lwb486 week 4 copyright
TRANSCRIPT
Roadmap
This week: Introduction to
copyright system Basic copyright
principles Subsistence of
copyright
Week 5: Duration Ownership Direct infringements
Week 6 (YouTube week): Authorisation of
infringement Indirect infringement Defences
Week 7: Remedies Technological prevention
measures Performer’s rights Moral rights Indigenous art & culture
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2.1 Introduction to the copyright system
Brief historical overview: The Stationers’ Monopoly The Statute of Anne Piecemeal development to account for new
purposes ‘Copyright’ statutes in 18th and 19th century
‘Consolidation’ in UK Copyright Act 1911 Australian development
Copyright Act 1912 (Cth) Copyright Act 1968 (Cth) Continuous changes resulting from changes to technology
since
2.1 Introduction to the copyright system
The Copyright Balance Copyright law aims to encourage creativity by
providing an appropriate reward for creators without unreasonably limiting the public’s access to information.
The Nature of Copyright Problems See Approaching Copyright Questions
Approaching Copyright Questions1. Does copyright subsist?
Part III – is the work: original? expressed in a material form? a literary, dramatic, musical or artistic work? connected with Australia?
Part IV – is it a sound recording, cinematographic film, television or sound broadcast, published edition of a work?
2. Who owns copyright? If under Part III, generally the author of the work owns first
copyright. Check if any exceptions apply. If under Part IV, identify relevant provision. Has any assignment taken place, or has a licence been
granted to the potential plaintiff?
Approaching Copyright Questions1. Has there been an infringement or threatened
infringement of copyright? Has there been a direct infringement or threatened
infringement of a Part III or Part IV copyright?. Has there been an authorisation of infringement or
threatened infringement ? Has there been an indirect infringement or threatened
infringement – importation or sale?
3. Are there any excuses? Check again for an assignment or license. Is the copyright infringing conduct a fair dealing for one
of the purposes in the Act? Are any of the specific, royalty free exceptions or
statutory licenses applicable?
Approaching Copyright Questions1. What remedies are available to each of the
potential plaintiffs against each of the potential defendants?
3. Have there been any breaches or potential breaches of moral rights which require consideration?
2.1 Introduction to the copyright system
Basic copyright principles: Property in copyright is intangible
Distinction between object and separate copyright Property in chattel owned by one person,
copyright in another Pacific Film Laboratories v FCT
2.1 Introduction to the copyright system
Basic copyright principles: Idea/Expression dichotomy
Copyright law is not designed to monopolise everyday activity.
Independent thought isn’t stopped. Art 9(2) TRIPS
Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts.
Distinction illustrated by: Zeccola v Universal City Studios Inc Baigent & Anor v The Random House Group
Limited (The Da Vinci Code)
Exercise Read:
Baigent & Anor v The Random House Group Limited (The Da Vinci Code) [2006] EWHC 719 (Ch) at [157]-[185] & [343]-[351].
What is the state of the law on copyright claims which involve facts and ideas?
Do you think that the law strikes an appropriate balance between “the mere taking of general concepts and ideas on the one hand and copying in the copyright sense on the other” (The Da Vinci Code at [154], citing IPC Media Ltd v Highbury-Pleasure Publishing Ltd [2005] FSR 20 at 444)?
Note: The Da Vinci Code was upheld on appeal. Baigent & Anor v The Random House Group Ltd
[2007] EWCA Civ 247.
2.2 Subsistence of copyright
For copyright to subsist in a “work”, the conditions in s 32 must be satisfied. Part III.
Copyright can also subsist in subject matter other than works – sound recordings, cinematograph films, television and radio broadcasts, and published editions of works. Part IV.
Where copyright subsists in a work or other subject matter it does so automatically.
2.2.1 Part III “works”
For copyright to subsist in a “work”, the work must be (s 32): original; expressed in a material form; a literary, dramatic, musical or artistic
work; have a connection with Australia.
