 A communication to the public delivered by a broadcasting service free to air / cable, subscription/ non-subscription Protects act of communication NOT the work Protects the broadcast signal Network Ten Pty Ltd v TCN Channel Nine Pty Ltd ◦ “The Panel” re-broadcast extract from Alan Border Medal Dinner ◦ Trial judge held every minute was a broadcast but if broadcast 24/7 no start or end ◦ HC held that the broadcast was each program not every signal Therese Catanzariti 25 Therese Catanzariti 26 Generally works – life + 70 years Printed editions of works - 25 years Films – 70 years Sound recordings - 70 years TV & sound broadcasts – 50 years Therese Catanzariti 27 Used to be life + 50 / 50 years European law harmonised up to maximum (Germany was 70 years) US Sonny Bono Act (catalyst Steamboat Willie expiring??) Australia signed US/Australia Free Trade Agreement Is this appropriate for computer programs? Information sheets? Industrial drawings? Therese Catanzariti 28 Therese Catanzariti 29 Owner – author lit, dram, musical or artistic– s35 photo – person who took the photograph – s10 author has to be an individual Telstra v Phone Directories Company no human author of white and yellow pages contrast s178 Copyright Designs Patents Act (Eng) Computer generated work – work generated by computer in circumstances no human author of work Therese Catanzariti 30 “work of joint authorship – work produced by the collaboration of two or more authors where contribution of each not separate from contribution of other authors joint author’s contribution not distinct from other author/s - all authors write each chapter not each author write separate chapters Primary Health Care v Commissioner of Taxation “consultation notes and history of a patient where entries made by more than one doctor, could be seen as forming a continuous narrative with the patient as its subject, but the individual entries are separate and distinct and not the result of collaboration between the doctors” Therese Catanzariti 31 song publicly performed / communicated ◦ recording royalty for recording paid to PPCA (split performers/band and record company ◦ publishing royalty for musical work / literary work to APRA (split composer/lyricist and music publisher) Composer / lyricist royalties for cover versions Composer / lyricist one or two people original performers no royalties for cover versions band four or five people Fisher v Brooker – organist on “A Whiter Shade of Pale” joint author of musical work Hadley v Kemp – Spandau Ballet drummer joint author of “Glow” but saxophonist not joint author of “True” (saxophone solo 9% of song) Therese Catanzariti 32 Employees in course of employment – s35(6) Commission artistic work – s35(5) ◦ agreement for valuable consideration take photograph (private or domestic) paint or draw a portrait make engraving ◦ commissioner is owner of copyright ◦ if commission for particular purpose, author can restrain use for any other purpose unless otherwise agree Newspapers – s35(4) ◦ under terms of employment by the proprietor of a newspaper, magazine or similar periodical ◦ For purpose of including in newspaper, magazine or similar periodical ◦ Author is owner for reproduction in book or hard copy ◦ Newspaper is owner for other purposes unless otherwise agree Therese Catanzariti 33 degree of control the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work provision for holidays, the deduction of income tax delegation of work by the putative employee Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at [9] per Mason J Therese Catanzariti, 13 Wentworth Chambers (c) 2014 Hinkley wrote a class library “App Warrior” Using work computer and work computer tools At odd hours (but he used to work at RedRock during odd hours of the day and night) Hinkley used AppWarrior so he could finish his Redrock work within 2 hours – and spent the rest of his time mucking around on discussion boards Hinkley joined Hotline Communications, got venture capital and assigned AppWarrior Redrock claimed AppWarrior Therese Catanzariti 35 legal authority to control, while remaining relevant and indeed often decisive, is no longer the sole determining factor when assessing whether a person is employed under a contract of service, in particular where that person exercises a high degree of professional skill and expertise in the performance of his or her duties as a skilled Macintosh technician employed to fill a gap in Redrock's technical staff, it could be expected that even as an employee he would be given a great deal of latitude on a fixed salary, from which group tax was deducted signed ATO employee Declaration entitled to annual leave, to sick leave and to long service leave. superannuation contributions were made by Redrock on his behalf. Provided necessary equipment and programs specially purchased to assist writing software for the company Provide Internet access to download manuals, information or software as needed. Redrock Holdings v Hinkley [2001] VSC 91 at [20] to [23] per Harper