Nick Dowse

COPYRIGHT
ELEMENTS SUMMARY
1. Does subsist? Is it Part 3 or Part 4? Original? Material form? Literary etc work? Connection with Australia? Sound recording, cinematographic film, TV or sound broadcast, published edition of a work? 2. Who owns the ? 3. Infringement? Direct, indirect infringement? Authorisation liability? Importation or sale? Moral and performers rights? 4. Defences and excuses? 5. Remedies

TABLE OF CONTENTS
EXAM FLOW (HOW TO ANSWER)...............................................................................2 SUBSISTENCE OF COPYRIGHT...................................................................................3 PART III: WORKS............................................................................................................................... 4 PART IV: SUBJECT MATTER OTHER THAN WORKS.......................................................................................11 DURATION OF COPYRIGHT......................................................................................13 OWNERSHIP OF COPYRIGHT...................................................................................14 PART III: WORKS........................................................................................................................... 14 PART IV: SUBJECT MATTER OTHER THAN WORKS.......................................................................................17 ASSIGNMENTS AND LICENCES................................................................................18 INFRINGEMENT OF COPYRIGHT...............................................................................20 PART III: WORKS DIRECT INFRINGEMENT..............................................................................................20 PART IV: SUBJECT MATTER OTHER THAN WORKS DIRECT INFRINGEMENT..........................................................23 AUTHORISATION INFRINGEMENT BOTH PART III AND PART IV MATERIAL.............................................................25 INDIRECT INFRINGEMENT BOTH PART III AND PART IV MATERIAL.....................................................................28 DEFENCES TO COPYRIGHT INFRINGEMENT..............................................................31 FAIR DEALING DEFENCES: BOTH PART III AND PART IV MATERIAL....................................................................31 SPECIFIC ROYALTY-FREE EXCEPTIONS: BOTH PART III AND PART IV MATERIAL.......................................................35 STATUTORY LICENCES: BOTH PART III AND PART IV MATERIAL.........................................................................36 REMEDIES FOR INFRINGEMENT OF COPYRIGHT........................................................38 TECHNOLOGICAL PREVENTION MEASURES..............................................................41 PERFORMERS RIGHTS...........................................................................................52 HEDGE NOTES DUMP................................................................................................................. 53 MORAL RIGHTS......................................................................................................58 CONCLUSION.........................................................................................................61

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EXAM FLOW (HOW TO ANSWER)

Does copyright subsist? o Part III is the work: original? expressed in a material form? a literary, dramatic, musical or artistic work? connected with Australia? o Part IV is it a sound recording, cinematographic film, television or sound broadcast, published edition of a work? Who owns copyright? o If under Part III, generally the author of the work owns first copyright. Check if any exceptions apply. o If under Part IV, identify relevant provision. o Has any assignment taken place, or has a licence been granted to the potential plaintiff? Has there been an infringement or threatened infringement of copyright? o Has there been a direct infringement or threatened infringement of a Part III or Part IV copyright?. o Has there been an authorisation of infringement or threatened infringement ? o Has there been an indirect infringement or threatened infringement importation or sale? Are there any excuses? o Check again for an assignment or license. o Is the copyright infringing conduct a fair dealing for one of the purposes in the Act? o Are any of the specific, royalty free exceptions or statutory licenses applicable? What remedies are available to each of the potential plaintiffs against each of the potential defendants? Have there been any breaches or potential breaches of moral rights which require consideration? Part IV Subject Matter Other Than Work Sound recordings Films TV and/or Sound broadcasts Published editions of works (in left column)

Part III Work Literary anything expressed in writing Dramatic choreographic show, scenario or script for film, dumb show (ie mime) Musical music notes, lyrics etc Artistic painting, sculpture, drawing, engraving, photograph, model of building, any artistic craftsmanship
Table 1: Material in which copyright can subsist

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SUBSISTENCE OF COPYRIGHT
The Copyright Act splits the material that can be protected by copyright into two types: Part 3 Works and Part 4 Subject Matter Other Than Works. Part 3 Works include: Anything written, expressed in writing (including coupons, forms, lists, computer programs etc) Dramatic works (like choreographed shows, scenarios or scripts for films, plays etc) Musical works Artistic works (like paintings, sculptures, models of buildings etc) Part 4 Subject Matter Other Than Works include: Sound recordings Films Television and sound broadcasts Published editions of works Once you have identified what type of material it is, follow the relevant flow below Part III Work Literary anything expressed in writing Dramatic choreographic show, scenario or script for film, dumb show (ie mime) Musical music notes, lyrics etc Artistic painting, sculpture, drawing, engraving, photograph, model of building, any artistic craftsmanship Part IV Subject Matter Other Than Work Sound recordings Films TV and/or Sound broadcasts Published editions of works (in left column)

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Part III: Works

1. For copyright to subsist in a work the conditions in s 32 must be satisfied. The work must be: a. Original; and b. Expressed in material form; and c. A literary, dramatic, musical or artistic work; and d. Have a connection with Australia. 2. Originality Requirement a. There is a threshold test for originality: the work must originate from the author, in the sense that it is the result of their skill, labour or judgment, and is not copied from another author. b. In IceTV, the HCA held that to be original, the expression must meet the threshold test and be brought about by some independent intellectual effort (IceTV v Nine @ [48]) i. The independent intellectual effort must be the effort required to reduce the skill and labour to writing (as opposed to the preparatory skill and labour) (IceTV @ [167]) c. The work need not be novel it need only be the result of the authors skill, labour or judgement i. University exam papers, nothing novel or inventive = subsisted because expression of idea was original (Uni of London Press v Uni Tutorial Press) ii. Map prepared from common stock of knowledge = subsisted because independent intellectual effort, judgment and discrimination had been applied to produce a map that was new in the requisite sense (Sands & McDougall v Robinson) iii. A masthead logo of a Chinese language newspaper = original because thought, skill and judgment went into the way the characters were expressed (Australian Chinese Newspapers v Melbourne Chinese Press) iv. Plastic price labelling tags = original artistic works (Dennison Manufacturing v Alfred Holt) d. So long as there is more than a trivial difference in the next edition of a work, copyright subsists in the new edition of the work. e. Originality: Compilations i. Compilations will attract if amount of skill, labour or judgment is expended, looking at the compilation as a whole. ii. Examples 1. Coupons with headings and blank squares for punters to fill out = original even though none of the component parts were original, need to look at finished product, skill was exerted in designing the coupon (Ladbroke v William Hill) 2. Selection and publication of seven tables of commonplace info = not original because common knowledge, insufficient degree of skill and labour by publisher (GA Cramp v Frank Smythson) 3. Chronological list of matches of the football = original because sufficient skill and labour involved in collecting etc (Football League v Littlewoods) 4. Blank accounting forms = original, sufficient effort in design (Kalamazoo v Compact Business Systems) f. Originality: Databases i. The issue here is generally whether or not a database of facts is sufficiently original to be afforded protection. ii. We have conflicting authority in Australia in Desktop Marketing and IceTV. iii. In Desktop Marketing it was said that: 1. Factual compilations may be protected merely on the basis that substantial Page 4 of 61

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labour and expense has been devoted to their creation. This was true even of a whole of universe compilation such as the White Pages, where there was no element of selectivity in the organisation or presentation of the data, and even though the labour and expense here had not so much gone into the collection of the data (which was in fact simply received from subscribers) as into the development of systems for its verification and storage. 2. The court noted that it was open to Desktop Marketing to obtain all the facts contained in the Telstra directories by its own independent inquiry, and produce its own compilation of the results. As long as there had been no copying of Telstras product by Desktop Marketing, there would be no copyright infringement. iv. However, in IceTV it was said that (@ [28]): 1. Copyright does not protect facts or information. 2. Copyright protects the particular form of expression of the information, namely the words, figures and symbols in which the pieces of information are expressed, and the selection and arrangement of that information. 3. That facts are not protected is a crucial part of the balancing of competing policy considerations in copyright legislation. 4. The information/expression dichotomy, in copyright law, is rooted in considerations of social utility. 5. 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. 6. Copyright is not given to reward work distinct from the production of a particular form of expression. v. In IceTV, the court did not expressly overrule Desktop Marketing but there is now a tension between the two decisions and Desktop Marketing does not appear to sit well with the ratio from IceTV. 3. Expressed in Material Form Requirement a. There must be a physical embodiment of the creation. b. The work must exist in a material form (s 32) c. The making of the work is at the time it is reduced to writing or some other material form (s 22(1)). d. Material form = in relation to a work or an adaptation of a work, includes any form (whether visible or not) of storage of the work or adaptation (whether or not the work or adaptation, or a substantial part of the work or adaptation can be reproduced): s 10(1) 4. Literary, Dramatic, Musical or Artistic Work Requirement a. To be a Part III work it must be a literary, dramatic, musical or artistic work. b. Literary Work i. Literary work includes (s 10): 1. a table, or compilation, expressed in words, figures or symbols (whether or not in a visible form); and 2. a computer program or compilation of computer programs. ii. A literary work is a work which is expressed in print or writing, irrespective of whether the quality or style of the expression is high (Uni of London Press v Uni Tutorial Press Ltd) iii. Examples: 1. football pool coupons (Ladbroke (Football) Ltd v William Hill (Football) Ltd) 2. a racing programme (Mander v OBrien) 3. chronological lists of football matches (Football League Ltd v. Littlewoods Pools Ltd) 4. lists of bingo numbers (Mirror Newspapers Ltd v Queensland Newspapers Ltd) 5. accounting forms (Kalamazoo (Aust.) Pty Ltd v Compact Business Systems Pty Ltd) Page 5 of 61

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iv. No copyright in NAMES and TITLES 1. Although considerable research, expense, labour etc might be expended on creating a name or title, it is not sufficiently substantial for to subsist (Exxon Co v Exxon Insurance) a. A single word may be capable of if it has qualities and characteristics in itself which would justify its recognition as an original literary work, as opposed to a merely invented word (@ 131). 2. However, in Francis Day v 20th Century Fox, could said that a name alone cannot possess copyright unless it is sufficiently original and distinctive. 3. Although may not be able to show subsistence, may be alternative actions available: a. Passing off (WH Allen v Brown Watson) b. Misleading or deceptive conduct under s 52/53 TPA (McWilliams Wines v McDonalds) i. Note: If the alleged infringers conduct is likely confuse people, this is not the same thing as being misled (which s 52/53 requires)! Need something more (Peter Black thinks this is an odd distinction, but what would he know?) v. Copyright subsists in COMPUTER PROGRAMS 1. However, prior to 1984 amendments, copyright did not subsist. a. Computer Edge Pty Ltd v Apple Computer Inc. i. Held, programs in object code (as opposed to source code) were not literary works. 2. The 1984 amendments provided that copyright subsists regardless of the code, language or notation used. a. Autodesk Inc v Dyason i. The plaintiff owned copyright in a drafting program used by architects and engineers called Autocad. It was sold with an electronic device, the Autolock, to attach to the computer. The program would not run without the Autolock, preventing its use on more than one computer at any one time. The defendant cracked the code and produced a device called Autokey, which performed the same function as the Autolock. ii. Held, defendant had infringed copyright in the Autocad by reproducing a substantial part of the program in the device. b. Data Access Corp v Powerflex Services Pty Ltd i. Data Access had copyright in a computer program Dataflex, used by programmers to develop databases. Dr Bennett created a program compatible with Dataflex, which was sold by Powerflex Services in competition with Dataflex. He did not have access to the Dataflex source code, not did he seek to decompile their program. ii. Held, no infringement of copyright except for the use of a Compression Table which merely reduced computer storage space. Observing a program and developing a similar program without copying the source code or decompiling the program will not infringe copyright. 3. Definition amended again in 2000 so that a computer program means a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. 4. Note the Copyright Amendment (Computer Programs) Act 1999, which introduced a new Division 4A into Part III of the Copyright Act 1968 Acts not constituting infringements of copyright in computer programs. The owner or licensee of a computer program does not infringe copyright by making a reproduction of the program: Page 6 of 61

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a. in the course of running the program for the purposes for which the program was designed, unless contrary to an express direction or license (s 47B(1) and (2)); b. in the course of running the program for the purpose of studying the ideas behind the program and the way it functions (s 47B(3)); c. for use in lieu of the original copy, or if the original copy is lost, destroyed or becomes unusable (s 47C); d. to obtain information necessary to make independently another program or article to interoperate with the original program any other program, but only to the extent (s 47D): i. reasonably necessary to obtain such information and to achieve such interoperability; and ii. the information was not readily available to the owner or licensee; e. for the purpose of correcting an error in the original copy which prevents the program from operating as intended by the author (s 47E); f. for the purpose of testing the security of the original copy or network or system of which the original copy is part (s 47F). c. Dramatic Works i. Dramatic works 1. Dramatic work includes (s 10(1)): a. a choreographic show or other dumb show; and b. a scenario or script for a cinematograph film, c. but does not include a cinematograph film as distinct from the scenario or script for a cinematograph film. 2. Copyright in a film is the subject of a separate copyright in Part IV. 3. The essential character of a dramatic work is that it is intended to be represented or performed in some way, for example, by acting or dancing. 4. A dramatic work must not only be intended to be performed, it must also be able to be performed. Disparate elements without sufficient unity do not amount to a dramatic work. a. Green v Broadcasting Corp. of New Zealand i. Hughey Green was the longstanding host of the British television talent quest Opportunity Knocks. Features of the show, such as the use of a clapometer and various catchphrases to address the audience and the competitors, were replicated by New Zealand television, without reference to Green. ii. Held, the repetitive elements alone did not constitute a dramatic work: by themselves, their performance was meaningless since the greater part of the show, which gave meaning to the different stock elements, consisted of audience participation, varying from program to program. 5. Public events may be dramatic works a. Nine Network Australia Pty Ltd v ABC i. The Nine Network had paid $450,000 towards the Council of the City of Sydneys fireworks display to welcome the new millennium. The Nine Network tried to restrain the ABC from broadcasting in Australia anything featuring the fireworks, the procession of lanterns on Sydney Harbour and decorations on the Harbour Bridge. ii. Held, Nines contention that the display and parade were dramatic works was not strong. 1. The schedule of the fireworks display would not be such Page 7 of 61

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a work, since the reduction to material form was fraught with difficulties as to whether the schedule would in practice be adhered according to the planned sequence. 2. It is, one would think, common place in at least a half of the present decade that firework shows with music are planned. It has never been suggested to my knowledge, and there is no reported case in which the matter has been subjected to legal analysis which has suggested that copyright subsists in a fireworks show set to music just because the sequence of events is scripted. That does not mean that copyright might not exist. It may merely be the result either of difficulties of enforcing the non filming of such events or it may be that no one has thought deeply about the issue. At the heart of the problem may well be that copyright is a monopolistic right existing not to protect ideas as such but the physical manifestation of some original literary, artistic or dramatic work. 3. Also, the ABC could probably have gone ahead as fair dealing for reporting the news. d. Musical Works i. The term musical work is not defined. ii. The adjective musical refers to the method of production and not to any artistic or aesthetic qualities which the work should possess. iii. Note distinction: here we are dealing with the written music, whereas the sound you hear would be protected under Part IV (below on page 11). e. Artistic Works i. Does not include a circuit layout within the meaning of the Circuit Layouts Act 1989 (Cth). ii. Artistic work includes (s 10(1)): 1. a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not; a. Paintings: i. Merchandising Corp of America v Harpbond 1. Adam Ant sought to protect his facial makeup as artistic work. 2. Held, although there was no statutory definition of painting, it is a word in the ordinary usage of the English language and it is a question of fact in any particular case whether the subject matter under discussion is a painting or not. A painting is not an idea, it is an object, and paint without a surface in permanent form is not fixed; hence, the claim failed. b. Drawings: i. Drawing is defined as including a diagram, map, chart or plan (s 10(1)). ii. Architects plans are artistic works. 1. Ancher, Mortlock, Murrary & Woolley Pty Ltd v Hooker Homes Pty Ltd c. Sculpture: i. Sculpture includes a cast or model made for purposes of sculpture (s 10(1)). ii. Lincoln Industries Ltd v Wham-O Manufacturing Co 1. Held, a wooden model produced for the manufacture of dies and moulds for the casting of frisbees was a Page 8 of 61

