IDEA/EXPRESSION & AU THORSHIP COPYRIGHT PROTECTS THE EXPRESSION

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1 COPYRIGHT IDEA/EXPRESSION & AU THORSHIP COPYRIGHT PROTECTS THE EXPRESSION of the idea BUT NOT the underlying information: article 9 TRIPS; Ice TV o NO copyright in ideas Donoghue v Allied Newspapers AUTHORSHIP: exercise of skill to put idea in material form o Journalists are authors (not factual source from which story is derived) Unless journalist is composing, word for word will be a mere amanuensis Mere scribe is not an author Telstra Corp Ltd v Phone Directories Co Pty ltd o Teams of people: supervising work of others does not make authorship Li v Leng IF BELOW IS SATISFIED, CR WILL AUTOMATICALLY ATTACH COPYRIGHT ATTACHES AUTOMATICALLY o No need for either Registration, or, Notification o i.e. So it attaches once the requirements for CR exist (outlined below) Donoghue v Allied Newspapers P agreed to give interviews about racing career to News of the World journalist Several articles were published Journalist got permission to publish abridged versions of interviews in another newspaper Article was called my racing secrets in newspaper o Would appear its by D, but was actually wrote by Journalist based on interviews with him P sought damaged for breach of copyright HELD: journalist was author of material in which copyright subsisted (being the article) and that the plaintiff only supplied the incidents in his life (the idea) Cummins v Bond P & D co authors of document P was a more of a mere scribe for D writings P engaged in psychic research with spirits who spoke to her and she transcribed works down D was an architect who was interested in P s psychic research HELD: gift to translate spiritual communication owed her the production of documents P more than a mere conduit pipe and had exercised skill in reproducing communications

2 OVERVIEW OF CR TEST TEST FOR CR: Item must o 1) FALL WITHIN A CATEGORY OF SUBJECT MATTER o 2) BE IN A MATERIAL FORM WORKS ONLY o 3) CONNECTING FACTORS (WITH AUSTRALIA) 1. IS IT A SUBJECT MATTER TO WHICH COPYRIGHT APPLIES? EXPANDED BELOW IMPORTANCE: Determine which ones prima facie apply, and then continue to tests. o The Rights granted and the protection periods vary according to the type of subject matter it falls under MUST: Fall within a category of subject matter WORK or SUBJECT MATTER OTHER THAN WORK category, o Otherwise no copyright protection will be available Creation Records Ltd v News Groups Newspapers A) PART III WORKS: part 3 Copyright Act Literary works Dramatic works Musical works Artistic Works o Requirements ORIGINALITY: works must be ORIGINAL; and IDENTIFIABLE AUTHORS MATERIAL FORM: works must be physically embodied (writing or other means) B) SUBJECT MATTER OTHER THAN WORKS (PART IV): Films Sound recordings Broadcasts Published Editions o Requirements ORIGINALITY: works must not be copied Creation Records Ltd v News Groups Newspapers (1997) 39 IPR 1 Oasis band and photographic company had photoshoot using cars and other elements near a hotel Photograph taken for album Another photographer took photo of the scene Official photographer tried to prevent HELD: photo was not being copied was someone else taking copy of the original. Was not an artistic work did not fall within any copyright category no protection

3 2. IS IT PRIMA FACIE, PART III WORKS? (AUTHORIAL) A) IF SO, WHAT TYPE OF AUTHORIAL WORK? CATEGORIES OF WORK: s32 i. Literary ii. Dramatic iii. Musical iv. Artistic 1) LITERARY WORK TEST Literary: No exhaustive definition of literary works o Must convey information, instruction or pleasure in the form of literary enjoyment: Apple Computer Inc v Computer Edge Pty Ltd o Need not be limited to writing: s22(2) Literary work can exist in form of sounds embodied (deemed by the act: s 22(2)) Emboddied = sounds are capable of being reproduced from the article: s24 o LITERARY WORK INCLUDES: s10(1) (a) Table, or compilation expressed in words, figures or symbols; and e.g database, timetable, catalogue, phone directories (Desktop Marketing Systems v Telstra), TV broadcasting schedules (IceTV v Nine Network) (b) A computer program or compilation of computer programs CONSIDERATIONS What has (not) satisfied? o Single word/title too insubstantial to convey meaning Principle the literary work must be sufficiently substantial Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd (2010) 99 IPR 11; Exxon Oil o Brief phrase or combination of words also insubstantial Victoria v Pacific Technologies; Elwood Clothing Pty Ltd v Cotton On Clothing o Newspaper headline could be where original enough and of so extensive a scale and of so important a character as to be a proper subject of protection Francis Day & Hunter Ltd v 20 th Century Fox Corp

