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ausip:copyrightsubsp3 [2019/03/08 13:14]
jessiej_87
ausip:copyrightsubsp3 [2019/03/08 14:15]
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 Each of these conditions will be discussed in this chapter. ​ Each of these conditions will be discussed in this chapter. ​
  
-## Condition 1: Material Form+## Material Form
  
 An idea becomes a work when it is "first reduced to writing or to some other material form". ((//CA// s 22(1) )) The term "​writing"​ means a mode of representing or reproducing words, figures or symbols in a visible form, and “written"​ has a corresponding meaning. ((//CA// s 10(1) )) The term "​material form", in relation to a work or an adaptation of a work, includes any form (whether visible or not), of storage of the work or adaptation, or a substantial part of the work or adaptation, (whether or not the work or adaptation, or a substantial part of the work or adaptation, can be reproduced). ((//CA// s 10(1) )) Material form includes writing in any tangible medium, analogue or digital storage on any electronic or other medium. ((See //[Star Micronics Pty Ltd v Five Star Computers Pty Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​1990/​387.html)//​ (1990) 18 IPR 225)) Material form does not include ephemeral manifestations,​ projections,​ speech or live music. ​ An idea becomes a work when it is "first reduced to writing or to some other material form". ((//CA// s 22(1) )) The term "​writing"​ means a mode of representing or reproducing words, figures or symbols in a visible form, and “written"​ has a corresponding meaning. ((//CA// s 10(1) )) The term "​material form", in relation to a work or an adaptation of a work, includes any form (whether visible or not), of storage of the work or adaptation, or a substantial part of the work or adaptation, (whether or not the work or adaptation, or a substantial part of the work or adaptation, can be reproduced). ((//CA// s 10(1) )) Material form includes writing in any tangible medium, analogue or digital storage on any electronic or other medium. ((See //[Star Micronics Pty Ltd v Five Star Computers Pty Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​1990/​387.html)//​ (1990) 18 IPR 225)) Material form does not include ephemeral manifestations,​ projections,​ speech or live music. ​
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-## Condition 2: Literary, Dramatic, Musical, or Artistic Work+## Literary, Dramatic, Musical, or Artistic Work
  
  
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 * Chronological lists of football matches; ((//​Football League Ltd v. Littlewoods Pools Ltd// [1959] Ch 637)) * Chronological lists of football matches; ((//​Football League Ltd v. Littlewoods Pools Ltd// [1959] Ch 637))
  
-* Lists of bingo numbers; ((Mirror Newspapers Ltd v Queensland Newspapers Ltd [1982] Qd R 305)) and+* Lists of bingo numbers; ((//Mirror Newspapers Ltd v Queensland Newspapers Ltd// [1982] Qd R 305)) and
  
 * Accounting forms. ((//​Kalamazoo (Aust.) Pty Ltd v Compact Business Systems Pty Ltd//)) * Accounting forms. ((//​Kalamazoo (Aust.) Pty Ltd v Compact Business Systems Pty Ltd//))
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 __//Fairfax Media Publications v Reed International Books//__ __//Fairfax Media Publications v Reed International Books//__
  
-In the case of [Fairfax Media v Reed International Books](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​2010/​984.html),​ Fairfax, (the publisher of the Australian Financial Review) alleged that Reed had infringed copyright by copying AFR headlines as part of its media monitoring service. The question was whether headlines were "​original literary works"​.((2010) 189 FCR 109))+In the case of [Fairfax Media v Reed International Books](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​2010/​984.html),​ Fairfax, (the publisher of the Australian Financial Review) alleged that Reed had infringed copyright by copying AFR headlines as part of its media monitoring service. The question was whether headlines were "​original literary works"​.(( (2010) 189 FCR 109))
  
 Held, while it is possible that a particular headline or title could be a literary work, the general rule is that they are not. Held, while it is possible that a particular headline or title could be a literary work, the general rule is that they are not.
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 "In my opinion headlines are capable of being literary works, whether independently or as part of the articles to which they relate. Some of the headlines in the Daily Mail with which I have been provided are certainly independent literary works"​. (Proudman J, [71]) "In my opinion headlines are capable of being literary works, whether independently or as part of the articles to which they relate. Some of the headlines in the Daily Mail with which I have been provided are certainly independent literary works"​. (Proudman J, [71])
  
-The decision was upheld on appeal. ((The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors[2011] EWCA Civ 890))+The decision was upheld on appeal. ((//The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors// [2011] EWCA Civ 890))
  
