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ausip:copyrightinfringement [2019/03/10 10:12]
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ausip:copyrightinfringement [2019/03/10 11:33]
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 #### Element 1 - Causal Connection #### Element 1 - Causal Connection
  
-An infringement may be indirect. ((//LED Builders Pty Ltd v Eagle Homes//)) In order to prove a causal link it will generally be a requirement that the plaintiff show the defendant had access to the plaintiff'​s work. ((//Barret Property Group Pty Ltd v Dennis Family Homes Pty Ltd// (2011) 91 IPR 1))+An infringement may be indirect. ((//LED Builders Pty Ltd v Eagle Homes// ​[1999] FCA 584)) In order to prove a causal link it will generally be a requirement that the plaintiff show the defendant had access to the plaintiff'​s work. ((//Barret Property Group Pty Ltd v Dennis Family Homes Pty Ltd// (2011) 91 IPR 1))
  
 This will not always be the case, because causal links may be established indirectly. Copyright could exist in the artistic work of a dress design drawing. A person may infringe this copyright without access to the artistic work. The could do so by copying the dress fashioned from the design drawing. ((//Burke & Margot Burke Ltd v Spicers Dress Designs// [1936] Ch 400))    This will not always be the case, because causal links may be established indirectly. Copyright could exist in the artistic work of a dress design drawing. A person may infringe this copyright without access to the artistic work. The could do so by copying the dress fashioned from the design drawing. ((//Burke & Margot Burke Ltd v Spicers Dress Designs// [1936] Ch 400))   
  
-Subconscious copying is sufficient provided there is evidence of copying. ((//Francis Day & Hunter v. Bron// per Willmer J))+Subconscious copying is sufficient provided there is evidence of copying. ((//Francis Day & Hunter v. Bron// ​[1963] Ch 587 per Willmer J))
  
-__Francis Day & Hunter v. Bron__+__Francis Day & Hunter v. Bron(([1963] Ch 587))__ ​
  
 * Plaintiff sued alleging the defendant’s infringed copyright in a musical work. * Plaintiff sued alleging the defendant’s infringed copyright in a musical work.
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-__Zeccola v Universal City Studios Inc (1982) 46 ALR 189__+__Zeccola v Universal City Studios Inc (( (1982) 46 ALR 189))__
  
 In the case of [Zeccola v Universal City Studios Inc](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​1982/​241.html) Universal owned copyright in film Jaws, screenplay Jaws, and novel Jaws.  Zeccola made a film about man eating sharks called Great White. ​ Universal sued for copyright infringement.  ​ In the case of [Zeccola v Universal City Studios Inc](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​1982/​241.html) Universal owned copyright in film Jaws, screenplay Jaws, and novel Jaws.  Zeccola made a film about man eating sharks called Great White. ​ Universal sued for copyright infringement.  ​
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 There is no copyright in the central idea: the idea of a shark terrorising a community cannot be protected. However, in this case, there was significant overlap in situations, characters, and location (even though the dialogue was different). The Full Federal Court wasn’t as certain, but did not find fault with the primary judge’s opinion. There is no copyright in the central idea: the idea of a shark terrorising a community cannot be protected. However, in this case, there was significant overlap in situations, characters, and location (even though the dialogue was different). The Full Federal Court wasn’t as certain, but did not find fault with the primary judge’s opinion.
  
-__Telstra Corp Ltd v Royal & Sun Alliance Insurance Ltd (2003) 57 IPR 453__+__Telstra Corp Ltd v Royal & Sun Alliance Insurance Ltd (( (2003) 57 IPR 453))__
  
 In the case of [Telstra Corp Ltd v Royal & Sun Alliance Insurance Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​2003/​786.html) Shannons car insurance ran a parody advertisement appropriating the format, story, and character of Telstra'​s Goggomobil advertisements. In the case of [Telstra Corp Ltd v Royal & Sun Alliance Insurance Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​2003/​786.html) Shannons car insurance ran a parody advertisement appropriating the format, story, and character of Telstra'​s Goggomobil advertisements.
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-__Baigent v Random House Group Ltd [2007] All ER (D) 456 (Mar)__+__Baigent v Random House Group Ltd (([2007] All ER (D) 456 (Mar)))__
  