4 2) DRAMATICAL WORK TEST Dramatic: o DRAMATIC WORK INCLUDES: S10(1) (a) A choreographic show or other mute show; and (b) 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 EXAMPLES: a tragedy, comedy, play, drama, burlesque, opera DRAMATIC IDEAS: o Copyright does not generally subsist in ideas Having an accessorial role (e.g. creating scenic effects) will not be substantial to afford copyright protection: Tate v Thomasn o BUT does subsist in combination of situations, events & scenes which constitute the particular working or expression of the idea of theme: Telstra Corp Ltd v Sun Alliance Insurance Theme of film protected in Zeccola v Universal City Studios Zeccola v Universal City Studios Was claimed that copyright in film (screenplay) and novel Jaws had been infringed by Italian film produced entitled The Great White Copyright under dramatic works would protect if close similarity between original and alleged offender Infringement alleged was that of making a film about a killer shark terrorising humans on holiday season as a popular seaside resort What could be protected? o Combination of events, situations, plots, the dialogue etc if similar To infringe had to show very close copying of the plot o Infringement requires generally more than just similar themes o But, here had similar storyline, characters and even script To determine, watched the movies side by side HELD: remarkable objective similarity between events, characters plots. Plot was protected work. 3) MUSICAL WORK (NB: Sound will be musical, lyrics = literary) DEFINITION Musical: not defined in Act o MUSICAL WORK INCLUDES; Sound, melody, rhythm & harmony relating to the composition of music o If song: Score of song is musical work, BUT, Lyrics are literary work

5 4) ARTISTIC WORK: IF ARTISTIC, CONSIDER DESIGN OVERLAP PROCESS DEFINITION Artistic: exhaustive definition by s10(1) o (a) A PAINTING, SCULPTURE, DRAWING, ENGRAVING or PHOTOGRAPH; PAINTING: must be affixed to permanent surface Merchandising Corp of America v Harpbond SCULPTURE: must be affixed Komersaroff v Mickle May have functioning capabilities Lucasfilm Ltd v Ainsworth Must possess intrinsic quality of being intended to be enjoyed as a visual thing DRAWING: s10(1): diagram, map, chart or plan = almost ANYTHING 2D other than paintings or photos Must be sufficiently substantial Can representing something/be abstract Arrangement of text, words and numbers can be a drawing Elwood Clothing v Cotton On PHOTOGRAPH: s10(1): product of photography or something similar but not part of a film Author = person who takes it No need for exercise of skill Breach copyright by taking a photograph of a photograph: o NOT by taking a photograph of the same person or place in the original form o (b) A BUILDING or MODEL of a building; BUILDING: s10(1) - is a structure of any kind, which includes: Something erected upon or constructed upon or in the ground with an element of permanence, although it need not be a fixture Darwin Fibreglass Pty Ltd v Kruhse Enterprises o E.g. a mini tennis court Half Court tennis Pty ltd v Seymour o Fiberglass swimming pool Darwin Fibreglass v Kruhse Enterprises o (c) A work of ARTISTIC CRAFTSMANSHIP to which neither of the last two paragraphs apply. Includes pottery, embroidery, jewellery, wallpaper, tapestry, woodwork, silverwork etc. TEST: must have both CRAFTSMANSHIP and AESTHETIC QUALITY Craftsmanship determined objectively Burge v Swarbrick BUT IF design brief constrained craftsmanship o While may possess functionality and aesthetic quality, if the specific work was produced by a design brief that constrained the functions of the craftsmanship, in a manner that would otherwise be non constrained, then no craftsmanship

6 Burge v Swarbick (2007) 232 CLR 336 Questioned whether a full size prototype of a Yacht qualified as craftsmanship Had no design protection so needed copyright Addressed whether it was artistic works o Was not a sculpture o But was work of a industrial designer & maritime engineer Found, Design brief was to produce a yacht that could be marketed to specific recreational sailors Had to look visual attractive, but most of design was driven by engineering Therefore, was it artistic craftsmanship? o NO was an engineer, driven by functional considerations not artistic expression CONCLUDE AS TO WHAT WORK IT IS, AND CONTINUE TO #2

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