2.2.1.1 Originality
Original work originates from the author, in the sense that it is the result of his or her skill, labour or judgment, and is not copied from another author. University of London Press Ltd v University Tutorial Press
Ltd A condition of appointment for examiners was that copyright
in the papers belonged to the University. The University subsequently assigned copyright to the plaintiff publisher. The defendant publisher then published exams with answers and comments. The plaintiff publisher sued for infringement of copyright.
Held, copyright subsisted in the papers as original literary works – originality does not require that the work be original or inventive thought, as long as there is originality in the expression of the idea.
2.2.1.1 Originality Application of University of London Press Ltd v University
Tutorial Press Ltd: Sands & McDougall Pty Ltd v Robinson
Held, a map was original even if prepared from the common stock of knowledge in Australia, since independent intellectual effort, judgment and discrimination had been applied to produce a map that was new in the requisite sense.
Australian Chinese Newspapers Pty Ltd v Melbourne Chinese Press Ltd (2003) 58 IPR 1
Held, a masthead logo of a Chinese language newspaper did amount to an original artistic work.
Dennison Manufacturing Co v Alfred Holt & Co Ltd (1987) 10 IPR 612
Held, plastic price labelling tags were original artistic works.
The work need not be novel; it need only be the result of the author’s skills, labour or judgment. Therefore, it is possible that two authors will independently
produce a similar work both attracting copyright, and neither infringing copyright.
2.2.1.1 Originality: Compilations
A compilation of information will attract copyright provided that the amount of skill, labour or judgment required in making the compilation is sufficient by looking at the compilation as a whole. Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273
Held, football coupons attracted copyright, even though none of the component parts were original.
Examples: G.A. Cramp & Sons Pty Ltd v Frank Smythson Ltd
Held, the selection and publication of seven tables of commonplace information in diaries did not attract copyright – the pieces of information were common knowledge and didn’t involve a sufficient degree of skill and labour by the publisher.
Football League Ltd v Littlewoods Pools Ltd [1959] Ch 637 Held, copyright did subsist in the chronological list of matches of the football
league, having regard to the skill and labour involved. Kalamazoo (Aust.) Pty Ltd v Compact Business Systems Pty Ltd
Held, copyright subsisted in compilations of blank accounting forms.
So long as there is more than a trivial difference in the next edition of a work, copyright subsists in the new edition of a work.
2.2.1.1 Originality: Databases
United States position: Feist Publications Inc v Rural Telephone Service
Co Inc Held, a “white pages” telephone book, an alphabetical
listing of all telephone subscribers in a certain area, did not reach the required threshold of originality in order to qualify for copyright protection.
“Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.”
However, Feist Publications Inc v Rural Telephone Service Co Inc was not followed in Australia. Desktop Marketing Systems Pty Ltd v Telstra
Corp Ltd
2.2.1.1 Originality: Databases Desktop Marketing Systems Pty Ltd v Telstra Corp Ltd
Telstra publishes the Yellow Pages and the White Pages. Desktop Marketing produced and sold phone directories in CD-ROMs of varying levels of sophistication with white and yellow pages listings, which could be searched in different ways whether by name, address, postcode, industry and the like. The data used to produce the CD-ROMS was taken from Telstra’s phone books and rekeyed by a team of workers in the Philippines. Desktop Marketing also used Telstra’s headings, though it did add its own software to do the searching.
Held, copyright subsisted in Telstra’s White Pages and Yellow Pages directories, and that this copyright had been infringed.
Factual compilations may be protected merely on the basis that substantial 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.
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 Telstra’s product by Desktop Marketing, there would be no copyright infringement.
See Lindgren J at 472-478 and Sackville J at 539.
Exercise
Read IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14 (22 April 2009)
Be prepared to discuss these questions: What were the facts of the case? What did the High Court hold? What impact will this decision have on
copyright law relating to compilations and databases?
2.2.1.2 Literary, dramatic, musical or artistic works To be a Part III “work” it must be a
literary, dramatic, musical or artistic work.