 **Computer Programs** **Computer Programs**
  
-Copyright subsists in computer programs as literary works (the law was amended in 1984). ((See the definitions of "​literary work" and "​computer program"​ in s10 of the //Copyright Act 1968//))+Copyright subsists in computer programs as literary works (the law was amended in 1984). ((See the definitions of "​literary work" and "​computer program"​ in s 10 of the //Copyright Act 1968//))
  
 __//​Computer Edge Pty Ltd v Apple Computer Inc//__ __//​Computer Edge Pty Ltd v Apple Computer Inc//__
  
-In the case of [Computer Edge Pty Ltd v Apple Computer Inc (http://​classic.austlii.edu.au/​au/​journals/​ANZCompuLawJl/​1984/​13.html),​ it was held that programs in object code (as opposed to source code) were not literary works.+In the case of [Computer Edge Pty Ltd v Apple Computer Inc](http://​classic.austlii.edu.au/​au/​journals/​ANZCompuLawJl/​1984/​13.html),​ it was held that programs in object code (as opposed to source code) were not literary works.
  
 This case was pre the 1984 amendments to the //Act//. These amendments provided that copyright subsists regardless of the code, language or notation used. This case was pre the 1984 amendments to the //Act//. These amendments provided that copyright subsists regardless of the code, language or notation used.
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 It was held that the defendant had infringed copyright in the "​Autocad"​ by reproducing a substantial part of the program in the device. It was held that the defendant had infringed copyright in the "​Autocad"​ by reproducing a substantial part of the program in the device.
  
-**Video overview by Zoe Cannan on [Autodesk v Dyason (No 2)](https://​www.youtube.com/​watch?​v=D9OxidyITdwMolI2YH3l84)**+**Video overview by Zoe Cannan on [Autodesk v Dyason (No 2)](https://​www.youtube.com/​watch?​v=MolI2YH3l84)**
  
 __//Data Access Corp v Powerflex Services Pty Ltd//__ __//Data Access Corp v Powerflex Services Pty Ltd//__
  
-Data Access had copyright in a computer program "​Dataflex",​ used by programmers to develop databases. ​  ​Dr Bennett created a program compatible with “Dataflex”,​ which was sold by Powerflex Services in competition with “Dataflex”. ​ He did not have access to the “Dataflex” source code, nor did he seek to decompile their program.+In the Hight Court case of [Data Access Corp v Powerflex Services Pty Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​HCA/​1999/​49.html) ​Data Access had copyright in a computer program "​Dataflex",​ used by programmers to develop databases. Dr Bennett created a program compatible with “Dataflex”,​ which was sold by Powerflex Services in competition with “Dataflex”. He did not have access to the “Dataflex” source code, nor did he seek to decompile their program.
  
-Held, no infringement of copyright except for the use of a Compression Table which merely reduced computer storage space. ​ Observing a program and developing a similar program without copying the source code or decompiling the program will not infringe copyright.+It was held that there was no infringement of copyright except for the use of a compression table which merely reduced computer storage space. Observing a program and developing a similar program without copying the source code or decompiling the program will not infringe copyright.
  
 ### Dramatic Work ### Dramatic Work
  
-Dramatic work includes choreographic shows, scenarios or scripts for a cinematograph films. ((//CA// s 10(1) )) Dramatic work does not include a cinematograph film as distinct from the scenario or script for a cinematograph film.+Dramatic work includes choreographic shows, scenarios or scripts for a cinematograph films. ((//CA// s 10(1) )) Dramatic work does not include a cinematograph film this form of expression is distinct from the scenario or script for a cinematograph film.
  
 Copyright in a film is the subject of a separate copyright in Part IV. Copyright in a film is the subject of a separate copyright in Part IV.
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 Hughey Green was the longstanding host of the British television talent quest "​Opportunity Knocks"​. ​ Features of the show, such as the use of a “clapometer” and various catchphrases to address the audience and the competitors,​ were replicated by a New Zealand television program without reference to Green. Hughey Green was the longstanding host of the British television talent quest "​Opportunity Knocks"​. ​ Features of the show, such as the use of a “clapometer” and various catchphrases to address the audience and the competitors,​ were replicated by a New Zealand television program without reference to Green.
  
-Held, the repetitive elements alone did not constitute a dramatic work: by themselves, their performance was meaningless since the greater part of the show, which gave meaning to the different stock elements, consisted of audience participation,​ varying from program to program.+It was held that the repetitive elements alone did not constitute a dramatic work: by themselves, their performance was meaningless since the greater part of the show, which gave meaning to the different stock elements, consisted of audience participation,​ varying from program to program.
  