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sculpture. iii. Greenfield Products Pty Ltd v Rover-Scott Bonnar Ltd 1. Held, a mower clutch assembly was not a sculpture. 2. a building or a model of a building, whether the building or model is of artistic quality or not; a. Buildings: i. Building includes a structure of any kind (s 10(1)). ii. Half Court Tennis Pty Ltd v Seymour 1. Held, a half-tennis court was a building. iii. Darwin Fibreglass Pty Ltd v Kruhse Enterprises Pty Ltd 1. Held, a garden consisting of a layout including steps, walls, ponds and other structures in stone was a structure. b. Copyright subsists in: (s 32(3)) i. an original artistic work that is a building situated in Australia; or ii. an original artistic work that is attached to, or forms part of, such a building. 3. a work of artistic craftsmanship to which neither of the last two preceding paragraphs applies; 1. A work of artistic craftsmanship includes articles by craftsman jewelry, metalwork, pottery etc. 2. Traditional test whether the author in making the article had the main object of creating an article which will have a substantial appeal to the aesthetic tastes of those who observe them. a. Cuisenaire v Reed i. The issue was whether copyright subsisted in the Cuisenaire set of variously coloured tubes used for the purpose of teaching primary school children arithmetic as a work of artistic craftsmanship. ii. Held, no copyright subsisted as a work of artistic craftsmanship as cutting up pieces did not constitute craftsmanship and it wasnt a work of artistry. b. George Hensher Ltd v Restawhile Upholstery (Lancs.) Ltd i. The issue was whether copyright subsisted in a prototype of a furniture suite for manufacture as a work of artistic craftsmanship. It consisted of pieces of wood with canvas attached (no drawing). The design was boat shaped with a flimsy appearance. ii. Held, not artistic as there was evidence it was regarded as vulgar, brash and horrible. iii. Lord Morris: although the intention of the author may be provide a pointer (not decisive), it should be assessed in a detached and objective way. iv. Lord Reid: artistic if a substantial section of the public genuinely admires and values it for its appearance and gets pleasure or satisfaction, whether emotional or intellectual from looking at it, even though others may think it meaningless or vulgar. c. Whether there is sufficient aesthetic appeal is determined objectively cannot depend solely on the subjective intention of the author. i. Coogi Australia Pty Ltd v Hysport International Pty Ltd 3. Artistic craftsmanship that is mass produced? a. A work of artistic craftsmanship may be mass produced. b. Factory based products can be works of artistic Page 9 of 61

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craftsmanship need not be handmade, although the author must use a highly sophisticated machine with creative skill, knowledge, and pride in workmanship. c. A work of artistic craftsmanship need not be the product of a single person. d. Coogi Australia Pty Ltd v Hysport International Pty Ltd i. The plaintiff designed and manufactured a distinctive machine knitted fabric and garments highly textured surface, complex, abstract, multi-coloured design. The plaintiff alleged the defendant had infringed copyright: ii. in their XYZ designs contending work of artistic craftsmanship. iii. in computer program as a literary work used for manufacture by computerized knitting machines. iv. Held, although copyright subsisted, not infringed: stitching did not infringe, computer program obtained by reverse engineering to replicate. e. The two elements (artistic and craftsmanship) must be united in the same person (Burke & Margot Burke Ltd v Spicers Dress Designs) ii. The plaintiff, a dress designer, authored a sketch of a frock, worn on a young lady. The defendant copied the frock, on mass scale, based on the sketch. The plaintiff sought an injunction alleging infringement of copyright in the sketch as an artistic work and the frock as a work of artistic craftsmanship. iii. Held, no infringement of copyright because: 1. frock was not a reproduction of sketch as there was no visual resemblance 2. as the plaintiff did not make the frock, the artistic and craftsmanship elements were not united in the same person. 5. Connection to Australia Requirement a. The work must be sufficiently connected to Australia. b. Depends on whether or not the work is published i. A work is published if a reproduction of the work or edition has been supplied or otherwise to the public (s 29(1)(a)). c. If published i. the publication must have first took place in Australia; or ii. the author must be a qualified person when it was first published. 1. A qualified person is an Australian citizen, an Australian protected person, or a person resident in Australia (s 32(4)). iii. NOTE: first publication is deemed to be in Australia if a book is published in Australia within 30 days of publication overseas: s 29(5) d. If unpublished i. For unpublished works, the author must be a qualified person at the time it was made (s 32(1)). 1. If the making of the work extends over a period, the author must be a qualified person for a substantial part of that period (s 32(1)). 2. A qualified person is an Australian citizen, an Australian protected person, or a person resident in Australia (s 32(4)). 6. Conclusion a. If the above elements can be made out, copyright will subsist in the work.

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Part IV: Subject Matter Other Than Works

1. Copyright can also subsist in subject matter other than works. This includes a. sound recordings (s 89) b. cinematograph films (s 90) c. television and sound broadcasts (s 91) d. published editions of works (s 92) 2. There is no requirement for authorship or originality under this Part. The copyright here is in addition to and independent of any copyright that may subsist under Part III (s 113(1)). 3. Sound Recordings a. Sound recordings are protected under s 89. b. Sound recording is defined to mean the aggregate of the sounds embodied in a record (s 10). The word record is used in a special sense to mean a disk, tape, paper or other device in which sounds are embodied. i. Therefore, technology neutral so will cover MP3s, CDs, records, tapes, DVDs etc c. Sound recordings have a separate copyright, in addition to any copyright in the underlying material, such as the musical score (Part III musical work) or the lyrics (Part III literary work). 4. Cinematographic Films a. Cinematographic films are protected under s 90. i. A cinematograph film means the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing: 1. of being shown as a moving picture; or 2. of being embodied in another article or thing by the use of which it can be so shown; and includes the aggregate of the sounds embodied in a sound-track associated with such visual images (s 10(1)). ii. It does not matter how the images are made. iii. The means by which a moving picture is produced is not relevant in determining whether the end result is a film. iv. Therefore, moving images in a computer-generated video game can be films (Galaxy v Sega) v. Zeccola v Universal City Studios Inc 1. Universal owned copyright in film Jaws, screenplay Jaws, and novel Jaws. Zecolla made a film about man eating sharks called Great White. Universal sued for copyright infringement. Zecolla argued that there is no copyright in the general idea of a film about man eating sharks 2. Held, although there was no copyright in the general idea of a film about man eating sharks, copyright subsisted in the combination of the principal situations, singular events and basic characters. 5. Television Broadcasts or Sound Broadcasts a. These types of broadcasts are protected under s 91. b. Definitions in s 10(1): i. television broadcast means visual images broadcast by way of television, together with any sounds broadcast for reception along with those images; ii. sound broadcast means sounds broadcast otherwise than as part of a television broadcast; iii. broadcast means a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992 (Cth). c. The broadcasting must be to the public i. To the public means more than just in public. There can be a communication to individual members of the public in a private or domestic setting which is nevertheless a communication to the public (Telstra Corp v APRA @ 155). d. There is no need for copyright subsistence in the underlying material. Page 11 of 61

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i. For example, there is no copyright in a sporting match or spectacle, but the maker gets the rights to that broadcast. e. A single image on a TV screen with accompanying audio does not constitute a broadcast (The Panel case) f. However, there are infinite circumstances where there could be a television broadcast, just needs to be more than a single image (The Panel Case). i. There can be no absolute precision as to what in any of an infinite possibility of circumstances will constitute a television broadcast. However, the [twenty] programmes which Nine identified in its pleading answer that description. These broadcasts were put out to the public, the object of the activity of broadcasting, as discrete periods of broadcasting identified and promoted by a title, such as The Today Show, Nightline, Wide World of Sports, and the like, which would attract the attention of the public. (@ [74]). ii. The majority also noted at [77]: 1. the circumstance that a prime time news broadcast includes various segments, items or stories does not necessarily render each of these a television broadcast in which copyright subsists iii. In dissent, Kirby J and Callinan J held in separate judgments that any short series of images will be a broadcast, so any re-broadcasting of any images must be rebroadcasting of a broadcast, regardless of length. g. Still need to inquire as to whether or not a substantial part of a broadcast has been rebroadcast (in terms of infringement, not subsistence). 6. Published Editions of Works a. Published editions of Part III works are protected under s 92. b. Refers to the typographical arrangement; that is, the layout and formatting, of the printed pages as they are published. i. For example, a newspaper article may attract copyright in the literary work (under Part III) and also the published edition of that literary work in the way that the article is set out and organised (under Part IV s 92). c. This type of protection was only introduced with the 1968 Act, so no protection for a published edition exists in a book published before the commencement of that Act (s 224).

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DURATION OF COPYRIGHT
1. Extended with the AUSFTA. a. Mickey mouse was about to go out of copyright protection in the US, and this greatly upset the Disney corporation and most of the entertainment industry. b. Lobbied govt to increase and got it. 2. Original works (s 33): a. Literary, dramatic, musical, or artistic work: i. 70 years after the death of the author. b. Unpublished literary, dramatic, or musical work (excluding computer programs): i. 70 years after first publication. 3. Part IV subject matter: a. Sound recordings, cinematograph films: i. 70 years from year of publication (ss 93 and 94). b. Broadcasts: i. 50 years from year broadcast was made (s 95). c. Published edition: i. 25 years from year of first publication (s 96).

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OWNERSHIP OF COPYRIGHT Part III: Works

1. The general rule is that the creator, called the author, is the first owner of copyright (s 35(2)). 2. No general definition of author is given interpret as the creator of the work, from whom the form of expression originates (Donoghue v Allied Newspaper Ltd) 3. The author of a photograph is the taker of it (s 10(1)). 4. Ownership of copyright can always be modified by contract! 5. Exceptions to general rule: a. Work Produced in the Course of Employment i. Under a contract of employment, the employer owns copyright of works produced in the course of employment (s 35(6)) ii. The employee must be working under a contract of service, as distinguished from a contract for services. 1. Check whether the thing produced is an integral part of the business or if it is only accessory to it. 2. The test is whether on the one hand the employee is employed as part of the business and his work is an integral part of the business, or whether his work is not integrated into the business but is only accessory to it, or, [] the work is done by him in business on his own account a. Beloff v Pressdram Ltd i. The plaintiff, a political correspondent of the London Observer, issued a politically sensitive internal memo to the editor and senior staff on the Prime Minister. It was published in full by the Private Eye. The plaintiff sued for infringement of copyright. ii. Held, as the plaintiff was employed under a contract of service, the copyright in the memo was vested in the owners of the London Observer and not in the plaintiff. iii. A person employed as a consultant retains copyright in the work he/she produces, subject to contrary express agreement (Oceanroutes (Australia) Pty Ltd v M C Lamond) b. Journalists i. Journalists are the owners of copyright only with respect to (s 35(4)): 1. reproduction of the work for the purpose of inclusion in a book; or 2. reproduction of the work in the form of a hard copy facsimile made from a paper edition of an issue of the newspaper. ii. The proprietor of the newspaper or magazine is the owner of copyright for any other purpose (s 35(4)). iii. Journalists won copyright for the purposes of reproduction in press clipping services. 1. De Garis v Neville Jeffress Pidler Pty Ltd a. De Garis was a university lecturer and occasional contributor to The West Australian. He was not an employee. Moore, second plaintiff, was employed by the Sydney Morning Herald. The defendant operated a press clipping service. De Garis and Moore sued the defendant for breach of copyright in respect of pieces written for their respective newspapers which the defendant had subsequently photocopied and distributed to client. b. Under pre-1988 legislation, publisher only owned rights to make and distribute photocopies in so far as they relate to publication in a newspaper. Accordingly, Jeffress infringed Moores rights to reproduce in a material form. iv. As the Act now stands, journalists only have a right to sue if photocopies are made. Page 14 of 61

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1. Press services can negotiate exclusively with the publisher to make and communicate electronic copies, for example. c. Commissioned Artistic Works i. In the following cases, the person who commissioned the work owns copyright (s 35(5)): 1. the taking of a photograph for a private or domestic purpose. a. defined to mean a portrait of family members, children or a wedding party (s 35(7)). 2. the painting or drawing of a portrait. 3. the making of an engraving. ii. Copyright in all other commissioned works generally vests in the author. iii. If the party made known, expressly or by implication, at the time of the agreement, the purposes for which it was required, the commissioned party can restrain the use of work for other purposes (s 35(5)). 1. Blackwell v Wadsworth a. The plaintiff artist was commissioned to make a drawing of a hotel. Two years later, ads in the paper for the sale of the hotel included a reproduction of the drawing. The plaintiff sued for infringement of copyright. b. Held, the defendants had infringed copyright no implied license for the defendants to reproduce the work. d. Joint Ownership or Authorship i. Work of joint authorship means a work that has been produced by the collaboration of two or more authors and in which the contribution of each author is not separate from the contribution of the other author or the contributions of the other authors (s 10(1)). ii. The definition in s 10(1) does not mean that all jointly produced works will result in joint authorship. iii. Joint authorship does not apply where each author supplies a distinct part. iv. Supplying ideas only doesnt give rise to joint authorship. 1. Donoghue v Allied Newspapers Ltd a. Held, where a person communicates an idea to an author and the author clothes the idea in the form of an article or articles, the copyright is in the author. v. Joint authors take ownership as tenants in common each has title to sue and can sue each other. 1. Prior v Sheldon a. 2 people worked on musical work, had ownership as joint authors b. 1 of those joint authors went on and composed a new work adapting from the other work, but without the permission of the joint owner c. joint owner of original work sued: successful. e. Equitable Ownership i. Equitable ownership may arise where the author stands in a fiduciary position to some other, or is in breach of confidence or is a trespasser, and, authors a work because of that position, breach or trespass. ii. Bulun Bulun v R & T Textiles Pty Ltd 1. John Bulun Bulun, an Aboriginal artist, painted an artistic work in 1978, with permission of senior members of the Ganalbingu people (in Arnhem Land), in accordance with customary law. The respondent imported and sold fabric that infringed the copyright in the artistic work. Bulun Bulun sued as copyright owner and George Milpurrurru sued as a representative of the Ganalbingu people. R & T Textiles admitted infringement with respect to Bulun Bulun, but did not admit that the Ganalbingu people were the equitable owners of the copyright. 2. Held: there was no express trust, because commercial sale of the artwork by Page 15 of 61

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Bulun Bulun were permissible, and Bulun Bulun was able to retain the proceeds. 3. Held: there was a fiduciary relationship. The Ganalbingu people permitted Bulun Bulun to create the artistic work that embodied part of their ritual knowledge derived from their ancestors, but Bulun Bulun could not exploit the work in a manner contrary to customary law, and was bound to take appropriate action against third parties to restrain and remedy any infringement of copyright. a. This did not grant equitable interest in copyright, but if Bulun Bulun breached the fiduciary duty, an action in personam or a constructive trust could be imposed. b. Bulun Bulun had not breached the obligations of his fiduciary duty in this case. iii. AG (UK) v Guardian Newspapers (No 2) 1. Breach of Confidence former UK spy publishing secret information in Australia. 2. Obiter, a constructive trust may exist to protect the publication of material taken in breach of the obligation of confidence. 3. Would help if the material had lost its character of confidentiality iv. ABC v Lenah Game Meats 1. Obiter, a trespasser may hold copyright in a film on a constructive trust in favour of the owner of the premises 2. Didnt arise because never found out who took tape, they sent it anonymously to the ABC f. Crown Copyright i. Crown ownership includes: 1. works made by or under the direction or control of the Crown (s 176); 2. works first published by the Crown (s 177); 3. sound recording and films made by or under the direction or control of the Crown (s 178). ii. Duration crown copyright is 50 years. 1. CLRC recommends abolition of these special privileges of the Crown. a. Crown Copyright (2005). 2. Copyright Agency Limited v State of NSW [2007] FCAC 80 a. The Copyright Tribunal heard a claim by the Copyright Agency Limited (CAL), whose members include surveyors, for orders under ss 183(5) and 183(A) of the Copyright Act 1968 (Cth) in respect of a number of surveyors' plans and the State of New South Wales' 'dealings' in respect of them. Following the determination of the Tribunal, questions of law were referred to the Full Federal Court. i. Held, that the New South Wales Government did not own copyright in the surveyors' plans. The court stressed that, when considering the issue of Crown copyright, it is important to understand the relevant legislation under which the works are created and its history. ii. Finkelstein J on Crown copyright: iii. As regards to work made by the Crown, we are necessarily dealing with a fiction. Generally for copyright purposes a work is made by its author. What s 176 contemplates is that, in certain circumstances, the act of the author in making a work is to be attributed to the Crown. An attribution of this kind is a concept well known in the law. 6. Proof of Copyright Ownership a. Unless put in issue, copyright is presumed to subsist, and the plaintiff is presumed to be the owner (s 126). Page 16 of 61

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b. Labels or marks indicating year and place of publication or making of a work are admissible as prima facie evidence (ss 126A and 126B). c. Name appearing on a work is presumed to be author and first owner (s 127). d. Name of publisher appearing on work published in last 70 years is presumed to be the owner, if s 127 does not apply (s 128). e. The Copyright Amendment Act 2006 (Cth) adopted these same presumptions relating to subsistence and ownership of copyright for the prosecution for offences against Division 5 (except s 132AM). See s 132A. f. New presumptions were also introduced to recognise industry-specific labelling practices and amend other existing industry-specific presumptions. i. If copyright owners do not meet the requirements of the relevant industry-specific presumptions, they can rely on the general evidential presumptions in ss 126A, 126B and 132A.