2.2.1.2 Literary works
Literary work includes (s 10): a table, or compilation, expressed in words, figures or
symbols (whether or not in a visible form); and a computer program or compilation of computer programs.
A literary work is a work which is expressed in print or writing, irrespective of whether the quality or style is high. University of London Press v University Tutorial Press Ltd
Held, exam papers were literary works. Peterson J said at 608:
“In my view the words ‘literary work’ cover work which is expressed in print or writing, irrespective of the question whether the quality or style is high. The word ‘literary’ seems to be used in a sense somewhat similar to the use of the word ‘literature’ in political or electioneering literature and refers to written or printed material.”
2.2.1.2 Literary works
Accordingly, the following have been held to be literary works: football pool coupons.
Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273
a racing programme. Mander v O’Brien (1934) SASR 87
chronological lists of football matches: Football League Ltd v. Littlewoods Pools Ltd [1959] Ch 637
lists of bingo numbers. Mirror Newspapers Ltd v Queensland Newspapers Ltd [1982]
Qd R 305 accounting forms.
Kalamazoo (Aust.) Pty Ltd v Compact Business Systems Pty Ltd
2.2.1.2 Literary works Copyright does not normally subsist in titles and names.
Exxon Corporation v Exxon Insurance Consultants International Ltd
The oil company adopted the name “Exxon” after considerable research and expense. The defendant company, with no connection, adopted the name. Exxon sought and injunction.
Held, although original it was not sufficiently substantial for copyright to subsist in the name.
Francis Day and Hunter Ltd v Twentieth Century Fox Corporation Ltd
Francis, Day and Hunter had released a song titled “The Man Who Broke the Bank at Monte Carlo”. Years later, 20th Century Fox put out a movie by the same title, but had no other connections to the song. Francis sued for copyright infringement.
Held, a name alone cannot possess copyright unless it is sufficiently original and distinctive. “To break the bank” is a hackneyed expression, and Monte Carlo is or was the most obvious place at which that achievement or accident might take place.
2.2.1.2 Literary works
Consider possible availability of alternative actions where name or title is copied: Passing off.
WH Allen & Co. v Brown Watson Ltd Held, passing off where “My Life and Loves” book and “Frank
Harris: My Life and Adventures” book. Trade Practices Act 1974 (Cth), ss 52, 55.
McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd
A wine company brought out a wine called “Big Mac”. McDonalds claimed that this was a breach of s 52; people would be misled into thinking that the wine had some connection with McDonalds.
The court held that there was no breach. McWilliam’s conduct might confuse people but this was not the same as being misled.
2.2.1.2 Literary works Copyright does subsist in computer programs.
However, prior to 1984 amendments, copyright did not subsist. Computer Edge Pty Ltd v Apple Computer Inc.
Held, programs in object code (as opposed to source code) were not literary works.
The 1984 amendments provided that copyright subsists regardless of the code, language or notation used.
Autodesk Inc v Dysason 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”.
Held, defendant had infringed copyright in the “Autocad” by reproducing a substantial part of the program in the device.
Data Access Corp v Powerflex Services Pty Ltd 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.
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.
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.
2.2.1.2 Literary works 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: 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)).
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))
for use in lieu of the original copy, or if the original copy is lost, destroyed or becomes unusable (s 47C).
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):
reasonably necessary to obtain such information and to achieve such interoperability; and
the information was not readily available to the owner or licensee. for the purpose of correcting an error in the original copy which prevents
the program from operating as intended by the author (s 47E). for the purpose of testing the security of the original copy or network or
system of which the original copy is part (s 47F).
2.2.1.2 Dramatic works
Dramatic work includes (s 10(1)): a choreographic show or other dumb show; and a scenario or script for a cinematograph film, but does not include a cinematograph film as
distinct from the scenario or script for a cinematograph film.
Copyright in a film is the subject of a separate copyright in Part IV.
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.
2.2.1.2 Dramatic works
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. Green v Broadcasting Corp. of New Zealand
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.
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.
