Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. In copyright law, there are a lot of different types of works, including paintings, photographs, illustrations, musical compositions, sound recordings, computer programs, books, poems, blog posts, movies, architectural works, plays, and so much more! Show
Copyright is originality and fixationOriginal WorksWorks are original when they are independently created by a human author and have a minimal degree of creativity. Independent creation simply means that you create it yourself, without copying. The Supreme Court has said that, to be creative, a work must have a “spark” and “modicum” of creativity. There are some things, however, that are not creative, like: titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; and mere listings of ingredients or contents. And always keep in mind that copyright protects expression, and never ideas, procedures, methods, systems, processes, concepts, principles, or discoveries. Fixed WorksA work is fixed when it is captured (either by or under the authority of an author) in a sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for more than a short time. For example, a work is fixed when you write it down or record it.
14 September 2016 - 12:01 | Version 11 | MelindaSchroeder Contributed by DavidPrice at School of Law, Charles Darwin University and current to 1 May 2016 This section deals with the general principles and issues associated with the copyright laws, and the most commonly asked questions about copyright. Abbreviations used in this chapterACC: Australian Copyright Council AMCOS: Australasian Mechanical Copyright Owner's Society APRA: Australasian Performing Rights Association CAL: Copyright Agency Limited DA: Designs Act 2003 (Cth) FTA: Free Trade Agreement GI: geographical indication ISP: Internet Service Provider PA: Patents Act 1990 (Cth) PCT: Patent Cooperation Treaty PPCA: Phonographic Performance Company of Australia TMA: Trade Marks Act 1995 (Cth) TRIPS: Agreement on the Trade-Related Aspects of Intellectual Property Rights WIPO: World Intellectual Property Organisation WTO: World Trade Organisation Copyright is a form of intellectual property, which in turn is an intangible form of personal property. Intellectual property is one of those concepts whose content is familiar but which is exceedingly difficult to define. It is easy to list specific forms of intellectual property protection, but problematic to formulate some general concept around which they can all be grouped. Besides copyright, the more common forms of intellectual property include patents, trademarks, designs, and trade secrets. Copyright is a creation of statute and there is no concept of common law rights in copyright. Copyright law is designed to protect the interests of the makers and owners of original creative work. In Australia copyright is covered by Commonwealth legislation and the decisions of the courts. The legislative foundation for copyright in Australia is the Copyright Act 1968 (CA). The CA defines the rights of copyright holders and the kinds of creative work protected. Since 1968, the CA has been extensively amended or supplemented by related legislation to reflect the dynamic and developmental nature of copyrightable material and the emergence of new technologies, such as the internet. Just some of the more significant updates since 2000 alone include the Copyright Amendment (Digital Agenda) Act 2000 (Cth), to give effect to WIPO's Copyright Treaty (WCT) and Performances and Phonograms Treaty (WPPT), the Copyright Amendment (Moral Rights) Act 2000 (Cth), the Copyright Amendment (Parallel Importation) Act 2003 (Cth), the US Free Trade Agreement Implementation Act 2004 (Cth), the Copyright Amendment Act 2006 (Ct), dealing with internet technological protection measures, the Intellectual Property Laws Amendment (Rising the Bar) Act 2012 (Cth), which strengthened customs and border protection across all intellectual property laws, and the Copyright Amendment (Online Infringement) Act 2015 (Cth), which requires internet carriage service providers to block access to online locations (for example, websites) overseas that encourage or facilitate copyright infringement.Why do we have intellectual property laws?Intellectual property rights involve striking a balance between the interests of the original creator or the owner of the copyright, the interests of the creator's competitor(s), and the interests of the public at large. The debate in all specific instances about whether such balance should be tilted more or less in favour of the individual creator always contains various types of arguments:
What does Copyright Protect?The CA gives authors and creators legal protection for the following types of work:
'Neighbouring rights'Sometimes the term 'neighbouring right' appears in respect of descriptions or commentaries on copyright. There are three types of 'neighbouring rights', namely:
Registration formalitiesThere are no formal registration requirements for obtaining copyright protection. Provided the requirements set down in the CA are met, copyright exists in a work. There is no need to sign the work or register it with anyone to get copyright protection. A creator of an original work is entitled, but not obliged, to place the internationally recognised copyright symbol on their work, along with the name of the copyright holder and the year of creation or first publication. Failure to do so does not reduce a creator's legal rights. It is nevertheless a good idea to put the international copyright symbol on all copies of a work as a reminder to others. A typical addition is: John Smith 2015. However, placing the symbol on a work does not itself create any copyright if none already existed.When Does Copyright Apply?There are four basic principles or 'characteristics' that need to be grasped in respect of copyright and what it means, namely: The copyright in a work is distinct and separate from the rights of property in an object containing that copyright. For example, an individual may own a book (because they purchased it), but the author still owns the copyright over the story in the book. See Pacific Film Laboratories v Federal Commissioner of Taxation [1970] HCA 36; (1970) 121 CLR 154, in which Barwick CJ stated that there 'is authority for the proposition that the property in a chattel may be in one person and the copyright in another'. Copyright protects only the form in which the ideas and information are expressed. It does not protect ideas or pieces of information themselves. Rather, it protects the form or manner in which an idea is expressed, which doesn't need to be novel: a dichotomy which is said to be 'probably the most difficult concept in the law of copyright' and to be 'often honoured more in the breach than in the observance'. Expressed in another way, to be protectable under the CA. a work must be in a 'material form' or other tangible embodiment, and not be just a concept. See Zeccola v Universal City Studios [1982] FCA 241; (1982) 67 FLR 225; 46 ALR 189 (The 'Jaws' case); Thomas v Brown [1997] 215 FCA; [1997] FCA 215; (1997) 37 IPR 207 (the 'Aboriginal flag' case); and IceTV PTY LTD v Nine Network Australia Pty Ltd [2009] HCA 14. For a well-known and relevant UK case, see Baigent v The Random House Group Ltd [2006] EWHC 719 (the 'Da Vinci Code' case). In the case of literary or artistic works (see What sort of Subject Matter is Protected under the CA?) the work must be in a 'material form' for copyright to subsist in it [CA s.22(1)].Thus copyright in a literary work comes into existence when the work is first reduced to writing. A speech, as such, cannot be protected unless it is delivered from a written text (which means that the written text itself would enjoy the protection). Subject matter other than literary and artistic works is not subject to the 'material form' requirement [CA ss85-88]. 'Material form' includes any form (whether visible or not) of storage from which the work or adaptation, or a substantial part of the work or adaptation, can be reproduced [CA s10(1)].