 Authors and publishers of "The Holy Blood and the Holy Grail" alleged that Dan Brown had copied the “central theme” of the book in “The Da Vinci Code”. The “central theme” was argued to be a series of claims including that Jesus was of royal blood and Mary Magdalene carried his child. Authors and publishers of "The Holy Blood and the Holy Grail" alleged that Dan Brown had copied the “central theme” of the book in “The Da Vinci Code”. The “central theme” was argued to be a series of claims including that Jesus was of royal blood and Mary Magdalene carried his child.
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 It was held that Brown had taken ideas, but not expression from HBHG. Therefore, there could be no copyright infringement. It was held that Brown had taken ideas, but not expression from HBHG. Therefore, there could be no copyright infringement.
  
-__EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 47__+__EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (([2011] FCAFC 47))__
  
 In the case of [EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCAFC/​2011/​47.html) it was held that the flute riff in Men at Work's song "Down Under" reproduced two bars of the old song “Kookaburra sits in the old gum tree” In the case of [EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCAFC/​2011/​47.html) it was held that the flute riff in Men at Work's song "Down Under" reproduced two bars of the old song “Kookaburra sits in the old gum tree”
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-There is an exclusive right to publish the work ((//CA// ss 31(1)(a)(ii) and 31(1)(b)(ii) )). Publish means to make available to the public in Australia something which has not previously been made available. ((//Avel Pty Ltd v Multicoin Amusement Pty Ltd//*)) The definitions of published in s 29(1)(a) do not control the meaning of the words 'to publish'​ in s 31(1)(a)(ii) for the purposes of infringement. This is the right of first publication. ​+There is an exclusive right to publish the work ((//CA// ss 31(1)(a)(ii) and 31(1)(b)(ii) )). Publish means to make available to the public in Australia something which has not previously been made available. ((//Avel Pty Ltd v Multicoin Amusement Pty Ltd// [1990] HCA 58)) The definitions of published in s 29(1)(a) do not control the meaning of the words 'to publish'​ in s 31(1)(a)(ii) for the purposes of infringement. This is the right of first publication. ​
  
 It is not an infringement of the right to republish something that has already been made public. It may however, be an infringement of the reproduction right. It is also an infringement to communicate the work without permission or legal excuse. This will be discussed below in the '​Infringement - Communicate to the Public'​ section of this chapter. It is not an infringement of the right to republish something that has already been made public. It may however, be an infringement of the reproduction right. It is also an infringement to communicate the work without permission or legal excuse. This will be discussed below in the '​Infringement - Communicate to the Public'​ section of this chapter.
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 Making a "sound alike" version of a popular song does not infringe copyright in the sound recording, although it may in the underlying works (the lyrics and music). Making a "sound alike" version of a popular song does not infringe copyright in the sound recording, although it may in the underlying works (the lyrics and music).
  
-__CBS Records Australia v Telmak Teleproducts (Aust) Pty Ltd__+__CBS Records Australia v Telmak Teleproducts (Aust) Pty Ltd(([1987] FCA 138))__
  
 In the case of //CBS Records Australia v Telmak Teleproducts (Aust) Pty Ltd//, Telmak produced recordings and compilation of chart hits by cover bands. ​ CBS, who owned the sound recording copyright, sued for infringement of sound recording copyright. In the case of //CBS Records Australia v Telmak Teleproducts (Aust) Pty Ltd//, Telmak produced recordings and compilation of chart hits by cover bands. ​ CBS, who owned the sound recording copyright, sued for infringement of sound recording copyright.
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 * communicate the film to the public. * communicate the film to the public.
  
-__Australian Video Retailers Association Ltd v Warner Home Video Pty Ltd__+__Australian Video Retailers Association Ltd v Warner Home Video Pty Ltd (([2001] FCA 1719))__
  
 In the case of [Australian Video Retailers Association Ltd v Warner Video Pty Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​2001/​1719.html) Warner Home Video argued that DVD movies are also computer programs. They argued this because there are no commercial rental right in films, but there are in computer programs, ((See //CA// s 30A))  In the case of [Australian Video Retailers Association Ltd v Warner Video Pty Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​2001/​1719.html) Warner Home Video argued that DVD movies are also computer programs. They argued this because there are no commercial rental right in films, but there are in computer programs, ((See //CA// s 30A)) 
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 * re-broadcast or communicate to the public. * re-broadcast or communicate to the public.
  
