1. Definition 2.1. Copyright is a legally enforceable right to prevent others from doing certain acts (e.g: copying, performing, adapting, transmitting) in respect of certain types of material (e.g: books, films, music, TV and radio programs etc) 2. What material does copyright protect? 3.2. Original works: s32 3.3.1. Original Literary (includes drawings, plans, photos, works of artistic craftsmanship) 3.3.2. Original Artistic Works (includes drawings, plans, photos, works of artistic craftsmanship) 3.3. Other copyright material: s89 3.4.3. Sound recordings 3.4.4. Films 3.4.5. TV & Radio Broadcasts 3.4.6. Published editions of works 3.4. Therefore, Copyright may protect many things: 3.5.7. Products: Software, Publications, Recordings, Films 3.5.8. Packaging, Advertisements, Product Instructions 3. What rights does the copyright owner get? 4.5. Works s31 - Exclusive right to 4.6.9. reproduce in a material form 4.6.10. publish 4.6.11. perform in public 4.6.12. cause to be heard or seen in public (film, etc) 4.6.13. communicate to the public 4.6.14. adapt the copyright work 4.6. Part IV material – Exclusive right to 4.7.15. make a copy of 4.7.16. cause to be heard or seen in public 4.7.17. communicate to the public the copyright work 4. How long does copyright last? 5.7. Work 5.8.18. published – 70 years from the end of the year in which author died 5.8.19. unpublished – 70 years from the end of the year of publication 5.8. Subject matter other than works 5.9.20. 70 years from the end of the year in which subject matter is first published or broadcast 5. Important concepts in Copyright Law 6.9. © protects the material expression of the idea, not the idea 6.10.21. expression not the idea
<Donoghue v Allied Newspapers> 6.10.22. must be in a material form 6.10.23.1. Material form in relation to a work or an adaption of a work includes any form (whether visible or not) of storage of the work or adaption, or a substantial part of the work or adaption (whether or not the work or adaption, or a substantial part of the work or adaption, can be reproduced): s10
<Merchandising Corp of America Inc v Harpbond Ltd> 6.10.23. If the important thing is the idea and not the way it is recorded then reliance should not be placed on copyright. Many creative ideas cannot be protected by law
< Cummins v Vella> 6.10.24. If the idea is secret and of a type that the law recognises as a trade secret then an injunction may issue irrespective of the form in which the secret is clothed. If the idea is a patentable invention then registration under the Patent Act should be sought. If the idea involves a product design then registration under the Designs Act is usually the appropriate course. If the idea is neither patentable nor of a type where secrecy is possible, then the law offers very little protection. 6.10. © work must be original 6.11.25. Work must originate with the author in the sense of involving ‘some independent intellectual effort’, although neither literary merit nor novelty nor inventiveness as required for parents is needed.
< University of London Press Ltd v University Tutorial Press Ltd>
< IceTV Pty Ltd v Nine Network Australia Pty Ltd> 6. Original Literary Works 7.11. Must be a ‘work’ 7.12.26. Single word: a literary work must provide information or instruction or pleasure in the form of literary enjoyment
<Exxon Corp v Exxon Insurance> 7.12.27. Software s10: computer programs are regarded as literary works- ‘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.
<Apple Computer Inc v Computer Edge Pty Ltd> 7.12.28. Compilations of data: a literary work includes a table or compilation expressed in words, figures or symbols (s10). Thus, a collection of factual data may have copyright, provided it is original. This is an important issue for the protection of databases.
<Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd>
<IceTV Pty Ltd v Nine Network Australia Pty Ltd>
<Telstra Corporation Ltd v Phone Directories Company Pty Ltd> 7. Original Artistic Works s10 provides that an artistic works includes original paintings, sculptures, drawings, engravings or photographs, buildings or models of buildings whether of artistic quality or not. It also provides that artistic works includes works of artistic craftsmanship. 8.12. © in photographs 8.13. © in logos and simple marketing designs 8.14.29. It can be said that sufficient skill and judgment has gone into its creation, a logo or other distinguishing mark may attract copyright protection as an artistic work.