Part IV: Subject Matter Other Than Works

1. Ownership of copyright in: a. sound recordings (s 97); i. Ownership of copyright: s 97 ii. Exclusive rights granted to makers of records. iii. The maker of the sound recording usually recording company is the person who owned that record at that time (s 23(3)). iv. The maker of a sound recording is the owner of any copyright subsisting in the recording (s 97). v. Performers of live performances also get some share of ownership in sound recordings made (s 23(3A)). b. cinematographic films (s 98); i. Ownership of copyright: s 98 ii. The maker' of a film is the producer the person who organises and pays for the film (s 22(4)). iii. Directors recently given economic rights (Copyright Amendment (Film Directors' Rights) Act 2005 (Cth)). c. television and sound broadcasts (s 99); i. Ownership of copyright: s 99 ii. The maker of a television broadcast or sound broadcast is the owner of any copyright subsisting in the broadcast (s 99). iii. A broadcast is taken to have been made by the person who provided the broadcasting service by which the broadcast was delivered (s 22(5)). d. published editions of works (s 100). i. Ownership of copyright: s 100 ii. The publisher of an edition of a work or works is the owner of any copyright subsisting in the edition (s 100).

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ASSIGNMENTS AND LICENCES

1. Copyright is personal property and [] is transmissible by assignment, by will and by devolution by operation of law (s 196(1)). 2. Future copyright can be assigned (s 197). 3. Can assign or license all copyright, or specific rights, and can limit to specific jurisdictions (s 196(2)). a. For example, APRA takes performance rights in all present and future music. 4. Assignments a. An assignment is a transfer of ownership of copyright (s 196). b. An assignment: i. Must be in writing (s 196(3)). ii. May be total or partial. 1. Partial assignments mean that a number of assignees are entitled to copyright in their respective interests (s 16). iii. May be future (s 197). 1. Copyright will come into existence at a future time or on happening a future event, with copyright vesting in the assignee when the work comes into existence (for example, copyright in a yet unwritten book). c. Partial assignments are treated as separate copyrights (s 30). d. Allow recipient to do anything in the copyright, including license, assign, sue for infringement. e. Assignor retains no special rights to the work. i. Can be sued for copyright infringement. 5. Licenses a. A license is a permission to deal with the copyright subject matter for certain purposes. b. An exclusive license is a licence in writing, signed by or on behalf of the owner or prospective owner of copyright, authorizing the licensee, to the exclusion of all other persons, to do an act that the owner of the copyright would, but for the licence, have the exclusive right to do (s 10(1)). i. Exclusive licences give the licensee the power to sublicense and the title to sue for infringement (s 119). c. Where there is a non exclusive, others may have rights. d. A license is the product. i. Where use of a product would necessarily infringe copyright (as in software), then it could be said that youre not paying for the product (i.e., CD), but the licence. ii. You get some rights over the physical medium, but you have no right to use it without a copyright licence iii. Often the licence is inside the box the software comes in Shrinkwrap license. iv. Or as a pre-requisite to a download Clickwrap license. e. Implied licenses i. Licenses can be implied from the circumstances. 1. For example: A newspaper editor has an implied licence to publish letters to the editor. ii. Question: if you post material to the internet are you giving any implied license? 1. At the very least youve given people a licence to look at it and to store it temporarily in cache. iii. Always subject to directions to the contrary. iv. An implied license exists to use commissioned copyright material for the purposes contemplated. 1. Beck v Montana Constructions Pty Ltd f. Compulsory licensing i. Statutory licenses 1. Usually it is an infringement to exercise any of the copyright owners Page 18 of 61

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exclusive rights without having first obtained the owners permission (or licence) to do so, or to authorise anyone else to infringe those rights 2. However, the Copyright Act contains statutory licences operate so that it is not an infringement of copyright to use copyright material in a way that involves an exercise of the exclusive rights, without having first obtained permission to do so. 3. A feature of these schemes is that, although prior permission to do the acts is not needed, arrangements must be put in place so that the copyright owner receives equitable remuneration or is otherwise compensated for the exercise of his or her rights. 4. Part 5B reproducing material for schools and university. a. Can reproduce without permission of copyright owner but must pay statutory licence fees. b. Copyright Agency Limited (CAL) collects the fees. c. Copyright Tribunal sets the fees. 5. Part 5A audio visual rights. a. Organisations assisting persons with an intellectual disability may make off-air copies of broadcasts. b. Administered by Screenrights. 6. Part 5C retransmission of works, sound recordings and films included in free-to-air broadcasts. ii. Compulsory licensing for musical works (ss 54-64). 1. Able to make a sound recording of music or lyrics without permission of the copyright owner but must pay a statutory licence fee. 2. Music must have already been recorded in Australia. 3. There is no such right in relation to the sound recording sampling is not permissible. 4. Does not extend to use in films. 5. Record-making rights are mechanical rights of musical works. 6. Administered by Australasian Mechanical Copyright Owners Society (AMCOS). g. Open source and contracting in the digital environment i. Free and Open Source Software 1. Allows anyone to use and modify software. 2. Uses copyright to impose a restriction that they can not distribute modified material without giving changes back to the community. 3. For example, GNU, a UNIX-compatible software system. ii. Creative Commons Licences 1. Criticism: Creative Commons (CC) is a new form of license that originated in the US and is now being developed for use internationally. The license is purported to offer an alternative copyright scheme to allow creators to stimulate the dissemination and re-use of their copyrighted works be they films, images, music, written or scientific works. But in fact, CC offers considerable benefits to internet users wanting to use creators' works without having to seek permission, and very little to the creative community.

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INFRINGEMENT OF COPYRIGHT
Remember: are you dealing with a Part 3 or Part 4 work? Layout: Part III: Works Direct Infringement (on page 20) Part IV: Subject Matter Other Than Works Direct Infringement (on page 23) Authorisation Infringement Both Parts (on page 25) Indirect Infringement Both Parts (on page 28)

Part III: Works Direct Infringement

1. It is an infringement of copyright to do, or authorise anyone else to do, any of the exclusive rights comprised in the copyright without the permission of the copyright owner (s 36). 2. The exclusive rights are set out in s 31(1): a. To reproduce the work in material form b. To publish the work c. To perform the work in public (except for artistic works) d. To communicate the work to the public e. To make an adaptation of the work (except for artistic works) 3. To Reproduce the Work in Material Form a. There is an exclusive right to reproduce the work in material form (ss 31(1)(a)(i) and 31(1) (b)(i)). b. Reproduction means copying and does not include cases where the author or compiler produces a substantially similar result by independent work without copying (Ladbroke (Football) Ltd v William Hill (Football) Ltd) c. The notion of reproduction involves two elements: (Francis Day v Bron) i. Objective similarity there must be a sufficient degree of objective similarity between the plaintiffs and the defendants work (that is, the defendant must have produced a work which closely resembles the plaintiffs); and ii. Causal connection the defendants work must be derived directly or indirectly from the plaintiffs copyright work (that is, there must be some causal connection between the two works). d. Subconscious copying is sufficient provided there is evidence of copying. i. Francis Day & Hunter v Bron per Willmer J. 1. Plaintiff sued alleging the defendants infringed copyright in a musical work. 2. 36 years later a new work was published. 3. Alleged that last 8 bars of the original song had been reproduced. 4. Held, similarities probably coincidental, and there was no evidence that the defendant had copied or heard song unable to infer sufficient knowledge and memory for conscious or subconscious copying. e. An infringement may be indirect (LED Builders Pty Ltd v Eagle Homes) i. LED and Eagle built project homes ii. LED owned building plans copyright subsisted as an original artistic work iii. Display homes built in accordance with the plans iv. LED claimed that Eagle had substantially reproduced their copyrights works by drawings, brochures, buildings (oral instructions given to draftsman to substantially reproduce LEDs plans) v. Objective similarity judge looked at both sets of plans although there were some small differences, the overall plan and design were almost identical vi. Causal connection instructions given to draftsman to substantially copy the LED plans f. Deemed reproductions: i. A literary, dramatic or musical work is deemed to have been reproduced in a Page 20 of 61

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4.

5.

6.

7.

material form if a sound recording or film is made of the work (s 21(1)). ii. Copyright in an artistic work in two-dimensional form will be infringed by its reproduction in a three dimensional form and vice versa (s 21(3)). g. A lot of cases of copyright infringement concern project homes. When dealing with a work, such as a project home design, which is by its nature very simple and commonplace, it will be more difficult to prove infringement. i. Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd (1971) 20 FLR 481 ii. Ownit Homes Pty Ltd v D. and F. Mancuso Investments Pty Ltd [1987] AIPC 90-426 h. Note that the simpler and more commonplace the design is, the more closely the defendants plans must follow the plaintiffs. i. Dixon Investments Pty Ltd v Hall 1. Held, although the defendants house had used the plaintiffs plans as direct inspiration, the constructed house had sufficient differences of a genuine character from the plaintiffs plans not to constitute an infringement of copyright. i. Note that the copyright in a building or a model of a building is not infringed by the making of a painting, drawing, engraving or photograph of the building or model or by the inclusion of the building or model in a cinematograph film or in a television broadcast (s 66). To Publish the Work a. There is an exclusive right to publish the work (ss 31(1)(a)(ii) and 31(1)(b)(ii)). b. Publish means to make available to the public in Australia something which has not previously been made available (Avel Pty Ltd v Multicoin Amusement Pty Ltd) c. The definitions of published in s 29(1)(a) do not apply to s 31(1)(a)(ii). To Perform the Work in Public a. There is an exclusive right to perform the work in public (s 31(1)(a)(iii)). b. A performance of a work given to members of the public is a performance in public unless it is shown to be domestic in character. i. Australasian Performing Rights Association v Canterbury-Bankstown League Club Ltd 1. Playing of music by a band in the club was in the public and therefore infringement. ii. Australasian Performing Rights Association v Tolbush Pty Ltd 1. Playing of music in car radios displayed for sale was a performance in public and therefore infringement. iii. Australasian Performing Rights Association v Commonwealth Bank of Australia 1. Portions of videos showed to 11 staff was a performance in public and therefore infringement iv. Rank Film Productions Ltd v Dood 1. Held, transmission of film by central VCR for TVs in hotel was a performance in public infringement of copyright. To Communicate the Work to the Public a. There is an exclusive right to communicate the work to the public (ss 31(1)(a)(iv) and s 31(1)(b)(iii)). b. This right was introduced by the Copyright Amendment (Digital Agenda) Act 2000 (Cth), replacing and extending the former broadcasting right. c. Communicate is defined as meaning to make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matter (s 10(1)). d. Communication other than broadcast is taken to have been made by the person responsible for determining the content of the broadcast (s 22(6)). e. It includes cable transmissions. f. It also includes making available of copyright material online. i. For example, uploading material onto the Internet. To Make an Adaptation of the Work Page 21 of 61

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a. There is an exclusive right to make an adaptation of the work (s 31(1)(a)(vi)). b. Adaptation includes (s 10): i. the dramatisation of a non-dramatic literary work; ii. a translation; iii. a pictorial version of a literary work; iv. an arrangement of a musical work. 8. To Enter into a Commercial Rental Arrangement a. There is an exclusive right to enter into a commercial rental arrangement, but is limited to: i. a sound recording (for example, a CD or tape) (s 85(1)(d)); ii. a literary, musical or dramatic work reproduced in sound recording (s 31(c)); iii. a computer program (s 31(d)). The Issue of Substantiality The infringing act need not be done in relation to the whole of the work or other subjectmatter. It is sufficient if it is done in relation to a substantial part of the work (s 14(1)). Substantial is a question of fact to determined in the circumstances requires a consideration of the quality of the work taken in relation to the work as a whole, rather than just as a question of quantity. IceTV on substantiality subtly different approaches in the two majority judgments: o For French CJ, Crennan and Kiefel JJ, substantiality stood to be determined by looking at what was copied and assessing its quality by reference to its originality (@ [32], [42]). If what was copied was obvious and prosaic, it will lack the requisite originality (ie chronological list of programs playing at certain times = unoriginal). o For Gummow, Hayne and Heydon JJ, the information copied must be qualitatively substantial in the legal sense, so that baldly stated matters of fact that are inseparable from and co-extensive with their expression will not be original. Other examples include: o Hawkes and Son (London) Ltd v Paramount Film Service Ltd in a march a musical march P sued for infringement when the Ds film showed the opening of a naval school, the band was playing part of the march They only played 28 secs of a 4 minute march, but as the except was shown, it contained the main melody Therefore it was a central and recognisable part Therefore substantial. o Blackie & Sons (London) Ltd v Lothian Book Publishing Co Pty Ltd Published annotated edition of Shakespeare Someone else published something very similar Intro obtained from public sources Still substantial o Zeccola v Universal City Studios Inc Jaws case (see above) o AGL Sydney Ltd v. Shortland County Council Promoting electricity ad Substantial portion used of existing work NOTE: If have reproduced the entire work then there is no need to examine substantiality!

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Part IV: Subject Matter Other Than Works Direct Infringement

1. Where Part IV is concerned, direct infringement is a much more restricted concept than in relation to Part III Works. 2. Sound recordings a. Protection of copyright: s 85 b. Exclusive right to (s 85): i. make a copy of the recording (s 85(1)(a)); 1. Copy means a record embodying a sound recording (s 10(3)(c)). 2. Making a sound alike version of a popular song does not infringe copyright in the sound recording, although it may in the underlying works (the lyrics and music). 3. CBS Records Australia v Telmak Teleproducts (Aust) Pty Ltd a. Telmak produced recordings and compilation of chart hits by cover bands. CBS, who owned the sound recording copyright, sued for infringement of sound recording copyright. b. Held, copyright only protects the actual embodiment of the very sounds on the original record. ii. cause the recording to be heard in public (s 85(1)(b)); iii. communicate the record to the public (s 85(1)(c)); iv. enter into commercial rental agreements (s 85(1)(d)). c. One of the few copyrights that allows the owner to control rental (along with computer programs). i. Owners can control the renting of music CDs but not films. 3. Cinematographic films a. Protection of copyright: s 86 b. Exclusive rights given to makers of films (s 86). c. Exclusive right to (s 86): i. make a copy of the film (s 86(a)); ii. cause the film to be seen/heard in public (s 86(b)); iii. communicate the film to the public (s 86(c)). d. Zeccola v Universal City Studios Inc i. Universal owned copyright in film Jaws, screenplay Jaws, and novel Jaws. Zeccola made a film about man eating sharks called Great White. Universal sued for copyright infringement. ii. Held that Zeccola had not infringed copyright in the film as there was no copy of the visual images. iii. As to whether Zeccola had infringed copyright in the novel and screenplay, the primary judge watched both films (with some degree of fortitude) and held there was such a marked degree of similarity between the two films that there was an inescapable inference of copying. iv. The Full Federal Court wasnt as certain, but did not find fault with the primary judges opinion. e. Australian Video Retailers Association Ltd v Warner Home Video Pty Ltd i. As there are no commercial rental right in films, but there are in computer programs (see s 30A), Warner Home Video argued that DVD movies are also computer programs. ii. Held, that the commands which controlled the flow of the DVD were computer programs, but that the audiovisual content was not part of the program. Accordingly, when a video store hires out a movie, the essential object of the rental is not the computer program, but the film. iii. Although computer programs can be films, films do not suddenly become programs when put on a DVD. Page 23 of 61

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4. Television and sound broadcasts a. Protection of copyright: s 87 b. Exclusive right to (s 87): i. make a film of a television broadcast (s 87(a)); ii. make a sound recording of a broadcast (s 87(b)); iii. re-broadcast or communicate to the public (s 87(c)). c. Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (The Panel) i. Tens show broadcast clips taken from other networks. Nine sued under right to rebroadcast. ii. The Full Federal Court held that any unauthorised rebroadcasting of a broadcast would be an infringement of copyright (subject to any defence of fair dealing that Ten might have had) iii. Appealed to the High Court. iv. Held, copyright is only infringed if you rebroadcast the program, or a substantial part of the program. Otherwise broadcast makers would get much more protection than other copyright owners. 1. Look to quality not quantity no fixed rule that a certain number of seconds of rebroadcast will = infringement. 5. Published editions of works a. Protection of copyright: s 88 b. Exclusive right to make a facsimile copy of a published edition of one or more literary, dramatic, musical, or artistic works (s 88). c. Nationwide News Pty Ltd v Copyright Agency Limited i. The appellants owned the majority of Australian newspapers and a significant proportion of magazines. The respondent, Copyright Agency Limited (CAL), was a collecting society representing copyright owners of literary, dramatic and artistic works. Separate from its statutory functions as a collecting society, CAL entered into voluntary licenses with educational institutions for the copying of articles from newspapers and magazines, passing royalties back to the authors. The appellants claimed that this infringed their rights in the published edition. ii. Held, the newspaper and magazine owners had rights to published editions, but that infringement must copy a substantial part of the published edition as a whole. 1. More relevant when the aim of copying is to utilise the typography, layout or presentation of the published edition. 2. As the intention was to copy the articles (which are owned by the authors), and not the presentation, there was no infringement.