J Therese Catanzariti, 13 Wentworth Chambers (c) 2014 School Organisational Health Questionnaire 57 questions in 12 modules Measure teacher morale and school organisational climate ACER/Independent Schools Victoria reproduce 25 questions in Building Educational Effectiveness project Therese Catanzariti 37 Dr Hart, psychologist was the author Dr Hart employed by Victorian Dept Education on teacher stress project based on research data collected from 1,520 Victorian teachers from 18 primary and 26 secondary schools making survey not part of his employment, not required to produce it even tho not made outside working hours agreement between Dept and Hart that Dept could use questionaire and he could use Dept data mean that questionaire not part of employment Not Crown copyright because not directed to make it Therese Catanzariti 38 Contract for service or services sub-contractor s/he started here a while ago, we pay workers comp and super and holidays, s/he gives us invoices with ABNs, we pay per hour, we don’t deduct PAYG sole shareholder/director Group certificates PAYG statements Tax returns Superannuation contributions Workers compensation equitable ownership? Therese Catanzariti, 13 Wentworth Chambers (c) 2014 Maker is person who owns the record on which recording is made (and the performer if a live performance) – s22(3) and (3A) Person who paid if recording made pursuant to agreement for valuable consideration Employer if performer of live performance is employee Crown if made under Crown’s direction – s178 International organisation if made under its direction – s188 Therese Catanzariti 40 Maker including director Maker doing the things necessary for the production of the first copy of film – s 22(4) Person who paid if recording made pursuant to agreement for valuable consideration Employer if director directed film pursuant to employment contract is employee Crown if made under Crown’s direction – s178 International organisation if made under its direction – s188 contrast France – L113.7 – authorship of audiovisual work belongs to natural persons who have carried out intellectual creation of work rebuttable presumption - author of screenplay, author of adaptation, author of dialogue, composer of music created for the film, director, author of underlying work (novel) Therese Catanzariti 41 broadcast of NRL football game record broadcast on mobile phone to watch later Who was the maker of the copy of the broadcast TJ – the subscriber Full FC – Optus and subscriber Full FC – “It equally is not apparent to us why a person who designs and operates a wholly automated copying system ought as of course not be treated as a “maker” of an infringing copy where the system itself is configured designedly so as to respond to a third party command to make that copy” Therese Catanzariti 42 Therese Catanzariti 43 76 - The subscriber, by selecting the programme to be copied and by confirming that it is to be copied, can properly be said to be the person who instigates the copying. Yet it is Optus which effects it. Without the concerted actions of both there would be no copy made of a football match for the subscriber. Without the subscriber’s involvement, nothing would be created; without Optus’ involvement nothing would be copied. They have needed to act in concert to produce – they each have contributed to – a commonly desired outcome. The subscriber’s contributing acts were envisaged by the contractual terms and conditions. How they were to be done were indicated by the prompts given on the Optus TV Now TV guide page. The common design – the production of the selected programme for transmission to the subscriber – informed the solicitation and the taking of a subscription by the subscriber; it was immanent in the service to be provided. Therese Catanzariti 44 infringement if exercise copyright without owner’s licence do or authorise the doing of an act comprised in copyright In Australia without being the owner or having the owner’s licence Therese Catanzariti 45 Therese Catanzariti 46 Works - s.31(1) Sound recordings - s.85(1) Cinematographic film - s.86(1) Television and sound broadcasts - s.87(1) Printed editions - s.88(1) Therese Catanzariti 47 to reproduce the work in a material form; to publish the work; to perform the work in public; to communicate the work to the public; to make an adaptation of the work to enter into a commercial rental arrangement in respect of the work Therese Catanzariti 48 to make a copy to cause it to be performed in public to communicate to the public to enter into a commercial rental arrangement in respect of sound recording to make a film or sound recording of a broadcast (sound recording/ film / published edition) (film/sound recording); (film/sound recording / broadcast); Therese Catanzariti 49 Works = > reproduced Other subject matter => make a copy Reproduction broader making a copy CBS Records Australia v Telmak Teleproducts - must take actual sounds – not making a copy sound recording if create something that sounds like