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ausip:copyrightbackground [2018/09/07 16:48]
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ausip:copyrightbackground [2019/09/11 12:07] (current)
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-====== ​Copyright Introduction ​======+Copyright Introduction
  
-===== International ​and Historical Context =====+The main objective of copyright law is to protect ​and promote creativity in our economy. In Australia, copyright law is governed by the Copyright Act, 1968 (Cth). It broadly protects works of literary, musical, dramatic and/or artistic creativity.
  
-Copyright law has deep historical roots. The following list tracks ​the formation ​of international copyright laws:+* **Literary works** are textual works such as song lyrics, books, journal articles, and the code of computer programs/​software. This category covers almost anything in the written form. It does not cover headings and titles, however, because these are not considered substantial enough to warrant legal protection.
  
-  ​The Stationers’ Monopoly; ((//​Licensing of the Press Act 1662//)) +* **Artistic works** cover paintings, photographs,​ craft work, drawings and sculptures. There is no need for the work to have ‘artistic merit’ to be protected. It simply needs to take artistic form, regardless of perceived quality or skill.
-  ​The Statute of Anne (//​Copyright Act 1709//) +
-  ​Piecemeal development to account ​for new purposes+
  
-The //​Statute ​of Anne//also known as the //Copyright Act 1710//, is an act of the Parliament of Great Britain passed in 1710, which was the first statute to provide for copyright ​regulated by the government and courts, rather than by private parties.+* **Musical works** cover only musical compositions and notations. It does not cover song lyrics (which are a literary work) or the sound recording ​of a song (which is protected separately). For this reasona popular song can have many different ‘layers’ ​of copyright.
  
-Prior to the statute'​s enactment in 1710copying restrictions were authorised by the //Licensing of the Press Act 1662//. These restrictions were enforced by the Stationers'​ Companya guild of printers given the exclusive power to print — and the responsibility to censor — literary works. The censorship administered under the Licensing Act led to public protest; ​as the act had to be renewed at two-year intervals, authors and others sought to prevent its reauthorisation. In 1694, Parliament refused to renew the Licensing Act, ending the Stationers'​ monopoly and press restrictions.+* **Dramatic works** cover theatrical playschoreography, and mime pieces, ​as well as scripts for films.
  
-Over the next 10 years the Stationers repeatedly advocated bills to re-authorize the old licensing system, but Parliament declined to enact them. Faced with this failure, the Stationers decided to emphasise the benefits of licensing to authors rather than publishers, and the Stationers succeeded in getting Parliament to consider a new bill. This bill, which after substantial amendments was granted Royal Assent on 5 April 1710, became known as the Statute of Anne due to its passage during the reign of Queen Anne. The new law prescribed a copyright term of 14 years, with a provision for renewal for a similar term, during which only the author and the printers they chose to license their works could publish the author'​s creations. Following this, the work's copyright would expire, with the material falling into the public domain. Despite a period of instability known as the Battle of the Booksellers when the initial copyright terms under the Statute began to expire, the Statute of Anne remained in force until the Copyright ​Act 1842 replaced it.+Copyright ​law also protects:
  
-The statute is considered a "​watershed event in Anglo-American copyright history … transforming what had been the publishers'​ private law copyright into public law grant"​. Under the statute, copyright was for the first time vested in authors rather than publishersit also included provisions for the public interest, such as a legal deposit scheme. The Statute was an influence on copyright law in several other nations, including the United States, and even in the 21st century is "​frequently invoked by modern judges and academics as embodying the utilitarian underpinnings of copyright law".+* cinematographic films which includes visual images and sounds ​in a film;
  
-===== Copyright Statutes in 18th and 19th century =====+* broadcasts by television and radio broadcasters; ​and
  