Other qualification for copyright protectionThe CA requires two criteria or 'points of attachment' that must be satisfied for a work to qualify for copyright protection, namely:
Literary, dramatic, musical and artistic works (CA Part III protected)The CA Part III works include the following:
and figures: there must be some creative effort or human intervention selection, compilation or abridgement to achieve an 'original result'. Dramatic works have an inclusive definition under CA s10(1) of the CA as a choreographic show or other dumb show; and a scenario or script for a cinematograph film. However, the latter does not include a cinematograph film as distinct from the scenario or script for a cinematograph film. Musical works are not defined in the CA. As with literary work, there is probably no requirement that the music be of a particular quality. Thus the score of a song is a musical work, whether it is an advertising jingle or an operatic aria. The words would be a literary work: thus the copyright in the words and music may be owned by two separate people. If the song is recorded then another copyright exists in the sound recording (see CA Part IV). The requirement of 'material form' means that improvised or traditional music will not attract copyright protection unless or until written down or otherwise recorded. See Schott Musik International GMBH & Co v Colossal Records (1996) 71 FCR 37; 36 IPR 267. A dramatic or musical work must be reduced to a 'material form' in order to be protected. Hence it is not the performance, but the script or score which receives copyright protection. See Zeccola v Universal City Studios [1982] FCA 241; (1982) 67 FLR 225; 46 ALR 189 (the 'Jaws' case, and Green v Broadcasting Corporation of New Zealand (1988) 16 IPR 1. Artistic work is defined in CA s10(1) as a: (a) painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not; (b) building or a model of a building, whether the building or model is of artistic quality or not; or (c) work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b); but does not include a circuit layout within the meaning of the Circuit Layouts Act 1989.Painting is not defined in the CA, which has generated some interesting case material. An earlier case in respect of the Archibald Prize, for example, considered whether a caricature is a painting or a cartoon or whether a charcoal drawing can be a painting. See Attorney-General v Trustees of the National Art Gallery (NSW) (1945) 62 WN (NSW) 212. While photographs are protected, the act of taking another photograph of the same subject matter as an earlier photograph does not infringe copyright, even where an identical photograph is produced - only the copying of the first photograph itself will do this. It should be noted that the above forms of copyright do not carry a requirement for the establishment of artistic quality or craftsmanship, and the threshold of originality is set low. See Lincoln Industries Ltd v Wham-O Manufacturing Co (1984) 3 IPR 115; Interlego AG v Croner Trading Pty Ltd (1992) 39 FCA 624; 25 IPR 65; Greenfield Products Pty Ltd v Rover-Scott Bonnar Ltd (1990) 95 ALR 275; 17 IPR 417. However, some aesthetic considerations are relevant to the existence of copyright in this category. The test may be whether the main object of the creator was to create an article which, even if it be utilitarian, nevertheless would have a substantial appeal to the aesthetic tastes of those who observed it. However, in Coogi Australia Pty Ltd v Hysport International Pty Ltd [1998] FCA 10; (1998) 86 FCR 154, the court held that a mass-produced and machine made article can still be a work of artistic craftsmanship. Part IV of the CA introduces new subject matter for copyright protection, essentially in recognition of the broader nature of neighbouring rights. The purpose of these new categories is more to protect entrepreneurial investment, rather than authorship or creative endeavour, although performers have recently been given rights over their performers that had not previously existed. Part IV of the CA protects live performances, sound recordings, cinematograph films, television and sound broadcasts, and published editions of works. Sound recordings may be protected whether embodied in a video tape, cassette tape or some other form. Protection is not available for sound recordings made prior to the commencement of the Act, although copyright might be claimed in some aspect of the recording such as the literary work on which it is based [CA s85]. The protection is only for the actual recording itself, and would not prevent 'sound alike' or cover versions. The copyright owner now possesses the right to enter into a commercial rental arrangement with respect to a sound recording [CA s85(1)(d), (2)]. Copyright protection for films is a separate copyright from any underlying copyright in the script, choreography or score [CA ss86, 90]. This is a relatively narrow type of copyright protection, covering only the film itself: it does not therefore cover copyright infringements of the type which occurred in Zeccola (the Jaws case). Video games involving computer generated images have been held to be cinematographic films for the purposes of this definition: see Galaxy Electronics Pty Ltd v Sega Enterprises Ltd (1997) 75 FCR 8; 145 ALR 21. Sound and television broadcasts, again, are a separate copyright [CA ss87, 91]. Broadcasts made before the 1968 Act are not protected by copyright law. Before the Copyright Amendment (Digital Agenda) Act 2000, the definition of broadcasting included a concept of broadcasting to the public at large. There were therefore considerable difficulties with copyright for pay television, since it (like Sky Channel etc) was arguably only transmitted to a narrow range of subscribers and hence not to the public at large. There is now no distinction between free-to-air and cable services. A special category of protection exists for publishers who make particularly beautiful 'special editions' of works (particularly those on which copyright has expired) [CA ss88, 92]. Performers/performancesPrior to amendments to the CA in 2004, performers gained virtually no protection for their live performances, although playwrights, composers, set designers and choreographers acquired copyright protection for their work. If the performance was recorded the copyright belonged to the maker of the recording. The unsatisfactory convention was that performers relied on some form of protection through a contractual arrangement with the producer or entrepreneur. The limited form of performers' rights was not proprietary in nature, and only lasted for 20 years. Consequent upon changes arising from the US-Australia free trade agreement, as given effect by the US Free Trade Agreement Implementation Act 2004, performers now have proprietary rights over the recording (by sound or cinematograph film), for a period of up to 50 years [CA ss248A, 248CA] of their live performance, and hence have the same exclusive rights as other owners of recordings. These changes are also retrospective to 1994. A performer can:
Protection for computer softwareComputer programs ordinarily receive copyright protection as 'literary works'. A basic problem for protection of computer programs is that copyright law protects only the expression of an idea, not the idea itself. Thus, for example, suppose a computer program is developed which performs a certain function (for example, provides a means for restricting or gaining access to confidential information). Suppose a rival manufacturer produces a program which replicates that function. The second program might only be in breach of the first manufacturer's copyright if a court considers that the 'source code' or written expression of the second computer program - and possibly also the 'object code' or electronic impulses which cause the computer to function - reproduce the first manufacturer's source and object codes so closely that it can be considered that the 'expression' of the idea has been taken. If the second program merely performs the same 'function' but by using a different program - something which, for an experienced programmer, is often relatively easy to accomplish - then the second program will arguably not be in breach of copyright. See Computer Edge Pty Ltd v Apple Computer Inc [1986] HCA 19;; 65 ALR 33; Autodesk Inc v Dyason [1992] HCA 2; (1992) 173 CLR 330; Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49; 166 ALR 228. The Copyright Amendment (Digital Agenda) Act 2000 (the Digital Agenda Act), revised the definition of computer programs to 'an expression, in any language, code or notation, of a set of instructions, intended ... to cause a device having digital information processing capabilities to perform a certain function' [CA s.10(1)]. The Act also introduced a new right of communication, further defined in s10(1) CAto mean 'to make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise)'This right is technology neutral and clearly includes transmission over the internet. Another area of debate concerns whether copyright protection extends to databases or works stored in computer memory. The existing CA definition of 'literary work' appears broad enough to apply to all forms of databases, including traditional hard-copy databases, databases stored in computer memory, and databases stored in other forms of storage such as floppy discs, tapes and CD ROMS. Whether a compiler of a computer database has copyright in that database will depend particularly on whether the database satisfies the requirement of 'originality' in the CA, which will depend in turn on whether 'sufficient skill and judgment have been exercised in devising the arrangements of the whole work'. However, the intellectual property rights of the compiler of the database do not in themselves diminish the possible rights of the supplier of the information. A question arises as to the duration of copyright protection for computer databases, and also when copyright first comes into existence. When an electronic database is being constantly updated, the question becomes who is the 'author' and when the database is first 'made'. A certain degree of overlap exists between the CA and the Designs Act 2003 (Cth) (DA). Hence it is possible for an artistic work in particular to qualify for a form of protection as a work of copyright under the CA or as a design under the DA. Copyright protection generally aims to give certain exclusive rights to the creators of literary, dramatic, musical and artistic works. Design protection aims to provide legal protection for designs incorporated into commercial or industrial products, such as furniture, textiles, clothes or household appliances. With these two different types of protection, the law makes a distinction between creative and commercial work. Creative works generally would qualify for copyright protection, while products with an industrial application would qualify for designs protection. In practice, however, it is often difficult to distinguish between creative and industrially applicable products. The end result of the attempt to maintain the distinction has been complex provisions governing the overlap of the two laws. Under these provisions some works qualify for copyright protection only, some for designs protection only, some for both and some for no protection at all. The intention of the legislature is to limit copyright protection for utilitarian three-dimensional products, whether or not they are registrable as designs. However, copyright protection lasts longer than designs protection. Designs, which must be registered to gain protection, can be protected for ten years only. See Gold Peg International Pty Ltd v Kovan Engineering (Aust) Pty Ltd [2005] FCA 1521; (2005) 67 IPR 497What Sort of Rights are Provided by Copyright?The copyright owner has two types of rights - economic or exploitative, and moral.Economic or commercial rightsThese are the main type of rights, and the ones which are more commonly infringed upon. In respect of economic rights, the copyright owner of a literary, dramatic or musical work or artistic work (the CA Part III category) generally has the exclusive right to:
Moral rightsMoral rights are rights which an author, artist or creator retains even after the right to exploit the copyright (the economic rights) in the work has been transferred. They are personal rights which cannot be sold. They give the author or artist the right to be credited as the creator of a work, and to restrain derogatory treatment of it which might affect their honour or reputation. Traditionally, copyright laws in Australia were only concerned with economic rights. They did not prevent work being distorted, mutilated, or used in an insulting, prejudicial or offensive way. Nor did they protect a person's right to be recognised as the creator of the work. In 2000 the Federal Government passed the Copyright Amendment (Moral Rights) Act 2000, as an amending Act to the CA. The CA specifically provides for three moral rights:
How Long Does Copyright Protection Last?Prior to the 2004 US-Australia Free Trade Agreement (USFTA), the general term of copyright protection for 'works' was the life of the author plus 50 years; other subject matter was protected for 25 years [CA s33]. These terms were generally in accordance with the minimum standard terms as enshrined in the WTO's TRIPs Agreement. The general term has since been increased to 70 years, as an outcome of the FTA, although there a still a few exceptions to this: see the following table.