sound recording not cover sound alike recordings muzak, polyphonic ringtones Therese Catanzariti 50 May not look the same May be in different dimension Reproduce work if make a film or sound recording of work – s21(1) Reproduce paper script by creating film Reproduce artistic work if make 3D version of it – s21(3) King Features v Kleeman (Popeye case) – make a doll of the cartoon drawing Lend Lease v Warrigal Homes - build building based on architecture plans LB Plastics v Swish – reproduce drawer design Therese Catanzariti 51 Translation of a literary work Dramatic version of a non-dramatic literary work Non-dramatic version of a dramatic literary work Picture version of a literary work In relation to computer programs, a version of the work not being a reproduction of the work In relation to musical works, an arrangement or transcription. Therese Catanzariti 52 A work is deemed to have been published if reproductions of the work or edition have been supplied (whether by sale or otherwise) to the public – s29 definition only applies for determining if work is published or unpublished to fix subsistence Avel Pty Ltd v Multicoin Amusements Pty Ltd “to publish” as an exclusive right is to make public that which has not previously been made public in the copyright territory Therese Catanzariti 53 doesn’t need to be in Martin Place copyright owner’s public analyse audience: were the persons bound together by ◦ domestic or private tie (ie family reunion), or ◦ aspect of their public life (ie employment) APRA v Tolbush – chain of automative equipment shops used car radio in car showroom to show how car works / radio fixed APRA v Canterbury Bankstown Leagues Club – perform music in bar APRA v Commonwealth Bank – bank played short video to its employees including 25 seconds of soundtrack contrast US homestyle exception Therese Catanzariti 54 any mode of visual or aural presentation, whether or not by operation of a device doesn’t need to be live performance involving living performers before an audience Includes show a movie or play CD in public deems the occupier of a premises to be performing the work (or causing SR/CF to be seen/heard in public) where equipment for the performance is provided by or with the consent of the occupier Therese Catanzariti 55 Introduced in 2000 Digital Agenda reforms Intended technology neutral replacing broadcast to public / transmit cable Key difference is geography: Performances to geographically proximate audience (people gathered one place) Communications to geographically disparate audiences (people not gathered). Telstra Corporation Ltd v APRA (broadcast to the public) Telstra provide music on hold to callers including mobile phone users. Was this a broadcast ‘to the public’? Music on hold is an ‘adjunct to a commercial activity’, used to ‘entertain, placate or distract customers ... in a way hoped to be congenial to them’ A telephone conversation may be private. However, when callers are placed on hold they hear music because it is intended that any member of the public who calls the engaged number will hear the music Therese Catanzariti 56 "communicate" means make available online or made by the person responsible for determining the content of the communication – s22(6) Cooper v Universal Music Australia electronically transmit ‘making available’ – if making file available via peer to peer filesharing are you making available If you disconnect and then reconnect is that two infringements or one? Roadshow v iinet Is one computer or cluster of computers making available Therese Catanzariti 57 transmit ownership – s197 ◦ assignment ◦ Will ◦ Devolution by operation of law future copyright - vests when it comes into existence – s197 assignment must be in writing signed by copyright owner Insight IRC v ACER – agreement can’t refer to earlier oral agreement because can only assign in writing divisible / partial assignments or licences ◦ certain classes of rights; ◦ for a specified time; or ◦ for a specified geographical area Therese Catanzariti 58 Therese Catanzariti 59 permission or consent to do something sometimes implied when no written assignment may be revocable and subject to ◦ regular payments ◦ satisfying performance criteria does not create proprietary interest may not survive insolvency / bankruptcy Therese Catanzariti 60 Therese (licensor) grants Ian (licensee) the exclusive right (type of rights) in and to the work “Finland Stories” published by Federation Press in 2005 (work) to communicate the work to the public (rights) In Australia (area) for 10 years (term) Therese Catanzariti 61 in writing signed by owner/prospective owner – s10 authorised to do act of copyright to exclusion of all other persons (including copyright owner) may commence proceedings for infringement, conversion and detinue – s119 difference with assignment ◦ tax reasons (may not constitute a “disposal” for CGT ◦ may still be revocable ◦ may be subject to satisfying performance criteria Therese Catanzariti 62 Reasonable and equitable, obvious, and