  
 __//Nine Network Australia Pty Ltd v ABC// [1999]__((48 IPR 333)) __//Nine Network Australia Pty Ltd v ABC// [1999]__((48 IPR 333))
  
-The Nine Network had paid $450,000 towards the Council of the City of Sydney’s fireworks display to welcome the new millennium. ​ The Nine Network tried to restrain the ABC from broadcasting in Australia anything featuring the fireworks, the procession of lanterns on Sydney Harbour and decorations on the Harbour Bridge.+In the case of [Nine Network Australia Pty v ABC](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​1999/​1864.html),​ the Nine Network had paid $450,000 towards the Council of the City of Sydney’s fireworks display to welcome the new millennium. ​ The Nine Network tried to restrain the ABC from broadcasting in Australia anything featuring the fireworks, the procession of lanterns on Sydney Harbour and decorations on the Harbour Bridge.
  
-Held, Nine’s contention that the display and parade were dramatic works was not strong.+The court found that Nine’s contention that the display and parade were dramatic works was not strong.
  
-The schedule of the fireworks display would not be such a work, since the reduction to material form was fraught with difficulties as to whether the schedule would in practice be adhered according to the planned sequence.+The schedule of the fireworks display would not be such a work, since the reduction to material form was fraught with difficulties as to whether the schedule would in practice be adhered ​to according to the planned sequence.
  
 >"​It is, one would think, common place in at least a half of the present decade that firework shows with music are planned. It has never been suggested to my knowledge, and there is no reported case in which the matter has been subjected to legal analysis which has suggested that copyright subsists in a fireworks show set to music just because the sequence of events is scripted. That does not mean that copyright might not exist. It may merely be the result either of difficulties of enforcing the non filming of such events or it may be that no one has thought deeply about the issue. At the heart of the problem may well be that copyright is a monopolistic right existing not to protect ideas as such but the physical manifestation of some original literary, artistic or dramatic work". >"​It is, one would think, common place in at least a half of the present decade that firework shows with music are planned. It has never been suggested to my knowledge, and there is no reported case in which the matter has been subjected to legal analysis which has suggested that copyright subsists in a fireworks show set to music just because the sequence of events is scripted. That does not mean that copyright might not exist. It may merely be the result either of difficulties of enforcing the non filming of such events or it may be that no one has thought deeply about the issue. At the heart of the problem may well be that copyright is a monopolistic right existing not to protect ideas as such but the physical manifestation of some original literary, artistic or dramatic work".
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 Artistic work includes paintings, sculptures, drawings, engravings or photographs,​ buildings or a models of a buildings ((//CA// s 10(1) )) The artistic quality of the work is not a consideration,​ copyright will subsist in these creations regardless of quality. Artistic work also includes artistic craftsmanship. The definition of artistic works does not apply to a circuit layout within the meaning of the *Circuit Layouts Act 1989* (Cth). Artistic work includes paintings, sculptures, drawings, engravings or photographs,​ buildings or a models of a buildings ((//CA// s 10(1) )) The artistic quality of the work is not a consideration,​ copyright will subsist in these creations regardless of quality. Artistic work also includes artistic craftsmanship. The definition of artistic works does not apply to a circuit layout within the meaning of the *Circuit Layouts Act 1989* (Cth).
  
-#### Copyright in paintings+**Copyright in Paintings**
  
 The case of //​Merchandising Corp of America v Harpbond// (([1983] FSR 32)) outlines the copyright which subsists in paintings. ​ The case of //​Merchandising Corp of America v Harpbond// (([1983] FSR 32)) outlines the copyright which subsists in paintings. ​
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 Held, although there was no statutory definition of "​painting",​ it is a word in the ordinary usage of the English language and it is a question of fact in any particular case whether the subject matter under discussion is a painting or not. A painting is not an idea, it is an object, and paint without a surface in permanent form is not fixed; hence, the claim failed. Held, although there was no statutory definition of "​painting",​ it is a word in the ordinary usage of the English language and it is a question of fact in any particular case whether the subject matter under discussion is a painting or not. A painting is not an idea, it is an object, and paint without a surface in permanent form is not fixed; hence, the claim failed.
  