-__Network Ten Pty Ltd v TCN Channel Nine Pty Ltd ("The Panel"​)__+__Network Ten Pty Ltd v TCN Channel Nine Pty Ltd ("The Panel") (([2002] FCAFC 146))__
  
 In the case of [Network Ten Pty Ltd v TCN Channel Nine Pty Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCAFC/​2002/​146.html) Ten’s show broadcast clips taken from other networks. ​ Nine sued under right to re-broadcast. In the case of [Network Ten Pty Ltd v TCN Channel Nine Pty Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCAFC/​2002/​146.html) Ten’s show broadcast clips taken from other networks. ​ Nine sued under right to re-broadcast.
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 Section 88 of the //Act// protects published editions of works by providing the copyright owner the exclusive right to make a facsimile copy of a published edition of one or more literary, dramatic, musical, or artistic works. ((//CA// s 88)) Section 88 of the //Act// protects published editions of works by providing the copyright owner the exclusive right to make a facsimile copy of a published edition of one or more literary, dramatic, musical, or artistic works. ((//CA// s 88))
  
-__Nationwide News Pty Ltd v Copyright Agency ​Limited__+__Nationwide News Pty Ltd v Copyright Agency ​Limited ((1996] FCA 257))__
  
 The appellants owned the majority of Australian newspapers and a significant proportion of magazines. ​ The respondent, Copyright Agency Limited (CAL), was a collecting society representing copyright owners of literary, dramatic and artistic works. ​ Separate from its statutory functions as a collecting society, CAL entered into voluntary licenses with educational institutions for the copying of articles from newspapers and magazines, passing royalties back to the authors. ​ The appellants claimed that this infringed their rights in the published edition. The appellants owned the majority of Australian newspapers and a significant proportion of magazines. ​ The respondent, Copyright Agency Limited (CAL), was a collecting society representing copyright owners of literary, dramatic and artistic works. ​ Separate from its statutory functions as a collecting society, CAL entered into voluntary licenses with educational institutions for the copying of articles from newspapers and magazines, passing royalties back to the authors. ​ The appellants claimed that this infringed their rights in the published edition.
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 Quality is the most important factor, not quantity: Quality is the most important factor, not quantity:
  
-"​Whether a part is substantial must be decided by its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected"​. ((*Ladbroke (Football) Ltd v William Hill (Football) Ltd*))+"​Whether a part is substantial must be decided by its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected"​. ((//Ladbroke (Football) Ltd v William Hill (Football) Ltd// [1964] 1 WLR 273))
  
-__Folsom v Marsh 9 Fed Cas 342, 348 (Mass 1841) (US)__ ​+__Folsom v Marsh ((9 Fed Cas 342, 348 (Mass 1841) (US) ))__ 
  
 >"​It is certainly not necessary, to constitute an invasion of copyright, that the whole of the work should be copied, or even a large portion of it, in form or in substance. If so much is taken, that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by another, that is sufficient, in point of law, to constitute a piracy pro tanto … Neither does it necessarily depend upon the quantity taken … [i]t is often affected by other considerations,​ the value of the materials taken, and the importance of it to the sale of the original work … In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work." >"​It is certainly not necessary, to constitute an invasion of copyright, that the whole of the work should be copied, or even a large portion of it, in form or in substance. If so much is taken, that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by another, that is sufficient, in point of law, to constitute a piracy pro tanto … Neither does it necessarily depend upon the quantity taken … [i]t is often affected by other considerations,​ the value of the materials taken, and the importance of it to the sale of the original work … In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work."
  