Who Owns the Copyright?The basic rule is that the author or creator is the first owner of copyright [CA s35(2)]. But the rights pertaining to copyrighted creations can also be transferred to other natural or legal persons. Hence major global music and recording companies such as Warner Bros and Sony Music can own and exploit the copyright to creations which were created and performed by artists, authors and performers (see Can Other Parties be Authorised to Exploit the Copyright). Copyright ownership can also be decided by agreement. If there is no agreement, the rules in the CA apply. There are some exceptions to the general rule of ownership and these are briefly outlined below.Joint ownershipCopyright in a work can be held jointly where the individual contributions of each creator cannot be distinguished. A group of people writing/preparing a play would be an example. In such cases, the CA assumes that each creator has an equal share of rights in the creation. The phrase 'work of joint authorship' is defined in CA s10(1) to mean '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'. Accordingly, a joint owner must obtain the permission of all other joint owners to exercise their ownership rights; no single creator can exercise rights without the consent of the other(s). However, the share can be varied if all joint owners agree that some have contributed more than others [CA s10(1)]. See Prior v Landsdowne Press Pty Ltd [1975] VR 65; (1975) 29 FLR 59; 12 ALR 685. In all situations where a group of people are participating in a collaborative project, it is advisable to set out a written agreement clarifying questions of ownership and the rights and conditions of exploitation of any work produced. If different parts of a work, such as the music, lyrics or choreography of a play, can be clearly identified as the work of different individuals, copyright in each part resides with each individual that created that part.Commissioned workThe copyright of a commissioned work ordinarily remains in the author of a 'commissioned' work or other subject matter, subject to any agreement made between the parties as to assignment or other dealing with copyright: there are limited exceptions for commissioned photographs, portraits and engravings [CA s.35(5)], and for commissioned sound recordings and films [CA s.97(3), 98(3)]. The exceptions are made if the commissioned work is a portrait, drawn or painted, or a photograph or engraving. The copyright in a work falling into any one of these categories is owned by its commissioner. The artist still retains their moral of integrity and a right of restraint - that is, the right to prevent the work being used for any other purpose than that for which it was originally commissioned [CA s.35(5)]. To avoid any problems, a commissioner and a creator should, as a first priority, negotiate a written agreement with regard to copyright ownership. The creator of the work should be satisfied that payment adequately compensates them for producing the work and to relinquishing rights over it.Journalist's copyrightSection 35(4) of the CA provides for a division of ownership of copyright between the journalist authors of works and their employers. However, the journalist's copyright provisions only apply to the print media, where a work is made by the author under the terms of their employment by the proprietor of a newspaper, magazine or similar periodical. In such a case the author is the owner of the copyright only in so far as the copyright relates to reproduction of the work for inclusion in a book, and reproduction of the work in the form of a hard copy facsimile made from a paper edition of an issue of the newspaper etc, but not including reproduction by the proprietor for a purpose connected with the publication of the newspaper and so on. The normal rule expressed in CA s35(6) is that the copyright in works created by employee authors in the course of their employment remains with their employer. There are therefore two questions that need to be first answered: first, is an author employed pursuant to a 'contract of service' as distinct from the independent 'contract for services'; and second, is the work in question made pursuant to the terms of their employment? This question is especially relevant where the work is prepared with little or no 'direction' from the alleged employer. In the case of an independent contractor, the copyright would rest with the contractor. See Oceanroutes (Australia) Pty Ltd v M C Lamond [1984] AIPC 90-134; Redrock Holdings Pty Ltd v Hinkley [2001] VSC 91; (2001) 50 IPR 565. See also University of Western Australia v Gray [2009] FCAFC 116, in which the absence of specific terms relating to employee research obligations in contracts of employment caused the court to find for Professor Gray. The HCA refused the University special leave to appeal.Crown copyrightCopyright in any original work created or first published by or under the direction or control of the Crown belongs to the Crown. In this context, the Crown refers to all Federal, State and Territory government departments and some statutory authorities. Special rules govern the length of time the Crown can retain copyright (see How long does copyright protection last? ). A compulsory licence scheme authorises the Crown to exercise any of the rights of a copyright holder on subject matter if such exercise is 'for the services of' the Crown' [CA ss182B-183A]. Crown copyright has a very wide scope. For example, the copyright of a school text published by the Department of Education would belong to the Crown, even if no payment had been made to its author. A person producing a work for a government department or working on a government-funded project should ensure that copyright ownership is clear before beginning work. Government departments have a tendency to assume total ownership of copyright or tacitly ignore the issue [CA ss176-179]. It is unclear as yet whether prisoners own copyright in artworks or other creative works they produce in jail. If they use materials provided by the prison their works may be considered as produced under the direction or control of the Crown. On the other hand, if the prison exercised no creative control over the artist's work, it is arguable that the prisoner retains copyright. This issue has not yet been tested before the courts. In respect of 'equitable' ownership of copyright between the Crown and the individual, see Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd [1988] HCA 25 (the 'Spycatcher' case).Can Other Parties be Authorised to Exploit the Copyright?Copyright is private property. It can be bought, sold, resold, licensed or willed. Rights intrinsic to copyright can be categorised in the ways listed below.Assignment of copyrightAn assignment is a transfer of the exploitation rights of copyright. It enables the creator of an original work to sell