-#### Drawings+**Copyright in Drawings**
  
 Drawing is defined as including "a diagram, map, chart or plan". ((//CA// s 10(1) )) Architects'​ plans are considered artistic works. ((//Ancher, Mortlock, Murrary & Woolley Pty Ltd v Hooker Homes Pty Ltd//)) Drawing is defined as including "a diagram, map, chart or plan". ((//CA// s 10(1) )) Architects'​ plans are considered artistic works. ((//Ancher, Mortlock, Murrary & Woolley Pty Ltd v Hooker Homes Pty Ltd//))
  
-#### Sculptures+**Copyright in Sculptures**
  
 '​Sculpture'​ includes a cast or model made for purposes of sculpture. ((//CA// s 10(1) )) '​Sculpture'​ includes a cast or model made for purposes of sculpture. ((//CA// s 10(1) ))
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 >"​It appears to me that there is no reason why the word “sculpture"​ in the 1988 Act, should be extended far beyond the meaning which that word has to ordinary members of the public. There is nothing in the particulars in this case which suggests that the manufacturers of these moulds considered themselves, or were considered by anybody else, to be artists when they designed the moulds or that they were concerned in any way with the shape or appearance of what they were making, save for the purpose of achieving a precise functional effect. Nothing in the particulars given here suggests that any consideration of appeal to anything other than functional criteria was in mind or achieved”. (Laddie J, 722) >"​It appears to me that there is no reason why the word “sculpture"​ in the 1988 Act, should be extended far beyond the meaning which that word has to ordinary members of the public. There is nothing in the particulars in this case which suggests that the manufacturers of these moulds considered themselves, or were considered by anybody else, to be artists when they designed the moulds or that they were concerned in any way with the shape or appearance of what they were making, save for the purpose of achieving a precise functional effect. Nothing in the particulars given here suggests that any consideration of appeal to anything other than functional criteria was in mind or achieved”. (Laddie J, 722)
  
- +**Copyright in Buildings**
-#### Buildings+
  
 Building includes a structure of any kind. ((//CA// s 10(1) )) Building includes a structure of any kind. ((//CA// s 10(1) ))
 +
  
 __//Half Court Tennis Pty Ltd v Seymour//__ (( (1980) FLR 240)) __//Half Court Tennis Pty Ltd v Seymour//__ (( (1980) FLR 240))
  
 Held, a half-tennis court was a building. Held, a half-tennis court was a building.
 +
  
 __//Darwin Fibreglass Pty Ltd v Kruhse Enterprises Pty Ltd//__ (( (1998) 41 IPR 649)) __//Darwin Fibreglass Pty Ltd v Kruhse Enterprises Pty Ltd//__ (( (1998) 41 IPR 649))
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 The plug and mould used for the manufacture of precast fibreglass swimming pool was not a structure, but was a model of a building. The plug and mould used for the manufacture of precast fibreglass swimming pool was not a structure, but was a model of a building.
  
-#### Works of artistic craftsmanship+**Copyright in Works of Artistic Craftsmanship**
  
 The term "​artistic craftsmanship"​ is not defined in the //Act//. This is the only category of protection for 3D objects apart from buildings and models. A work of artistic craftsmanship includes articles made by crafts-people,​ such as jewellery, metalwork, and pottery. ​ The term "​artistic craftsmanship"​ is not defined in the //Act//. This is the only category of protection for 3D objects apart from buildings and models. A work of artistic craftsmanship includes articles made by crafts-people,​ such as jewellery, metalwork, and pottery. ​
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 The two elements (artistic and craftsmanship) must be united in the same person. ((//Burke & Margot Burke Ltd v Spicers Dress Designs// [1936] Ch 400)) The two elements (artistic and craftsmanship) must be united in the same person. ((//Burke & Margot Burke Ltd v Spicers Dress Designs// [1936] Ch 400))
  
-**Video overview by Joseph Auclair on[artistic craftsmanship and design protection](http://youtu.be/​rwYoDjYoFE4)**+**Video overview by Joseph Auclair on[artistic craftsmanship and design protection](https://www.youtube.com/watch?v=rwYoDjYoFE4)**
  
 __//​Cuisenaire v Reed//__ (([1963] VR 719)) __//​Cuisenaire v Reed//__ (([1963] VR 719))
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 Held, not artistic as there was evidence it was regarded as vulgar, brash and horrible (i.e. not sufficient aesthetic appeal). Held, not artistic as there was evidence it was regarded as vulgar, brash and horrible (i.e. not sufficient aesthetic appeal).
  
-Whether there is sufficient aesthetic appeal is determined objectively – It should not depend solely on the subjective intention of the author.+Whether there is sufficient aesthetic appeal is determined objectively – it should not depend solely on the subjective intention of the author.
  