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Authorisation Infringement Both Part III and Part IV Material

1. Copyright is also infringed when a person authorises the doing in Australia of any act comprised of copyright without the license of the owner (s 36(1) / s 101(1)). 2. Authorisation means sanction, approve or countenance. 3. A person who has under his control the means by which an infringement may be committed and who makes it available to other persons knowing or having reason to suspect that it is likely to be used for that purpose, and omitting to take reasonable steps to limits its use to legitimate purposes, would authorise any infringement. i. University of NSW v Moorhouse and Angus and Robertson (Publishers Pty Ltd) 1. A student at the University of NSW made two copies of a 10 page story by Moorhouse at the photocopying machine in the library. No attempt was made to supervise the copiers to ensure that they were not being used to infringe copyright. Proceedings were taken by the author and publisher against the University for authorizing an infringement of copyright. 2. Held, the University had authorized an infringement of copyright the University provided the books and the machines and failed to take adequate steps to warn about infringement. 4. Must establish that an act of infringement has taken place. i. RCA Corp v. John Fairfax & Sons Ltd 5. Must be some connection between the authoriser and the infringer that is, the authoriser had some form of control over the infringer, or provided the materials used in the infringement. i. RCA Corp v. John Fairfax & Sons Ltd 1. A journalist published articles on the possibility of using private recordings of records as an alternative to buying records. The plaintiff claimed this was authorizing the infringement of copyright. 2. Held, no authorization as there was no control between the newspaper and the taper. Furthermore, the article did not sanction, approve or countenance taping it was a factual report, not an invitation or incitement to infringe. 6. Examples: i. Australasian Performing Rights Association v Canterbury-Bankstown League Club Ltd [1964-65] NSWR 138 1. Held, the Club authorised any infringement of the dance band as the Club allowed the band leader to select any music to play. ii. CBS Songs Ltd v Amstrad Consumer Electronics 1. Held, the manufacturer to two deck tape recorders, capable of copying tapes at twice the normal playback speed did not authorise an infringement of copyright it facilitated copying, but did not authorise it. 7. In determining the issue of authorisation, the matters to be taken into account include (ss 36(1A) and 101(1A)): i. the extent of the persons power to prevent the doing of the act concerned; ii. the nature of any relationship existing between the person and the person who did the act concerned; iii. whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice. 8. Authorisation in an online environment i. Background: 1. The digital age has challenged the role of copyright law and the interests of copyright holders. 2. Advances in digital technology has made copying easier. 3. This challenge has arisen in the courts in the context of secondary liability, which in the Australian context is authorisation. 4. Many of the cases have been decided in the United States. However, there Page 25 of 61

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ii.

iii.

iv.

v.

vi.

have been two important Australian decisions. A&M Records v Napster 1. Held that that a computer system operator cannot be held liable merely because its system may be utilised for infringement, but that if a computer system operator learns of copyright infringement and does not remove the infringing materials, it will be liable. 2. Napster was held guilty of contributory infringement since the facts showed that Napster had a great degree of control; knowledge of copyright infringing music files which were shared through its system; a financial interest in the infringing activities; and had the capacity to stop the infringements through an ability to block the user's access to its system. Metro-Goldwyn-Mayer v Grokster 1. Held, that peer-to peer software was capable of non-infringing activities so that it would not be liable for simply making and distributing its software. 2. However, persons or organisations can be liable for inducingg infringement, so that one who distributes a device with the object of promoting it as able to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement (control), is liable for the resulting acts of infringement by third parties. Universal Music Australia Pty Ltd v Sharman Licence Holdings (Kazaa) 1. Sharman ran a peer-to-peer file sharing platform of sound recordings known as Kazaa. 2. Held, that even though the Kazaa system had a number of technological controls, these were insufficient to overcome a finding of liability for copyright infringement by authorisation. It was particularly relevant that: a. warnings contained on the Kazaa website and the end user license agreement prohibiting infringing copyright were ineffective to prevent such conduct and Kazaa were well aware that their system was being utilized for sharing copyright files; b. Kazaa did not implement any technical measures, such as key word and file filtering which could have curtailed the sharing of copyright files; and c. Kazaa encouraged misconduct by including exhortations such as Join The Revolution to increase the incidence of infringing file sharing. Cooper v Universal Music Australia 1. Cooper maintained website known as MP3s4free.com. This website provided an organised directory of hyperlinks to websites that had downloads of infringing copies of music. The website in Cooper did not actually store the infringing MP3s, rather it provided three different types of hyperlinks including: a. hyperlinks that automatically commenced downloading a file from another website as soon as the hyperlink was clicked; b. hyperlinks that brought a user to another website from which they could download a file; and c. hyperlinks that brought a user to another website from which they would click other hyperlinks which brought them to other websites where they could download the file. 2. Held, there was an infringement as the defendant had the capacity to remove hyperlinks, or structure the website in such a way that operators of remote websites could not automatically add hyperlinks without some supervision. Other issues: 1. Defences are also available to persons (including a carriage service provider) for infringement by authorisation in certain circumstances where facilities provided by them are used by someone else to infringe copyright. a. ss 39B, 112E 2. Safe Harbour Provisions a. Division 2AA 3. Notice and Takedown (DMCA) Page 26 of 61

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vii.

Two interesting cases to follow: 1. Viacom v YouTube 2. AFACT v iiNet

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Indirect Infringement Both Part III and Part IV Material

1. The main forms of indirect infringement involve infringing copies being: a. imported for the purposes of trade without the license of the copyright owner (ss 37 and 102); b. sold, hired out or otherwise made the subject of trade (ss 38 and 103). 2. As a general rule it is necessary to establish that a defendant knew or ought reasonably to have known that the article in which they were dealing had been made in breach of copyright, or in the case of an imported article, that it would have been an infringing copy if it had been made in Australia by the importer. a. Raben Footwear Pty Ltd v Polygram Records Inc i. This is an objective test but look at the circumstances and capacity of the particular defendant 3. Importation of infringing articles a. Elements: (s 37 / s 102) i. Import article into Australia ii. For sale, hire or other commercial purpose iii. Without license of copyright owner iv. Knows or ought reasonably to know v. That if the article had been made by the importer in Australia, it would have been an infringement of copyright. b. It is an infringement of copyright in any work in which copyright subsists to import an article into Australia for sale, hire or other commercial purpose, without the license of the copyright owner, if the importer knew, or ought reasonably to have known, that if the article had been made by the importer in Australia, it would have constituted an infringement of copyright (ss 37 and 102). i. Milpurrurru v Indofurn Pty Ltd 1. A company imported carpets from Vietnam which reproduced Aboriginal artworks made by the applicant. 2. Held, the importing company had infringed the applicants copyright managing director either knew or should have known (one directors knowledge was sufficient). c. However, there is an exception to the requirement of proof of knowledge (ss 37(2), 102(2)): i. Where an accessory to an article includes a copy of a work which was made without the licence of the owner of the copy in the country in which the copy was made, it is not necessary to establish proof of knowledge on the part of the importer that is, the importation of the infringing article is sufficient. ii. Accessory defined to include, for example, labels on the article, the packaging or container in which the article is contained and written instructions or other information provided with the article (s 10(1)). d. Liability extends to the parallel importation of genuine articles. i. Interstate Parcel Express Co Pty Ltd v Time-Life International (Nederlands) B.V. 1. Time Inc., which owned copyright in Australia and US, granted to Time-Life an exclusive license to distribute the books in countries outside US and Canada. Rather than buy from Time-Life Angus and Robertson imported copies cheaply from the US. Time-Life sought an injunction to restrain sale of the books. 2. Held, infringement by importation. e. However, parallel importation of books is now allowed in these circumstances (ss 44A and 112A): i. The book is first published outside Australia and not published in Australia within 30 days; ii. Copyright owner unable to meet an order for supply of the book within 90 days; Page 28 of 61

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iii. An order for a single copy for non-commercial purposes; iv. An order for multiple copies from a non-profit library. f. Note also that there have been other relaxations on parallel importation: i. Labels provisions of the Copyright Amendment Act (No. 1) 1998 (Cth) now prevent an overseas copyright owner controlling the distribution of goods in Australia by reliance on copyright in, for example, the label on a product (s 44C). 1. See definition of accessory and non-infringing accessory (s 10(1)). 2. New provisions came into operation 18 months after 30 July 1998 that is 1 February 2000. ii. Sound recordings the Copyright Amendment Act (No. 2) 1998 effectively removed the restriction on the parallel importation of legitimate sound recordings as from 30 July 1998 (ss 44D and 112D). iii. Computer programs not infringement to import or deal with a non-infringing copy of a computer program: s44E 1. non infringing copy of a computer program is one made in a country that is a party to the Berne Convention or the TRIPs Agreement and did not infringe copyright when made in that country: s10AB 2. onus on def to prove it is non-infringing: s130B iv. Electronic literary or music item not infringement to import to deal with a non infringing copy of an electronic literary or music item: s44F (for works) and s112DA (for published editions of works) 1. a non infringing copy of an electronic literary or music item is one made in a country that is a party to the Berne Convention or the TRIPs Agreement and did not infringe copyright when made in that country: s10AC 2. onus on def to prove it is non-infringing: s130C g. The Copyright Amendment Act 2006 (Cth) introduced amendments dealing with the seizure of imported copies of copyright material that make it easier for copyright owners to use the Notice of Objection scheme and are consistent with the Trade Marks Notice of Objection scheme under the Trade Marks Amendment Act 2006 (Cth). h. Amendments dealing with the seizure of imported copies of copyright material make it easier for copyright owners to use the Notice of Objection scheme and are consistent with the Trade Marks Notice of Objection scheme under the Trade Marks Amendment Act 2006. 4. Sale of infringing articles (s 38 / s 103) a. Elements i. Sells or hires an article ii. Person knew or reasonably ought to have known 1. Making of article constituted an infringement; or 2. If article is imported, that the article would have been an infringement if it were made by the importer in Australia b. Copyright in a work is infringed by a person who sells or hires an article if the person knew, or ought reasonably to have known, that the making of the article constituted an infringement of the copyright or, in the case of an imported article, would, if the article had been made in Australia by the importer, have constituted such an infringement (ss 38 and 103). c. Example: i. Raben Footwear Pty Ltd v Polygram Records Inc 1. Raben imported 1000 copies of a Cher CD from Germany. Polygram sued for infringement of copyright. Raben argued that he had no knowledge Raben had asked the supplier about licensing for the CDs and received a guarded supply. 2. Held, Raben had infringed copyright suppliers response ought reasonably have led the defendant to assume the true position and therefore reasonably knew that making the CD in Australia would have constituted an infringement of copyright. 3. S38 does not apply to a copy of a work that is, or is on, or embodied in, a Page 29 of 61

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non-infringing accessory to an article if the importation of the article is not an infringment: s44C(2) 4. Exceptions in s44D, 44E and 44F apply to s38 dealings 5. S103 does not apply when s112C makes the importation not infringing 6. Exceptions in s112D and 112DA apply to s103 dealings

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DEFENCES TO COPYRIGHT INFRINGEMENT

General In copyright law, there is a need to achieve a balance of interests between encouraging and providing incentives to those who create innovative materials, on the one hand, and the interests of users of copyright materials, on the other hand, in being able to access materials embodying original ideas or information. CLRC, Copyright and Contract (2002): o The exclusive rights of copyright are partly defined by the exceptions, in that the rights only exist to the extent that they are not qualified by the exceptions. The rights conferred on copyright owners are subject to competing interests which require the delineation of exceptions and limitations to the exclusive rights. NOTE: Different types of defences available o Fair Dealing Defences: Both Part III and Part IV Material on page 31. o Specific Royalty-Free Exceptions: Both Part III and Part IV Material on page 35. o Statutory Licences: Both Part III and Part IV Material on page 36.

Fair Dealing Defences: Both Part III and Part IV Material

Applies to any Part III work, or a sound recording, film, sound or television broadcast under Part IV. The fair dealing provisions: o mark out areas of free use of copyright materials, in the public interest and provide a complete defence to an infringement action. o are commonly referred to as exceptions but are more accurately conceptualised as establishing limits to the scope of the bundle of exclusive rights. o apply to all categories of works and subject matter and to each of the exclusive rights but are confined to the doing of acts for four specific purposes. o permit royalty-free use of a substantial part or the whole of the work or subject matter without the authorisation of the copyright owner. These are the fair dealings: o research or study (ss 40 and 103C); o criticism or review (ss 41 and 103A); o reporting of news (ss 42 and 103B); o judicial proceedings or the giving of professional legal advice (ss 43 and 104); and o parody or satire (ss 41A, 103AA). To make out one of these defences, have to show that the dealing was carried out for one of the specific purposes (above) and, then, it must be shown that the dealing was fair (Panel case).