necessary for business efficacy BP Refinery v Hastings Shire Council, Codelfa v State Rail necessary to imply term for reasonable or effective operation of contract – Byrnes v Australian Airlines If engage someone to produce material then implied permission to use material in the manner and for the purpose in which and for which it was contemplated between the parties that it would be used at the time of the engagement - Beck v Montana Constructions Pty Ltd Therese Catanzariti 63 CAL v NSW Survey plans Licence only implied if necessary to do so – not necessary because statutory licence available Apotex v Sanofi Aventis long-standing and widespread practice to copy the originator’s PID when produce generic drug Infringer had onus to show a proper foundation for the implied licence TGA could accept different PID – TGA did not require evidence of practice equivocal Lack of objection is not enough for an implied licence May imply terms through custom and usage but only between industry counterparties not competing traders Therese Catanzariti 64 Therese Catanzariti 65 collecting societies Therese Catanzariti 66 CAL – Copyright Agency Limited (literary works) APRA – Australian Performing Right Association (musical works / lyrics) PPCA – Phonographic Performance Company of Australia (sound recordings ) Screenrights – audiovisual copyright society (films) Viscopy – Visual Arts Copyright Collecting Society (especially aboriginal art) Therese Catanzariti 67 authors weak bargaining position small marginal revenue = > little incentive for individual authors to enforce rights spread cost of enforcement over large number of authors BUT sampling system not reflect actual use BUT no right to refuse licence BUT overhead costs Therese Catanzariti 68 don’t need to search out owner of each copyright work standard terms bundled fee BUT monopoly – no room to negotiate Therese Catanzariti 69 Therese Catanzariti 70 Causal connection Objective similarity S. W. Hart v Edwards Hot Water Systems per Gibb CJ “In order for there to be a “reproduction” within the law of copyright, there must be an objective similarity between the two works and a causal connection between the plaintiff’s work and that of the defendant. Therese Catanzariti 71 actual derivation: only if copy the original work Copyright does not grant a monopoly No liability if independent creation Conscious or subconscious Francis Day Hunter v Bron – subconsious copying popular song “In A Little Spanish Town” EMI v Larrikin – flautist (Hams) no evidence Therese Catanzariti 72 catch red-handed? presumption – access + striking similarity can you can prove access? can prove indirect access through access to copy – King Features v Kleeman [1941] AC 417 73 Therese Catanzariti Copied directly from original work presumed if evidence of access + similarity access ◦ gave them a numbered copy of work ◦ visits from their IP address to yr website ◦ visitors book + visited yr gallery / workshop / showroom / display home striking similarity that precludes possibility of independent creation –Clarendon v Henley Arch Therese Catanzariti 74 reproduction through intermediate work Uncontentious when protected work, intermediate material and infringing work similar in kind (painting → photograph → painting) Contentious when intermediate material is different king of work such as written description Therese Catanzariti 75 King Features v Kleeman Created dolls and brooches based on cartoons Never saw original Popeye drawings that the cartoons were based on Frank Winstone v Plix Products never saw Plix kiwi pockets Created kiwi pockets based on description of Plix kiwi pockets in legislation Therese Catanzariti 76 Copyright protects reproducing or making a copy of the original expression So the new work needs to reproduce or be a copy No infringement if use ideas to create a work that is different Is there an overall resemblance between the 2 works? Therese Catanzariti 77 “Kookaburra sits in the old gumtree” is a short musical consisting of four bars in a major key Two bars are reproduced in a flute riff in the the pop song “Down Under” which is in a major key Melody is the same even though the harmony and the “feel” of the works are different, and pop song added extra notes Objective similarity is not determined by note for note comparison, but determined by ear and eye. The more simple the work, greater degree of taking required Therese Catanzariti 78 The ‘basic hook’ Therese Catanzariti 79 doing act in relation to a “work or other subject-matter” includes doing of act in relation to a substantial part of the work or other subject-matter don’t avoid copyright infringement by leaving out inessential parts Therese Catanzariti 80 Assessed by quality not quantity of what taken Ladbroke v William Hill is the part taken “novel or striking, or merely a commonplace arrangement of ordinary words or well-known data ‘Whether a part is substantial must be decided by its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected. Quality assessed