Intellectual Property PDF

**Intellectual Property** **Topic 1: Overview of IP Law and International Framework/ Confidential information** **Property** - IP rights are intangible personal property rights - It is a set (or bundle) of rights conferred on creators for the product of their creative or intellec...

**Intellectual Property** **Topic 1: Overview of IP Law and International Framework/ Confidential information** **Property** - IP rights are intangible personal property rights - It is a set (or bundle) of rights conferred on creators for the product of their creative or intellectual effort - It is a type of property right. It is intangible but it is still a personal property right. - Property (proprietary) rights - Rights which define the relationship between a person and a 'thing' - Regulations/ law that addresses a relationship between a person and a thing. - Distinguish this from contract, where you have a privity of contract. You have a relationship between persons, individual persons. In terms of proprietary rights, it is a right against the rest of the world. if someone is a patent owner of a particular invention, I don't have a relationship with anyone else in the world, but they can still infringe my IP rights. They don't have to know that they are infringing my IP rights, they have that property right and that is enough. It is a strict standard of liability regarding infringement. **What is IP?** - What is the difference between a tangible property and intangible property? - We need to separate our understanding of ownership from the embodiment of the physical object when it comes to intellectual property because you may have the physical laptop, for example, in your hands as well but you don't own the IP, the IP owner still owns it. - The ownership comes from - in terms of these intangible objects or IP intangible outputs -- is the rules of ownership. - In *Pacific Film Labs v FCT* (1970) the question arose: if someone has ownership of these negatives (photo negatives) do they then own the photographs that are embodied or can be reproduces from the negatives? The answer to which is no because you are looking for the rules of IP: ownership and authorship. The first owner of copyright will be the author of that, and the author tends to be recognised as someone who first captures that expression in material form. Thus, it is owned by the person who took the photographs. A modern example of this would be asking whether you own all the photographs in your phone? In your mind you might think so. However, what happens if you lent your phone to someone, and they went and took a couple photos? Under the copyright rules it is owned by the person who took the photos. They own, in terms of copyright, the photos but you may have possession of the digital copies of the photographs. - The rules of ownership relating to Intangible and tangible property are dealt with in the same way, although they may feel different. You can sell them, you can leverage them in terms of licensing, royalties, fees, they can pass through will or on bankruptcy. - IP rights are negative in character. It is not a positive obligation on you -once you realise you have a copyright means- to commercialize it. - IP rights are negative in character- to stop others from unauthorised acts: *JT International SA v Cth of Aust* \[2012\] HCA 43. - The rights are exclusive to you, you can exclude others from the scope of that activity that are exclusive to you, but it doesn't mean you have a positive obligation to do so. Thus, it is a right to exclude others. If you have a competitor and they start to sell something that's similar to yours (e.g., Burger King), if it is considered deceptively similar, then you have the right to stop that unauthorised use. **Copyright** - Governed by *Copyright Act 1968* (Cth) - Generally, copyright protects categories of cultural, entertainment and information productions. - Originally authorship that is expressed in material form - Including other subjects matter such as films, sound recording - Copyright protects cultural, entertainment and informational productions but that's a very general statement because if you look at the *Copyright Act*, what you have to identify when you are looking for protection as a creator is looking for specific subject matter. Thus, questioning whether it is literary work? Is it dramatic work? Is it music? These examples are pictured as someone creating it. However, it can also be things that are protected through investment - sound recording, usually owned by record companies, films, owned by a production company. - The most important thing about copyright- in terms of the key elements- is that it has to be original, in the sense that it originates from an author. The requirement of originality is linked in with authorship. It is not original in the sense that it is novel or unique- the expression has to originate from an author. - It is the protection of expression -- it doesn't protect ideas -- if it hasn't been expressed, it hasn't been fixed in some kind of material form. - Another aspect to consider in terms of copyright is the term of protection. Broadly speaking, it is 70 years after the death of the author, which is a fairly long time. But it can be different depending on the types of words and different types of subject matter, which is also why it is important to identify the type of work, the specific category of protection before you go any further. This is automatic. As long as you have captured in material form, and you are the author, then the author doesn't need to register it with a particular authority. **Patents** - Patents require a lot of effort to gain protection. - It is governed by *Patents Act 1990* (Cth). - Registration for novel and non-obvious inventions - It requires novelty. Novelty here refers to it being new -- it must not already exit. It also has to be inventive in the sense that it is not obvious, it is not something that you would have called as a matter of routine. If you then get through all the requirements then you have a duration of 20 years from when you file your application and you have the right (negative right) to exclude your competitors. - In terms of enforcement -- it is your private property right and it is up to you to enforce these negative rights. If someone is infringing your rights and you don't know about it and you do nothing about it- It is just going to happen. - Owning IP in itself doesn't necessarily give you commercial value. It is the use of it, the leverage of it and the commercialisation and enforcement of it that really means that you are using the value of your IP. **Trademarks** - Governed by *Trademarks Act 1995* (Cth) - Requires registration. You have to provide a specific representation of how your mark, or sign looks like, and it can be a word or a symbol. - Registration for words, symbols, sounds, colours, shapes, and other 'signs,' smell. - This has a different purpose. Copyright is more to incentivize that expression; trademarks are more to protect your business reputation. With trademarks, you are looking at distinguishing the goods of a particular trader from those of other traders. - In terms of elements, distinctiveness is a key element. - Applied to goods or services to distinguish them from other of other traders. - Term -- 10 years, renewable. - If you maintain your trademark or reputation, it could last indefinitely (still have to pay fees). **Designs registration** - Governed by *Designs Act 2003* (cth) - Registration for new and distinctive overall appearance of a product, resulting from its visual features (whether functional or not). - E.g., shape, configuration, pattern and ornamentation - Relates to products with a unique look or design. This is where product designers can then rely on the designs act to gain some level of protection. - Term -- 10 years and NOT renewable **Distinguishing Copyright, Trademarks, Patens and Designs** A table with text on it Description automatically generated  **Australian IP Laws** - May be automatic, or require registration - E.g., filing of application and compliance with formalities - The common law areas would not need registration. - Rights are not mutually exclusive and can exist con-currently - IP is an umbrella term and covering different areas of law, but they can exist at the same time to protect different aspects of a singular product. - Different rights apply sequentially throughout a product life cycle -- idea (may include confidential info, copyright, patent, design, trademark rights) **IP Theory** **The inherent balance -- creators and users** - Unique nature of IP rights - In relation to theory and its relevance to law, in a most simplistic way, you could see it as a balance, and it\'s often pitted as the interest of creators versus the public. However, we also want to recognize that it builds up a lot of industries. So sometimes the theory utilizes the interest of creators, utilizes the interest of the public but take it with a grain of salt. Consider who is really benefiting from pushing these theories - it might be Google, it might be Facebook, it might be a publisher, usually it\'s industries or the companies. So, recognize that these theories and these interests are utilized and they\'re relevant