1. Research or Study (s 40 / s 103C) a. Research and study are not defined given dictionary meaning. i. Research means a diligent and systematic enquiry or investigation into a subject in order to discover facts or principles. 1. De Garis v Neville Jeffress Pidler Pty Ltd a. Held, the respondent, a press clipping and media research bureau, who supplied photocopies of published material in return for a fee was not research or study in the terms of s 40. ii. In determining whether a dealing is for the purpose of research or study, the relevant purpose is that of the person making the dealing, not the purpose to which the reproduction or adaptation is ultimately put. 1. De Garis v Neville Jeffress Pidler Pty Ltd Page 31 of 61

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a. Held, the purpose of the respondents press clipping service was not to conduct research, even though research may have been the purpose of its customers. iii. Several non-exclusive factors may be taken into account in determining whether a dealing for research or study purposes is fair. 1. In the case of Part III works and adaptations, these factors apply only where the dealing is a reproduction of the whole or part of the work or adaptation, whereas for Part IV audio-visual items, the factors are relevant to the exercise of any of the exclusive rights. 2. The factors are (ss 40(2) and 103C(2)): a. the purpose and character of the dealing; b. the nature of the work or audio-visual item; c. the possibility of obtaining the work or audio-visual item within a reasonable time at an ordinary commercial price; d. the effect of the dealing upon the potential market for, or value of, the work or audio-visual item; e. where only part of a Pt III work, adaptation or audio-visual item is reproduced or copied, the amount and substantiality of the part copied in relation to the whole item. iv. The Act provides more specific guidelines on the reproduction of literary, dramatic and musical works and adaptations (but these do not apply to audio-visual items): 1. If the work or adaptation is an article in a periodical, it is a fair dealing for research or study to copy the whole of the article (s 40(3)(a)). 2. In any other case, copying is limited to a reasonable portion of the work or adaptation (s 40(3)(b)). 3. It is not a fair dealing to reproduce the whole or part of an article in a periodical if another article in the publication, dealing with a different subject matter is also reproduced (s 40(4)). v. A quantum test applies in determining reasonableness: 1. Where a literary, dramatic or musical work (other than a computer program) is contained in a published edition of 10 pages or more, a reasonable portion is up to 10% in the aggregate of the number of pages in the edition (s 10(2)). 2. Where the work is divided into chapters, a reasonable portion is the whole or part of a single chapter even though it may exceed 10% of the number of pages in the edition (s 10(2)). 3. Where the reproduction is of part of a published literary work (other than a computer program or an electronic compilation such as a database) or a published dramatic work in electronic form, the reproduction contains a reasonable portion of the work if the number of words copied does not exceed, in total, 10% of the number of words in the work or, if the work is divided into chapters, the reproduction contains only the whole or part of a single chapter of the work, even though the number of words copied exceeds, in total, 10% of the number of words in the work (s 10(2A)). 2. Criticism or Review (s 41 / s 103A) a. There may be a fair dealing for the purpose of criticism or review provided sufficient acknowledgment is made (ss 41 and 103A) b. For an acknowledgment to be sufficient, it must identify the work or audio-visual item by its title or other description, as well as the author (s 10(1)). c. Criticism and review are not defined given dictionary meaning. d. In De Garis v Neville Jeffress Pidler Pty Ltd at 299-300, Beaumont J referred to the Macquarie Dictionary definitions of criticism and review: i. criticism is used in the sense of the act or art of analysing and judging the quality of a literary or artistic work; the act of passing judgment as to the merits of something; [and] a critical comment, article, or essay, a critique; review is used in the sense of a critical article or report, as in a periodical, on some literary work, Page 32 of 61

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commonly some work of recent appearance; a critique. ii. criticism includes all kinds of criticism it is not restricted to literary criticism review is cognate with the word criticism; one is the process, the other is the result of the critical application of the mental faculties. e. Criticism and review are words of wide and indefinite scope which should be interpreted liberally and extend to the thoughts underlying the expression of copyright works or subject matter. i. TCN Channel Nine Pty Ltd v Network Ten Ltd [2001] FCA 108 at [66] per Conti J f. They involve the passing of judgment and may be strongly expressed but, provided they are genuine and not a pretence for some other purpose, need not be balanced: i. TCN Channel Nine Pty Ltd v Network Ten Ltd [2001] FCA 108 at [66] per Conti J g. In TCN Channel Nine Pty Ltd v Network Ten Ltd (2002) 55 IPR 112 Hely J (Sundberg and Finkelstein JJ agreeing) at [115] said the test is: i. [I]s the program incorporating the infringing material a genuine piece of criticism or review, or is it something else, such as an attempt to dress up the infringement of anothers copyright in the guise of criticism, and so profit unfairly from anothers work? As Lord Denning said in Hubbard v Vosper [1972] 2 B 84 at 93, it is not fair dealing for a rival in the trade to take copyright material and use it for its own benefit. 3. Reporting of the News (s 42 / s 103B) a. Copyright in a Pt III work or adaptation or a Pt IV audio-visual item is not infringed if it is dealt with for the purpose of, or associated with, the reporting of news (ss 42 and 103B): i. in a newspaper, magazine or periodical, provided sufficient acknowledgement is made of the work or audio-visual item; ii. by means of an electronic communication; iii. in a cinematograph film. b. It covers music incidentally recorded in the course of reporting news by means of broadcast or film, but does not extend to music added to the soundtrack which does not form part of the news being reported (s 42(2)). c. The fact that news coverage is interesting or may even be entertaining does not negate the fact that it is news, even though it may sometimes be difficult to draw a distinction between news and entertainment. i. News reported with humour may still fall within the ambit of the fair dealing provisions. 1. TCN Channel Nine Pty Ltd v Network Ten Ltd (2002) 55 IPR 112 at [66] per Conti J and at [98] per Hely J 4. Judicial Proceedings or the Giving of Professional Legal Advice (s 43 / s 104) a. Professional legal advice: i. It is not an infringement to make a fair dealing with a Part III work for the purposes of giving of professional advice by a legal practitioner, a registered patent attorney or a registered trade mark attorney (s 43(2)). ii. There is no fair dealing counterpart in relation to the use of audio-visual items for these purposes. b. Judicial proceedings: i. Any act done in relation to a literary, dramatic, musical or artistic work for the purpose of a judicial proceeding or the report of a judicial proceeding is exempted from copyright infringement (s 43(1)). ii. A general exception from infringement of copyright in sound recordings, films, broadcasts and published editions applies for acts done in the course of judicial proceedings or the reporting of such proceedings (s 104(a)) or in the course of obtaining professional advice from a lawyer, patent attorney or trade marks attorney (s 104(b) and (c)). 5. Parody or Satire (s 41A / 103AA) a. The new provisions (ss 41A and 103AA) apply where a person or organisation can demonstrate that their use of copyright material (both works and audio-visual subject Page 33 of 61

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b. c.

d. e. f.

g.

h.

i.

j.

matter) is a fair dealing for parody or satire. The Act does not include a definition of parody or satire or require sufficient acknowledgment of the work to be made. i. TCN Channel Nine Pty Ltd v Network Ten Ltd [2001] FCA 108 at [17] per Conti J There is no definition of parody or satire in the Act, so the courts will probably rely on their dictionary definitions. i. Parody and entire tend to employ irony, sarcasm and ridicule tin a humorous manner. The focus of their attention is what sets them apart. 1. Parody is associated more with ridicule and is generally directed at criticism of a work. Parody, by its nature, is likely to involve holding a creator or performer up to scorn or ridicule. 2. Satire draws attention to characteristics or actions which are external to an authors work. Defences relating to parody can be found in other jurisdictions, including the US and member countries of the European Union. The defence for satire may be unprecedented. The Panel involved parody and satire but was over before the defence was introduced. Would it have made a difference? Should parody and satire be protected? i. criticism (even, or especially, when done with humour) is necessary for public debate and discussion? ii. original author is unlikely to lose proceeds for a work of parody or satire? iii. copyright should not be used as a means of censorship? Historically parody and satire has been accommodated within copyright law to some degree by: (before amendments) i. substantial part. 1. Joy Music v Sunday Pictorial Newspapers [1960] 1 All ER 703 2. AGL Sydney v Shortland County Council (1989) 17 IPR 99 3. TCN Channel Nine Pty Ltd v Network Ten (2001) 108 FCR 235 ii. fair dealing for the purposes of criticism or review. 1. TCN Channel Nine Pty Ltd v Network Ten Ltd (2001) 108 FCR 235 at [66] per Conti J 2. TCN Channel Nine Pty Ltd v Network Ten Ltd (2002) 118 FCR 417 Hely J (Sundberg and Finkelstein JJ agreeing) at [115] iii. fair dealing for the purposes of reporting the news. 1. Beloff v Pressdram [1973] 1 All ER 241 2. BBC v BSB [1992] Ch 141 3. Nine Network Australia v ABC (1999) 48 IPR 333 4. TCN Channel Nine Pty Ltd v Network Ten Ltd (2001) 108 FCR 235 at [66] per Conti J Law reform leading to this new exception: i. Government considered the introduction of a fair use doctrine, but instead introduced further exceptions, including one for parody or satire. ii. The new provisions (ss 41A and 103AA) apply where a person or organisation can demonstrate that their use of copyright material (both works and audio-visual subject matter) is a fair dealing for parody or satire. iii. The Act does not include a definition of parody or satire or require sufficient acknowledgment of the work to be made. 1. In TCN Channel Nine Pty Ltd v Network Ten Ltd (2001) 108 FCR 235 at [17] per Conti J defined the terms by reference to the Macquarie Dictionary. What is the likely scope of the new exception? i. The US courts, in interpreting fair use, have traditionally made a distinction between parody and satire: 1. Parody is generally more likely to be considered fair use. Under the fair use doctrine, the courts have regard to four factors: i. the purpose and character of the use, including whether such use is of a commercial Page 34 of 61

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nature or is for nonprofit educational purposes; ii. the nature of the copyrighted work; iii. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and iv. the effect of the use upon the potential market for or value of the copyrighted work.

Specific Royalty-Free Exceptions: Both Part III and Part IV Material

1. Time Shifting (s 111) making a copy to watch later a. If a person makes i. A cinematograph film or sound recording of a broadcast; ii. Solely for private and domestic use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast was originally made; then the making of the film or recording does not infringe copyright. b. This exception will not apply if an article or thing embodying the film or recording is: i. sold; ii. let for hire; iii. by way of trade offered or exposed for sale or hire; iv. distributed for the purpose of trade or otherwise (not including loaning the article or thing to a member of the lender's family or household for the member's private and domestic use); v. used for causing the film or recording to be seen or heard in public; vi. used for broadcasting the film or recording. 2. Format Shifting making a private copy for backup etc a. Books, newspapers and periodicals (s 43C): i. You can copy a book, newspaper or periodical that you own to use in a different format (eg scanning an article from a magazine onto your personal computer to keep as a reference). b. Photographs (s 47J): i. You are permitted to copy a photograph: 1. where the copy you own is in hardcopy form into an electronic form (for example by scanning into a computer), or 2. where the copy you own is in electronic form into a hardcopy form (for example by printing a digital file). c. Videotapes (s 110AA): i. You are able to copy a video cassette that you own into an electronic form (for example to a DVD). d. The limits to the new exceptions are: i. The original copy you own must be a legitimate copy. ii. You cannot sell, hire, lend or give away any copy made but you can lend a copy to a member of your family or household. iii. You are free to dispose of the original legitimate copy of a sound recording, but you must not keep any copy you have made from the original. iv. Making multiple copies in a similar format is not allowed, either from the original copy you own or from a later copy. v. Copying computer games is not allowed. vi. You are not authorised to remove any anti-copying measures applied by the manufacturer to the material you own. e. Music (s 109A) i. If: (s 109A(1)) 1. the owner of a copy (the earlier copy ) of a sound recording makes another Page 35 of 61

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copy (the later copy ) of the sound recording using the earlier copy; and 2. the sole purpose of making the later copy is the owner's private and domestic use of the later copy with a device that: a. is a device that can be used to cause sound recordings to be heard; and b. he or she owns; and 3. the earlier copy was not made by downloading over the Internet a digital recording of a radio broadcast or similar program; and 4. the earlier copy is not an infringing copy of the sound recording, a broadcast or a literary, dramatic or musical work included in the sound recording; then the making of the later copy does not infringe copyright in the sound recording, or in a literary, dramatic or musical work or other subject-matter included in the sound recording (s 109A(2)) ii. This exception will not apply if the earlier copy or the later copy is: 1. sold; 2. let for hire; 3. by way of trade offered or exposed for sale or hire; 4. distributed for the purpose of trade or otherwise (not including loaning the earlier copy or the later copy to a member of the lender's family or household for the member's private and domestic use); 5. used for causing the film or recording to be seen or heard in public; 6. used for broadcasting the film or recording. 3. Miscellaneous Exceptions a. Performance of a literary, dramatic or musical work or playing a sound recording or film in a school classroom does not infringe copyright (s 28). b. Public performance of a literary, dramatic or musical work or an adaptation of such a work, by the use of reception equipment or a record, at premises where people reside or sleep, as part of the amenities provided exclusively for residents or inmates of the premises or for those residents or inmates and their guests (s 46 see also s 106(1) in respect of sound recordings). c. It is not an infringement to photograph, paint, draw, film or include in a television broadcast a building, a model of a building, a sculpture or a work of artistic craftsmanship which is permanently displayed in a public place or in premises open to the public (ss 65 and 66). d. Copyright in an artistic work is not infringed if the work is included in a film or television broadcast, incidentally to the principal matters represented in the film or broadcast (s 67). e. It is not an infringement to read or recite in public or to include in a sound or television broadcast of a reading or recitation, a reasonable length extract from a published literary or dramatic work or an adaptation of such a work, as long as the work is given sufficient acknowledgement (s 45). f. Copyright in an artistic work is not infringed by the creator of that work if he or she makes a later artistic work which does not repeat or imitate the main design of the earlier work (s 72). g. Where there is copyright in a building, copyright is not infringed by reconstructing it (s 73).

Statutory Licences: Both Part III and Part IV Material

Statutory licenses include: o Use of copyright material for the services of the State (ss 183 and 183A C). o Educational institutions and institutions assisting persons with a print disability or an intellectual disability - copy and communicate sound and television broadcasts (Part VA) and to reproduce and communicate works and published editions (Part VB), on condition that equitable remuneration is paid to an approved collecting society). o re-recording of musical works, as long as the subsequent recording does not debase the Page 36 of 61

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o o o o

work (s 55). the making of sound broadcasts of literary and dramatic works by the holders of a print disability radio licence (s 47A). recording of musical and literary works (Part III, Div 6). retransmissions of free-to-air broadcasts (Part VC). public performance and broadcasting of sound recordings (ss 108(1) and 109(1)).

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REMEDIES FOR INFRINGEMENT OF COPYRIGHT

General Part V of the Copyright Act provides a range of civil remedies for infringement of copyright. The Act is not exhaustive of available remedies, and that indeed any remedy which a court hearing a copyright matter may award in its inherent jurisdiction is available, for example, a declaration: WEA International Inc v Hanimex Corp Ltd o Injunctions An injunction is an available remedy (s 115(2)). An injunction is the most common remedy either interlocutory or final. The principles upon which relief will be available are those applicable under the general law. o Damages Damages is an available remedy (s 115(2)). Damages cannot be obtained from an innocent infringer that is, damages are not available if, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright (s 115(3)). Kiama Constructions v MC Casella Building Co Pty Ltd o The plaintiff builder drew up a plan for a couple to build a house on a block of land. The couple made a pencil sketch of the plan and showed the defendant builder. The defendant builder suggested a draftsman should draw up more detailed plans. o Held, infringement of copyright, but that the defendant builder was an innocent infringer and was not liable to pay damages the builder was unaware the couple did not own copyright in the plans. o Additional damages Additional damages of a punitive and/or aggravated nature may also be awarded (s 115(4)) The court has regard to: (i) the flagrancy of the infringement; and (ia) the need to deter similar infringements of copyright; and (ib) the conduct of the defendant after the act constituting the infringement or, if relevant, after the defendant was informed that the defendant had allegedly infringed the plaintiffs copyright; and (ii) whether the infringement involved the conversion of a work or other subject-matter from hardcopy or analogue form into a digital or other electronic machine-readable form; and (iii) any benefit shown to have accrued to the defendant by reason of the infringement; and (iv) all other relevant matters. Milpurrurru v Indofurn Pty Ltd The artwork of eight Aboriginal artists had been reproduced without their permission on carpets manufactured overseas and imported into Australia by the defendants. Held, copyright infringement additional damages were assessed at $70,000 having regards to the cultural harm and personal distress caused. o Account of profits An account of profits is an available remedy (s 115(2)). An account of profits and damages are alternative remedies. The applicant must elect. Page 38 of 61

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The applicant is entitled to recover a sum which represents that proportion of the respondents profits that was fairly attributable to the infringement of the applicants copyright. Robert J Zupanovich v B & N Beale Nominees o Conversion damages Conversion damages is an available remedy (s 116). The provisions were substantially amended by the Copyright Amendment Act (No 1) 1998 with the effect of making the remedy a matter of discretion by the court. These new provisions are intended to avoid the possibility of the award of excessive damages. Owner of copyright in a work or other subject-matter may bring an action for conversion or detention in relation to (s 116(1)): an infringing copy. o infringing copy an article, the making of which constituted an infringement of copyright in the work, sound recording, film, broadcast or edition, as the case may be, or in the case of an imported article would have constituted such an infringement if the article had been made in Australia by the importer (s 10(1)). a device used for making infringing copies. A court may grant those remedies that would be available as if (s116(1A)): the copyright owner had been the owner of the infringing copy since the time the copy was made. the owner of the device used or intended for use in making them. Conversion damages is a remedy in addition to, for example, compensatory damages (s 116(1B)). But, the court is not to make an award for conversion damages where it is satisfied, in essence, that an award of compensatory damages under s 115 is a sufficient remedy in the circumstances (s 116(1C)). In deciding whether to grant conversion damages and in assessing the amount of such damages the court is to have regard, for example, to the expenses incurred by the defendant in manufacturing or acquiring the infringing copy and any other matter that the court considers relevant (s 116(1D)). If only part of the infringing copy consists of material that infringes copyright, the court considers (s 1161E): the importance to the market value of the article of the material that infringes copyright. the proportion of the infringing material. the extent to which the material that infringes copyright may be separated from the article. Conversion damages cannot be obtained from an innocent infringer copyright owner is not entitled to conversion damages if it is established that at the time of the conversion that (s 116(2)): the defendant was not aware, and no reasonable grounds for suspecting that copyright subsisted in the work or other subject-matter; or where the articles were infringing copies the defendant believed, and had reasonable grounds for believing, that they were not infringing copies. o Anton Piller order An ex parte order that the defendant permit the plaintiffs solicitors to enter premises forthwith to inspect and remove defined articles and documents. Anton Piller KG v Manufacturing Processes Ltd Awarded where it is likely that the defendant will destroy evidence. Polygram Records Pty Ltd v Monash Records (Australia) Pty Ltd o Criminal Provisions Page 39 of 61

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Following the Copyright Amendment Act 2006 (Cth), there are now three tiered offences for most offences indictable, summary and strict liability offences relating to copyright piracy. The most serious offences are indictable. Default fault elements of intention and recklessness. Maximum penalties of 5 years imprisonment and/or between 550 to 850 penalty units ($60,500 to $93,500) for natural persons. The summary offences have a lower threshold, with most containing fault elements of intention (by default) and negligence. Maximum penalties of 2 years imprisonment and/or 120 penalty units ($13,200). Strict liability offences do not have a fault element. Maximum penalty for a strict liability offence is 60 penalty units ($6,600) for a natural person. Where a matter goes to court, courts can order that circumvention devices, infringing copies, and devices and equipment used to infringe, be destroyed, or handed over to relevant copyright owners, or otherwise dealt with.