by originality Data Access v. Powerflex consider “the originality of the part taken” to determine Reproduction of data irrelevant to structure, choice of commands, and combination of commands is unlikely to reproduce a substantial part Therese Catanzariti 81 Hawkes and Son (London) Ltd v. Paramount Film Service Ltd – Colonol Bogey’s March 20 sec of a 4 min musical work “would be recognised by any person”, is a “vital and an essential part”, contains the “principle air”. EMI Music v Larrikin - Kookaburra the first two bars are “the signature” of that work First thing you hear, so melody sticks in your head Therese Catanzariti 82 The ‘basic hook’ Therese Catanzariti 83 French / Crennan / Kiefel JJ “That facts are not protected is a crucial part of the balancing of competing policy considerations in copyright legislation. The information/expression dichotomy, in copyright law, is rooted in considerations of social utility. Copyright, being an exception to the law's general abhorrence of monopolies, does not confer a monopoly on facts or information because to do so would impede the reading public's access to and use of facts and information. Copyright is not given to reward work distinct from the production of a particular form of expression” (para 28) “the expression of the time and title information, in respect of each programme, is not a form of expression which requires particular mental effort or exertion. The way in which the information can be conveyed is very limited. Expressing a title of a programme to be broadcast merely requires knowledge of the title, generally bestowed by the producer of the programme rather than by a broadcaster of it. Expressing the time at which a programme is broadcast, for public consumption, can only practically be done in words or figures relating to a 12 or 24-hour time cycle for a day. The authors of the Weekly Schedule (or the Nine Database) had little, if any, choice in the particular form of expression adopted, as that expression was essentially dictated by the nature of the information. That expression lacks the requisite originality (in the sense explained) for the part to constitute a substantial part. “ (para 42) Therese Catanzariti 84 Gummow, Hayne, Heydon JJ substantiality depend on quality than quantity of what taken detailed and lengthy preparatory work was directed to business of Nine and irrelevant, and work done in creating guides involved extremely modest skill and labour don’t look at what copied to determine if this was original, but look to whole work to determine if what copied was substantial part of the whole work “in assessing the quality of the time and title information, as components of the Weekly Schedule, baldly stated matters of fact or intention are inseparable from and co-extensive with their expression. It is difficult to discern the expression of thought in statements of which programmes will be broadcast and when this will occur. If the facts be divorced from the other elements constituting the compilation in suit, as is the case with the use by IceTV of the time and title information, then it is difficult to treat the IceGuide as the reproduction of a substantial part of the Weekly Schedule in the qualitative sense required by the case law (para 170) Therese Catanzariti 85 Therese Catanzariti 86 Therese Catanzariti 87 Therese Catanzariti 88 Horizontal – literal copying Take part of the whole Vertical – non-literal copying Don’t copy word for word Take structure / hierachy Idea / expression dichotomy Therese Catanzariti 89 Trial Judge (Gordon J) ◦ The relevant original expression in the Elwood artistic work was in the ‘precise selection or arrangement of the various design elements’ and Cotton On had not reproduced a substantial part FCAFC ◦ Overturns – relevant original expression of the Elwood artistic work was in the overall ‘look and feel’ of the layout which had been substantially reproduced by Cotton On Therese Catanzariti 90 Cotton On Elwood Therese Catanzariti 91 Ladakh v Quick Fashion [2012] FCA 389 Ladakh owned butterfly pattern – Ladakh sent pattern to China, material and dresses made in China, dresses sent back to Ladakh Quick sold garments that reproduced the butterfly pattern – sourced from China BUT no evidence that Quick reproduced or authorised the reproduction in Australia China source said saw material in China possible leakage of artwork in China Therese Catanzariti 92 Knowledge not required for primary infringement Knowledge required for ◦ secondary infringement ◦ remedies s115(3)- additional damages for flagrant infringement of copyright S116(2) - conversion and detinue IceTV (Gummow, Hayne and Heydon JJ) may consider animus furandi Therese Catanzariti 93 Roadshow v iinet Bit-torrent – cluster communicate film one user only communicated a few files, though each file was critical NRL v Singtel Optus Optus maker or joint maker of copy of broadcast, even though subscriber click start Optus role pervasive, even though automated system – Optus created system to work