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COPYRIGHT

COPYRIGHT

WHAT EXCLUSIVE RIGHTS DOES COPYRIGHT CONFER? 

The answer to this question depends on the type of copyright work. 

With respect to literary, dramatic or musical works, copyright confers on the copyright owner the exclusive right to: 

  • reproduce the work in a material form;

  • publish the work;

  • perform the work in public;

  • broadcast the work;

  • cause the work to be transmitted to subscribers to a diffusion service;

  • make an adaptation of the work; and

  • do certain acts in relation o an adaptation of the work. 

With respect to artistic works, copyright confers on the copyright owner the exclusive right to: 

  • reproduce the work in material form;

  • publish the work;

  • include the work in a television broadcast; and

  • cause a television programme that includes the work to be transmitted to subscribers to a diffusion service.

With respect to sound recordings, copyright confers on the copyright owner the exclusive right to: 

  • make a copy of the sound recording;

  • cause the recording to be heard in public; and

  • broadcast the recording. 

With respect to cinematograph films, copyright confers on the copyright owner the exclusive right to: 

  • make a copy of the film;

  • cause the film to be seen and heard in public;

  • broadcast the film; and

  • cause the film to be transmitted to subscribers to a diffusion service. 

With respect to television or sound broadcasts, copyright confers on the copyright owner the exclusive right to: 

  • rebroadcast the initial broadcast;

  • make a cinematograph film or copy of such film, in relation to a television broadcast; and 

  • make a sound recording of the broadcast, in relation to a sound broadcast.

 

 

HOW COPYRIGHT PROTECTS WORKS 

In Australia, copyright protection is not dependent on registration or any other formalities.  In certain countries, however, it is necessary for certain notices to be placed or affixed to a work which is claimed to be subject to copyright protection to give reasonable notice of the claim to copyright. 

Copyright protection arises when one of the relevant criteria under the Act is satisfied at the time that a work or other subject matter is made.  The general criteria necessary to establish copyright in a work or some other form of subject matter are: 

  • Form;

  • Content; and

  • Status.

 

Form 

Copyright will not be afforded to a work unless the work has been reduced to writing or to some other material form. 

Writing is defined in section 10 of the Act to mean: 

"a mode of representing or reproducing words, figures or symbols in a visible form, and "written" has a corresponding meaning." 

Visibility is a essential element of writing.  On the other hand, material form is defined under section 10 of the Act as follows: 

"material form, in relation to a work or an adaptation of a work, 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 ". 

The above definition was intended to deal with works made or store on computers. 

Remember that it is the act of reducing the work to writing or some other material form that results in the making of a work that may be subject to copyright protection.  Copyright does not protect ideas or facts but their form of expression.  An important judgment that illustrates the importance of this distinction was given by Farwell J in Donoghue v Allied Newspapers [1938] Ch 106.  His Honour said: 

" there is not copyright in an idea, or in ideas.  person may have a brilliant idea for a story, or for a picture, or for a play, and one which appears to him to be original; but if he communicates that idea to an author or an artist or a playright, the production which is the result of the communication of the idea to the author or the artist or the playright is the copyright of the person who has clothed the idea in form, whether by means of a picture, a play, or a book, and the owner of the idea has no rights in that product."

 

 

Content 

The criteria relating to content are complex.  The Act provides that copyright will subsist in certain "original literary, dramatic, musical or artistic works".  If you are uncertain whether you are dealing with an original work or some other subject matter that may be entitled to copyright protection, you should consult a lawyer with expertise in the area.   

The courts have said that copyright protects the originality in the expression of a thought

 

Status 

Assuming the work satisfies the criteria of form and content, the Act affords protection if the author of the work or other subject matter in question was a "qualified person" at the time the work or subject matter was made or published. 

Qualified Person under the Act means, in the case of works: 

  • an Australian citizen;

  • an Australian protected person; or

  • a person resident in Australia. 

In relation to other subject matter, qualified person includes a body corporate incorporated under the law of the Commonwealth or a State. 

In addition to the question of whether the author was a qualified person at the relevant time, for copyright protection under the Act to apply, the work or subject matter is required to have been first published or made in Australia. 