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TECHNOLOGICAL PREVENTION MEASURES

Technological prevention measures o There are criminal penalties and civil remedies for making, importing and commercially dealing in devices and services which circumvent technological copyright protection measures (such as decryption software). o Two key technological prevention measures were introduced in Copyright Amendment (Digital Agenda) Act 2000 (Cth): provisions dealing with circumvention devices and services; and provisions in relation to rights management information. o These measures were modified by the Copyright Amendment Act 2006 (Cth), which implemented stronger measures as required by Australias obligations under the Australia-USA Free Trade Agreement 2004. o There are three anti-circumvention prohibited activities: where a person circumvents an access control technological prevention measure (s 116AN); where a person manufactures a circumvention device for a technological prevention measure (s 116AO); and where a person provides a circumvention service for a technological protection measure (s 116AP). o Key definitions in s 10(1): access control technological prevention measure; circumvention device; controls access; and technological prevention measure. o Sometimes a copyright owner can take court action against people who do these things, and sometimes this conduct is a criminal offence where action is taken on behalf of a State or Territory, or for the Commonwealth. o The sanctions implement Australias obligations under the AUSFTA, which requires more extensive protection for TPMs than was provided in Australia before 1 January 2007. o There are limited circumstances in which a circumvention device may be legally manufactured, imported or supplied, or in which a circumvention service may be provided. These circumstances are much more limited now than they were pre2007. o The new provisions also allow a person to circumvent an access-control TPM to get access to copyright content in certain situations. Some of these situations are set out in the Copyright Act 1968 (Cth); others are in Regulations to the Copyright Act. However, there are no provisions that allow the importation or supply of circumvention devices, or the supply of circumvention services, in relation to access-control TPMs. o Remedies and penalties relating to circumvention devices and services are mostly the same as for copyright infringement. o The second technological prevention measure introduced in the Copyright Amendment (Digital Agenda) Act 2000 (Cth) which was extended and strengthened by the US Free Trade Agreement Implementation Act 2004 (Cth), makes it an offence for someone to intentionally remove or alter electronic rights management information (ERMI). o ERMI is electronic information that is attached to or embodied in a work, such as a digital watermark. Page 41 of 61

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It also includes numbers or codes which represent such information in an electronic format. It acts as a footprint that helps copyright owners track the uses of their works online. o In some situations, copyright owners can take action against people who remove or alter ERMI from the copyright owners copyright material without permission if this would enable or conceal a copyright infringement (s 116B). o In some cases, removing or altering ERMI is a criminal offence. o Copyright owners may also in some cases take action against people who distribute, import or communicate to the public copyright material from which ERMI has been removed or altered (s 116C). o Distributing, importing or communicating to the public this kind of material may also be a criminal offence. o Remedies and penalties for these actions and offences are mostly the same as for copyright infringement. Digital Agenda Act 2000 inserted new civil and criminal infringement provisions into Div 2 Pt V of Copyright Act prohibiting: o dealings in devices or services that enable circumvention of technological mechanisms designed to prevent or inhibit copyright infringement by controlling access to or copying of the copyright material (s 116A); and o altering or removing digital rights management information (ss 116B and 116C) Anti-circumvention provisions: o circumvention device: a device, (including a computer program) with only a limited commercially significant purpose or use, or no purpose or use, other than the circumvention, or facilitating the circumvention, or of an effective technological protection measure o circumvention service: as for circumvention device Section 116A o Where a work or subject matter is protected by a technological protection measure (TPM), it is an infringement to do any of the following without permission of copyright owner or excl licensee: make a c-dev capable of circumventing the TPM; sell, hire, promote, advertise or market a c-dev; distribute a c-dev for purposes of trade or another purpose prejudicial to copyright owners interests; exhibit or import a c-dev for commercial purpose; make a c-dev available online, to the prejudice of the copyright owner o Equivalent to s1201(a)(2) Digital Millennium Copyright Act 1998 (US) o BUT, the prohibition relating to TPMs did not originally apply to the use of such devices/services, as was the case in the US Digital Millennium Copyright Act 1998 note that this was changed in the 2006 amendments to the Copyright Act; o See comment by Lindgren J in Sony v Stevens [2003] FCA FC: s116A applies to making of c-devs and trading activity only; does not apply to acts by ordinary users of c-devs; a user does not infringe copyright any more than the reader of a book infringes the copyright in a literary work embodied in it. o technological protection measure, s10(1) device or product, or a component incorporated into a process, designed, in the ordinary course of its operation, to prevent or inhibit Page 42 of 61

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- the infringement of copyright in a work or other subject matter by either or both of the following means: (a) by ensuring that access to the work or other subject matter is available solely by use of o an access code or o process (including decryption, unscrambling or other transformation of the work or other subject-matter) with the authority of the owner or licensee of the copyright; or (b) through a copy control mechanism o Anti-circumvention provisions (s 116A): circumvention device: a device, (including a computer program) with only a limited commercially significant purpose or use, or no purpose or use, other than the circumvention, or facilitating the circumvention of, an effective technological protection measure o circumvention service: as for circumvention device o Note: must have no commercially significant purpose or only a limited commercially significant purpose other than facilitating the circumvention of a TPM o Digital Millennium Copyright Act 1998 (US) - DMCA o Universal City Studios v Remeirdes (2000) (US) Decryption of DVD security software system CSS to create DeCSS - argued that it was done to play DVDs on Linux platform Kaplan J found that DeCSS infringed the DVD encryption; publisher of hacker magazine 2600 banned from distributing DeCSS o Kabushiki Kaisha Sony Computer v Stevens (Sony v Stevens) Eddy Stevens - trading in mod chips for Sony PlayStations Was there a TPM? Had it been circumvented by the mod chips? Regional Access Code (RAC) on PlayStation game CD-ROMs + Boot ROM on circuit board of SonyPlaystation console was this a TPM? Separately or combined? HELD [2002] Fed Ct Sackville J o held NOT to be a technological protection measure [2003] FCA Full Ct French, Lindgren, Finkelstein JJ o Overturned Sackville Js decision held there was a TPM [2005] HCA 58 o High Court overturned Full Federal Court and reverted to interpretation at first instance o Protection for electronic rights management systems (ERMI) - a technological mechanism used by copyright owners to protect their material - typically includes information about the copyright material, the owners details, terms and conditions of use allows digital copyright material to be described, identified, monitored and tracked, enabling a copyright owner to potentially monitor every instance of access to and use of their copyright material o Copyright is infringed by the removal or alteration of any electronic rights management information attached to a copy of a copyright work or subject matter without the permission of the copyright owner or exclusive licensee: s 116B o ERMI defined in s10(1) of the Copyright Act 1968 - electronic information, (including numbers or codes representing such information) which is either attached to or embodied in the copyright material, or appears in connection with a communication or the making available of the copyright material. o The information either identifies the copyright material and its author or copyright owner, or identifies or indicates the terms and conditions of use of the copyright material, or Page 43 of 61

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indicates that use of it is subject to terms and conditions o Prior to the USFTAI Act, penalties only applied to the unauthorised removal or alteration of ERMI that was attached to a copy of a copyright work or other subject matter: s 116B(1)(a) and (b). o The USFTAI Act extended liability to include the unauthorised removal or alteration of ERMI that is separate from, but appears in connection with for example, near or in conjunction with, or has at some point in time appeared in connection with a copy of the work or other subject matter. o Electronic rights management info, s10(1): (a) info attached to or embodied in copyright material that identifies the material and its author or copyright owner; or identifies or indicates some or all of the terms and conditions on which the material may be used, or indicates that the use of the material is subject to terms or conditions ; or (b) any numbers or codes that represent such information in electronic form Note: (b) refers to info in electronic form, but (a) is not restricted in this way Definition is broad enough to include any information attached or embodied in material eg a simple copyright statement or notice as well as invisible digital watermarks o To be liable under s 116B, the defendant must have known or ought reasonably to have known that the removal or alteration would induce, enable, facilitate or conceal an infringement of copyright: s 116B(1)(c) o Unless the defendant proves otherwise, it is presumed that he knew or ought reasonably to have known that the removal or alteration of the ERM info would induce, enable, facilitate or conceal an infringement of copyright: s 116B(3) S 116C it prohibits: o removal or alteration of any ERM info attached to copyright material o without the permission of the owner or exclusive licensee of copyright o knowing or ought reasonably to have known that removal or alteration would facilitate, enable or conceal copyright infringement o prohibits commercial dealings in works whose ERMI has been removed or altered if ERM info has been removed or altered and a copy is distributed or imported for trade or communicated to the public knowing or ought reasonably to have known that the ERMI had been removed or altered to facilitate, conceal or enable infringement Criminal Offences: s 132(5C), (5D) o removal or alternation of ERMI knowing or reckless as to whether doing so will enable, facilitate or conceal infringement o distribution of copies of material from which ERMI has been removed, with requisite mental element

Part IIInterpretation
10 Interpretation (1) In this Act, unless the contrary intention appears: access control technological protection measure means a device, product, technology or component (including a computer program) that: (a) is used in Australia or a qualifying country: (i) by, with the permission of, or on behalf of, the owner or the exclusive licensee of the copyright in a work or other subject-matter; and (ii) in connection with the exercise of the copyright; and (b) in the normal course of its operation, controls access to the work or other subject-matter; but does not include such a device, product, technology or component to the extent that it: Page 44 of 61

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(c) if the work or other subject-matter is a cinematograph film or computer program (including a computer game)controls geographic market segmentation by preventing the playback in Australia of a non-infringing copy of the work or other subject-matter acquired outside Australia; or (d) if the work is a computer program that is embodied in a machine or devicerestricts the use of goods (other than the work) or services in relation to the machine or device. For the purposes of this definition, computer program has the same meaning as in section 47AB. circumvention device for a technological protection measure means a device, component or product (including a computer program) that: (a) is promoted, advertised or marketed as having the purpose or use of circumventing the technological protection measure; or (b) has only a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention of the technological protection measure; or (c) is primarily or solely designed or produced to enable or facilitate the circumvention of the technological protection measure. For the purposes of this definition, computer program has the same meaning as in section 47AB. circumvention service for a technological protection measure means a service that: (a) is promoted, advertised or marketed as having the purpose or use of circumventing the technological protection measure; or (b) has only a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention of the technological protection measure; or (c) is primarily or solely designed or produced to enable or facilitate the circumvention of the technological protection measure. controls access: a device, product, technology or component (including a computer program) controls access to a work or other subject-matter if it requires the application of information or a process, with the permission of the owner or exclusive licensee of the copyright in the work or other subject-matter, to gain access to the work or other subject-matter. technological protection measure means: (a) an access control technological protection measure; or (b) a device, product, technology or component (including a computer program) that: (i) is used in Australia or a qualifying country by, with the permission of, or on behalf of, the owner or the exclusive licensee of the copyright in a work or other subject-matter; and (ii) in the normal course of its operation, prevents, inhibits or restricts the doing of an act comprised in the copyright; but does not include such a device, product, technology or component to the extent that it: (iii) if the work or other subject-matter is a cinematograph film or computer program (including a computer game)controls geographic market segmentation by preventing the playback in Australia of a non-infringing copy of the work or other subject-matter acquired outside Australia; or (iv) if the work is a computer program that is embodied in a machine or devicerestricts the use of goods (other than the work) or services in relation to the machine or device. For the purposes of this definition, computer program has the same meaning as in section 47AB. Sony Computer v Stevens Page 45 of 61

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Sony v Stevens [2002] FCA 906 The digital environment changes the way copyright material is accessed and used. This case is the first decision to consider the technological protection measures and circumvention device provisions inserted in the Australian Copyright Act, 1968(Act) to comply with Article 11 of the WIPO Copyright Treaty. These provisions give copyright owners whose material is protected by technological protection measures a right of action against persons who make, sell or deal in circumvention devices capable of circumventing those technological protection measures. This test case has, not surprisingly, been appealed at first instance. Facts: The proceedings relate to Sonys PlayStation Technology. PlayStation games are embodied in computer programs which are supplied on CD-ROMs and can be played on ordinary television sets by means of a special console. Sony owns the copyright in the computer program and also manufactures and sells the consoles. Each genuine CD-ROM incorporates an access code on a section of the disk, but may only be read by a chip known as the Boot ROM located in the console. When a game is inserted in the console, the consoles Boot ROM checks for the access code. If the disk does not contain a code or does not contain the correct code, the console will not allow the game to be played. In different areas of the world different access codes are used on the PlayStation games (known as regional coding). These codes mean that CD-ROMs sold in America can not be used on a PlayStation bought in Australia. Sony alleged that Mr Stevens had sold converter chips and installed them in Sonys PlayStation consoles that allowed the consoles to play both pirated copies of the PlayStation games and authorised games with other regional codes made in other parts of the world. Sony claimed, among other things, that such conduct was a contravention of the Act, as the practice of regional coding is a technological protection measure and the chips installed by Mr Stevens constituted circumvention devices. At the time, parallel importation of software, and the distribution of such software without the permission of the Australian copyright owner was illegal. [Note that this has since changed with the introduction of The Copyright Amendment (Parallel Importation) Act,2003 which now allows for the commercial importation and distribution of software so long as it was made with the consent of the copyright owner in the country in which it was made.] Decision at First Instance: At first instance, Justice Sackville held that the chip and the access codes did not constitute a "technological protection measure" as referred to in section 116A(1) of the Copyright Act, and thus that Stevens' mod chips were not infringing circumvention devices. Justice Sackville reasoned that Sony's chip and access code was not designed to prevent or inhibit post-access infringement of copyright, but simply deterred such infringement. It was not enough, he held, to simply discourage infringement, holding that the devices did not constitute "technological protection measures". Accordingly, Sackville J did not address whether the mod chips were circumvention devices. He did, however, suggest on the basis of evidence produced by the parties, that the mod chips had a limited commercially significant use other than circumventing Sony's protection measures. Thus, had Sony's chip and access code combination qualified as a technological protection measure, Sackville J would likely have held that the mod chips were circumvention devices. It was held that: a technological protection measure, as defined, must be a device or product which utilises technological means to deny a person access to a copyright work ,or which limits a persons capacity to make copies of a work to which access has been granted, and thereby physically prevents or inhibits the person from undertaking acts which ,if carried out, would or might infringe copyright in the work. The Court held that Sonys regional coding was not a technological protection measure. The Court Page 46 of 61