  
-Substantial part is assessed in respect to the work as a whole ((//​Ladbroke v William Hill//)) and by reference to originality of the part taken.((// IceTV Pty Limited v Nine Network Australia Pty Limited// [2009] HCA 14))+Substantial part is assessed in respect to the work as a whole ((//​Ladbroke v William Hill// ​[1964] 1 WLR 273)) and by reference to originality of the part taken.((// IceTV Pty Limited v Nine Network Australia Pty Limited// [2009] HCA 14))
  
  
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-__IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14 (22 April 2009)__+__IceTV Pty Limited v Nine Network Australia Pty Limited ​(([2009] HCA 14 (22 April 2009) ))__
  
 In the High Court Case of [IceTV Pty Limited v Nine Network Australia Pty Limited](http://​classic.austlii.edu.au/​au/​cases/​cth/​HCA/​2009/​14.html) Channel 9 created a Weekly Schedule of television programmes to be broadcast each week. They alleged that each Weekly Schedule was a compilation,​ and therefore a literary work under the* Copyright Act 1968*, and that IceTV had infringed copyright by taking part of the time and title information from the Aggregated Guides (guides produced by third party Aggregators,​ authorised by Nine and to whom Nine provides the Weekly Schedule) and including it in their own (electronic) guide, the "​IceGuide"​. Nine alleged that this constituted a reproduction of a substantial part of the copyright work. IceTV denied that they had reproduced in a material form a substantial part of any Weekly Schedule and denied that reproduction from any Aggregated Guide was a reproduction of any Weekly Schedule. In the High Court Case of [IceTV Pty Limited v Nine Network Australia Pty Limited](http://​classic.austlii.edu.au/​au/​cases/​cth/​HCA/​2009/​14.html) Channel 9 created a Weekly Schedule of television programmes to be broadcast each week. They alleged that each Weekly Schedule was a compilation,​ and therefore a literary work under the* Copyright Act 1968*, and that IceTV had infringed copyright by taking part of the time and title information from the Aggregated Guides (guides produced by third party Aggregators,​ authorised by Nine and to whom Nine provides the Weekly Schedule) and including it in their own (electronic) guide, the "​IceGuide"​. Nine alleged that this constituted a reproduction of a substantial part of the copyright work. IceTV denied that they had reproduced in a material form a substantial part of any Weekly Schedule and denied that reproduction from any Aggregated Guide was a reproduction of any Weekly Schedule.
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 Ten appealed to the High Court, but special leave was denied. Justices Kirby and McHugh reiterated that the identification of whether a substantial part has been taken is a question of "fact and degree"​. Ten appealed to the High Court, but special leave was denied. Justices Kirby and McHugh reiterated that the identification of whether a substantial part has been taken is a question of "fact and degree"​.
  
-__EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47__+__EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited ​(([2011] FCAFC 47))__
  
 A two-bar flute riff in Men at Work's Down Under was held to be a substantial part of the old tune "​Kookaburra sits in the old gum tree". A two-bar flute riff in Men at Work's Down Under was held to be a substantial part of the old tune "​Kookaburra sits in the old gum tree".
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 It is an infringement of copyright in any work in which copyright subsists to import an article into Australia for sale, hire or other commercial purpose, without the license of the copyright owner. This is on the basis that the importer knew, or ought reasonably to have known, that if the article had been made by the importer in Australia, it would have constituted an infringement of copyright. ((//CA// ss 37 and 102)) It is an infringement of copyright in any work in which copyright subsists to import an article into Australia for sale, hire or other commercial purpose, without the license of the copyright owner. This is on the basis that the importer knew, or ought reasonably to have known, that if the article had been made by the importer in Australia, it would have constituted an infringement of copyright. ((//CA// ss 37 and 102))
  
-__Milpurrurru v Indofurn Pty Ltd__+__Milpurrurru v Indofurn Pty Ltd (([1994] FCA 975))__
  
 A company imported carpets from Vietnam which reproduced Aboriginal artworks made by the applicant. A company imported carpets from Vietnam which reproduced Aboriginal artworks made by the applicant.
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 Parallel importation is where an overseas supplier who has legally acquired copies of the works, imports these works into Australia without a license of the copyright holder.  ​ Parallel importation is where an overseas supplier who has legally acquired copies of the works, imports these works into Australia without a license of the copyright holder.  ​
- 
-**Video overview by Friedrich Kuepper on[Parallel Importation](vimeo>​122722775).** 
    
 **Video overview by Jordan Gregory on[Section 44C and Parallel Importation](https://​www.youtube.com/​watch?​v=5NtqSfnjTxc).** **Video overview by Jordan Gregory on[Section 44C and Parallel Importation](https://​www.youtube.com/​watch?​v=5NtqSfnjTxc).**
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