and they can be helpful but also recognize interests behind them. - Simply, Based on a balance between the interests of creators and those of users/ the public. - IP seeks to: - provide incentive and reward to authors and inventors. - encourage dissemination of new ideas, and development of new technology - we need property rights to incentivize and prop up these industries but not just for the sake of these property rights to exist. It has to have a public benefit, and it has to flow on from books being read, music being heard, new inventions being utilized in society. Thus, it has to have a benefit that flows on to the public and so this inherent balance has been expressed by Kirby J: The protection of IP rights must be afforded in a constitutional setting which upholds other values of public good in a representative democracy. In the US, the relevant head of constitutional power has been viewed as containing in-built limitations many of which are derived from the competing constitutional objective of public access to information. In Australia, the constitutional setting is different but the existence of competing constitutional objectives, express and implied, is undoubted. [^1^](#fn1){#fnref1.footnote-ref} - Here, Kirby J is recognizing that IP rights are important, but it is a balance because if you push too far that narrative of incentivizing property and creation, you can also hinder and ultimately stifle innovation and public access information and so that inherent balance needs to be recognized and that takes place through various processes. It could be through specific legislative action but that tends to happen slowly. In Australia for example, on copyright you can have lots of reviews I\'m a lot of government kind of inquiries and at the end of the day nothing might happen. Thus, a lot of the time the action or the balance might take place through the courts, through these specific disputes where parties and individuals are pushing the scope of rights or the subject matter of protection of IP. - IP has fuzzy-edged concepts that don't operate in a clear-cut way - Not just a single term is going to determine the scope of IP but collectively and through various developments in the law you then have this balance take place. **The rationale(s) of IP** - This is the simplistic view of that incentivising creation approach that you need these incentives. Without these incentives, no one is going to create. The counter argument to this would be people claiming that people are always going to create, and it is rather a question of whether they\'ll be rewarded and supported by their industry. Samuel Johnson in 1700, 'no man but a block head ever wrote except for money,' highlighting that he would be of the latter view. - This is a bit simplistic in the sense that we talked about how IP is intangible and it\'s intangible in the sense that it can easily be shared, you can easily transmit and share ideas as intangible expression and this links with the previous discussion about how IP being intangible in the sense of it doesn\'t really go with possession of a physical good necessarily. another way of describing this is it\'s non-rivalrous, which is why Thomas Jefferson talks about being able to give out these ideas without lessening your own. What's the problem with this? it creates a sense a market failure in the sense that without exclusivity that it then creates market failure. Thus, you cannot leverage this intangible good. - What IP essentially does is that it creates this legal barrier, an artificial kind of scarcity that\'s created by the law, so you don\'t have that physical kind of tangible scarcity applied to intellectual property but the law and the exclusive rights that are granted to owners according to those rules that the remedies and the recourse that you have that is a legal barrier. It\'s sort of like putting a fence around the boundaries of your property but because it\'s not physical and you can\'t see, and you can\'t touch that fence that\'s why there\'s so much of these fuzzy edged concepts because it\'s unclear. It\'s based on concepts, and it\'s not based on something you draw a line in. - Consumer protection - Some intellectual property rights such as trademarks and patents, offer protection for consumers by enabling them to make informed choices between goods and services from different sources. - Technology transfer - intellectual property systems facilitate the transfer of technology through foreign direct investment comma joint ventures and licensing - Balance of trade considerations: - increase the earnings generated from exports of innovative goods and services to overseas markets and support the payment of remuneration for intellectual property imports from other countries. - a central feature of Australia's approach towards intellectual property -- has become more apparent in recent years with the negotiation of bilateral free trade agreements with chapters dealing with intellectual property in several countries (US, China, Japan, Chile, Singapore, Thailand, Malaysia, ASEAN and New Zealand) **Theories of IP** - The above inherent struggles mentioned present themselves in these theories but with emphasis on different aspects that are valued. It is just a different way in which people rationalise the existence of IP and the scope of IP. **Theory 1: utilitarian/ Economic theory of copyright** - This is the most accepted theory and the most cited theory. - In referring back to the Samuel Johnson quote,[^2^](#fn2){#fnref2.footnote-ref} this theory aligns with this, that supplies are a necessary incentive but what is the reason that we want this incentive? To remember the dissemination of ideas and information is important as well. It is about maximising the social value that comes from these intangible outputs and these efforts. You are looking for the greatest good for the greatest number of people. though, some can disagree, how do we achieve this greatest good for the greatest number of people? essentially it comes from encouraging the development of these innovations and ensuring that the benefits do actually flow on to the public. The economic aspect of it comes into economic efficiency where the argument is that by having these intellectual property rights you have a form of allocated efficiency that there is property rights attached to the investment and input into the industry. It then gives you signals to invest in this particular industry in creating this kind of work, in inventing and researching and experimenting in this kind of industry because there is a market/economic need for it. Thus, it is linked to capitalist market, but the goal is for public welfare. - Socially maximizing: "Greatest good of the greatest number" - Encourage development of innovations that benefit the broader community - Economic efficiency - Economic theorists justify the recognition of property rights in creative endeavour on the basis that it leads to more efficient use of resources. - The **Utilitarian/Economic Theory of Copyright** argues that creators need **incentives** to make new works, like rewards or protections for their ideas. The main goal is not just to reward creators, but to ensure their work benefits society by encouraging the spread of new ideas and technologies. This helps create the **greatest good for the greatest number of people**, meaning everyone benefits from new innovations. It also promotes **economic efficiency**---when creators know they can protect their work and profit from it, they are more likely to invest in creating and developing new ideas, which helps the economy and leads to public welfare. Essentially, this theory says that intellectual property rights are necessary to encourage innovation, which ultimately benefits society as a whole. **Theory 2: Lockean natural rights** - This does consider the public interest but more from a kind of individual point of view that you\'ve invested your efforts and labor into creating this intellectual output and you can also call it the labor desert theory in the sense that it\'s inherent, it\'s natural. We don\'t have to look for an external justification. - in terms of its difference from the utilitarian theory there\'s less emphasis of the public though when you look at what Locke he did talk about a sufficiency provision that yes, an individual that invests their ideas and their effort and their labor into creating something should have inherent rights but this natural right should be subject to leaving enough and is good for others. So, it\'s not an unlimited kind of mandate to say if you invest in something you own everything. There are limits and that is a question for law where do you draw a line on these limits? - The **Lockean Natural Rights Theory** is based on the idea that people have a **natural right** to own what they create because they put in **effort and labor** to make it. This is often called the **Labor desert theory**---you own what you create because it's the result of your work. However, unlike the utilitarian theory, this theory focuses more on the individual than on the public. Locke also said there are limits to this right; you can\'t take everything for yourself. The idea is that when you use your Labor to create something, you should leave enough for