in this way Therese Catanzariti 94 Importing, selling or otherwise dealing with ◦ articles that would infringe copyright if made in Australia - s 37+38 ◦ Pt IV subject-matter - s. 102 + 103 even tho may be genuine and not infringe copyright in place where they are made permitting infringing performance in place of public entertainment - s. 39 Therese Catanzariti 95 • can create territorial trade barriers because of the territorial divisibility of copyright – Parallel importation or the grey market – Interstate Parcel Express v Time-Life – Bailey (R & A) & Co Ltd v Boccaccio Pty Ltd (1986) 4 NSWLR 701 (Bailey’s Irish Cream label) • If these are genuine why should the copyright owner control their further exploitation – exhaustion of rights?? • Why might a copyright owner want to price or product discriminate in different territories? • Does DRM protect copyright or market segmentation? • Sony v Stevens – ACCC as amicus curiae Therese Catanzariti 96 authorise doing of any acts of copyright deep pockets easier to sue one than many Extent of power to prevent Nature of relationship btw person and person who did the act Whether person took reasonable steps including comply with industry code of conduct Therese Catanzariti 97 UNSW v Moorehouse Combination of library, computers, students Sanction, countenance or approve Roadshow v iinet need more than countenance no power to prevent infringement - power to terminate contract was too indirect reluctant to impose burden of checking whether infringing notices not clear Therese Catanzariti 98 NRL v Singtel Subscriber was time-shifting – no infringement to record broadcast – s111 If Optus authorising subscriber, then no infringement because subscriber not infringing NRL needed Optus to be joint maker not just authorising subscriber Therese Catanzariti 99 Therese Catanzariti 10 0 not copy whole or a substantial part defences to infringement ◦ ◦ ◦ ◦ Private copying Fair dealing Digital exceptions Other exceptions parallel imports no copyright protection registerable designs compulsory licence schemes Therese Catanzariti 10 1 time-shifting - s10(10), 111, 248A(1)(aaa) space-shifting - s. 109A ◦ recording broadcasts ◦ for replay at more convenient times - private & domestic use copying sound recordings for private & domestic use format shifting – s43C, 47J, 110AA ◦ Copying of other works etc from one format to another ◦ for private & domestic use Therese Catanzariti 10 2 ◦ “copyright law must be seen as credible. If the use of popular and widely owned technology is illegal, but everyone does it anyway, respect for the law is diluted… brings the law more into line with reasonable consumer behaviour… ordinary consumers should not be treated like copyright pirates” - Attorney General P Ruddock 16/2/2007 ◦ 109A - This section applies if the owner of a copy makes another copy of a sound recording from the earlier copy for the sole purpose of the owner’s private and domestic use ◦ NOT ripping a friend’s CD, downloading from the internet ◦ => most people are still pirates ◦ => Dallas Buyers Club case Therese Catanzariti 10 3 specific categories ◦ ◦ ◦ ◦ ◦ research or study – s40 criticism or review – s41 parody or satire – s41A reporting news – s42 professional advice by lawyer, patent or TM attorney – s43(2) onus on defendant to establish ◦ fall within category – work and purpose ◦ use is fair in all circumstances ◦ conditions have been satisfied (eg attribution) Therese Catanzariti 10 4 detailed consideration of factors Number / extent of quotations/extracts; The use of those quotations/extracts; Relative proportion - long extracts /short comments; Overall impression. ◦ Lord Denning in Hubbard v Vosper (approved by Beaumont J in De Garis case) ◦ May be a significant amount of the work Time Warner v Channel Four (Clockwork Orange) Therese Catanzariti 10 5 excerpts from 20 programs from Nine 8 seconds to – 42 seconds inaugural Allan Border Medal Dinner. Prime Minister singing “Happy Birthday” (Midday) rugby league player performing cartwheel after grand final victory (Wide World of Sports) re-enactment of stabbing (Australia’s Most Wanted) child yawning (Today Show) Therese Catanzariti 10 6 s.41 (works), s.103A(audio-visual items) relevant purpose is taker not ultimate users ◦ De Garis v Neville Jeffress Pidler Pty Ltd - commercial news clipping service some judgment or evaluation doesn’t have to criticise or review the work itself ◦ Pro Sieben Media v Carlton UK – criticise cheque book journalism and show 30 second extract of paid interview taking need not be solely for the relevant purpose Ten v Nine (the Panel case) need acknowledgement of source Therese Catanzariti 10 7 s.40 (works), s.103C(audio-visual items) not mere gathering of information / facts – De Garis relevant purpose is taker not ultimate users Librarians ◦ special provisions ◦ generally dealing with copyright material on behalf another person who will use that material for research and study - ss49-51, 110A Therese Catanzariti 10 8 Factors to take into account – s40(2),103C(2) ◦ purpose & character of dealing, ◦ nature of work/audio-visual item & its, availability, ◦ market effect of dealing, ◦ Amount / substantiality of part copied reasonable proportion: s.10(2)-(2C) reasonable portion s. 40 (3) – (8): 10% or single chapter Therese Catanzariti 10 9 reporting of news ◦ by newspaper, magazine or similar periodical:s.42(1)(a) & s.103B(1)(a) (sufficient acknowledgment required); or ◦ By means of communication or cinematographic film: s.42(1)(b) & s. 103B(1)(b) sufficient acknowledgement required broader than current events more than making reports available to others – De Garis news not entertainment – The Panel case (even tho more Americans get their news from Jon Stewart’s Daily Show than network news) Therese Catanzariti 11 0 introduced after The Panel case Australian Copyright Council Information Sheet: Making something funny is not enough – need to make some form of commentary (which may be implied) on the work you are using or on characteristics or actions such as vice or folly must still be fair author may still have a claim in moral rights Campbell v Acuff-Rose – 2 Live Crew rap version of Roy Orbison Pretty Woman Barnaby Joyce – Pistol and Boo http://www.theguardian.com/film/video/2015/may/17/a bc-insiders-pirates-carribean-barnaby-joyce-video Therese Catanzariti 11 1 Pretty Woman, walking down the street, Pretty Woman, girl, girl you look so sweet, Pretty Woman, you, you bring me down to that knee, Pretty Woman, you make me wanna beg please, Oh, Pretty Woman. Verse 2: [Fresh Kid Ice] Big hairy woman, you need to shave that stuff, Big hairy woman, you know I bet it's tough. Big hairy woman, all that hair ain't legit, 'Cause you look like Cousin It. Big hairy woman Verse 3: [Brother Marquis] Bald headed woman, girl your hair won't grow, Bald headed woman, you got a teeny weeny afro. Bald headed woman, you know your hair could look nice, Bald headed woman, first you got to roll it with rice. Bald headed woman, here let me get this uncle bens for ya, Ya know what I'm saying, its' better than Rice a Roni Oh, Bald headed woman Bridge: [Mr. Mixx] Big hairy woman, come on in, [Brother Marquis] And don't forget your bald headed friend [Luke] Hey Pretty Woman, let the boys jump in. Verse 4: [Mr. Mixx] Two timin' woman, girl you know you ain't right, Two timin' woman, you's out with my boy last night Two timin' woman, that takes a load off my mind, Two timin' woman, now I know the baby ain't mine Oh, Two timin' woman [All] Oh, Pretty Woman. Therese Catanzariti 11 2 Part of communication– s43A / s111A ◦ Temporary copies ◦ Made as part of technical process of making or receiving a communication Part of using a copy – s43B ◦ Temporary copies ◦ Made as part of technical process of using copy ◦ (because of expanded definition of material form) Part of running program– s47B ◦ Made as part of technical process of running copy of program for purpose for which it was designed Therese Catanzariti 11 3 Back up copy – s47C Reproduction to make interoperable products – s47D Reproduction to correct errors – s47E Reproduction for security testing – s47F agreement cannot exclude or limit rights Therese Catanzariti 11 4 painting, drawing, engraving or photograph ◦ artistic work situated other than temporarily in public place ◦ artistic work situated other than temporarily in premises open to public – s65 ◦ building or model of a building – s 66 including in film or television broadcast ◦ artistic work situated other than temporarily in public place ◦ artistic work situated other than temporarily in premises open to public – s65 ◦ building or model of a building – s 66 ◦ artistic work if inclusion only incidental to the principal matters represented in film or broadcast – s67 Therese Catanzariti 11 5 educational instruction – s200AB(3) person with disability – s200AB(4) library or archive – s200AB(2) ◦ purpose giving educational instruction ◦ by body administering educational institution ◦ Not made partly for commercial advantage or profit ◦ Use for person with disability (reading, seeing or hearing work) ◦ reproduction in form or with feature that reduces difficulty ◦ Use for purpose of maintaining or operating library or archive ◦ by body administering archive ◦ Not made partly for commercial advantage or profit Therese Catanzariti 11 6 parallel importation exceptions • books • legally made off-shore • not available in Australia within 90 days of placing order - s 44A, 112A (added in 1991) • accessory goods’ labels or packaging (an ‘accessory’ ) • goods labels or packaging – (added in 1998) • AND any copyright subject matter (other than a ‘feature film’ > 20mins) that is included with a computer program or an electronic literary or music item (added in 2003) • legally made off-shore • when imported or distributed with the goods - ss 44C, 112C Therese Catanzariti 11 7 • sound recordings • legally made off-shore - ss 44D, 112C (added in 1998) computer programs ◦ lawfully made off-shore - s 44E (added in 2003) ‘electronic literary