-Lord Morris: although the intention of the author may be provide an indication as to whether the object is "​artistic",​ this quality should be assessed in a "​detached and objective way".+Lord Morris: ​"although the intention of the author may provide an indication as to whether the object is "​artistic",​ this quality should be assessed in a "​detached and objective way".
  
-Lord Reid: An item will have aesthetic appeal if a substantial section of the public genuinely admires and values it for its appearance and gets pleasure or satisfaction,​ whether emotional or intellectual from looking at it, even though others may think it meaningless or vulgar.+Lord Reid: "An item will have aesthetic appeal if a substantial section of the public genuinely admires and values it for its appearance and gets pleasure or satisfaction,​ whether emotional or intellectual from looking at it, even though others may think it meaningless or vulgar".
  
 A work of artistic craftsmanship may be mass produced. Factory based products can be works of artistic craftsmanship – they need not be handmade, although the author must use a highly sophisticated machine with creative skill, knowledge, and pride in workmanship. A work of artistic craftsmanship need not be the product of a single person. This was considered in the case of //Coogi Australia Pty Ltd v Hysport International Pty Ltd//. (( (1998) 86 FCR 154)) A work of artistic craftsmanship may be mass produced. Factory based products can be works of artistic craftsmanship – they need not be handmade, although the author must use a highly sophisticated machine with creative skill, knowledge, and pride in workmanship. A work of artistic craftsmanship need not be the product of a single person. This was considered in the case of //Coogi Australia Pty Ltd v Hysport International Pty Ltd//. (( (1998) 86 FCR 154))
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 __//Burge v Swarbrick//​__ (([2007] HCA 17)) __//Burge v Swarbrick//​__ (([2007] HCA 17))
  
-This case considered the copyright/​design overlap ​(more in a few weeks).+The case of [Burge v Swarbrick](http://​classic.austlii.edu.au/​au/​cases/​cth/​HCA/​2007/​17.html) ​considered the copyright/​design overlap.
  
 Here, the creator of a yacht design sued for copyright infringement. The creator would only be able to assert copyright if the hull or the '​plug'​ (a hand-crafted full scale model) used to create the yacht was a 'work of artistic craftsmanship'​ Here, the creator of a yacht design sued for copyright infringement. The creator would only be able to assert copyright if the hull or the '​plug'​ (a hand-crafted full scale model) used to create the yacht was a 'work of artistic craftsmanship'​
  
-FCA: The plug was a work of artistic craftsmanship. "The creation of the JS 9000 has some similarity to the modus operandi of Auguste Rodin"​.+The court held that the plug was a work of artistic craftsmanship. "The creation of the JS 9000 has some similarity to the modus operandi of Auguste Rodin"​.
  
 The High Court overturned the ruling, holding that the plug was not a work of artistic craftsmanship:​ The High Court overturned the ruling, holding that the plug was not a work of artistic craftsmanship:​
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 The designer in this case was motivated by engineering imperatives,​ and was not acting as an artist-craftsperson when he created the plug. The utilitarian requirements of aerodynamics and speed influenced and, at times, dictated the design choices. The designer in this case was motivated by engineering imperatives,​ and was not acting as an artist-craftsperson when he created the plug. The utilitarian requirements of aerodynamics and speed influenced and, at times, dictated the design choices.
  
-**Video overview by Shonagh Hunter on [Burge v Swarbrick](http://youtu.be/​Pj0oHFWNJKU).**+**Video overview by Shonagh Hunter on [Burge v Swarbrick](https://www.youtube.com/watch?v=Pj0oHFWNJKU).**
  
  
-## Condition 3: Originality+## Originality
  
 In copyright, the term "​originality"​ does not mean "​novel"​ or new. Instead, "​original"​ means to originate from the author, in the sense that it is the result of his or her skill, labour or judgment, and is not copied from another author. It is possible that two authors will independently produced a similar work both attracting copyright, and neither infringing copyright. In copyright, the term "​originality"​ does not mean "​novel"​ or new. Instead, "​original"​ means to originate from the author, in the sense that it is the result of his or her skill, labour or judgment, and is not copied from another author. It is possible that two authors will independently produced a similar work both attracting copyright, and neither infringing copyright.
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-**Video overview by Christine Apurel on [University of London Press v University Tutorial Press](https://​youtu.be/​FfQjfmFt-_8).**+**Video overview by Christine Apurel on [University of London Press v University Tutorial Press](https://​www.youtube.com/watch?v=FfQjfmFt-_8).**
  