2.2.1.2 Dramatic works Public events as dramatic works?
Nine Network Australia Pty Ltd v ABC The Nine Network had paid $450,000 towards the Council of the City
of Sydney’s 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.
Held, Nine’s contention that the display and parade were dramatic works was not strong.
The schedule of the fireworks display would not be such 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.
“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.”
Also, the ABC could probably have gone ahead as fair dealing for reporting the news.
2.2.1.2 Musical works
The term “musical” work is not defined.
The adjective “musical” refers to the method of production and not to any artistic or aesthetic qualities which the work should possess.
2.2.1.2 Artistic works Artistic work includes (s 10(1)):
a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;
b) a building or a model of a building, whether the building or model is of artistic quality or not;
c) a work of artistic craftsmanship to which neither of the last two preceding paragraphs applies;
but does not include a circuit layout within the meaning of the Circuit Layouts Act 1989 (Cth).
Paintings: Merchandising Corp of America v Harpbond
Adam Ant sought to protect his facial makeup as artistic work. 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.
2.2.1.2 Artistic works Drawings.
Drawing is defined as including “a diagram, map, chart or plan” (s 10(1)). Architects plans are artistic works.
Ancher, Mortlock, Murrary & Woolley Pty Ltd v Hooker Homes Pty Ltd
Sculpture: Sculpture includes a cast or model made for purposes of sculpture (s 10(1)). Lincoln Industries Ltd v Wham-O Manufacturing Co
Held, a wooden model produced for the manufacture of dies and moulds for the casting of frisbees was a sculpture.
Greenfield Products Pty Ltd v Rover-Scott Bonnar Ltd Held, a mower clutch assembly was not a sculpture.
Buildings: Building includes a structure of any kind (s 10(1)). Half Court Tennis Pty Ltd v Seymour
Held, a half-tennis court was a building.
Darwin Fibreglass Pty Ltd v Kruhse Enterprises Pty Ltd Held, a garden consisting of a layout including steps, walls, ponds and other
structures in stone was “a structure”.
2.2.1.2 Artistic works Artistic craftsmanship:
A work of artistic craftsmanship includes articles by craftsman – jewelry, metalwork, pottery etc.
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.
Cuisenaire v Reed 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.
Held, no copyright subsisted as a work of artistic craftsmanship as cutting up pieces did not constitute craftsmanship and it wasn’t a work of artistry.
George Hensher Ltd v Restawhile Upholstery (Lancs.) Ltd 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.
Held, not artistic as there was evidence it was regarded as vulgar, brash and horrible. 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”. 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.
Whether there is sufficient aesthetic appeal is determined objectively – cannot depend solely on the subjective intention of the author.
Coogi Australia Pty Ltd v Hysport International Pty Ltd
2.2.1.2 Artistic works Artistic craftsmanship:
Artistic craftsmanship that is mass produced? A work of artistic craftsmanship may be mass produced. Factory based products can be works of artistic craftsmanship – need
not be handmade, although the author must use a highly sophisticated machine with creative skill, knowledge, and pride in workmanship.
A work of artistic craftsmanship need not be the product of a single person.
Coogi Australia Pty Ltd v Hysport International Pty Ltd 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:
in their “XYZ” designs ⇒ contending work of artistic craftsmanship. in computer program as a literary work used for manufacture by
computerized knitting machines. Held, although copyright subsisted, not infringed:
stitching did not infringe. computer program obtained by reverse engineering to replicate.
The two elements (artistic and craftsmanship) must be united in the same person.
Burke & Margot Burke Ltd v Spicers Dress Designs [1936] Ch 400
2.2.1.3 Connection with Australia
Unpublished Works: For unpublished works, the author must be a qualified person at the time
it was made (s 32(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)). A qualified person is an Australian citizen, an Australian protected person,
or a person resident in Australia (s 32(4)).
Published Works: For published works (s 32(2)):
the publication must have first took place in Australia; or the author must be a qualified person when it was first published.
A qualified person is an Australian citizen, an Australian protected person, or a person resident in Australia (s 32(4)).