-  ​* ‘Consolidation’ in UK //Copyright Act 1911// +sound recordings recorded in a studio or otherwise. 
-  ​Australian ​development:​ + 
-      ​* ​//Copyright Act 1912// ​ (Cth) +A copyright protected work is often denoted by the symbol ​©, though this is not required for copyright protection. 
-      ​* ​//Copyright Act 1968// ​ (Cth)+ 
 +<WRAP round info 60%> 
 +It's important to remember that ‘ideas’ are not protected by copyright. Unless an idea is given some form of literary, dramatic, artistic or musical expression, it cannot be protected under the copyright law. 
 + 
 +There is no system to register copyright ​in Australia. Copyrightable work does not require registration for protection under the law. Copyright protection is free and automatic. 
 + 
 +</​WRAP>​ 
 + 
 +<WRAP group> 
 +<WRAP left round tip 40%> 
 +**Example: a website** 
 + 
 +Dasha, Sui-Ching and Peter are working together on a website for their employer. They contribute text, photographs and videos to the website. In this example, the text will be protected as a literary work, the photographs will be protected as artistic works, and the videos will be protected as cinematograph films. 
 +</​WRAP>​ 
 +<WRAP left round tip 40%> 
 +**Example: video production** 
 + 
 +Kirra and Stephanie make a video to upload to YouTube. They write out a scene for the video and act in it themselves. As part of the scene, they perform an original song. Kirra writes and plays the song on her guitar, while Stephanie sings. 
 + 
 +In this example, there are a number of different types of copyright works. The script or scene directions for the video will be protected as a dramatic work. The music for the song (i.e. the musical notations) will be protected as a musical work, and the lyrics sung by Stephanie will be protected as a literary work. The overall video will be protected as a film. 
 +</​WRAP>​ 
 + 
 +</​WRAP>​ 
 + 
 + 
 +## International and Historical Context 
 + 
 +Australian copyright law was originally derived from British law. It was not until the current legislation was passed, the //Copyright Act 1968// (Cth) that Australia started to find its own identify with respect to copyright. ​ 
 + 
 +In the UK, prior to formal copyright legislation being passed, copying restrictions were authorised by the //Licensing of the Press Act 1662//. The Stationers’ Company enforced the restrictions imposed by the //Act//. They were a guild of printers given the exclusive power to print and distribute literary works. During this time, there were concerns regarding censorship with respect to the content that was printed and distributed by the guild of printers. The guild had full control over what content was printed and made available to the public. The public protested these restrictions and eventually Parliament refused to renew the //Licensing Act//, which ended the Stationers'​ monopoly and press restrictions. 
 + 
 +Over the next 10 years the Stationers repeatedly advocated bills to re-authorise the old licensing system, but Parliament declined to enact them. Faced with this failure, the Stationers decided to emphasise the benefits of licensing to authors rather than publishers, and the Stationers succeeded in getting Parliament to consider a new bill. This new bill became the //Statute of Anne 1709//. 
 +  
 +//Statute of Anne 1709// was passed in 1710.  This was the first statute to regulate copyright through the government and courts, rather than through private parties. One of the foundations of this statute was the prescribed copyright term of 14 years, with a provision for renewal for a similar term, during which only the author (and the printers they chose to license their works) could publish the author'​s creations. Following this, the copyright in the works would expire, with the material falling into the public domain. The //Statute of Anne// remained in force until the //Copyright Act 1842// replaced it. The statute was an influence on copyright law in several other nations, including the United States, and even in the 21st century is considered to support the utilitarian justification for copyright law.  
 + 
 +In 1828, the UK enacted the //Australian ​Court Act 1828// (UK) which in effect caused all the Acts (that were in force at the time) in the UK to be enforced within Australia. The UK copyright law was among these laws.  
 + 
 +Throughout the early 1900’s Australia had two copyright acts, the //Copyright Act 1905// (Cth), which was the first copyright statute and the //Copyright Act 1912// (Cth), this was the second copyright statute which repealed all other related legislation and adopted the //Copyright Act 1911// (UK).  
 + 
 +In 1959 the Spicer Report was released which proposed significant changes to Australia’s copyright law. The purpose of these changes was to enable the ratification of the //Brussels Act// of the //Berne Convention//​. The Spicer Report led to the enactment of the //Copyright Act 1968// (Cth), which remains in force today. This //Act// has been updated a number of times to account for new purposes, development in international laws and trade agreements.  
 + 
 + 
 +## The Historical Development of Copyright Law
  
 There have been continuous changes in the legislation as a result of changes to technology. ​ There have been continuous changes in the legislation as a result of changes to technology. ​
  
-Below is a brief timeline of the developments of copyright law in Australia from the first types of copyright in England ​through to the nuanced aspects of copyright in today'​s society.+Below is a brief timeline of the developments of copyright law in Australia from the first types of copyright in the UK through to the nuanced aspects of copyright in today'​s society.
    