  
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 //__Budget Eyewear Australia v Specsavers__//​ (([2010] FCA 507)) //__Budget Eyewear Australia v Specsavers__//​ (([2010] FCA 507))
  
-Held, there was an arguable case that the manner in which a concept was expressed in an advertisement was original because "[i]t is necessary for the creator of the advertisement to choose words and expressions carefully and to put those words and phrases together in a particular considered way. Expressions such as ‘if your glasses are not all they are cracked up to be, don’t worry, we’ll come to the rescue’ may involve ordinary words, as does much literary language, but the fact that the words are commonplace does not mean that the way in which they are put together cannot have a degree of originality."​ ([17])+In the case of [Budget Eyewear Australia v Specsavers](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​2010/​507.html) the court found that there was an arguable case that the manner in which a concept was expressed in an advertisement was original because "[i]t is necessary for the creator of the advertisement to choose words and expressions carefully and to put those words and phrases together in a particular considered way. Expressions such as ‘if your glasses are not all they are cracked up to be, don’t worry, we’ll come to the rescue’ may involve ordinary words, as does much literary language, but the fact that the words are commonplace does not mean that the way in which they are put together cannot have a degree of originality."​ ([17])
  
 Legal terms and conditions are less likely to be original. Legal terms and conditions are less likely to be original.
  
-**Video overview by Emma Taylor on [Budget Eyewear Australia v Specsavers](https://​youtu.be/​n5rWzSkzUpc).** ​+**Video overview by Emma Taylor on [Budget Eyewear Australia v Specsavers](https://​www.youtube.com/watch?v=n5rWzSkzUpc).** ​
  
  
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 In Australia, a compilation will be protected by copyright as an original literary work if it has been produced by the application of independent intellectual effort by the author. This effort may involve the exercise of skill, judgment, knowledge, creativity or labour in selecting, presenting or arranging the information. In Australia, a compilation will be protected by copyright as an original literary work if it has been produced by the application of independent intellectual effort by the author. This effort may involve the exercise of skill, judgment, knowledge, creativity or labour in selecting, presenting or arranging the information.
  
-#### Basic Case Law Overview+**Basic Case Law Overview**
  
 * *Ladbroke (Football) Ltd v William Hill (Football) Ltd* [1964] 1 WLR 273: Held, football coupons attracted copyright, even though none of the component parts were original. * *Ladbroke (Football) Ltd v William Hill (Football) Ltd* [1964] 1 WLR 273: Held, football coupons attracted copyright, even though none of the component parts were original.
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 * *Kalamazoo (Aust.) Pty Ltd v Compact Business Systems Pty Ltd*: Held, copyright subsisted in compilations of blank accounting forms. * *Kalamazoo (Aust.) Pty Ltd v Compact Business Systems Pty Ltd*: Held, copyright subsisted in compilations of blank accounting forms.
  
-* *Primary Health Care Limited v Commissioner of Taxation* [2010] FCA 419+* *Primary Health Care Limited v Commissioner of Taxation* [2010] FCA 419: Held, the minimal effort required for a doctor to write consultation notes was sufficient to demonstrate "a continuous narrative showing independent intellectual effort expended in expression"​ and therefore constitute an original literary work. Health summaries and prescriptions,​ however, only contained names of medications,​ dosage and standard directions, and the list of previous illnesses and procedures. These did not qualify as original literary works "​embodying independent intellectual effort directed towards expression."​
  
-    * Held, the minimal effort required for a doctor to write consultation notes was sufficient to demonstrate "a continuous narrative showing independent intellectual effort expended in expression"​ and therefore constitute an original literary work. 
  
-    ​Health summaries and prescriptions,​ however, only contained names of medications,​ dosage and standard directions, and the list of previous illnesses and procedures. These did not qualify as original literary works "​embodying independent intellectual effort directed towards expression."​ +**Major Cases**
- +
- +
-#### Major cases+
  
 __//Feist Publications Inc v Rural Telephone Service Co Inc.//__ (US) __//Feist Publications Inc v Rural Telephone Service Co Inc.//__ (US)
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 __//Desktop Marketing Systems Pty Ltd v Telstra Corp Ltd//__ (2002) __//Desktop Marketing Systems Pty Ltd v Telstra Corp Ltd//__ (2002)
  
