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ausip:copyrightinfringement [2019/03/10 11:33]
jessiej_87 Links and edit
ausip:copyrightinfringement [2019/03/10 12:36] (current)
jessiej_87
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 Subconscious copying is sufficient provided there is evidence of copying. ((//Francis Day & Hunter v. Bron// [1963] Ch 587 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(([1963] Ch 587))__ ​+__//​Francis ​Day & Hunter v. Bron//(([1963] Ch 587))__ ​
  
-* Plaintiff ​sued alleging the defendant’s infringed copyright in a musical work.+In the case of //Francis Day & Hunter v. Bron// the plaintiff ​sued alleging the defendant’s infringed copyright in a musical work.
 * As a question of law, it is possible to infringe by subconscious copying. * As a question of law, it is possible to infringe by subconscious copying.
 * Held, similarities probably coincidental,​ and there was no evidence that the defendant had copied or heard the song. The Plaintiff was unable to infer that there was sufficient knowledge and memory for conscious or subconscious copying. * Held, similarities probably coincidental,​ and there was no evidence that the defendant had copied or heard the song. The Plaintiff was unable to infer that there was sufficient knowledge and memory for conscious or subconscious copying.
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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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 * 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"​) (([2002] FCAFC 146))__+__//​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 ((1996] FCA 257))__+__//​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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 "​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)) "​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."
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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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 >"​in assessing the quality of the time and title information,​ as components of the Weekly Schedule, baldly stated matters of fact or intention are inseparable from and co-extensive with their expression. It is difficult to discern the expression of thought in statements of which programmes will be broadcast and when this will occur. If the facts be divorced from the other elements constituting the compilation in suit, as is the case with the use by IceTV of the time and title information,​ then it is difficult to treat the IceGuide as the reproduction of a substantial part of the Weekly Schedule in the qualitative sense required by the case law". ( Gummow, Hayne, Heydon JJ) >"​in assessing the quality of the time and title information,​ as components of the Weekly Schedule, baldly stated matters of fact or intention are inseparable from and co-extensive with their expression. It is difficult to discern the expression of thought in statements of which programmes will be broadcast and when this will occur. If the facts be divorced from the other elements constituting the compilation in suit, as is the case with the use by IceTV of the time and title information,​ then it is difficult to treat the IceGuide as the reproduction of a substantial part of the Weekly Schedule in the qualitative sense required by the case law". ( Gummow, Hayne, Heydon JJ)
  
-__Network ​Ten Pty Ltd v TCN Channel Nine Pty Ltd ("The Panel"​)__+__//​Network ​Ten Pty Ltd v TCN Channel Nine Pty Ltd// ("The Panel"​)__
  
 Substantiality is a question of fact and degree. Substantiality is a question of fact and degree.
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 >"​The programme centred upon the dinner and presentation of the inaugural Allan Border Medal for the Australian cricket player of the year. The extract was of Glen McGrath’s reaction to the announcement that he was the winner of the award, his displayed emotion and the congratulations from his surrounding team mates. The cameras were trained on the winner to capture that moment. The cameras then followed Mr McGrath as he moved towards the stage. The excerpt was plainly a material and important part of the programme. The evidence of Mr Burns was that the announcement of Glen McGrath as the Australian cricketer of the year was 'the highlight of the dinner'"​. (Finkelstein J) >"​The programme centred upon the dinner and presentation of the inaugural Allan Border Medal for the Australian cricket player of the year. The extract was of Glen McGrath’s reaction to the announcement that he was the winner of the award, his displayed emotion and the congratulations from his surrounding team mates. The cameras were trained on the winner to capture that moment. The cameras then followed Mr McGrath as he moved towards the stage. The excerpt was plainly a material and important part of the programme. The evidence of Mr Burns was that the announcement of Glen McGrath as the Australian cricketer of the year was 'the highlight of the dinner'"​. (Finkelstein J)
- +> 
-Further: +> 
 +>
 >"​this Panel Segment takes a portion of a live Nine broadcast during which a number of awards are presented. The particular segment re-broadcast shows the passage of the winner of the inaugural Allan Border medal, Mr Glen McGrath, from his seat to the stage. The Panel re-broadcast 10 seconds of a source work that was 2 hours 11 minutes 44 seconds in length. The portion taken does not include any critical moments or highlights of the original broadcast such as Mr McGrath receiving the award or giving his acceptance speech. The material used by the Panel is only incidental to the source broadcast, and the part taken is trivial, inconsequential or insignificant in terms of the source broadcast"​. (Hely J) >"​this Panel Segment takes a portion of a live Nine broadcast during which a number of awards are presented. The particular segment re-broadcast shows the passage of the winner of the inaugural Allan Border medal, Mr Glen McGrath, from his seat to the stage. The Panel re-broadcast 10 seconds of a source work that was 2 hours 11 minutes 44 seconds in length. The portion taken does not include any critical moments or highlights of the original broadcast such as Mr McGrath receiving the award or giving his acceptance speech. The material used by the Panel is only incidental to the source broadcast, and the part taken is trivial, inconsequential or insignificant in terms of the source broadcast"​. (Hely J)
  