<Lott v JBW & Friends Pty Ltd & Endeavour Corporate Design Pty Ltd>
<Melbourne Chinese Press v Australian Chinese Newspapers Pty> 8.14.30. Copyright as an artistic work has been held to subsist in the look and feel of a design for clothing that consisted mainly of words and numbers
<Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd> 8.14.31. However, not every doodle or scrawl is an artistic work. Some things are too trivial or commonplace to attract copyright. There is no sufficient measure of skill, judgment or labour involved
<Cortis Exhaust Systems Pty Ltd v Kitten Software Pty Ltd>
<Merchandising Corp Of America Inc v Harpbond Ltd> 8.14. © in products designs, production moulds and prototypes 8.15.32. Copyright has been held to subsist in engineering drawings of 8.15.33.2. expansion joints for bridges
<Compaignie Industrielle de Precontrainte et D’Equipment des Constructions SA v First Melbourne Securites Pty Ltd> 8.15.33.3. industrial pumps
<Amalgamated Mining Services Pty Ltd v Warman International Ltd>
<Warman International Ltd v Envirotech Australia Pty Ltd> 8.15.33.4. a hot water system
<SW Hart & Proprietary Limited v Edwards Hot Water Systems> 8.15.33.5. an exhaust system for a Leyland motor car
<British Leyland Corp v Amstrong Patents> 8.15.33. Copyright may subsist 8.15.34.6. in the drawings for a yacht
<Dorling v Honnor Marine> 8.15.34.7. in dressmaking design and patterns
<Muscat v Le> 8.15. © in buildings and models for buildings 8.16.34. Copyright clearly subsists in the floorplan for a house as a drawing provided the plan is original. Copyright also subsists in the building itself and in a model of the building. A building is a structure of an kind s10 8.16.35. The Copyright Act specially provides that it is not a breach of copyright to photograph, draw, paint or include in a film or television broadcast a building or model of a building: s66
<Half Court Tennis Pty Ltd v Seymour> 8.16. Works of artistic craftsmanship <Burge v Swarbrick> 8.17.36. Works of artistic craftsmanship are works which require some skill to produce (craftsmanship) and which appeal to aesthetic (artistic) tastes, even though they may also serve a useful purpose. 8.17.37. The importance of works of artistic craftsmanship is that unlike other artistic works (such as design drawings), hey do not lose copyright protection once they have been industrially applied
<Greenfield Products v Rover- Scott Bonnar> 8.17.38. There must be an element of craftsmanship about the work. Thus, simple machine- made garments are not works of craftsmanship
<Guild v Eskandar> 8.17.39. Although works of artistic craftsmanship require an element of craftsmanship, they are not restricted to pure handicrafts; the definition permits some scope for the use of machines
<Coogi Australia Pty Ltd v Hysport International Pty Ltd> 8.17. © in an advertisement 8.18.40. Consider the elements of an advertisement / catalogue that may give rise to copyright 8.18.41.8. jingle 8.18.41.9. slogan – “this goes with that” 8.18.41.10. logo 8.18.41.11. graphic work 8.18.41.12. photographs 8.18.41.13. films (film script, film itself) 8. Ownership & Licences [s35 (work); 97-100 (Pt IV material)] 9.18. The general rule is that the author of a work is the owner of the copyright provided the author is a qualified person s35(2) 9.19. A person who records traditional folk songs is not regarded as the author of a musical work for the purposes of copyright
<Robertson v Lewis> 9.20. Where there is an agreement modifying the operation of these qualifications or exceptions, copyright shall subsist according to the terms of that agreement: s35(3) 9.21. Main exceptions: 9.22.41. Employee: where the author is an employee and the ‘work’ is made pursuant to the contract of employment, copyright belongs to the employer: s35(6)
<Redrock Holding Pty Ltd & Hotline Communications Ltd v Hinkley> 9.22.42. Photographs, portraits and engravings: Ordinarily the author of a photograph, portrait or engraving is the person who took the photograph or created the portrait or engraving. However, where a photograph, portrait or engraving is commissioned for value and for a private or domestic purpose, copyright belongs to the person commissioning the photograph, portrait or engraving: s35(5). Future copyright may be assigned but the assignment must be in writing 9.22. Licences: 9.23.43. Licences may be exclusive or non- exclusive. An exclusive licence must be in writing, although the courts have the power in the equitable jurisdiction to enforce an unwritten exclusive licence. Where necessary the terms of the licence will be inferred from the surrounding circumstances, or implied on the basis of commercial necessity, industry custom or past dealings.
<Wilson v Weiss Art Pty Ltd> 9.23. Ownership of copyright: employer- employee / employer- contractor 9.24.44. Is the creator an employee or a contractor?
<Wilson v Weiss Art Pty Ltd> - contractor
<Redrock Holdings Pty Ldt & Hotline Communication Ltd v Hinkley> - employee

9.24.45. Was the work created in the course of the employment? 9.24.46.14. Normal duties? 9.24.46.15. Terms of Contract? 9.24.46.16. Status of employee? 9.24.46.17. Whose materials? 9.24.46.18. Whose time? 9. Infringement s36-39 (works) / 101-103 (other material) 10.24. Copying/ performing/ adapting/ communicating to the public a substantial part of the work: 10.25.46. must be substantial similarity (depend on quality not quantity) 10.25.47. must be evident of copying (can be substantial) – NOTE: copyright does not prohibit independent creation)
<Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd>
<Larrikin Music Publishing P/L v EMI Songs P/L>
<Zeccola v Universal City Studio Inc> 10.25. Importing & selling infringing copies. Parallel importing not permitted, except for product labels/ recording in certain circumstances/ books in certain circumstances 10.26. Authorising others to infringe copyright
<APRA v Metro on George Ltd>
<Roadshow Films Pty Ltd v iiNet Limited (No.3)> 10. Defence 11.27. Fair Dealing etc 11.28. Copyright designs overlap