-Facts: Telstra ​publishes ​the Yellow Pages and the White Pages. Desktop Marketing produced and sold phone directories in CD-ROMs of varying levels of sophistication with White and Yellow pages listings, which could be searched in different ways whether by name, address, postcode, industry and the like. The data used to produce the CD-ROMS was taken from Telstra’s phone books and rekeyed by a team of workers in the Philippines. Desktop Marketing also used Telstra’s headings, though it did add its own software to do the searching.+In the case of [Desktop Marketing Systems Pty Ltd v Telstra Corp Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCAFC/​2002/​112.html) ​Telstra ​published ​the Yellow Pages and the White Pages. Desktop Marketing produced and sold phone directories in CD-ROMs of varying levels of sophistication with White and Yellow pages listings, which could be searched in different ways whether by name, address, postcode, industry and the like. The data used to produce the CD-ROMS was taken from Telstra’s phone books and rekeyed by a team of workers in the Philippines. Desktop Marketing also used Telstra’s headings, though it did add its own software to do the searching.
  
  
-Held, copyright subsisted in Telstra’s White Pages and Yellow Pages directories,​ and that this copyright had been infringed.+Held, copyright subsisted in Telstra’s White Pages and Yellow Pages directories,​ and that copyright had been infringed.
  
 Factual compilations may be protected merely on the basis that substantial labour and expense has been devoted to their creation. ​ This was true even of a "whole of universe"​ compilation such as the White Pages, where there was no element of selectivity in the organisation or presentation of the data, and even though the labour and expense here had not so much gone into the “collection” of the data (which was in fact simply received from subscribers) as into the development of systems for its verification and storage. Factual compilations may be protected merely on the basis that substantial labour and expense has been devoted to their creation. ​ This was true even of a "whole of universe"​ compilation such as the White Pages, where there was no element of selectivity in the organisation or presentation of the data, and even though the labour and expense here had not so much gone into the “collection” of the data (which was in fact simply received from subscribers) as into the development of systems for its verification and storage.
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 __//IceTV Pty Limited v Nine Network Australia Pty Limited//__ (( (2009) 239 CLR 458)) __//IceTV Pty Limited v Nine Network Australia Pty Limited//__ (( (2009) 239 CLR 458))
  
-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"​.+In the 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//, 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"​.
  
  
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 > >
 > >
-> It is by no means apparent that the law even before the 1911 act was to any different effect to that for which the Digital Alliance contents. It may be that the reasoning in Desktop Marketing with respect to compilations is out of line with the understanding of copyright law over many years. These reasons explain the need to treat with some caution the emphasis in Desktop Marketing upon "​labour and expense"​ per se and upon misappropriation. However, in the light of the admission of Ice that the Weekly Schedule was an original literary work, this is not an appropriate occasion to take any further the subject of originality in copyright works.”+> It is by no means apparent that the law even before the 1911 Act was to any different effect to that for which the Digital Alliance contents. It may be that the reasoning in Desktop Marketing with respect to compilations is out of line with the understanding of copyright law over many years. These reasons explain the need to treat with some caution the emphasis in Desktop Marketing upon "​labour and expense"​ per se and upon misappropriation. However, in the light of the admission of Ice that the Weekly Schedule was an original literary work, this is not an appropriate occasion to take any further the subject of originality in copyright works.”
  
  
 __//Telstra v Phone Directories//​__ (([2010] FCAFC 149)) __//Telstra v Phone Directories//​__ (([2010] FCAFC 149))
  
-In this case, the question again arose as to whether copyright subsists in Telstra'​s White Pages and Yellow Pages directories.+In the case of [Telstra v Phone Directories](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCAFC/​2010/​149.html), the question again arose as to whether copyright subsists in Telstra'​s White Pages and Yellow Pages directories.
  
 At first instance, Gordon J, consistent with IceTV, rejected the notion that skill, labour or expense alone can give rise to copyright protection. There must be something more, and that something more is the exercise of "​independent intellectual effort"​ and /or “sufficient effort of a literary nature”. At first instance, Gordon J, consistent with IceTV, rejected the notion that skill, labour or expense alone can give rise to copyright protection. There must be something more, and that something more is the exercise of "​independent intellectual effort"​ and /or “sufficient effort of a literary nature”.
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 1. Firstly, Telstra'​s inability to identify with any degree of certainty the "​authors"​ of the telephone directories. Gordon J found that there were numerous people who had contributed in part to the production of the directories – some of these people were employees and some were independent contractors;​ some were still in the Applicants'​ employ but others were not; and some had played only minor roles whereas others had played more significant roles. The exact number of contributors was unknown and the Applicants had not identified who the contributors were. 1. Firstly, Telstra'​s inability to identify with any degree of certainty the "​authors"​ of the telephone directories. Gordon J found that there were numerous people who had contributed in part to the production of the directories – some of these people were employees and some were independent contractors;​ some were still in the Applicants'​ employ but others were not; and some had played only minor roles whereas others had played more significant roles. The exact number of contributors was unknown and the Applicants had not identified who the contributors were.
  