 ^ Year ^ Development in the Law ^ Outcome | ^ Year ^ Development in the Law ^ Outcome |
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 | 1557 | Stationers Company | A guild was given a monopoly over printing and distributing books. This was a royal decree.| | 1557 | Stationers Company | A guild was given a monopoly over printing and distributing books. This was a royal decree.|
 | 1643 | The Licensing Order | The Ordinance for the Regulating of Printing also known as the Licensing Order of 1643 instituted pre-publication censorship upon Parliamentary England. |  | 1643 | The Licensing Order | The Ordinance for the Regulating of Printing also known as the Licensing Order of 1643 instituted pre-publication censorship upon Parliamentary England. | 
-| 1709 | The Statute of Anne | The //Statute of Anne// was the first statute to regulate copyright (by the government and courts), as opposed to private parties. |  +| 1709 | The //Statute of Anne// | The //Statute of Anne// was the first statute to regulate copyright (by the government and courts), as opposed to private parties. |  
-| 1828 | Australian Court Act 1828 (UK) | The UK statues were received into Australian colonies.|  ​+| 1828 | //Australian Court Act 1828// (UK) | The UK statues were received into Australian colonies.|  ​
 | 1883 | Ownership in copyright | As a result of changes to copyright law to include photographs the question of who was the owner of the copyright in the photograph and under what circumstances became an issue for the court to decide. ((//Nottage v Jackson// (1883) 11 QBD 627 ))|  | 1883 | Ownership in copyright | As a result of changes to copyright law to include photographs the question of who was the owner of the copyright in the photograph and under what circumstances became an issue for the court to decide. ((//Nottage v Jackson// (1883) 11 QBD 627 ))| 
-| 1886 | The Berne Convention | The Berne Convention for the Protection of Literary and Artistic Works enters ​is agreed, following a campaign by French writer Victor Hugo. The aim is to give creators the right to control and receive payment for their creative works on an international level.|  +| 1886 | The //Berne Convention// //The Berne Convention for the Protection of Literary and Artistic Works// is agreed, following a campaign by French writer Victor Hugo. The aim is to give creators the right to control and receive payment for their creative works on an international level.|  
-| 1901 | The Australian Constitution | Australia became a nation. | +| 1901 | The //Australian Constitution// | Australia became a nation. | 
 | 1905 | //Copyright Act 1905// (Cth) | The first Commonwealth copyright statute. | | 1905 | //Copyright Act 1905// (Cth) | The first Commonwealth copyright statute. |
 | 1912 | //Copyright Act 1912// (Cth) | The second Commonwealth copyright statute which adopted the //Copyright Act 1911// (UK). |  | 1912 | //Copyright Act 1912// (Cth) | The second Commonwealth copyright statute which adopted the //Copyright Act 1911// (UK). | 
-| 1937 | Limitations to rights over intangible property | The High Court of Australia considered the case of //Victoria Park Racing & Recreation Grounds Co Ltd v Taylor// ((1937) 58 CLR 479)) The case considered property rights. One aspect of the case considered whether copyright law had been breached with respect to facts. It was held that, "[t]he law of copyright does not operate to give any person an exclusive right to state or to describe particular facts. A person cannot by first announcing that a man fell off a bus or that a particular horse won a race prevent other people from stating those facts."​((//​Victoria Park Racing & Recreation Grounds Co Ltd v Taylor// ​((1937) 58 CLR 479, [479]))|+| 1937 | Limitations to rights over intangible property | The High Court of Australia considered the case of //[Victoria Park Racing & Recreation Grounds Co Ltd v Taylor](http://classic.austlii.edu.au/​au/​cases/​cth/​HCA/​1937/​45.html)//​ (( (1937) 58 CLR 479)) The case considered property rights. One aspect of the case considered whether copyright law had been breached with respect to facts. It was held that, "[t]he law of copyright does not operate to give any person an exclusive right to state or to describe particular facts. A person cannot by first announcing that a man fell off a bus or that a particular horse won a race prevent other people from stating those facts".((//​Victoria Park Racing & Recreation Grounds Co Ltd v Taylor// (1937) 58 CLR 479, [479]))|
 | 1956| //Copyright Act 1956// (UK) | This //Act// did not apply to Australia. | | 1956| //Copyright Act 1956// (UK) | This //Act// did not apply to Australia. |
 | 1968 | //Copyright Act 1968// (Cth) | The //British Copyright Act 1911// continued to apply in Australia until the //Copyright Act 1968// (Cth) came into force on 1 May 1969.| ​ | 1968 | //Copyright Act 1968// (Cth) | The //British Copyright Act 1911// continued to apply in Australia until the //Copyright Act 1968// (Cth) came into force on 1 May 1969.| ​
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 | 2017 | The //Copyright (Disabilities and Other Measures) Act// 2017 | This //Act// was passed on 15 June 2017. One of the primary aims of the //Act// was to align Australia'​a copyright law with the Marrakech Treaty.|  ​ | 2017 | The //Copyright (Disabilities and Other Measures) Act// 2017 | This //Act// was passed on 15 June 2017. One of the primary aims of the //Act// was to align Australia'​a copyright law with the Marrakech Treaty.|  ​
  
-===== A Practical Structure for Approaching Copyright Questions ​=====+## A Practical Structure for Approaching Copyright Questions 
 + 
 +There are six basic issues that must be considered in approaching copyright and related rights. 
 + 
 +1. Subsistence ​ - This asks whether the the subject matter is protected by copyright?​ 
 + 
 +2. Ownership ​   - Who owns the copyright?​ 
 + 
 +3. Infringement - Have any of the exclusive rights of the copyright owner been infringed?​ 
 + 
 +4. Defences ​    - Do any defences apply to the alleged infringement?​ 
 + 
 +5. Remedies ​    - What remedies are available?
  
-There are six basic issues that must be considered in approaching copyright and related rights:+6. Related Rights ​ - This asks whether there are any related rights ​associated with the copyright. For example moral rights, anti-circumvention and designs.
  
-  - **Subsistence** ​ - is the subject matter protected by copyright?​ +Each of these issues will be discussed in detail in the following chapters
-  - **Ownership** ​ - who owns the copyright?​ +
-  - **Infringement** ​ - has copyright been infringed?​ +
-  - **Defences** ​ - are there any applicable defences? +
-  - **Remedies** ​ - what remedies are available?​ +
-  - **Related** ​ Rights - for example moral rights, anticircumvention and designs.+
  
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