others. So, while creators have rights to their ideas, there's a **balance** to ensure there's enough left for everyone else, and the law helps determine where those limits should be. - natural law theory assumes that a person has a natural property right in their own ideas - Labour desert: - a person who puts effort into creating something has a natural right to own and control what they have created with their labor - But note the sufficiency proviso - 'enough and as good' for others **Theory 3: personhood** - IP is an emanation of the person, and the law should facilitate this personal aspect of creativity - Origins in European tradition - IP laws of European countries have long recognised a personal, as well as an economic, aspect to intellectual property rights, in the form of moral rights - Moral rights - personal to authors or creators of copyright material, exist independently from the economic rights and continue to be exercisable even after the economic rights have been transferred. - This is more in the personal sense in the sense that the law protects you as a person, it protects your reputation and your emanations through your creativity through what you create should be protected by the law in the same way. It is seen as what you create is an extension of your person. The previous theory was getting more towards the idea that it is not an extension of your person, it is just your efforts, and you deserve to be rewarded for it. On the other hand, this theory is saying that if we protect you as a person, we should also protect these reputations and things that generate from your person. A prime example of this is the example of copyrights where we have moral rights. If you think of the rights of the author or creator, they have a right to prevent the reproduction of their work comma to prevent communication to the public. these are described as economic rights in the sense that you generate income from those rights. Moral rights are the right to acquire attribution for your work, the right against derogatory treatment. This isn't to protect any specific economic value. It is to protect your reputation as a creator. **Theory 4: Social planning/ cultural enhancement** - IP rights exist to foster the cultural development of a democratic society - the driver for recognising intellectual property rights is the enhancement of cultural existence and [not solely economic efficiency or gain] - E.g. copyright and parody/satire - This is relatively new in the sense that it is a collection of scholarship that argue that IP isn't just. You can see as it as a counter argument against or a response to preexisting and more of the conventional theories of intellectual property in saying these theories are not enough, we can\'t just look at economic incentives, we can\'t just look at personhood or labor desert theory, we need to recognize the broader role that IP output or protections have in our democratic society, particularly when we look at copyright where you know it may have impacts on arguments around how it might impact freedom of speech and this is where this sort of theories comes but it\'s not just about specific connections in copyrights, it could be the kind of the broader context. So, the question is what\'s your vision of a desirable society and it accounts for the diversity of the information society, diversity of the internet and the primary goal is not to limited to allocative efficiency but looking more broadly at democratic culture. - The Social Planning/Cultural Enhancement Theory focuses on cultural development rather than just economic gain when it comes to intellectual property (IP). It argues that IP rights exist to help foster a democratic society and enhance cultural life. This theory is a response to traditional views like the economic or labor-based theories, suggesting that those don\'t fully capture the role of IP. It emphasizes that protecting creative works isn't just about rewarding creators or encouraging investment, but also about supporting cultural diversity and freedom of speech. For example, it looks at how things like copyright impact not just economic issues, but broader social values and the public interest in a diverse, democratic society. The goal is not just about efficiency but enhancing the cultural richness of society. **Constitutional basis+ enforcement** **Australian constitutional basis** - How is IP administered in Australia? What is its basis in Australia? - Copyrights, patent, designs are subject to were in copy of Commonwealth legislation. Thus, there is this expressed power. However, you may also find that it is also in some senses justified by external affairs powers, for instance, if we're implementing an international treaty that affects national laws, so it might be under that power, post and telegraphs and incidental power. - Commonwealth Constitution, s51(xviii) - power to make laws with respect to: - s51(xxix) - external affairs - s51(vi) - posts and telegraphs - s51(xxxix) - incidental power **Administration of IP** - IP Australia - Trademarks office - Patents office - Designs office - Plant breeder's rights office - Copyright: Department of Communication and the Arts - Various Cth and State Government entities, e.g. - Department of Foreign Affairs and Trade - Australian Customs Service - Australian Broadcasting Corporation - Australian Competition and Consumers Commission - State Departments e.g. State Development **Enforcement** - There are administrative hearings that take place regarding the registration system that would be heard by IP Australia. for example, someone applies for a patent or applies for a trademark and a competitor object to it or there\'s any other reason why there might be some opposition to that registration, this is where IP Australia might step in as an administrative and have administrative hearings. - Administrative tribunals: - IP Australia administrative hearings in patent, trademark and design registration matters - Copyright Tribunal on statutory licensing royalties - Courts: - Federal Court (for the most part it is administered by the Federal Court). - State and Territory Supreme Courts - Federal Circuit (formerly Magistrates) Court - since 2003 has jurisdiction to hear civil actions for copyright infringement under Pts V, VAA and IX of *Copyright Act.* - jurisdiction extended in 2012 to TM and design matters (following ACIP recommendation) - Consumer Law jurisdiction limited to damages awards up to \$750,000 **Remedies** - Civil - Injunctions (interlocutory and final) - Damages (additional damages for flagrant and other infringements) - Monetary remedy - Mutually exclusive - account of profits - monetary remedy - mutually exclusive - stripping the D from the gains that can be attributed from the infringement - *Anton Piller* orders - Ancillary orders for delivery up or destruction - Unjustifiable or groundless threats - unlawful to threaten to initiate proceedings for infringement even though there is an honest belief that infringement is occurring - criminal liability and penalties: - professional offences - trademark offences - copyright offences - Copyright Amendment Act introduced numerous indictable, summary and strict liability offences - Ss 132AC -- 132AS; 132AQ -- 132AS (ERMI); 132APE -- 132APH (TPMs); 248PA -- 248QH. - performer's rights offences - designs offences - plant breeder's rights offence **International IP Framework** - Territoriality/ need for reciprocity of protection/ minimum standards/ foreigners treated same as nationals - The international IP framework is important because it does to some extent influence the shape of national IP laws - The laws of Australia, the laws in the US, the laws in China, the laws in Malaysia. For the most part many countries are part of these international agreements, so they have an impact on the laws, it\'s not necessarily that our local legislatures figure that that was the perfect number - you can see the numbers reflected in the international treaties as well that set up minimum standards of protection - you can get higher protection but you can\'t go lower than what is provided for in these international treaties. - Imagine that there are no international treaties what would happen? You are an IP owner; IP laws are territorial in nature - i have copyright right in Australia i have registered patent in Australia but is it recognized overseas? It\'s recognized under Australian law but i would have no idea and no recourse. But the rationales all kind of the motivations for countries to enter or be part of these international frameworks is that reciprocity of protection. It may start out in kind of these individual kind of bilateral agreements where if I protect your IP, copyright works and you protect those of my nationals, then we will have a market, we\'ll have copyright markets that you know individual traders can trade and export with these other countries. if we don\'t have this reciprocity or protection and I only have protection in Australia that makes my market very small. And if you think about previously before we had these international apply frameworks and it\'s pretty ironic in the sense that the US for example used to be the biggest pirate of literary works they would have these other countries to go to they