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ausip:copyrightsubsp3 [2019/03/08 14:15]
jessiej_87 case links
ausip:copyrightsubsp3 [2019/03/10 12:00] (current)
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-__//Skybase Nominees Pty Ltd v Fortuity Pty Ltd//__(( (1996) 36 IPR 529 at 531)) +__//Skybase Nominees Pty Ltd v Fortuity Pty Ltd//(( (1996) 36 IPR 529 at 531))__ 
  
  
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 A literary work is a work which is expressed in print or writing, irrespective of whether the quality or style is high. A literary work is a work which is expressed in print or writing, irrespective of whether the quality or style is high.
  
-//__University ​of London Press v University Tutorial Press Ltd__///+__//University ​of London Press v University Tutorial Press Ltd// (([1916] 2 Ch 601))__
  
 In the case of University of London Press v University Tutorial Press Ltd it was held that exam papers were literary works.  ​ In the case of University of London Press v University Tutorial Press Ltd it was held that exam papers were literary works.  ​
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 * 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// (1985) 5 IPR 213))
  
-**Headlines, Titles and Names**+#### Headlines, Titles and Names
  
 Copyright does not normally subsist in titles and names. Generally, titles and single words are better protected through trade mark law and passing off than copyright. Copyright does not normally subsist in titles and names. Generally, titles and single words are better protected through trade mark law and passing off than copyright.
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 The cases of //WH Allen & Co. v Brown Watson Ltd// and //​McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd// considered passing off and copyright law.  The cases of //WH Allen & Co. v Brown Watson Ltd// and //​McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd// considered passing off and copyright law. 
  
-__//WH Allen & Co. v Brown Watson Ltd//__+__//WH Allen & Co. v Brown Watson Ltd//(([1965] RPC 191))__
  
 Held, there was passing off where the defendant'​s published a book entitled, “Frank Harris: My Life and Adventures”. Held, there was passing off where the defendant'​s published a book entitled, “Frank Harris: My Life and Adventures”.
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 There was already a reputation in the book written by Frank Harris entitled, "My Life and Loves"​. There was already a reputation in the book written by Frank Harris entitled, "My Life and Loves"​.
  
-//__McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd__//+__//McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd//(([1980] FCA 159))__
  
-wine company brought out a wine called "Big Mac". McDonalds claimed that this was a breach of s 52 of the //Trade Practices Act// (the law preceding the Australian Consumer Law). McDonald'​s argued that people would be misled into thinking that the wine had some connection with McDonalds. The court held that there was no breach. McWilliam’s conduct might confuse people but this was not the same as being misled under the //Trade Practices Act//​.((According to Australian Consumer Law ss 18, 19))+In the case of [McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​1980/​159.html) a wine company brought out a wine called "Big Mac". McDonalds claimed that this was a breach of s 52 of the //Trade Practices Act// (the law preceding the Australian Consumer Law). McDonald'​s argued that people would be misled into thinking that the wine had some connection with McDonalds. The court held that there was no breach. McWilliam’s conduct might confuse people but this was not the same as being misled under the //Trade Practices Act//​.((According to Australian Consumer Law ss 18, 19))
  
-__//Exxon Corporation v Exxon Insurance Consultants International Ltd//__+__//Exxon Corporation v Exxon Insurance Consultants International Ltd// (([1982] Ch. 119))__
  
 The oil company adopted the name "​Exxon"​ after considerable research and expense. ​ The defendant company, with no connection, adopted the name.  Exxon sought an injunction. The oil company adopted the name "​Exxon"​ after considerable research and expense. ​ The defendant company, with no connection, adopted the name.  Exxon sought an injunction.
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-__//Francis Day and Hunter Ltd v Twentieth Century Fox Corporation Ltd//__+__//Francis Day and Hunter Ltd v Twentieth Century Fox Corporation Ltd// ((UKPC 68))__
  
 Francis, Day and Hunter had released a song titled "The Man Who Broke the Bank at Monte Carlo"​. Years later, 20th Century Fox put out a movie by the same title, but had no other connections to the song. Francis sued for copyright infringement. Francis, Day and Hunter had released a song titled "The Man Who Broke the Bank at Monte Carlo"​. Years later, 20th Century Fox put out a movie by the same title, but had no other connections to the song. Francis sued for copyright infringement.
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-__//Fairfax Media Publications v Reed International Books//__+__//Fairfax Media Publications v Reed International Books// ​(([2010] FCA 984 ))__
  
 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))
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 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 s 10 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// (([1984] ANZCompuLawJl 13))__
  
 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.
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 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.
  
-__//​Autodesk Inc v Dyason// (No 2)__ - Liability for reverse engineering computer programs+__//​Autodesk Inc v Dyason// (No 2) (([1993] HCA 6))__ - Liability for reverse engineering computer programs
  
 In the case of [Autodesk Inc v Dyason](http://​classic.austlii.edu.au/​au/​cases/​cth/​HCA/​1993/​6.html),​ the plaintiff owned copyright in a drafting program used by architects and engineers called "​Autocad"​. ​ It was sold with an electronic device, the “Autolock”,​ to attach to the computer. The program would not run without the “Autolock”,​ preventing its use on more than one computer at any one time.  The defendant cracked the code and produced a device called “Autokey”,​ which performed the same function as the “Autolock”. In the case of [Autodesk Inc v Dyason](http://​classic.austlii.edu.au/​au/​cases/​cth/​HCA/​1993/​6.html),​ the plaintiff owned copyright in a drafting program used by architects and engineers called "​Autocad"​. ​ It was sold with an electronic device, the “Autolock”,​ to attach to the computer. The program would not run without the “Autolock”,​ preventing its use on more than one computer at any one time.  The defendant cracked the code and produced a device called “Autokey”,​ which performed the same function as the “Autolock”.
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 **Video overview by Zoe Cannan on [Autodesk v Dyason (No 2)](https://​www.youtube.com/​watch?​v=MolI2YH3l84)** **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// (([1999] HCA 49))__
  
 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. 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.
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-__//Nine Network Australia Pty Ltd v ABC// [1999]__((48 IPR 333))+__//Nine Network Australia Pty Ltd v ABC// (([1999]48 IPR 333))__
  
 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. 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.
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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.
  
-**Copyright in 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//))
  
-**Copyright in 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**+ 
 +#### Copyright in Buildings
  
 Building includes a structure of any kind. ((//CA// s 10(1) )) Building includes a structure of any kind. ((//CA// s 10(1) ))
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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.
  
-**Copyright in 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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-//__Budget ​Eyewear Australia v Specsavers__// (([2010] FCA 507))+__//Budget ​Eyewear Australia v Specsavers//__ (([2010] FCA 507))
  
 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]) 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])
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-__//Desktop Marketing Systems Pty Ltd v Telstra Corp Ltd//__ (2002)+__//Desktop Marketing Systems Pty Ltd v Telstra Corp Ltd// (([2002] FCAFC 112))__
  
 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. 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.
  • ausip/copyrightsubsp3.txt
  • Last modified: 5 months ago
  • by jessiej_87