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 >"​Wide World of Sports (Grand Final Celebration/​Glen Lazarus cartwheel): Ten copied eight seconds of the programme. The footage of the Glen Lazarus cartwheel was, on any view, a "​highlight"​. Mr Lazarus was a prop (affectionately known as "the brick with eyes"​). He was playing his very last game of rugby league and was able to celebrate it with a win in the 1999 grand final"​. (Finkelstein J) >"​Wide World of Sports (Grand Final Celebration/​Glen Lazarus cartwheel): Ten copied eight seconds of the programme. The footage of the Glen Lazarus cartwheel was, on any view, a "​highlight"​. Mr Lazarus was a prop (affectionately known as "the brick with eyes"​). He was playing his very last game of rugby league and was able to celebrate it with a win in the 1999 grand final"​. (Finkelstein J)
- +> 
-Further: +>
 >"​this Panel Segment takes a portion of Nine’s live broadcast of the National Rugby League grand final. The particular portion taken features one of the players, Mr Glen Lazarus, performing a cartwheel as part of the post-match celebrations. He was not the only player to do so, and the footage taken does not show that there were other players following suit doing cartwheels of their own. The part taken is fleeting in character, and is not in any sense a highlight of the broadcast. Even if it be accepted that the original broadcast had as its subject matter both the grand final itself as well as the post-match presentations,​ the footage taken was only incidental to the source broadcast, and was trivial, inconsequential or insignificant in terms of that broadcast"​. (Hely J) >"​this Panel Segment takes a portion of Nine’s live broadcast of the National Rugby League grand final. The particular portion taken features one of the players, Mr Glen Lazarus, performing a cartwheel as part of the post-match celebrations. He was not the only player to do so, and the footage taken does not show that there were other players following suit doing cartwheels of their own. The part taken is fleeting in character, and is not in any sense a highlight of the broadcast. Even if it be accepted that the original broadcast had as its subject matter both the grand final itself as well as the post-match presentations,​ the footage taken was only incidental to the source broadcast, and was trivial, inconsequential or insignificant in terms of that broadcast"​. (Hely J)
  
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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 (([1994] FCA 975))__+__//​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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 Copyright in a work is infringed by a person who sells or hires an article if the person knew, or ought reasonably to have known, that the making of the article constituted an infringement of the copyright or, in the case of an imported article, would, if the article had been made in Australia by the importer, have constituted such an infringement. ((//CA// ss 38 and 103)) Copyright in a work is infringed by a person who sells or hires an article if the person knew, or ought reasonably to have known, that the making of the article constituted an infringement of the copyright or, in the case of an imported article, would, if the article had been made in Australia by the importer, have constituted such an infringement. ((//CA// ss 38 and 103))
  
-__Raben ​Footwear Pty Ltd v Polygram Records ​Inc__ (([1997] FCA 370))+__//​Raben ​Footwear Pty Ltd v Polygram Records ​Inc//​__ ​(([1997] FCA 370))
  
 Raben imported 1000 copies of a Cher CD from Germany. ​ Polygram sued for infringement of copyright. ​ Raben argued that he had no knowledge – Raben had asked the supplier about licensing for the CDs and received a guarded reply. Raben imported 1000 copies of a Cher CD from Germany. ​ Polygram sued for infringement of copyright. ​ Raben argued that he had no knowledge – Raben had asked the supplier about licensing for the CDs and received a guarded reply.
  
 Held, Raben had infringed copyright – supplier’s response ought reasonably have led the defendant to assume the true position and therefore reasonably knew that making the CD in Australia would have constituted an infringement of copyright. Held, Raben had infringed copyright – supplier’s response ought reasonably have led the defendant to assume the true position and therefore reasonably knew that making the CD in Australia would have constituted an infringement of copyright.
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