-2. Secondly, Gordon J held that even if the authors could be identified with sufficient clarity and certainty (which they could not), the people suggested to be the authors of the works did not exercise "​independent intellectual effort"​ and/or “sufficient effort of a literary nature”. The majority of the processes creating the directories were heavily automated. A system of computer-imposed “Rules” controlled the content and prescribed the form of expression of the works. Any human discretion had to be exercised in accordance with the Rules. The system was designed to limit originality,​ not provide for it. The tasks performed by individuals applying the Rules were mechanical and often able to be completed in large numbers swiftly. Very few people had any part to play in the final presentation of the works or the particular form of the expression of the information . Gordon J rejected the Applicants'​ contention that the relevant intellectual effort involved was understanding and applying the Rules, holding that the independent intellectual effort required must be directed to the creation of the work and that the independent effort claimed by the Applicants ​was not.+2. Secondly, Gordon J held that even if the authors could be identified with sufficient clarity and certainty (which they could not), the people suggested to be the authors of the works did not exercise "​independent intellectual effort"​ and/or “sufficient effort of a literary nature”. The majority of the processes creating the directories were heavily automated. A system of computer-imposed “Rules” controlled the content and prescribed the form of expression of the works. Any human discretion had to be exercised in accordance with the Rules. The system was designed to limit originality,​ not provide for it. The tasks performed by individuals applying the Rules were mechanical and often able to be completed in large numbers swiftly. Very few people had any part to play in the final presentation of the works or the particular form of the expression of the information. Gordon J rejected the Applicants'​ contention that the relevant intellectual effort involved was understanding and applying the Rules, holding that the independent intellectual effort required must be directed to the creation of the work and that the independent effort claimed by the Applicant ​was not.
  
 Consequently,​ Gordon J held that none of the works were original and none of the people said to be authors of the works exercised "​independent intellectual effort"​ or “sufficient effort of a literary nature” in creating the works. Consequently,​ Gordon J held that none of the works were original and none of the people said to be authors of the works exercised "​independent intellectual effort"​ or “sufficient effort of a literary nature” in creating the works.
  
- Justice Gordon stated:+Justice Gordon stated: 
 > "​Authorship and originality are correlatives. The question of whether copyright subsists is concerned with the particular form of expression of the work. You must identify authors, and those authors must direct their contribution (assessed as either an “independent intellectual effort"​ of a “sufficient effort of a literary nature”) to the particular form of expression of the work. Start with the work. Find its authors. They must have done something, howsoever defined, that can be considered original. The Applicants have failed to satisfy these conditions. Whether originality be the product of some “independent intellectual effort” and / or the exercise of “sufficient effort of a literary nature”, or involve a “creative spark” or the exercise of “skill and judgment”,​ it is not evident in the claim made by the Applicants”. (Gordon J at first instance, [344]) > "​Authorship and originality are correlatives. The question of whether copyright subsists is concerned with the particular form of expression of the work. You must identify authors, and those authors must direct their contribution (assessed as either an “independent intellectual effort"​ of a “sufficient effort of a literary nature”) to the particular form of expression of the work. Start with the work. Find its authors. They must have done something, howsoever defined, that can be considered original. The Applicants have failed to satisfy these conditions. Whether originality be the product of some “independent intellectual effort” and / or the exercise of “sufficient effort of a literary nature”, or involve a “creative spark” or the exercise of “skill and judgment”,​ it is not evident in the claim made by the Applicants”. (Gordon J at first instance, [344])
  
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-## Condition 4: Connection with Australia+## Connection with Australia
  
-**Video overview by Kylie Pappalardo on [Connection to Australia](http://youtu.be/​FDXXvZdnCu8).**+**Video overview by Kylie Pappalardo on [Connection to Australia](https://www.youtube.com/watch?v=FDXXvZdnCu8).**
  
  
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-**Video overview by Samuel Roach on [Principles of reciprocity in the Berne Convention](http://youtu.be/​rOoGsqCXCrs).**+**Video overview by Samuel Roach on [Principles of reciprocity in the Berne Convention](https://www.youtube.com/watch?v=rOoGsqCXCrs).**
  
  • ausip/copyrightsubsp3.txt
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