A work is deemed to have been published if reproductions have been supplied to the public (s 29(1)(a)).
Copyright subsists in (s 32(3)): an original artistic work that is a building situated in Australia; or an original artistic work that is attached to, or forms part of, such a
building.
2.2.2 Part IV Works – Subject matter other than works Copyright Act 1968 (Cth) introduced new
categories of subject matter in order to protect entrepreneurial investment.
Aims to protect “new” technology.
Exclusive rights are given to “makers” of certain types of material.
Protects the investment of resources in the production of media and content.
No requirement of authorship or originality.
2.2.2 Part IV Works – Subject matter other than works Copyright in subject-matter other than
works is contained in Part IV for:1. sound recordings (s 89);2. cinematograph films (s 90);3. television and sound broadcasts (s 91);4. published editions of works (s 92).
Copyright in such subject-matter is “in addition to, and independent of” any copyright subsisting in the work under Part III (s 113(1)).
2.2.2.1 Sound recordings
Subsistence of copyright: ss 84, 89 and 184
Sound recordings have a separate copyright, in addition to any copyright in underlying musical (score), literary (lyrics), or other works.
Definition of record (s 10(1)): “record” “means a disc, tape, paper or other
device in which sounds are embodied”. This definition is technology neutral – covers
CDs, DVDs, DAT etc.
2.2.2.2 Cinematographic Films
Subsistence of copyright: ss 84 and 90
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: (a) of being shown as a moving picture; or (b) 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)).
It does not matter how the images are made. The means by which a “moving picture” is produced is not
relevant in determining whether the end result is a “film”.
2.2.2.2 Cinematographic Films
Galaxy Electronics Pty Ltd v Sega Enterprises Ltd Sega wanted to stop parallel imports of its video
games. As there is no restriction on importing non-infringing computer programs, Sega argued that the games were “films”.
Held, the moving images in a computer-generated video game was a film. The definition should not be interpreted narrowly, but is
intended to cover new technologies, the emphasis being on the end product rather than the means adopted to create those pictures.
2.2.2.2 Cinematographic Films
Zeccola v Universal City Studios Inc 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
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”.
2.2.2.3 Television and Sound Broadcasts Subsistence of copyright: s 91
Definitions of broadcast (s 10(1)): “television broadcast” means visual images
broadcast by way of television, together with any sounds broadcast for reception along with those images;
“sound broadcast” means sounds broadcast otherwise than as part of a television broadcast;
“broadcast” means a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992 (Cth).
2.2.2.3 Television and Sound Broadcasts One key aspect of the concept of broadcasting is
that it is “to the public”. Telstra Corp Ltd v Australasian Performing Right
Association Ltd at 155 “the use of the words "to the public" conveys a broader
concept than the use of the words "in public" since it makes clear that the place where the relevant communication occurs is irrelevant. That is to say, 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.”
No need for copyright in the underlying material. For example, there is no copyright in a sporting match or
spectacle, but the maker gets the rights to that broadcast.
2.2.2.3 Television and Sound Broadcasts Network Ten Pty Ltd v TCN Channel Nine
Pty Ltd (“The Panel”) Ten’s show broadcast clips taken from other networks.
Nine sued under right to rebroadcast. 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).
Broadcast “means visual images broadcast”. Not the “aggregate of visual images” like films.
Appealed to the High Court. The High Court, by a three to two majority, overturned the
Full Federal Court's decision. The High Court held that a single image appearing on a television screen with accompanying audio does not constitute a television broadcast.
2.2.2.3 Television and Sound Broadcasts The Panel cont...
The majority found held at [74]: “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.”
The majority also noted at [77]: “… 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 …”
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.
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 re-broadcasting of a broadcast, regardless of length.
2.2.2.4 Published editions of works
Subsistence of copyright: s 92
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).
Next Week
Discussion: IceTV Pty Limited v Nine Network Australia Pty Limited
[2009] HCA 14
Duration of Copyright
Ownership of Copyright
Direct Infringements