take their books and they keep copies and they translate the European works and those industries would be built up just through importation rights not from authorship. So, there\'s a difference there\'s no IP frameworks and no internet national protection. - The purpose is not to have uniform protection across the world because it\'s not possible even if there was a will for it, it would be very difficult. There would be numerous changes in the law. You can set some minimum standards for some things. - Foreigners should be treated the same as nationals. You can\'t put in a law that says only Australian publishers will get x number of years of protection but then if you\'re a British publisher that you don\'t get protection in Australia. That is something that\'s provided for in these international agreements. - It might seem more important today that things can be easily transmitted instantly, but as mentioned before it can be copied it can be replicated technologies can be replicated, it might take some lead time but ultimately it is possible whether it\'s through the Internet or you\'re physically taking something and reverse engineering it in another country so what you have is this long standing international cooperation. Often, we refer to the multilateral treaties because they have the widest application. If you look at a Paris convention that deals with industrial property patents and trademarks, come up burn convention deals with artistic works. You might still have bilateral agreements happening and they may have an impact on the standard of protection, and you might have regional agreements as well. - Long-standing international co-operation on IP at various levels - eg: - Multilateral treaties/agreements - Paris Convention for the Protection of Industrial Property (1883, rev. 1967) -- "the Paris Convention" - Berne Convention for Protection of Literary and Artistic Works (1886, rev. 1971) -- "the Berne Convention" - Agreement on Trade-Related Aspects of Intellectual Property Rights (WTO Agreements, Annex 1C)(1994) -- "the TRIPS Agreement" - Bilateral - Free Trade Agreements e.g. US-Australia Free Trade Agreement 2004 - Regional **World Intellectual property organisation (WIPO)** - Paris Convention for the Protection of Industrial Property (1883, rev. 1967) -- "the Paris Convention" + Berne Convention for Protection of Literary and Artistic Works (1886, rev. 1971) -- "the Berne Convention" - The above conventions are administered by the convention establishing the World Intellectual Property Organisation- the WIPO Convention. This is a specialized agency of the United Nation, and their mandate is focused on intellectual property. That is their whole purpose and their responsible for intellectual property and they have been in their present form since the 1970s but they go back to when the international conventions were first introduced. They have roles in these kinds of cross-border registrations. They also deal with in some ways educating different countries about intellectual property, so they may be developing countries that need assistance, and the promotion of intergovernmental cooperation might hold workshops and seminars. - WIPO activities: - Registration - Promotion of intergovernmental cooperation - Program activities - Berne Convention; Paris Convention - World Intellectual Property Organisation (WIPO) - These international IP agreements cover minimum standards for specific types of subject matter, they provide for national treatment, but they don\'t really have a lot of clout in the sense of - I\'ve agreed to these minimum standards but who\'s going to hold me to it? So, if the country doesn\'t really agree to kind of the jurisdiction of the international Court of Justice, if they\'ve allegedly not met the minimum standards or they\'re not providing national treatment or any other specific provision in the Berne convention or Paris convention, what\'s going to happen? Not much, there\'s no real impact to motivate them to agree to comply with it except that they\'ve signed up to an international agreement. What happened in the 1990s is this kind of integration of these IP standards and IP protections into trade interests. You have minimum standards set out in the Berne convention and Paris convention and the TRIPS agreement - which is in listed by the World Trade Organization so a different organization. The world trade organization - it's the mandate trade not IP, it\'s focused on trade, but IP is becoming a really important part of international trade, so now is part of the TRIPS agreement. TRIPS agreement kind of shortcuts cross reference to the bend convention and the Paris convention. It borrows the minimum standards already set out in existing agreement. It also provides for national treatment and this other provision around most favored nation which is really saying you can\'t provide preferential treatment to a particular country in the WTO. - TRIPs - World Trade Organisation (WTO) - Minimum standards for range of IP rights - Art 9.1 incorporates the Berne Convention - Art 2.1 incorporates Paris Convention - National Treatment (Art 3) - MFN -- "Most Favoured Nation" (Art 4) - Dispute Prevention and Settlement (Pt V) - This ensures that there are potential economic impacts that follow or that can flow from lack of compliance with the requirements or the minimum standards. - GATT and WTO - General Agreement on Trade and Tariffs (GATT) formed after WWII to promote trade between countries. - Member countries in GATT/WTO are required to make a commitment to reduce tariff levels and open trade - Initial members were the Western industrialized nations - Why join? - Favorable trading terms, access to disputes procedures - Note advantages (and disadvantages!) to developing countries - WTO Dispute Settlement Body - Establishes a Panel of experts to consider the dispute - May be appealed to the DSB Appellate body - DSB issues report - If not complied with, complaining side may seek permission to retaliate (suspend concessions or other obligations e.g., raising import duties). **Confidential information** - Note that there are different types of duties on non- disclosure. it could be expressed through contract - you have a specific provision in the agreement- and these ones you would assess on a case-by-case basis and ask what this statement is this service agreement actually provide for how far does that duty of disclosure? and it depends on how that contractual restraint is. what we\'re going to focus on in this unit is this equitable action for breach of confidence. This could be expressed or implied. The important thing is to recognize is that it is equitable from the context and it\'s not something that is stated in the contract, so it\'s not based in contract, but it\'s based in this equitable action/ unconscionable action. it is built on this relationship of good faith. This can be mutually exclusive (contract/ equity). - Origin of the action - Relationship of trust and confidence - *Prince Albert v Strange* (1849) 47 ER 1302 - Even where there was no contract - *Saltman Engineering v Campbell Engineering* (1948) 65 RPC 203 - Type of information - Trade secrets - Technical secrets - Medical: *Morison v Moat* - Business secrets - Customer lists - Personal secrets - Government secrets - Elements (*Coco v AN Clark (*1969) Megarry J): - The information must be confidential in nature - Requirement is for inaccessibility. The information must not be common knowledge (Saltman Engineering v Campbell Engineering) - The information ceases to be confidential once it is in the public domain (A-G v Guardian Newspaper) - The information must have been imparted in circumstances importing an obligation of confidence - Limited purpose test- show by the relationship: the obligation exists when information imparted for a limited purpose. - This is an objective test. Arises when confidant either knew or ought to have known information imparted for a limited purpose. A person in the position of the information ought to have known that it has been imparted for a limited purpose. The limited purpose can arise expressly or impliedly. For example: business relationship/ pre-contractual negotiation/employment/professional relationship/information imparted to the State and its agencies - Generally- to show an obligation of confidence, consider the test stated in *Coco v An Clark*: if the circumstances are such that any [reasonable \[person\]], standing in the shoes of the recipient of the information would have [realised that upon reasonable grounds] the information was being given to him\[or her\] in confidence, then this would suffice to impose upon him the equitable obligation of confidence. - Objective assessment - Unnecessary that recipient appreciates that the information is confidential. - Obligation of confidence may arise subsequent to the communication being made. - An unauthorised use of the information to the detriment of the person claiming the right to maintain confidentiality. - Beyond the purpose for which information supplied (objective test). - Damage - Readily shown in commercial context - May be established by PI's desire to avoid criticism/ embarrassment **Topic 2: Copyright: subject matter and ownership (introduction and basic principles)** **The