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found that the purpose and practical effect of the regional coding was to deter people from infringing. Sonys copyright by making, importing or trading in unauthorised copies of PlayStation games, but that this general purpose was not enough to characterise the regional coding as a technological protection measure. In order to be characterised as a technological protection measure, the device must directly inhibit or prevent people from making copies of PlayStation games. In support of its argument that its regional coding was a technological protection measure, Sony also argued that its coding prevented infringement of: copyright in its computer program by preventing reproduction of the game from an unauthorised CDROM onto the random access memory (RAM) within the console. The Court held that in relation to computer programs, the temporary storage of data in a computers RAM does not constitute infringement of copyright in a computer program. copyright in the cinematograph film comprised in the sound and images forming part of the game which would be uploaded into the RAM and reproduced if not for the Boot ROM and access code. The court held that the visual images generated by the playing of a computer game constituted a film. However, the judge found that: in the absence of clearer and more detailed evidence I cannot conclude , that the ephemeral embodiment of a small proportion of images in the RAM constitutes the act of making a copy of the cinematograph film. Decision on Appeal to FCA [2003]: The Full Federal Court overturned the first instance ruling, holding that Sony's hardware/software combination was in fact a "technological protection measure", as it inhibited infringement by making it impossible to use the unauthorised copies. This finding turned on the justices' understanding of what constitutes a "technological protection measure", which they interpreted on the basis of the ordinary meanings of language used in the definition. In addition, a majority of the Full Court (French and Lindgren JJ) affirmed that Justice Sackville was correct in holding that infringing reproductions of computer programs or games are not created in the random access memory of a PlayStation console when a game is played. However, by majority, the Full Court agreed with the court at first instance on the two other issues argued by Sony, being: that there is not a reproduction of the computer programs in the RAM of the PlayStation console when a game is played; and that there is not a copy of the game, regarded as a cinematograph film made in the RAM when a game is played. Decision on Appeal to High Court [2005]: In October 2005, the HCA unanimously overturned the decision of the FCA and held that the Boot ROM was not a TPM and confirmed that Eddie Stevens was not liable for infringement of s 116A of the Copyright Act. The court also agreed with Sackville J and the majority of the FCA that Sonys arguments based on temporary reproduction in RAM could not be sustained. The mod chip is merely for the purpose of accessing the computer program in the CD-Rom and thereafter visually to apprehend the result of the exercise of the functions of the program. The court also noted that the definition of TPM was a compromise between the respective interests and that there was a reluctance to give to copyright owners a form of broad access control and this reluctance is manifest in the inclusion of the definition of a TPM of the concept of prevention or inhibition of infringement. McHugh J said that if the definition of a TPM was to be read as Sony wanted it to be, that is, to include devices designed to prevent access to material, with no inherent or necessary link to the prevention or inhibition of infringement of copyright, this would expand the ambit of the definition beyond that naturally indicated by the text of the Act. Page 47 of 61

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NOTE: Postscript to Sony v Stevens The Copyright Amendment Act 2006 (Cth) introduced significant changes to the provisions relating to the circumvention of TPMs. The definitions are now much wider, but they still do not include TPMs designed solely for other purposes, such as market segmentation etc (as was the case in Sony). There has been some conjecture as to whether or not the new wording preserves the ratio in Stevens v Sony (the HCA decision). Information from Nic Suzors article: Will Mod Chips Be Legal in Australia? In 2005, the Australian High Court ruled that the combination of the boot ROM and region coding in Sony PlayStations and PlayStation games was not a Technological Protection Measure (TPM). Under the old law, a device had to prevent or inhibit the infringement of copyright. Because Sony's technology didn't prevent a copy being made, but only stopped the copy being played in the PlayStation, then it couldn't prevent or inhibit the copying that had already taken place. This may have changed in the recent changes to Australia's copyright legislation. The definition of a Technological Protection Measure (TPM) was changed from a device designed to 'prevent or inhibit', to a device designed to 'prevent, inhibit, or restrict' the infringement of copyright. This effect of inserting the broader term 'restrict' seems to be to legislate around the High Court's decision in /Stevens v Sony/, meaning that a PlayStation may well be a TPM under the new law, and dealing with mod-chips may soon be illegal. The changes also introduce a new category of protected devices, called Access Control Technological Protection Measures (ACTPMs). An ACTPM is defined as a device used within Australia in connection with the exercise of copyright, which controls access to the copyright work. 2) For ACTPMs, unlike TPMs, it is illegal not only to manufacture or supply a circumvention device or service, but also to actually circumvent the measure. Previously, if you could obtain a circumvention device (mod-chip) from outside of Australia, there would be no restriction on you using that mod-chip yourself; but you couldn't have it done for you. Now, if the device is an ACTPM (but not a TPM), then actual circumvention may result in civil liability,3) and, if done for commercial advantage or profit, criminal sanctions.4) For both TPMs and ACTPMs, the manufacture, importation, distribution, or communication of a circumvention device, or the provision of a circumvention service, will attract both civil and criminal liability, with punishments up to 5 years imprisonment.5) There is an exception in the new law which provides that a region coding device is neither an ACTPM or TPM, and a device or service designed to circumvent it will not be either a circumvention device or a circumvention service respectively. This means that a device which only has the function of preventing use in Australia of a film, game, or computer program which was purchased outside Australia, will not be protected. (It is important to note that this exception is very narrowly worded - for example, the law may not apply to allow circumvention of a device which restricts use of a game or movie to a particular State or city within Australia.) The situation becomes more complicated when a single device has functions which both prevent use in Australia and either (a) control access to the copyright work (an ACTPM); or (b) prevent, inhibit or restrict the infringement of copyright (a TPM). Most technical locks on current game consoles arguably have both of these functions - the Sony PlayStation itself, if found to be a TPM under the broader definition of TPM, has both a TPM function and a region coding function. The question becomes how the new exception will be interpreted, and how tightly manufacturers couple unprotectable region codes with protected TPMs or ACTPMs. In their submission to the House of Representatives Standing Committee on Legal and Constitutional Affairs (LACA) review into Technological Protection Measures, the IEAA stated that [a]ccess controls used to enforce region coding are tightly coupled with additional and inseparable access controls that distinguish Page 48 of 61

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genuine from pirated games.6) The LACA Committee did not accept that this must always be the case, however, and noted that it should be practically possible to isolate region coding elements from TPM elements.7) Where the manufacturer creates a dual purpose device, it will be an ACTPM or TPM, but not to the extent that it controls market segmentation. This can be read to mean that to the extent that it otherwise controls access, the device will still be an ACTPM or TPM. If a user can circumvent only the regional coding, and no more, then that circumvention will be permissible. A more difficult question arises when the user, in circumventing the region coding, also circumvents the TPM, and whether it was strictly necessary to do so or not. It is unclear under the new law whether circumvention will be prohibited in this case. There is an argument that can be made that if it is not possible to separate the functions of a legitimate TPM or ACTPM from region coding functions, then none of the combination will be a TPM or an ACTPM. Neither the legislation nor the secondary materials, however, provide any clear guidance as to the extent to which this argument is correct. If this argument is correct, then it is still unclear that where it may be technically possible but extremely difficult and expensive to circumvent only the region coding, whether a 'reasonableness' test would be implied to excuse circumvention of both. While it may be technically possible to circumvent only the region coding portion of a dual purpose device, it may be prohibitively difficult to do so. Most mod-chips bypass the entire device completely. In the Blizzard v BNetD case, the modders had to bypass a check to allow them to use their games on an interoperable server. In doing so, and because they didn't have the information required to implement their own checks, they also bypassed the CD-key authenticity check.8)) This was held to be an illegal circumvention. If a modder is required to bypass only the region coding portion of a dual purpose device, instead of a simple bypass, they may have to engage in very difficult low level reverse engineering, and may even require confidential information to reconstruct a working access control. By relying on this requirement, a manufacturer can construct a region coding which, while technically legal to remove, would be very nearly (but not quite) impossible to remove without also removing the access code. When asking, then, whether mod-chips will be permitted under the new law, there are a number of questions: Does the device control access to a copyright work? If so, then the device may be an ACTPM, and circumvention will normally be prohibited, as will dealing with or providing mod-chips or circumvention services. If not, does the device prevent, inhibit or restrict the infringement of copyright? If so, the device may be a TPM, and while actual circumvention by people with the technical skill to do so will be allowed, dealing with or providing mod-chips or circumvention services will be prohibited. The new wider language of this test means that the device in the PlayStation may well be a TPM, where it wasn't under the old law. If the device also implements region coding, does the mod-chip only circumvent the region code and leave the access control or the TPM intact? If so, the mod-chip will be legal. If the device also implements region coding, and the mod-chip circumvents both the region code and the access control or TPM, the position is still unclear. A Court may ask whether it was reasonable for the chipper to circumvent the TPM or ACTPM in order to bypass the region code. Alternatively, a Court may take the narrower approach and ask only whether it was technically necessary to do so. This is a fundamental uncertainty in the new law, and one which may take another test case, many years, and potentially another High Court decision to resolve. It is not clear whether mod-chips are legal in Australia. The new law is more restrictive than the old law, because the definition of TPM is broader. This means that a mod-chip which allows the playing of homebrew games may not be allowed, where it would have been under the old law after /Stevens v Sony/. A mod-chip which only allows playing of games from other regions will probably be allowed. Page 49 of 61

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What about a device which does both? The answer is unclear at best. The great danger of this new legislation, in addition to the fact that the types of protected devices has been significantly expanded, lies in the ability of a copyright owner to design around the limitations of the wording. A TPM can be designed to also be an ACTPM, in order to obtain protection from actual circumvention. An unprotected region code can be rendered protectable by creating a dual purpose device in which the functions are separated but any method of circumvention necessitates circumvention of both the access control and the regional coding. The manufacturer is the only person in the position to confine a device to specific functions, but this legislation does not impose any clear obligation to do so. Instead, it provides an incentive to create dual purpose devices. There remains much uncertainty as to whether the circumvention of region coding in Australia will be legal under the new legislation, and the ambiguity within the legislation provides a potential loophole for manufacturers to obtain legal protection for devices which would not ordinarily be protected. It will now be up to the Courts, again, to determine when Australians have the right to remove arbitrary or anticompetitive restrictions imposed upon their property by copyright owners. Electronic Rights Management Systems Increasingly allows the material to be tracked, prescribed, and monitored by the owner. Also indicates a code as law measure protected by actual law. The whole licensing terms may be embedded in the code, allowing possible tracing. Copyright is infringed by the removal or alteration of any electronic rights management information attached to a copy of a copyright work or subject matter without the permission of the copyright owner or exclusive licensee: s 116B Electronic rights management info, s10(1): (a) info attached to or embodied in copyright material that identifies the material and its author or copyright owner; or identifies or indicates some or all of the terms and conditions on which the material may be used, or indicates that the use of the material is subject to terms or conditions ; or . (over) (b) any numbers or codes that represent such information in electronic form Note: (b) refers to info in electronic form, but (a) is not restricted in this way Defn is broad enough to include any information attached or embodied in material eg a simple copyright statement or notice as well as invisible digital watermarks

To be liable under s 116B, the defendant must have known or ought reasonably to have known that the removal or alteration would induce, enable, facilitate or conceal an infringement of copyright: s 116B(1)(c) Unless the defendant proves otherwise, it is presumed that he knew or ought reasonably to have known that the removal or alteration of the ERM info would induce, enable, facilitate or conceal an infringement of copyright: s 116B(3) s116C prohibits o removal or alteration of any ERM info attached to copyright material o without the permission of the owner or exclusive licensee of copyright o knowing or ought reasonably to have known that removal or alteration would facilitate, enable or conceal copyright infringement s116C prohibits commercial dealings in works whose ERMI has been removed or altered o if ERM info has been removed or altered and o a copy is distributed or imported for trade or communicated to the public o knowing or ought reasonably to have known that the ERMI had been removed or altered to facilitate, conceal or enable infringement Page 50 of 61

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S132(5C), (5D) create criminal offences o removal or alternation of ERMI knowing or reckless as to whether doing so will enable, facilitate or conceal infringement o distribution of copies of material from which ERMI has been removed, with requisite mental element

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PERFORMERS RIGHTS
o Until 1989, performers had no specific protection for their live performances under Australian law. There was nothing that a performer could do to prevent others from recording and using their performances where they had no already been fixed in a material form. o Overview: A performers consent is generally needed to film or record a performance, and to broadcast or otherwise communicate a performance. Performers have extensive rights in relation to unauthorised films, recordings and broadcasts of their performances. From 1 January 2005, the Copyright Act 1968 (Cth) has provided that performers coown copyright in sound recordings of their performances - this provision may in some cases allow performers to exercise additional control over sound recordings of their performances. Since 26 July 2007, the Copyright Act has given performers moral rights in relation to live performances and performances recorded in sound recordings. o In practice, performers rights are often determined by industry agreements and other contracts, rather than by the provisions in the Copyright Act. o There are three separate areas of rights relating to performers: the right to grant or refuse consent to the reproduction and communication of a performance (Part XIA); co-ownership of copyright in a sound recording of a performance (ss 22(3A), 22(3B) and 22(3C); and moral rights. o What is a performance? See s 248(1): "performance" means: (a) a performance (including an improvisation) of a dramatic work, or part of such a work, including such a performance given with the use of puppets; or (b) a performance (including an improvisation) of a musical work or part of such a work; or (c) the reading, recitation or delivery of a literary work, or part of such a work, or the recitation or delivery of an improvised literary work; or (d) a performance of a dance; or (e) a performance of a circus act or a variety act or any similar presentation or show; or (f) a performance of an expression of folklore; being a live performance: (g) that is given in Australia, whether in the presence of an audience or otherwise; or (h) that is given by one or more qualified persons (even if it is also given by one or more persons who are not qualified persons), whether in the presence of an audience or otherwise. o Note, however, s 248A(2): (2) The following shall be taken not to be performances for the purposes of this Part: (a) a performance referred to in subsection 28(1) - classroom performance; (b) a reading, recital or delivery of any item of news and information; (c) a performance of a sporting activity; or (d) a participation in a performance as a member of an audience. o Certain recordings are also exempt for the purposes of performers rights (s 288A(1)). These include recordings made solely: for reporting the news; Page 52 of 61

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for criticism or review; or where the person making the recording reasonably believed the performer had consented to the recording of the performance, due to a fraudulent or innocent misrepresentation. o Performers have the right to grant or refuse consent for their performances to be recorded (audio or video) or communicated to the public (via radio or TV broadcast, or over the internet, for example). o Someone who does any of the following things without permission may infringe a performers rights: makes an unauthorised recording; makes a copy of an unauthorised recording, where the person knew or ought to have known that the recording was unauthorised; uses an audio recording on a soundtrack where the performer did not consent to this use at the time the performance was recorded and the person knew this; deals commercially with an unauthorised recording, if the person knew or ought to have known that the recording was unauthorised; or makes an unauthorised communication of the performance to the public. o A use is unauthorised if the performer has not consented to it. The performers consent is not legally required to be in writing. o There are civil remedies and criminal penalties for activities that are unauthorised. o The amendments made to the Copyright Act 1969 (Cth) under the US Free Trade Agreement Implementation Act 2004 (Cth) also gave performers part ownership of copyright in sound recordings of their live performances. See 22(3A), 22(3B) and 22(3C). These rights came into force on 1 January 2005 and gave performers the possibility of exercising some rights in relation to sound recordings on which they performed. In the absence of an agreement to the contrary, the first owners of copyright in a sound recording of a live performance are the performer and the person who owns the recording medium (the master, for example).

HEDGE NOTES DUMP

There are two types of performers rights: 1. Copyright in sound recordings of live performance Performers of live sound recordings have a copyright in their sound recordings Effective as at 1 January 2005 2. Performers Rights in reproduction and communication Not a copyright The primary function of performers protection is to prevent the making, copying and dealing with bootleg sound recordings of musical performances. The protection given only extends to live performances and therefore does not directly afford protection to actors in films or singers on sound recordings in so far as the film or sound recording was itself authorised.