There are certain exceptions to the above criteria relating to status, such as buildings situated in Australia and broadcasts from a place in Australia. 

Australia is a member of the Berne Convention for Protection of Literary and Artistic Works.  The Berne Convention seeks to extend copyright protection to works and subject matter whose authors or composers are citizens or resident of another country that is a party to the Berne Convention.   

 

DURATION OF PROTECTION

Generally, the term for copyright protection in literary, dramatic, musical or artistic works is the life of the author plus 50 years and just 50 years in the case of other subject matter.  There are a number of exceptions to the above general rules and these are summarised as follows: 

Section

Subject matter

Period of protection

33(2)

Literary, dramatic, musical or artistic works (other than photographs)

Life of the author plus 50 years.

33(3)

Literary, dramatic or musical works which are unpublished, have not been broadcast or performed in public, and records of which have not been supplied to members of the public at the time of the author's death

50 years after the first of these events to occur, otherwise indefinite.

33(5)

Engravings which are unpublished at the time of the author's death

50 years after the first publication, otherwise indefinite.

33(6)

Photographs taken after 1 May 1969

50 years after the first publication, otherwise indefinite.

212

Photographs taken after 1 May 1969

50 years after the year in which taken.

34

Pseudonymous or anonymous works

50 years after first publication.

80

Works of joint authorship

Same periods as provided in section 33, except references in that section to the author of the work are to be taken as references to the author who died last.

93

Sound recordings

50 years after the first publication (indefinite if unpublished).

94

Cinematograph films

50 years after the first publication (indefinite if unpublished).

95

Television and sound broadcasts

50 years after the making of the broadcast.

96

Published editions of works

25 years after first publication.

 

  

INFRINGEMENT OF COPYRIGHT 

The following is a list of provisions which concern infringement of copyright: 

Section

Nature of infringement

Elements of infringing act

36(1)

Doing or authorising acts within copyright

(a)                 a person not being the owner of the copyright;

(b)                 without the licence of the owner of the copyright;

(c)                 in Australia;

(d)                 authorises;

(e)                 acts comprised in the copyright.

38

By sale or other dealing of certain infringing articles

(a)                 a person not being the owner of the copyright;

(b)                 without the licence of the owner of the copyright;

(c)                 in Australia;

(d)                 sells, lets for hire, or by way of trade offers or exposes for sale or hire, an article or by way of trade exhibits an article;

(e)                 to his knowledge the making of the article constituted an infringement of the copyright; or in the case of an imported article, if made in Australia by the importer, would have constituted an infringement.

39

Permitting place of public entertaining to be used for infringing performance of a work

(a)                 a person permits;

(b)                 a place of public entertainment;

(c)                 to be used for the performance in public of a work;

(d)                 where the performance of the work constitutes an infringement of the copyright work.

 In relation to other subject matter (eg sound recordings, films and broadcasts), sections 101 to 103 contain similar infringements in relation to such other subject matter.

 

Parallel Importation 

Parallel importation occurs when one party imports legitimate, non-pirate goods into Australia without the authority of the Australian copyright owner.  For example, if a record company owns the copyright in Australia for a particular music album, then importing legitimate copies of that album from another country into Australia without obtaining the consent of the record company will be parallel importation.   

A new act has recently been passed which now allows for the importation of legitimately made sound recordings from another country under certain circumstances.  The act only applies to sound recordings and there are a number of conditions that must be met before a person can engage in parallel importation of any sound recordings. 

 

 

FURTHER INFORMATION 

This Information Outline is provided courtesy of Craddock Murray Neumann who are experienced in this area of law. They are located at Level 1, 255 Castlereagh Street Sydney NSW 2000 or call them on (02) 9283 4755 if you would like more information on the legal topic, or you wish to obtain formal advice regarding your situation.

Craddock Murray Neumann believe in the ethical practice of law. This means that we strive to protect and advance the legal rights of our clients, whether they are government departments, large corporations or private individuals. This also means that we will not run cases merely for the sake of running up legal costs at your expertise. We try to find practical, cost effective solutions to your problems. If you need to fight we will be there with you. We have set our fair share of precedents but our clients don't always want to make legal history. We will try to achieve what you want.

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