history of Copyright** - *Copyright Act 1968* (Cth) - History of copyright goes back to years following invention of the printing press - At first, the monopoly was granted to publishers - members of Stationers' Company given monopoly over the printing of books - Why is copyright needed in the first place? we have to have a form of exploitation and commercialisation that needs to be protected and that form of exploitation of expression was through the printing press. If there is no ability to replicate and to copy easily, then there is no real need for a right to regulate that. When that technology came about it meant that you could create lots of copies in a relatively short time as opposed to copying writings through hand. This led to the earliest form of copyright protection in the sense that the stationer's company (a group of printers), they were given a form of protection, a form of monopoly from the crown that only they are allowed to print, not any member of the public is allowed to print. You could view this as the protection of copyright but at the time it wasn't about protecting economic incentives (as talked about last week seen in the different theories) but rather it was about the monarchy trying to protect speech- trying to control printing -- thus, it was political stance. This changed after the glorious revolution. The censorship that was affected through publishers was abolished after that. And so, the question arose as to what was the grounds for protecting printing? From that, the publishers instead of relying on this political role, they then turned to raising authors as a rationale for giving them protection as publishers. And so, the statute of Anne was enacted as part of law at the time and has been recognised as the modern birth of copyright or Anglo-Saxon copyright in the sense that it was the first one that not just recognised the rights of publishers in printing, but also the authors who have written this material that went on to be published and printed and importantly it also recognised the value of providing authors with rights and also the public benefit- the encouragement of learning. - This feeds into the theory discussed in week 1 and the High Court also recognised this as well. This being the notion of encouragement of learning, which can be seen as a social contract acknowledging competing interests. What are these competing interests? One is of the interests of the owners, including the publishers - controlling publishing, controlling printing, limiting access to an extent in order to be able to commercialise and to gain income. However, there is recognition that the benefit granted to them is commensurate - another benefit that flows from that is that they are incentivized to make the work available to the reading public -- to be incentivized to create, to write, to print, but also ensuring that this means access by the public. And this theory, these work hand in hand, but potentially there are also tensions, but what it really reflects is that utilitarian theory. - What you have with copyright is this need for flexibility in the law (a few changes have been made in regard to copyright laws in the law over the years). The law has to change and develop to recognise these new forms of creativity. This applies to subject matter, but it also applies to exclusive rights. Thus, printing press at the time, the legislation only mentioned printing rights, but now we have so many different ways of distributing and replicating content (radio, TV, online streaming). If copyright stays stagnant and only protected printing of copies, all these other aspects will not be covered. Thus, the law had to change. What this does mean though is that there is a great deal of complexity in the legislation because things keep changing, as they keep adding section. Even the High Court has recognised that it has grown significantly and also recognised that it gives rise to the very difficult questions of construction because things keep changing. However, at the same time, it reflects the fact that due to technological developments, it is inevitable that it has to change, and it may have to expand. **No registration required** - There is no need to register or pay fees - The other question that you may have about copyright is in regard to notices ©. It is not a requirement to display a copyright notice in order to gain copyright protection because there are no formalities requirements. The Berne convention when it comes to artistic content, prohibits countries from applying a kind of formality. Thus, you are not required to, but there are certain benefits in the sense that if you are an innocent infringer, you might be able to avoid payment of certain damages under s 115(3). This is where the copyright notice may be of relevance. - In terms of infringement or protection itself, there is no need to display a notice. It is automatic. Even though it is not compulsory, it is still advisable for an owner to put in that notice to make other people aware of your rights and being aware of the date as well of publication, because that has an impact on how long the copyright lasts. **Copyright: basic principles** - Copyright does NOT protect ideas, information or facts per se. We say 'per se' because the ideas and the information and the facts actually can go on and can be developed to become expression because they have formed the basis for expression. The expression encapsulates different ideas of information. Information is the foundation of this expression, but the expression can take arguably various different forms. - What copyright does is that it protects the way information has been embodied in particular forms of expression. - The basic rationale is pretty intuitive if you relate this back to the social contract or the utilitarian theory mentioned. Yes, you want to incentivize creativity in the form of particular expression, but you don't want to impede access to ideas because you then impede downstream creativity. Thus, you can restrict the owner having control over these particular types of expression or particular forms of expression that they have generated, but that doesn't mean they have a monopoly over your language or your basic means of communication for example. - Another reason why it is so difficult to apply is that you don't really have this clear defining line between what is an idea and what is an expression. It is not an easy distinction to make in every case. And so, we say this as a basic principle of copyright protection, but what you will find is that our explanation or expansion of this dichotomy notion of idea, expression dichotomy is really something that is a lot clearer if you look at infringement cases. Those cases are more about what is protection, what can a third-party copy and not be subject to or not be liable for infringement. - To give an example, in the *Kenrick & Co Ltd v Lawrence & Co* (1890) 25 QBD 99 you had an individual draw up instruction for how to vote on a voting card. The question turns to whether this would be protected by copyright? If it is a form of expression that originates from an author, you could say it is protected. The question then arises as to what kinds of other ways of drawing this might be covered by that same expression, or is it just an idea? If you say it is just an idea of telling people how to vote, then no one has a monopoly over an instruction of how to vote. The question that you ask yourself then is whether something is an idea, or if something is expression, often times you will ask, how can you express this idea? Are there multiple ways of expressing this idea, or is it so simply that there is only one way? And so, if you Google 'voting card pencil' instructions, there are quite a wide range of ways to express this instruction. Someone may have a copyright over this particular way of drawing it and is someone draws it in a slightly different way, that doesn't mean necessarily that they have infringed their copyright. They may have copied the idea, but they have not copied the expression. - The points that the court did make in that case was that the protection that copyright affords the owner is not the idea, but something that is over and above the idea -- the particular expression that originates from the author is what is protected. - You see this principle being represented in the context of film and TV as well. In the case os, *Zeccola v Universal City Studios Inc* (1982) 46 ALR 189 -- most people will know the film, Jaws. Most people probably don't know Great White. Both films involved a savage monster menacing a community. They were both killer sharks and so the producers or directors of Great White, then sued Jaws and said they had copied their film. And the arguments of Jaws would have been that you don't have copyright protection in a general idea. The basic principle is that the question is, have they copied the mere idea of a killer shark terrorizing human beings? Because that is a fairly simple idea, that is not a form of expression per se, but it is not as simple as that. It is how you formulate what is the idea, what is the expression? If you stated in those broad terms, it sounds like an idea, but how it was litigated ultimately is that they were able to show - The plaintiffs