Copyright in sound recordings of live performances Under s89, subsists in sounds recordings The maker of the sound recording is the owner: s97(2) If there is more than one maker of the sound recording, the makers own the copyright as tenants in common in equal shares: s97(2A) Page 53 of 61

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Elements

New provisions re ownership effective from 1 January 2005 1. a live performance after 1 January 2005 2. a sound recording of the live performance 3. person is a maker of the sound recording

1. a live performance after 1 January 2005 Live performance (LP) means (a) Performance (inc improv) of dramatic work (inc part), including puppets (b) Performance (inc improv) of musical work (inc part) (c) Reading, recitation, delivery of literary work (inc part), (inc improv literary work) (d) Performance of a dance (e) Performance of circus act, variety act or similar presentation or show (f) Performance of an expression of folklore Being a LP in presence of audience or otherwise: s22(7) 2. a sound recording of the live performance Sound recording of the LP means the sound recording made at the time of LP consisting of or including sounds of the performance: s22(7) 3. person is a maker of the sound recording the makers of the sound recording are: the persons who own the record: s22(3A)(a) record = a disc, tape, paper or other device in which sounds are embodied: s10 performers who performed in the live performance: s22(3A)(b) this is the new provision for normal sound recordings, the only maker is the owner of the record: s22(3) Performer in the LP means (a) Each person who contributed to the sounds of the performance; and (b) If included the performance of musical work includes the conductor: s22(7) If a performer performed in the performance under the terms of his or her employment, the employer is the maker: s22(3B) Can be excluded by contract: s22(3C)

Nature of the right for the makers Under s89, subsists in sounds recordings infringed in same way as other sound recordings see above The maker of the sound recording is the owner: s97(2) If there is more than one maker of the sound recording, the makers own the copyright as tenants in common in equal shares: s97(2A)

Licence to use sound recording A person is taken to have been granted a licence to use a sound recording of a live performance if the performance gave consent for it to be used for a certain purpose, and it is used for that purpose: s113B Page 54 of 61

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Makers of pre-commencement sound recordings of LPs new owners Owners of copyright in sound recording before 1 January 2005 (former owner) + the performers who performed in the performance (new owner): s100AD(1) If performer acting under contract of employment, the employer will be the owner of copyright: s100AD(2) subject to any contrary agreement: s100AD(3) Ownership of will start from 1 January 2005: s100AE(1) If any new owner is dead, then the ownership of copyright devolves as it would have if the person had owned the immediately before death: s100AE(7) Former owners hold share and new owners own share as tenants in common: s100AE(2) Former owners hold their share in the proportions they held their share pre 1 January 2005: s100AE(3) New owners hold their share at tenants in common in equal shares: s100AE(4) former owners can still do any act comprised in the copyright as if they had been granted a licence by the new owners: s100AF Some limitations on the remedies a new owner can recover see s100AG Where owners of copyright cannot reasonably be found, one owner can do acts comprised in the copyright as though they had a licence from that owner: s113C former owners may get compensation on just terms for the acquisition of property caused by s22(3A) and ss97(2)-(2A): s116AAA

Performers rights in reproduction and communication a right to prevent unauthorised use of performance The performers right, like an authors moral right (see next set of notes) is a chose in action rather than a property right and therefore cannot be assigned: section 248N Copyright Act. The action is for the unauthorised use of a performance: s248J

Performance Performance is defined in section 248A(1) as a live performance of a musical work or dramatic work including a puppet show, a live reading, recitation or delivery of a literary work or the live performance of a dance, circus act, variety at or other similar presentation. It is not necessary that there be an audience. Performances given in the classroom for the purposes of educational instructions, sporting activity, audience participation and the reading, recitation or delivery of any item of news or information are excluded from the definition of performance: section 248A(2) and 248(1) Copyright Act Under section 248U Copyright Act protection is extended to performances made in a Rome Convention country, or by a citizen, national or resident of a Rome Convention Country.

Unauthorised use Primary category Section 248G(1) Copyright Act - a person makes an unauthorised use if they: (a) Make a direct or indirect recording of the performance or (b) Communicate the performance to the public, either directly from the live performance or Page 55 of 61

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from an authorised recording of it direct or indirect recordings Direct made directly from a live recording e.g. bootlegging a concert. Indirect recording a film e.g. a video taken from the television broadcast of a concert. Secondary Category section 248G(2) a person makes an unauthorised use of a performance if the person Copies a recording of a performance where the person knew or ought to have known that the recording was unauthorised: 50 years Makes a copy of an exempt recording where the person knows or ought to know that the copy is not an exempt recording; Makes a copy of an unauthorised recording for the use in a sound track if the person knows or ought reasonably to have known that the recording was not authorised for the use in that soundtrack or any other sound track; Possesses a recording of a performance for the purposes of selling, hiring, offering for trade, exposing for sale or hire or distributing for the purposes of trade in a manner which would affect the financial interests of the performer if the person knows or ought reasonably to have known that the recording was unauthorised: 50 years Sells, hires exhibits for trade, offers or exposes to sale or hire a recording which the person knows or ought to know was an unauthorised recording; Distributes a recording for the purpose of trade or for the purpose which will affect the financial interests of the performer if the person knows or ought reasonably to have known that the recording was unauthorised; Imports a recording for sale, hire, trade etc, if the person knows or ought reasonably to have known that the recording was unauthorised: 50 years; Causes a recording of the performance to be seen or heard in public if the person knows or ought reasonably to have known that the recording was unauthorised.

Exclusions: s248A(1) An indirect recording of a performance or a copy of that recording, made solely for the purpose of the private and domestic use of the person who made it; An indirect recording of a performance, or a copy of such recording made solely for the purpose of scientific research; An indirect recording of a performance, or copy of such a recording, where the recording is made by an educational institution, an institution assisting people with a print disability or an institution assisting people with an intellectual disability, solely for educational use or for providing assistance to people with print or intellectual disability; A direct or indirect recording of a performance or a copy of such a recording made solely for the purpose of making a broadcast where the performer has authorised the broadcast in which case a copy must be destroyed within 12 months. A direct or indirect copy made solely for the purpose of, or associated with the reporting of news or current affairs or for the purposes of criticism and review. A direct or indirect recording or a performance or a copy which was made solely for the purpose of judicial proceedings or the giving of professional advice by a legal practitioner. A direct or indirect recording of a performance if the person who made the recording reasonably believes, due to a fraudulent or innocent misrepresentation made to that person that the performer has authorised the recording. A copy is also exempt if made for the aforementioned reasons. Offences there are a number of offences under Part XIA Copyright Act liable to punishment of 5 years imprisonment or 550 penalty units ($41,250). Page 56 of 61

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These are contained in sections 248P and 248Q Copyright Act Sections 248P (1) Direct recording (2) Indirect recording [except solely for the recorders private or domestic use: s248P(7B)] (3) Recording that is heard or seen in public (4) Have possession of recording equipment that the person knows or reasonably ought to know if for recording Penalty = fine of up to 550 penalty units or 5 years imprisonment: s248P(7) Section 248Q (1) Copy of recording (2) Copy of exempt recording (3) Copy of authorised sound recording (4) Sell, hire, distribute, import (5) Exhibit unauthorised recording Penalty = fine of up to 550 penalty units or 5 years imprisonment: s248Q(8) Destruction and delivery up can be ordered when charged with an offence: s248T

Remedies available for action under s248J A performer may be granted an injunction, and/or damages, including exemplary damages, by the court: section 248J(2)-(3) Copyright Act Pro rata reduction if copyright also infringed: s248J(4)-(5) Time Constraints The protection period for the performance commences on the day of the performance, and in most cases extends for 20 years after the end of the calendar year in which the performance was made. This period is extended to 50 years in relation to certain sound recordings of performances: section 248CA(3) Copyright Act For list of sections in s248CA(4) Included s248G(1)(a), (2)(a), (2)(b) and (2)(d)-(g)

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MORAL RIGHTS
General Copyright is about the economic exploitation of a work or subject matter. In contrast, moral rights are personal rights given to the author. Moral rights are retained by the author regardless of the ownership of the copyright in the material! 1. There are 3 moral rights recognised under the Act a. Right of Attribution (under Part IX Div 2) b. Right of Integrity (under Part IX Div 4) c. Right to Object to False Attribution (under Part IX Div 3) 2. Moral rights cannot be sold, assigned, transferred or bequeathed (s 195AN(3)). a. With the exception of films, all moral rights continue in force until copyright ceases to subsist in the work (s 195AM(1)). i. For films, right of integrity lapses after last film director, producer or screenwriter dies (s 195AM(1)). b. When the author of a work dies, the authors moral rights can be exercised by the authors legal personal representative (s 195AN(1)). 3. Only individuals can have moral rights (s 190). 4. Right of Attribution a. An author must be identified where attributable acts are done in respect of the work (s 193). b. Creators have a right to be attributed (or credited) when their work is used in certain ways. c. Creators of copyright in literary, dramatic, musical and artistic works can take action for any failure to attribute them that take place on or after 21 December 2000 (regardless of when the works were originally created). d. The right of attribution applies to films made on or after 21 December 2000 and to literary, dramatic, musical and artistic works as included in films made on or after this date. e. This means that creators of such works completed before 21 December 2000 cannot take action for failure to attribute them. f. Creators of copyright material have the right to be attributed when the work is: i. reproduced (such as by making photocopies, copying it by hand, reciting it onto an audio tape, scanning it onto a computer disk or printing out a copy of a digital file); ii. published (made public for the first time); iii. exhibited in public (in the case of artistic works and films); iv. communicated to the public (such as by putting the written work onto a website, broadcasting or faxing it or emailing digital files containing the work); or v. adapted (translated, adapted from a literary to a dramatic work, or, for a musical work, arranged). g. If a creator has not stated the way in which he or she wishes to be identified, any clear and reasonably prominent form of identification may be used. h. It is not necessary to attribute the creator if: i. the creator has consented in writing not to be identified; or ii. it is reasonable in all the circumstances not to identify the author. 5. Right to Object to False Attribution a. Authors of literary, dramatic, musical and artistic works and films have the right not to have the authorship of their works falsely attributed (s 195AC). b. False attribution means: (s 195AD) i. crediting the wrong person as the creator of the work; or ii. crediting the creator of a work that has been altered without acknowledging the alterations. c. It is also an infringement of this right to knowingly deal with or communicate a falsely Page 58 of 61

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attributed work. 6. Right of Integrity a. The right of integrity is the right not to have your work subjected to derogatory treatment (see ss 195AJ-195AK). b. Derogatory treatment means doing anything in relation to the work which prejudices the creators honour or reputation. c. This could include: i. distorting, mutilating or materially altering the work in a way that prejudices the creators honour or reputation; and ii. in the case of artistic works, destroying the work or exhibiting it in public in a way that prejudices the creators honour or reputation. d. Simply altering a work, or treating it in a way the creator is not happy with, will not necessarily infringe the creators moral rights: there is also a requirement that the treatment of the work prejudices the creators honour or reputation. e. To date, there have been no cases in Australia to clarify what this might mean. f. There are special exceptions to infringement of the right of integrity in relation to artistic works (including buildings and architectural drawings). g. It is not an infringement of moral rights to: i. destroy a moveable artistic work, if the creator, or the creator's representative, is given a reasonable opportunity to remove the work; or ii. change, relocate, demolish or destroy a building of which an artistic work forms part, or to which it is affixed, provided certain conditions (including the giving of notice and provision of access for the purpose of making a record and consultation) are met; iii. change, relocate, demolish or destroy a building, provided certain conditions (including the giving of notice and provision of access for the purpose of making a record and consultation) are met; or iv. remove or relocate site-specific artworks, provided certain conditions (including the giving of notice and provision of access for the purpose of making a record and consultation) are met. h. It is not an infringement of moral rights to do anything in good faith to restore or preserve a work. i. A failure to attribute the creator, or a derogatory treatment of copyright work, does not infringe the creators rights if the action was reasonable in the circumstances. j. The Act sets out a number of factors to be taken into account in working out whether the action was reasonable. These include: i. the nature of the work; ii. the purpose, manner and context for which it is used; iii. relevant industry practice; iv. whether the work was created in the course of employment or under a contract of service; and v. if there are two or more authors, their views about the failure to attribute or derogatory treatment. 7. Defences / Exceptions a. do not infringe if prove in all the circumstances it was reasonable not to attribute authorship: s195AR(1) b. circumstances to take into account for LW, DW, MW, AW in 195AR(2) c. circumstances to take into account for CF in 195AR(3) d. do not infringe if show that derogatory treatment was reasonable: s195AS(1) e. circumstances to take into account for LW, DW, MW, AW in 195AS(2) f. circumstances to take into account for CF in 195AS(3) g. destruction of moveable artistic work is not an infringement of right to integrity if person who destroyed it gave author reasonable opportunity to remove the work: s195AT(1) h. Moral rights can be waived. i. This is not explicitly stated in the Act but the term consent is used on several Page 59 of 61

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occasions. 8. Remedies for moral rights infringements can include injunctions, damages and apologies or the removal or reversal of the particular treatment (s 195AZA(1)). Have to consider circumstances in s195AZA(2) Whether person was aware or reasonably aware of persons moral rights Effect on authors honour/rep Number/categories or people who saw/heard work Mitigating acts of def Cost/difficulty associated with attribution Cost/difficulty associated with removing false attribution 9. Case Law Examples a. Buffet v Fersing i. B had painted 7 panels of a fridge, sold it as a complete work ii. F bought it at a charity auction and then resold each of the 6 panels separately iii. B was able to recover damages for infringement of his integrity on the basis that F had mutilated his artistic expression. b. Huston v Societe de lexploitation de la Cinuieme Chanie i. Estate of John Huston the American filmmaker successfully sought an injunction against the French broadcaster because they were wanting to broadcast a colour version of The Asphalt Jungle. ii. On the basis that the colour version infringed his moral right of integrity. c. Lindon v La Compgnie Brut de Buton i. Staged a play but cast two female leads ii. Infringed the authors moral rights d. Snow v The Eaton Music Centre i. A Canadian shopping centre bought a sculpture of 60 flying geese ii. When Christmas came around the shopping centre tied some red ribbons on the geese iii. Snow applied for an injunction iv. Granted ordered ribbons be removed, treatment of sculpture was prejudicial to the artists moral rights e. Morrison Leahy Music v Lightbond i. George Michael objected to a medley of his songs ii. Sought and was granted an injunction preventing the release of the George Michael medley on the basis that it was an infringement of his rights f. Mme vve Herge v Didier Wolf i. Involves TinTin. ii. The playwright took the character of Tin Tin and wrote a story surrounding Tin Tins encounter with his alcoholic and jealous father. iii. The original creator of Tin Tin had passed away but his estate brought an action on the basis that it violated his integrity. iv. Successful. g. Gilliam v ABC i. Terry Gilliam from Monty Python ii. MP sought an injunction against ABC because they wanted to air two broadcasts of 90 mins from MP but had edited the original broadcast. iii. Took out 24 minutes etc and to remove the more offensive MP humour that Americans wouldnt appreciate because theyre frigid. iv. Was this editing an infringement of his right of integrity? 1. Yes injunction granted.

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CONCLUSION
1. Checklist a. Check that copyright subsists in the material i. For a Part III work, is it: 1. Original 2. Expressed in material form 3. A literary, dramatic, musical or artistic work; and 4. Connected with Australia? ii. For a Part IV work, is it 1. A sound recording 2. Cinematographic film 3. Television or sound broadcast 4. Published edition of a work? b. Check who owns the copyright in the material i. If under Part III, generally the author of the work owns first copyright. Check if any exceptions apply. ii. If under Part IV, identify relevant provision. iii. Has any assignment taken place, or has a licence been granted to the potential plaintiff? c. Has there been an infringement or threatened infringement of copyright? i. Has there been a direct infringement or threatened infringement of a Part III or Part IV copyright?. ii. Has there been an authorisation of infringement or threatened infringement ? iii. Has there been an indirect infringement or threatened infringement importation or sale? d. Are there any defences or excuses? i. Check again for an assignment or license. ii. Is the copyright infringing conduct a fair dealing for one of the purposes in the Act? iii. Are any of the specific, royalty free exceptions or statutory licenses applicable? e. What remedies are available to each of the potential plaintiffs against each of the potential defendants? f. Have there been any breaches or potential breaches of moral rights which require consideration?

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