or music item’ (e-books, e-mags, sheet music in electronic form) ◦ lawfully made off-shore - ss 44F, 112DA (added in 2003) Therese Catanzariti 11 8 Baileys Irish Cream case restrict parallel imports because of copyright in the label on a bottle of Bailey’s Irish cream section 44C copyright in non-infringing labels not infringed by importing article can’t use copyright to restrict parallel imports • Polo/Lauren (2008 FCAFC) – Logo was an “accessory” Therese Catanzariti 11 9 use by educational institutions & other ◦ Copy and communicate broadcasts – Part VA ◦ Copy and communicate works – Part VB certain uses in music industry ◦ cover songs (recording of published musical works and any associated lyrics) - s54- s64 ◦ causing sound recording to be heard in public – s108 ◦ Broadcast sound recordings – s109, s152 use by the Crown – s183, s183A retransmission of broadcasts – Part VC Therese Catanzariti 12 0 Therese Catanzariti 12 1 injunction Damages Conversion / detinue account of profits but need to take account of overheads / their contribution Dart v Décor (1993) 179 CLR 101 additional - section 115(3) Copyright Act Allam v Aristocrat – no proven, $450k additional Elwood v Cotton On - $120k lost profits, $150k additional Therese Catanzariti 12 2 compensate not punish – Elwood v Cotton On [2009] FCA 633 damage to IP as chose in action ◦ loss of reputation/exclusivity – Review v New Cover (2008) 79 IPR 236; Seafolly v Fewstone ◦ lost sales but discount because unlikely to purchase original because different target market / sales channels Review v Redberry [2008] FCA 1588 (90% discount) Digga v Norm (50% discount) Seafolly v Fewstone (75%) Elwood v Cotton On (66% discount) ◦ lost licence fee but competitor unlikely to license – Digga v Norm [2008] FCAFC 33 12 3 Therese Catanzariti Allam v Aristocrat Flagrant infringement for commercial gain deterrance and element of penalty need to mark court’s disapproval no requirement for proportionality between compensatory damages and additional damages $450,000 (but infringement not proven) Insight IP Holdings v ACER ACER commercialised questionaire for govt schools Knew that not permissible to use another’s work for commercial purposes without consent Dr Hart had meetings and told them couldn’t use it Flagrant breach of copyright Didn’t make profit but enhanced reputation and contacts Therese Catanzariti 12 4 Dynamic Supplies Pty Limited v Tonnex International Pty Limited (No 3) [2014] FCA 909 Compensatory damages $1 additional damages may be given on principles corresponding to those governing awards of aggravated and exemplary damages at common law tho sui generis and not limited to the circumstances in which aggravated and exemplary damages are recoverable in tort Section 115(4) factors not preconditions but court must have regard Flagrancy not established simply by copying a consciousness of wrongdoing, whether or not it also exhibits a consciousness of copyright infringement Benefit to infringer may include advantages even though no tangible financial benefit No need for additional damages to be proportional to compensatory damages Court may consider the burden that additional damages will visit on the infringer Therese Catanzariti, 13 Wentworth Chambers (c) 2014 Therese Catanzariti 12 6 Right of attribution Right not to have authorship falsely attributed Meskenas v ACP Publishing Painting of Dr Victor Chang in Womens Day nominal damages - $9,100 Right of integrity Right not to have work subjected to derogatory treatment Perez v Fernandez DJ Suave used Pitbull’s rap/hiphop and inserted audio drop of Pitbull endorsing DJ Suave Nominal damages - Therese Catanzariti 12 7 Therese Catanzariti 12 8 alleged infringer take action against threats made by way of “circulars, advertisements or otherwise” (eg letters of demand) alleged infringer can obtain ◦ declaration threats unjustifiable ◦ injunction against continuing threats ◦ damages unless satisfy court constitute copyright infringement Bell v Steele (No 2) FCA 62 – groundless Bell v Steele (No 3) FCA 246 ◦ Damages $147,000 ◦ Costs $22,224 Therese Catanzariti 12 9 Therese Catanzariti 13 0 Only applies to acts in Australia Indictable - up to 550 penalty units (5x if corporate) / 5 years Summary - up to 120 penalty units / 2 years Strict liability - up to 60 penalty units Commercial scale infringement – s132AC (USFTA) ◦ Commercial scale infringement ◦ substantial prejudicial impact on copyright owner – s132AC Infringing copies ◦ Making (132AD), selling or hiring (s132AE), offering for sale (132AF), exhibiting in public commercial (132AG), importing commercial (132AH), distributing (132AI), possessing for commerce (132AJ) Therese Catanzariti 13 1 Circumvention devices – s132APA – 132 APE provision of, commercial dealing in, manufacturing and importation of circumvention devices and broadcast decoding devices Electronic rights management information s 132AQ – s132AT Removal / alteration of ERMI Dealing with articles where ERMI removed / altered Therese Catanzariti 13 2