were able to show that it wasn't just copying the idea, there was quite close similarities in terms of particular types of situations that emerged, the types of characters in the film, the sequence of these events or occurrences in the film were very similar. Ultimately, the court held that this was a copying of expression. What they had done was they copied beyond that basic idea and it kind of shaded into expression. Therefore, this would constitute a copyright infringement of the dramatic work. - To qualify of Copyright protection: - Material form - Originality - Authorship **Material form** - This material form requirement is set out in section 22: 'When...first reduced to writing or to some other material form.' - Even though, we say the idea/expression dichotomy is not something that is explicit in the legislation, although it is very fundamental principle, it is highlighted in section 22. - Imagine this scenario: An individual at a bar who gets up and improvises musical notes on the piano or starts singing and it wasn't recorded at all. There was an audience, and they all enjoyed the music, but no one recorded or captured the artist. The question arises as to whether this would be protected by copyright? In considering the fundamental principle here -- material form is a basic requirement and if it is not recorded in some form, if it is improvised, there is no capture of it at all, then it is not protected by copyright. There are practical consequences to this such as how do you prove that you are the owner? If it is recorded but not visually (perhaps audibly), then you can argue that it has been captured in material form but if it is not, then this element is not met. **Subject matter** In breaking down the 'material form' requirement, the below highlights the different aspects/categories that are protected. Thus, it has to be material form that is recognised under the *Copyright* legislative categories. - There are two broad categories: - Part III -- Works - You can understand 'works' in the legislation is that they are conventionally the type of things that you would expect an individual to create. - Literary - Dramatic - Musical - Artistic - Adaptations of literary, dramatic and musical works - Part IV - Subject matter other than works - Usually created or owned by companies. You can understand these as entrepreneurial outputs. - Films - Sound recordings - Film and television broadcasts - Published editions of works - The case of *Nine Network Australia v ABC* \[1999\] FCA 1864 highlights that material form is a requirement, and it also highlights the different categories of copyright protection. The court said that this was an ephemeral fireworks spectacular. Even though it was planned, the court asserted there may be many a slip between the actual plan and the ultimate performance. And so, the court didn't recognise that it met the material form requirements (dramatic works). Therefore, it could not be protected as a dramatic way. - For something to be copyrighted, it must be fixed in a form (like a written script or a recording). A planned event, like the fireworks show, doesn\'t count unless it's made into something concrete. **Originality** - This is expressed in the legislation in s 32 because it says copyright subsist in original works. - It is expressed for Part III. - It is not expressed for part IV (cinematography films that are captured), but you could argue that it is still applicable. In order to have protection in a part IV subject matter, it should still originate in the sense that someone has captured it - they have not copied it from elsewhere. - Essentially, that is what originality means in copyright. It is a very low threshold, you could say in that sense, that it has to originate from an author and not be copied from elsewhere. What does this mean? It really protects that that independent form of creation. - A work that originates from an author and is not copied from an existing work. [^3^](#fn3){#fnref3.footnote-ref} - This is the basic requirement for originality: it is not novelty; it doesn't mean that your expression has to be particularly unusual or new -It doesn't have to be fresh. It is not an artistic analysis of your expression. It just has this low threshold that the expression originates from the idea. - No threshold of novelty, inventiveness, or creativity of thought/ expression - A person who carries out the process of reducing the work to a tangible form is the author of the work, even though the ideas or information on which it is based have been provided by someone else.[^4^](#fn4){#fnref4.footnote-ref} - In ascertaining originality, consider the work as a whole rather than its elements of components.[^5^](#fn5){#fnref5.footnote-ref} - Compilation may attract copyright protection by virtue of the selection or arrangement of pre-existing material. - Something may attract protection because of selection and arrangement. - Can copyright subsist in a compilation of data even though the data is arranged in an obvious manner -- here, a simple alphabetical listing of telephone subscribers? - *Desktop Marketing v Telstra* \[2002\] FCAFC - Here, the Federal Court held that copyright subsists. The principle on which they held it existed was this notion of a sweat of the brow: Copyright subsists 'if there has been sufficient intellectual effort in the selection or arrangement of the facts \[or\] if the author has engaged in [sufficient work or incurred sufficient expense] in gathering the facts \[although\] the cases have not defined with any precision what amount of intellectual effort, labour, etc., is required to justify copyright.' They claimed that you can exercise sufficient intellectual effort. The court said that if you expended a lot of time, money and effort even though it is not creative, it would still justify copyright protection. - The issue was revisited in *IceTV v Nine Network Australia* \[2009\] HCA 14 and is still not wholly settled. In this case a subscription- involved subscription based online TV programming. It was details about TV programs in the form of electronic guides. Channel 9 complained that Ice TV had copied their program information and the time, titles etc., the issue here was infringement, not subsistence of copyright. This is important to highlight because the HC was stating that originality is more in the context of infringement, not in whether it is protected at all. The HC said that there may be reason to question the desktop approach to compilations. They said too much may be made of sweat of the brown and so the next time you have a case that comes to the HC involving sweat of the brow, it may be possible that it wouldn't be settled in the same manner. **Authorship** - One other point to do with originality is that it has to originate from an author. Thus, you can see these two requirements as being related. - This raises a lot of questions regarding AI. This is generally unresolved in Australia as there is no decisive case. However, generally speaking, if you look at all the case history, it is generally accepted that a work will have a human author. This is illustrated in *Acohs Pty Ltd v Ucorp Pty Ltd* \[2012\] FCAFC 16, \[84\]-\[85\] - The system in this case was complicated. The context was that the law required any company that manufactured or imported or supplied hazardous substances to provide material safety data sheets or particular types of information in a particular form, prescribed information. The appellant and respondent in this case were competing producers of these data sheets. They would generate these sheets based on third parties, customers and computer data. The source of these data sheets was not clear. The court said that if you cannot outline or actually track back and show that there is a human author to it, to this, that it wasn't just automatically created in some form, then you cannot really prove that you own that material safety data sheet and you cannot claim infringement. The court isn't saying that there is no copyright If there is no human author, but it is saying that you need to identify an author. **Part III -- works** **Literary work** - When talking about literary work, we are not looking at some artistic merit. It just has to be part of the category. It has to supply intelligible information. It has to be a form of writing, but it is not exhaustively defined. - Literary work is not exhaustively defined - Includes a table, or compilation, expressed in words, figures or symbols... and a computer program or compilation of computer programs: s 10(1) - something in print or writing -- refers to the "order of the words," not the ideas or information - Has to supply "intelligible information" [^6^](#fn6){#fnref6.footnote-ref} **Literary work: Computer programs** - To highlight one form of subject matter that is important and is valuable and falls within this copyright category is: computer programs protected as literary works since 1984. - In questioning what aspects of the code were protected? Previously it was stated that only the human readable code would be protected according to the court and object codes that ran within the computer and anything that is not visible will not be protected. Ultimately, through legislative change, it means that it can