or transfer their copyright in all or in part to another individual or corporation. When a right is assigned the assignor has no power to control the way the work is exploited unless by contract with the assignee. Under CA s196(1), 'Copyright is personal property and, subject to this section, is transmissible by assignment, by will and by devolution by operation of law'. An assignment may be unlimited, giving the purchaser rights for all purposes throughout the entire life of the copyright. An assignment may be limited, that is apply only in relation to a limited part of the rights under copyright [CA s196(2)], or to a period of time, or to a specific purpose, or to a certain region or territory. The assignment (whether total or partial) does not have effect unless it is in writing signed by or on behalf of the assignor [CA s196(3)]. It is possible to make an agreement in relation to future copyright to assign such copyright to another person [CA s197]. It is possible to make an agreement to assign the copyright in works not yet created. For example, an aspiring musician may make an agreement with a record company to assign the copyright in all works they will create in the next five years. Such assignments should be avoided because they are rarely made in the interests of the creator. Aboriginal painter Albert Namatjira assigned all his copyrights in his work to a publishing company and, as a consequence, his surviving family does not benefit from the income his work generates. Note that there is the possibility that inequitable or unfair assignments of copyright may be treated as being in restraint of trade. In the United States, artists have successfully taken record companies to court over this issue.Licensing of copyrightIn contrast to assignment, a licence arrangement may involve nothing more than a bare permission to do an act in relation to a work or subject matter that would otherwise be an infringement. But licences granted by a copyright owner are binding on successors in title of the grantor to the same extent [see CA ss196(4) and 197(3)]. A licence may be verbal or in writing or implied by the conduct of the copyright holder; it may cover any aspect of the copyright; it may be exclusive, sole, or non-exclusive. But an implied licence can result in confusion and thus litigation over the scope and limits of the implied licence. See Seven Network (Operations) Ltd v TCN Channel Nine Pty Ltd [2005] FCAFC 144; (2005) 22 ALR 569. An exclusive licence gives its holder the exclusive right to do certain things with the work concerned. No one else, including the copyright holder, will then be able to use the photographs for this purpose. Such a licence can be limited to specific purposes, for certain territories or for specified time limits. To be fully effective an exclusive licence must be in writing and signed by the copyright holder. See Flashback Holdings Pty Ltd v Showtime DVD Holdings (No 6) [2010] FCA 694. A non-exclusive licence gives its holder the right to do certain things, but does not prevent the copyright holder issuing licenses to others to do the same things. A non-exclusive licence does not have to be in writing and can be implied from the conduct of the copyright holder. A creator of a work would, however, be strongly advised to issue a written licence.Preservation of moral rightsHowever, it should be noted that, irrespective of the nature of the licensing or assignment agreement, the moral rights of the creator of the work still exist, since the 'the moral rights of an author of a work are in addition to any other rights in relation to the work' [CA s192]. See also CA s195AN(3) CA- 'a moral right in respect of a work is not transmissible by assignment, by will, or by devolution by operation of law'.What Constitutes an Infringement of Copyright?In simple terms, the copyright in a literary, dramatic, musical or artistic work or recordings, films or broadcasts:"'is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorises the doing in Australia, of any act comprised in the copyright' [CA ss36(1) and 101(1)]."
"First, the volume of the material taken, bearing in mind that quality is more important than quantity; second, how much of such material is the subject-matter of copyright and how much is not; third, whether there has been an animus furandi on the part of the defendant; this was treated ... as equivalent to an intention on the part of the defendant to take for the purpose of saving himself labour; fourth, the extent to which the plaintiff's and the defendant's (works) are competing works." What might constitute 'authorisation'?In the leading case of University of New South Wales v Moorhouse (1975) 133 CLR 1, Gibbs J stated that 'authorise' had its dictionary meaning of 'sanction, approve, countenance', and could also mean 'permit'. There is no need for "express or formal permission or sanction, or active conduct indicating approval"; rather "inactivity or indifference, exhibited by acts of commission or omission, may reach a degree from which authorisation can be inferred". Note, however, that a mental element is included in the meaning of 'authorise'. See APRA Ltd v Jain (1990) 26 FCR 53; 18 IPR 663, in which it was stated that:See also CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] UKHL 15; (1988) 11 IPR 1. Indirect infringement of copyright - 'knowing or having reason to know'Indirect infringement means dealing with unauthorised reproductions of works, rather than actually reproducing the material itself. Its main forms involve infringing copies being imported without the license of the copyright owner, or sold, hired out or otherwise made the subject of trade [CA ss37-38, 102-103]. It is necessary to establish that the defendant 'knew or ought reasonably to have known' that the article with which they were dealing was an infringing copy. Note the policy questions which arise where copies have been made lawfully abroad and the copyright owner in Australia seeks to prevent their importation. This raises the issue of parallel importation.Parallel importationImporting copyright material for commercial purposes or dealing with such material without the approval of the copyright owner is an infringement of copyright However, a mechanism exists for the importation of foreign published books, without the permission of the copyright owner, in limited circumstances - primarily where a foreign published book is not available in Australia within 30 days of the first publication. The result of this is that foreign publishers can continue to maintain their effective monopoly so long as they meet the demands of Australian readers. If the book is not made available within 30 days, the person wishing to import must place a written order for the book with the copyright owner: if this order is not fulfilled within 90 days, copies of the book may be imported for sale [CA s44A]. Note, however, the trend towards phasing out parallel importation restrictions as anti-competitive and price distorting: see Copyright Amendment (Parallel Importation) Act 2003 (Cth). See also Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442.Criminal offences involving copyright infringementGenerally, infringements of copyright that involve commercial dealings or infringements that are on a commercial scale are criminal offences. Under the CA, it may be an offence to:
Restrictions on the Exercise of Rights: Defences and Fair DealingThere are a number of provisions allowing the free or paid use of copyright materials. These include use by educational institutions, by libraries and archives, for judicial proceedings, government use, various uses related to public performance and display of works, and fair dealing. Libraries can copy certain types and amounts of copyright material for their users, for their own collections, and for other libraries. To be entitled to copy and supply to users and to other libraries, a library's collection (or part of it) must be accessible to members of the public. Libraries can use copyright material to maintaining their collections or for archives, provided certain conditions are met. Amendments to the CA by the Copyright Amendment (Digital Agenda) Act 2000, extend the protection provided to a library (including libraries within educational institutions) in relation to copying and recording equipment it provides (such as photocopiers, scanners, computer terminals, and audio and video recording equipment), where this equipment might be used to infringe copyright. The major fair dealing provisions are for:
You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then, you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair.However, even with the exemption provided by the fair dealing provisions above, the copyright holder is still entitled to 'sufficient acknowledgement' of the work [CA ss41-42]. This means 'an acknowledgement identifying the work by its title or other description and, unless the work is anonymous or pseudonymous, or the author has previously agreed or directed that an acknowledgement of his name is not to be made, also identifying the author [CA s10(1)]. Indigenous art has often been commercially exploited in ways that are particularly offensive to indigenous peoples, who attach sacred significance to much of their art. In the past, indigenous artists and communities have had considerable difficulty taking copyright infringement actions. A major problem with the effective and just protection of indigenous knowledge is that the creative work or knowledge must still fit in with western ideas of intellectual property in general and copyright in particular, and the legislative structure which develops from it, that is, a personal property right. But copyright mechanism which are intended to function in a trade-related, private protectionist context, do not adequately respond to the essential nature of traditional knowledge and cultural heritage. The CA and other intellectual property laws still require a copyrighted work or creation to be in material form, to belong to an identifiable individual or group of individuals, and to be independently created rather than derived. See Bulun Bulun v R & T Textiles Pty Ltd [1998] FCA 1082. Since much indigenous creation is derived, that is, handed down from generation to generation in an oral tradition, and is owned communally, it does not comply with the definitions of copyright as enshrined in the CA. For example, there is no copyright protection for rock art because the original artists who created the work are no longer identifiable or they created it too long ago for copyright protection to continue to exist. Australian law does not recognise the communal rights of an indigenous community in works of art. A further problem may arise in respect of transforming a work in an oral tradition into a material form, particularly where such transformation may be contrary to tradition and custom. However, there have been a few recent successes by indigenous communities or their representatives. See Milpurrurru v Indofurn Pty Ltd [1995] FCA 1544; Bulurru Australia v Oliver (2000) 49 IPR 384. See also Australian Competition and Consumer Commission v Australian Dreamtime Creations, [2009] FCA 1545; (2009) 84 IPR 326. This case proceeded under ss52 and 53(eb) of the then Trade Practices Act (TPA), which prohibited making a false or misleading representation concerning the place of origin of goods. Mansfield J opined that 'to a reasonable group of persons who buy or may buy Aboriginal art, to describe a painting as "Aboriginal art" is to convey that it is painted by an Aboriginal person or a person of Aboriginal descent. If that is not explicit, as I think it is, it is clearly implied.' And ACCC v Nooravi [2008] FCA 2012, which also proceeded under s52 of the TPA. Recently there have been proposals for legal change in this area. One proposal include the development of a separate set of copyright and other intellectual property laws designed specifically to meet the particular characteristics of indigenous and traditional knowledge. Another mooted proposal includes amending current copyright laws to allow for:
redress to the perceived particular exploitation of indigenous artists. The internetThe digital revolution has impacted significantly on every intellectual property regime, and none more so than copyright protection. It has required, and will continue to require, fundamental changes to copyright law to attempt to keep pace with new technologies and communications practice. Digitisation has exponentially increased the ease of creation, modification, distribution, and particularly access to all information. It has created a new medium in which works can be accessed and distributed to the public in a virtual, instantaneous and real-time fashion. As this access increases, the capacity to monitor and control copyright protection reduces in an equally dramatic fashion. Hence protection of copyright can be extremely difficult, if not at times impossible, to enforce in relation to digital communications, particularly over the internet and at the end-user level, since there are so many avenues for, and instances of, alleged infringement. Furthermore, the current copyright legislation, nearly a half-century old in its primary form, is not equipped to adapt easily and smoothly to the digital and internet revolutions. As has been demonstrated in a series of leading cases over the last decade, internet technology is developing faster than the laws that govern it or protect the information it transmits. See A&M Records Inc v Napster Inc [2001] USCA9 92; 239 F 3d 1004 (9th Circuit 2001)( the 'Napster' case); Kabushiki Kaisha Sony Computer Entertainment v Stevens (2002) 55 IPR 497; Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 65 IPR 513; Universal Music Australia Pty Ltd v Cooper [2005] FCA 972; (2005) 65 IPR 409; Universal Music Australia Pty Ltd v Sharman Licence Holdings [2005] FCA 1242; (2005) 65 IPR 289 (the 'Kazaa' case);Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16 (the 'Bit-Torrent' case); Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317. Legal issues relating to internet use and the roles and responsibilities of internet service providers (ISPs), or carriage service providers as they are also known, can be divided into two mainareas:
Protection mechanismsProtection measures include:
Scanning, uploading and downloading imagesScanning an image to produce a digitised version involves making a reproduction of the image. Uploading to a website or emailing the digital version involves communication of the image. Both reproduction and communication of a copyright-protected work are specific rights of the copyright owner under the CA, and both require the permission of the copyright owner. Copying by downloading part of an image or photograph from the internet may still be infringing copyright if it is copying what is considered a substantial or important part of the image or photograph. What must be considered is the image itself, not the website or page where it was found. Altering or adding to a digital image to create a new image will require the permission of the copyright owner if an important part of the first image is recognisable in the new image. A person may also be in breach of the creator's moral rights if the work is not properly attributed to them or if it is altered in a prejudicial manner. Amendments to the CA contained in the Copyright Amendment Act 2006(Cth) include amendments relating to time-shifting, format-shifting and space-shifting, and technological protection measures;Time-shifting: recording from TV and radio for later private useIt is permissible to record a television or radio program to watch or listen to at a later time, but only if the recording is made solely for private and domestic use, and then only for watching or listening to the program at a more convenient time. The new exception does not apply to podcasts or webcasts (except programs streamed simultaneously with a broadcast by a 'traditional' broadcaster such as the ABC, SBS or one of the commercial free-to-air broadcasters). The copied material will become an infringing copy if it is later commercially traded or played or shown in public or broadcast. Nor does the above permissibility extend to recording a broadcast and keeping it indefinitely in a collection of films or sound recordings for repeated use.'Space-shifting' of recorded musicA person who owns a copy of a sound recording, such as a CD, is now allowed to make a copy of that recording, for private and domestic use, to play on a device that they own. This provision does not apply if the copy the person owns is already an infringing copy (such as a pirate CD or an unauthorised digital download), or if either copy is later commercially traded or played or shown in public or broadcast. Format-shifting: copying from one 'format' to another for private use People who own certain types of material are allowed to make a copy of that material, for private and domestic use, into certain other 'formats', such as from a hard copy into a digital copy or vice versa. The provision does not apply if the person:
Technological Protection Measures (TPMs)Criminal penalties and civil remedies exist for making, importing and commercially dealing in devices and services which circumvent technological copyright protection measures (such as decryption software). There is an exception if the device or service is going to be used for various 'permitted purposes' (such as certain activities by libraries, educational institutions, governments, and decompilers of software organisations for the relevant purpose). There are also criminal penalties and civil remedies for manufacturing or dealing in devices designed to enable the unauthorised reception of encoded subscription broadcasts (for example, decoders designed to allow unauthorised reception of pay TV signals). As a result of the US-Australia FTA, amendments were required to amendments to the CA to include the following provisions:
Website designThe design and/or layout of a website can be protected by copyright. This is quite separate from copyright ownership of the various components of the site such as the text, images and sound. The future development of a website requires that rights to the website design be considered. The website developer usually owns copyright in the site. They may assign or give permission to allow for modifications to the design in the future. When a person uses content that they do not own - that is, that they have not created personally - they should identify the copyright owner and seek permission to use the material. If the owner is not identified on the website, it may be possible to discover their identity by sending an email to the website or to the webmaster responsible for the site where the material was obtained. Before linking to or framing a third party website, a person should review it for any prohibition on linking or framing. If linking is permitted with conditions, those conditions should be adhered to, as you may be making representations about another site inadvertently. Hypertext linking to or framing a third party website that includes copyright infringing material may constitute an endorsement or re-publication of the infringing material and expose the website owner to liability under copyright law. Hypertext linking to pages deep within other sites and the use of frames on a website can raise issues of liability under copyright and trade practices legislation. See Cooper v Universal Music Pty Ltd [2006] FCAFC 187; (2006) 156 FCR 380.Copyright Holders and ISPsRoadshow Films Pty Ltd & Ors v iiNet Limited [2012] HCA 16, was significant for its impact on copyright law in the digital environment, and was the first Australian case to consider the liability of ISPs for authorising copyright infringements of its users. The High Court focussed on the factors set out in CA s101(1A) in respect of the core issue of authorisation liability, namely:
What Remedies are Available Against Copyright Infringement?The main remedies are those listed below.InjunctionThis equitable remedy usually requires the defendant to refrain from a particular course of conduct; rarely, it may require the defendant to carry out a particular act. The source of the court's power to award an injunction is CA s115(2). The same equitable considerations apply as for the grant of an injunction in equity. The injunction may be interlocutory or final. The court will grant an interlocutory injunction where there is a 'serious question to be tried'. It is an invariable condition of the grant of an interlocutory injunction that the plaintiff should give an undertaking to pay damages to the defendant in the event that a final injunction is not granted at trial;DamagesThe common law remedy of damages is also provided for in CA s115(2), with provision for aggravated damages in s115(4) and conversion damages in s116. The purpose of damages is to compensate the plaintiff for the loss which he or she has sustained as a consequence of the defendant's contravention of their right. See Milpurrurru v Indofurn Pty Ltd [1994] FCA 975; (1995) 54 FCR 240; 130 ALR 659.Account of profitsAgain, this is provided for in CA s115(2). This is an equitable remedy which requires the defendant to give up the profits they have made from the unauthorised use of the plaintiff's property. The plaintiff's loss (the basis for damages) may be either less or more than the defendant's gain (basis for account of profits). Note that the estimation by the court of an account of profits may be a difficult exercise, particularly when the defendant legitimately seeks to offset against its direct profit, its general overheads and other expenses related to making the profit.Orders to deliver upCourts with equitable jurisdiction have an inherent power to order a defendant to deliver up articles made in contravention of the plaintiff's intellectual property rights.Anton Piller ordersThese ex parte orders entitle the plaintiff and their solicitors to enter the defendant's premises in order to inspect and remove any material relevant to the case. This can be done without prior notice to the defendant. Courts will require undertakings from a plaintiff as to damages in the event that there is improper execution or disregard of the defendant's rights. Plaintiffs must advise the defendants of their rights to seek legal advice before complying with the order, and also serve the defendant with a statement of claim.Mareva injunctionThis is another ex parte order which restrains the defendant from disposing of or removing from the jurisdiction assets that would otherwise be available to satisfy any subsequently obtained judgment for damages.Groundless threatsA defendant may restrain the making of 'groundless threats' of court action and may also recover any damages they may suffer as a result of the threats [CA s202]. Thus a defendant may be prevented from going out of business by the mere making of a threat by a powerful plaintiff and the consequent high legal costs.Collective Administration of Copyright Rights and Compulsory Licence SchemesThere are a large number of compulsory licence and royalty collection and payment schemes. The best known collecting agency is probably the Australasian Performing Rights Association (APRA), which was formed for the purpose of granting licences for the public performance of musical works. The members make an assignment to APRA of the public performance, broadcasting and diffusion rights in their past and future compositions, subject to a reservation of 'grand rights' to the copyright owner. APRA enters into licence agreements with television and radio stations, with film companies, cinemas and theatres, the operators of discos and juke boxes. It receives money from all these sources which it pools and distributes following complex procedures designed to ensure that fair payment is received by each copyright owner for the use of their music. The Copyright Agency Limited (CAL) fulfils a similar role in respect of universities and educational institutions in respect of reproduction of works or extracts for teaching and research purposes. In summary, some of the more significant schemes include the following:
Australian Copyright Council (ACC)The ACC is an independent, non-profit organisation, founded in 1968. It represents the peak bodies for professional artists and content creators working in Australia's creative industries and Australia's major copyright collecting societies. The ACC is also a major source of advice and assistance. Its staff includes specialist lawyers who can provide free advice on copyright and related areas of law. It also publishes information sheets on particular aspects of the law for specific user groups. Many of the ACC's information sheets can be found at the website www.copyright.org.au. This is a particularly useful site with references to recent papers on issues intellectual property law reform and judicial application and interpretation on the corpus of copyright-related statute. 32/45 Chalmers St Redfern NSW 2016 PO Box 1986, Strawberry Hills NSW 2012Tel: 02 9318 1788Website: www.copyright.org.au Email: The Copyright Agency collects fees and distributes royalties to its members who are creators of copyright material for the reuse of text and images. It manages educational copying schemes, Commonwealth, State and Territory copying schemes, the Resale Royalty for Visual Artists scheme, and special provisions for institutions assisting people with print disabilities. CAL also has agreements with international affiliates to licence the use of foreign content in Australia, and collect licence fees for Australian content used overseas. Since 2012, CAL has combined with Viscopy, which licences images of artworks, have joined forces. Viscopy's members are visual artists., and can help collect money from outside Australia. Contacts for both CAL and Viscopy: Level 11, 66 Goulburn Street, Sydney, NSW 2000 Tel: 02 9394 7600 Fax: 02 9394 7601 Toll-free phone number (landlines only): 1800 066 844 Email: ; Website: www.copyright.com.au This Society operates in similar fashion to CAL, but deals with licensing:
Fax: +61 2 9904 0498 New Zealand Freephone: 0800 44 2348Freefax: 0800 447006Website: https://www.screenrights.org/talk-to-us/ Postal Address: Locked Bag 5000, Strawberry Hills NSW 2012 State Offices VIC and TAS 3-5 Sanders Place, Richmond VIC 3121(03) 9426 5200 QLD 3 Winn Street, Fortitude Valley QLD 4006(07) 3257 1007 SA Suite 29, 8-20 O'Connell Street, North Adelaide SA 5006(08) 8331 5800 NT Level 1, 29 Cavenagh Street, Darwin GPO BOX 4519, Darwin NT 0801(08) 8941 0988 WA Suite 1, 12-20 Railway Road, Subiaco WA 6008(08) 9382 8299 Website: http://apraamcos.com.au/about-us/Phonographic Performance Company of Australia (PPCA)PPCA performs a similar function to APRA on behalf of copyright owners in sound recordings. PPCA is a non-profit organisation that provides licences to Australian businesses to play recorded music in public. The net fees are distributed to record labels & registered Australian artists. The licences issued by PPCA cover public performances and broadcasts. PO Box Q20Queen Victoria Building, NSW 1230 Level 4, 11 - 17 Buckingham Street, Surry Hills, NSW 2010Tel: (02) 8569 1100 Fax: (02) 8569 1183 Email: Website: www.ppca.com.au Copyright by the contributing authors. All material on this collaboration platform is the property of the contributing authors. Ideas, requests, problems regarding AustLII Wiki? Send feedback |