be used directly or indirectly. It doesn't really say that it has to be visually perceptible. - The other thing to note is that it is stated that it should bring about a certain result. This indicates some kind of functionality aspect (and we said that copyright does not protect functionality). It is not saying that copyright protects the functionality of the software code, rather it is saying that it is related to that point about intelligible information. If you put gibberish in the code, it doesn't do anything, it doesn't have any function and doesn't mean anything. Thus, it is not protected as a computer program literary work. It has to have some purpose, though ultimately, copyright is still only protecting how it is expressed. - Computer program is defined under s 10(1) as: "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." - E.g., algorithmic/logical relationship between code and function. - Does not include content within program. - For example, an individual who owns a computer game, which is made up of code. The code is protected separately as a computer program, under a literary work category. However, music that may be embodied in the game is a separate thing that is protected. It is not encompassed within protection as a computer program. - This means that if someone infringes the music, not the game, who gets to bring the action? The owner of the music, not the owner of the computer game. **Artistic work** - It is not about artistic quality. Copyright applies irrespective of artistic quality - Defined in s 10 (1) - Paintings, sculptures, drawings, engravings, photographs, buildings, models of buildings, plans, diagram - It can be difficult to draw the distinction between artistic work and an item of functionality, which is not protected by copyright. This can raise complications when talking about artistic craftsmanship. - The HC decision where you had a question as to whether you could protect the boat from artistic craftmanship and protect that and prevent others from replicating that? The HC said that the key question to consider is your decision to craft it in a certain way to express it in that way. Is it constrained by functional considerations or it is purely based on aesthetics? If it is for functional considerations, then it should be protected by patent law. - Sculptures: *Lucasfilm Ltd v Ainsworth* \[2011\] UKSC 39; \[2011\] 4 All ER 817 - Lucasfilm was trying to stop the selling of stormtrooper helmets. The question was whether this was an artistic sculpture that was protected by copyright and owned by Lucasfilm's, in which case they could prevent these helmets from being sold in the market or is it a functional object and merely a helmet in which case it would not be protected by copyright and therefore others can copy it freely. This was the definitional issue in this case. the court stated that you cannot precisely define what is an artistic work. The court held that there was no copyright. The helmet and the amor were still recognisable within the confines of the film as the equipment of the stormtrooper therefore they had a function. The latter could be argued here. However, you can see why the court held this decision through this quote, 'however great the contribution to the artistic effect of the finished helmet, it was a Star Wars film that was the work of art that Mr Lucas and his companies created. The helmet was utilitarian in the sense that it was an element in the process of production of the films.' You have a protection and a form of subject matter and in that process, this might be a small part of it, but it is not something that will independently be derecognised as protected copyright work. **Dramatic work** - Includes things that are scripted, planned, scenario, something that is planned, something that is made to be performed or represented. However, it does have to be recorded and captured to meet the 'material form' requirement and then wholly be protected under copyright law. - Includes a choreographic show and a scenario or script for cinematography film - But not the cinematography film itself: s 10(1) - Impromptu/ unrecorded performance issues may fall under this category. - If you record a sport event is that a dramatic event? No, because it is not planned, scripted. It is a real-life event. **Musical work** - Musical work is not defined but accords with the general understanding of what is musical work. It is generally accepted to refer to the method of production, not artistic/ aesthetic qualities of the work. - Note 1905 Act which defined it as, 'any combination of melody and harmony.' - It is not about the musical qualities or aesthetic qualities of it. - In Australia, lyrics are protected separately as literary works. **Adaptations of literary, dramatic and musical works** - Adaptations defined as: - translations of literary or dramatic works, - dramatic adaptations of literary works; literary adaptations of dramatic works, - versions of a literary work where the action is conveyed in pictures; and - an arrangement of a musical work: s 10(1). - It means a form of output that is protected (the adaptation that results from a literary, dramatic and musical work is protected as an adaptation) but is also part of the exclusive rights. The owner has the right to authorise an adaptation of their literary, dramatic or musical works: s 31 (1) - The question then arises as to what if you adapt someone else's work without their permission? Is it still protected under copyright? - The court said in *A-One Accessory Imports Pty Ltd & Ors v Off Road Imports Pty Ltd & Ors* \[1996\] FCA 362 that it is still protected. Copyright can subsist in an infringing adaptation, but what is the issue? you may own the infringing adaptation, but if you make further use of it, it is an infringement of the exclusive rights of the copyright owner. - S 31(1)(a)(vii) **\ ** **Part IV: Subject Matter** **Sound recordings** - Broadly defined - Defined as the aggregate of the sounds embodied in a record; and record is defined as including a disc, tape paper, electronic file or other device in which sounds are embodied: s 10(1) - Only protects the actual embodiment of the sounds - If you record a sound (bird singing) and someone else records that as well, they have not infringed your sound recording. In order to infringe someone's sound recording, they will have to copy your capture of that sound recording. It is limited in that sense- that if someone listens to your sound recording, they emulate and imitate it, and they re-record it, that is not an infringement of your sound recording because it is not a copy of your sound recording. - Contrast this with musical work. If you write a melody that is the musical work. If someone copies the melody, that would be sufficed infringement of your copyright protection. - Usually owned by a company. example: universal music. - To highlight the difference between Part III works and Part IV subject matter is if you look at sound recording, it says it is the aggregation of sound that is embodied in the record. It has to be captured in the record. The definition is broad. It is not limited to particular forms but can include any other form. Thus, there is a for of flexibility. **Cinematography films** - Aggregation of visual images. - Defined as "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... of being shown as a moving picture; or... of being embodied in another article..." - includes: - feature films - videos - commercials - TV programs - multimedia works including interactive computer games - integrative computer games **Sound and television broadcasts** - Broadcast defined as "a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992": s 10(1); see also s 91 - i.e. Has to be made by an entity falling within the definition of "broadcasting service" in the BSA - This means that you cannot copy the broadcast service without permission. - If an individual wants to rebroadcast someone's programs, they may have to seek a license, they may have to rely on some kind of statutory licence. - Deemed to have been made by the person who provided the broadcasting service by which the broadcast was delivered: s 22(5). - Importance of defining and identifying subject matter - Pannel, a TV broadcasting show, showed excerpts from different broadcasting shows (Channel 9) - The question remains as to whether taking little excerpts was the broadcast itself? Being able to define the subject matter is important because you have this notion of substantial part -- if you copy a substantial part of something, that will suffice as infringement. This has never been litigated up until this case. they tried to argue that any type of capture was part of the broadcast content and couldn't take any of it. The court disagreed and said no and was too extreme and too much protection. They said the unit of measurement for protection was the whole program. If you took a little bit of it, then you would have to highlight that it was a substantial part. The segment was the whole program, if you took a little part, you would then have to consider as to whether it was substantial. **Published editions of work** - Usually owned by a publisher. - Protects the presentation or typographical arrangements of works in printed form: s 92 - Includes other aspects of presentation such as juxtaposition of text and photographs and use of headlines - *Nationwide News v Copyright Agency Ltd* (1996) 34 IPR 53 - Exclusive right to make a facsimile copy of the edition: s88 **Australian 'connecting factor'** - In theory this is a substantive element that has to be satisfied, but in practice, you will probably be able to satisfy it. - Why do we say it needs a connecting factor? Because the copyright legislation is territorial in nature. It doesn't extend to the ends of the Earth; the *Copyright Act* does not apply anywhere else besides Australia. Thus, if the publisher, maker is an Australian citizen or resident or Australian Company, then this simply meets the connecting factor requirement. If the item was also first published in Australia, then this also satisfies this element. - Why is it said that this would apply usually in practice? Because you have these reciprocal protection provisions and agreements in place. If you look at section 184 in conjunction with the *Copyright* regulations of 1969 in effect, it says that the act will apply in the same way to works or works of subject matter made or published in these types of countries- these international agreements. - BUT the Act applies in the same way to those first published/made in a Berne Convention country, WCT country, WPPT country, WTO country etc. **Ownership** - We have talked about what is protected by copyright and now the question arises as to who owns it? You have established that it is recognised by the *Copyright Act,* but then the next question is, who has the right to control the exploitation of the copyright work or subject matter? - There are presumptions that copyright subsists, and copyright is owned by a party who brings the action, unless there is contrary evidence. You don't have to particularly bring evidence of it unless the defendant puts it on issue. - There are certain presumptions in s 127 and 126B that if there is a clear labelling or packaging which states you are the owner, then that will be taken as prima facie evidence. - Another key thing to remember is that usually the general rule is the author is the first owner of copyright. There may be exceptions to the rule. The author is someone who captures the expression in material form, the person who first fixes in material form, first expresses it. That is the author. This can be changed by agreement. It is not set in stone - The "maker" - sound recordings - Owner of the "record": s 97(2) - 2005 - expanded to include performers of "live performance": s 22(3A) -(3C) - cinematograph films - Person who made the arrangements necessary for the making of the film: s 98(2) - Exceptions - commissioned sound recordings, films (ss 97(3), 98(3)) - TV and sound broadcasts - the person who provided the broadcasting service that delivered the broadcast: s99 - published editions - the publisher: s100 **Exceptions -- employees: s 35(6)** - The legislation provides in the *Copyright Act* that the employer is the owner of employee creations. There are several key elements to establishing this. 1. The relationship: employee vs independent contractor? a. Are they an employee? They could be an independent contractor. - This can be established by Applying the general principles of employment law - Relevant factors include: - Employer's power to select workers - Payment of wages and other remuneration - Employer's right to control the method of doing the work - Employer's rights of suspension or dismissal - Basic question: does the person sell their labour, or the product of their labour? 2. The work: created in pursuance of the terms of their employment? b. Library of computer code developed largely for work- related purposes and during work hours c. Software developed on own initiative at home, outside of work hours, without any direction from the employer and without employer's knowledge **Exception: journalists in print media: s 35(4)** - Rights split between publisher and author - if work produced by author in course of employment by newspaper, magazine or periodical for purpose of inclusion in a newspaper, magazine or periodical - "Traditional rights" held by journalist; all other rights held by publisher - Author (journalist) owns copyright for the purposes of - reproduction of the work in a book or - reproduction of a hard copy facsimile of a paper edition of the newspaper, magazine or periodical **Exceptions for certain commissioned subject matter** - no general exception for commissioned work - not defined in the legislation but refers to paying someone to do something for you - but if person pays for creation/making of: - s 35(5): painting/ drawing of portrait or engraving - owned by person who commissioned the relevant painting, engraving, photograph, sound recording or cinematograph film - in all other circumstances, general rule applies owned by the author/ creator. **Joint authorship** - a work that has been produced by the collaboration of two or more authors; and - contribution of expression not separable: s 10(1) - of songs consisting of music and lyrics - ownership held as tenants in common in equal shares (subject to agreement to the contrary) - consent of both required to grant license to third party - any one owner may sue third parties without joining the other owner as plaintiff - a joint owner may sue the other joint owner for infringement - is there such thing as communal ownership? - There is this notion that copyright law only recognises individual owners. The challenge is then to track it back to the original owner. - Crown copyright - Copyright is owned by the crown, in these broad circumstances: i. Works, recordings or films made 'by, or under the direction or control of, the Commonwealth or a State: ss176, 178; see *CAL v NSW* 2007 ii. literary, dramatic, musical or artistic work first published in Australia by, or under the direction or control of, the Commonwealth or the State: s 177 - The Australian aboriginal flag - This illustrates falls between the cracks of communal ownership and crown ownership **Exclusive rights** - Copyright owner has the exclusive right to do certain acts in relation to a work, an adaptation of a work or other subject matter: ss13(1), 31, 85-88 - Generally speaking, part 3 works have greater protection than part 4 subject matter. - An exclusive right is infringed if it is unauthorised. You have exclusive rights; you have the right to authorise the doing of the act: - Part III literary dramatic or musical works- s 31(1)(a) - reproduction - adaptation - publish - perform - communicate - rental rights - Part IV materials -- ss 85-88 - sound recording: - make a copy - cause it to be heard in public - communicate it to the public - enter into a commercial rental deal - cinematography films - make a copy - cause it to be seen/ heard by the public - communicate it to the public - sound and television broadcasts - make a copy of the broadcast - re-broadcast it or to communicate it to the publish - published editions of literary, dramatic, musical or artistic works - to make a facsimile copy of the published edition **\ ** **Duration** - Varies according to the kind of material - A table with text and numbers AI-generated content may be incorrect. - Refers to published work. What if it is anonymous or hasn't been published? This created the problem of orphan works. It ensures that it expires at a certain point in time. - Note changes effective from 1 January 2019 under *Copyright Amendment Act 2017* to address 'orphan works' - Where creator is unknown - Material never made public 70 years from when created - If material made public within 50 years of creation -- 70 years from when first made public - Joint works: consider author who dies last: s 80 - If work exceeds 70-year duration, it is not protected by ©. - Determine when does publication occur? In order for something to published, the reproduction is supplied to the public. Includes being made public. - Unauthorised publication is disregarded. **Assignment** - Assignment refers to handing over the ownership. - Joining owner could be infringing your ownership, the same applies with assignment. - There are formality requirements **Licensing** - Not transfer of ownership. Permission to exercise owner's exclusive right(s) - Not a transfer - May be exclusive or non- exclusive - Exclusive licence - Defined as one 'authorizing the licensee, to the exclusion of all other persons, to do an act that, [by virtue of this Act], the owner of the copyright would,... have the exclusive right to do': s 10(1) ::: {.section.footnotes} ------------------------------------------------------------------------ 1. ::: {#fn1} Kirby J in footnote 218 in *Grain Pool* (2000):[↩](#fnref1){.footnote-back} ::: 2. ::: {#fn2} "No man but a blockhead ever wrote except for money."[↩](#fnref2){.footnote-back} ::: 3. ::: {#fn3} *Victoria Park Racing v Taylor* \[1937\] Dixon J[↩](#fnref3){.footnote-back} ::: 4. ::: {#fn4} *Donoghue v Allied Newspapers Ltd* \[1938\] Ch 106[↩](#fnref4){.footnote-back} ::: 5. ::: {#fn5} *Coogi v Hysport* \[1998\] per Drummond J/ *Desktop Marketing v Telstra* \[2002\] FCFCA per Lindgren J[↩](#fnref5){.footnote-back} ::: 6. ::: {#fn6} *Desktop Marketing* (Lindgren J)[↩](#fnref6){.footnote-back} ::: :::