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ausip:copyrightsubsp3 [2019/03/10 12:00]
jessiej_87 edit
ausip:copyrightsubsp3 [2019/09/11 14:43] (current)
nic
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 +<WRAP case>
  
 __//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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 >"​There is a tension in policy between the monopoly rights which are conferred upon the owner of copyright in a literary, dramatic, musical or artistic work on the one hand, and the freedom to express ideas or discuss facts on the other. While there will be an infringement of the copyright of an owner in a literary, dramatic, musical or artistic work where there is a reproduction of that work or a substantial part of it, the fact that another work deals with the same ideas or discusses matters of fact also raised in the work in respect of which copyright is said to subsist will not, of itself, constitute an infringement. Were it otherwise the copyright laws would be an impediment to free speech, rather than an encouragement of original expression"​. (Hill J) >"​There is a tension in policy between the monopoly rights which are conferred upon the owner of copyright in a literary, dramatic, musical or artistic work on the one hand, and the freedom to express ideas or discuss facts on the other. While there will be an infringement of the copyright of an owner in a literary, dramatic, musical or artistic work where there is a reproduction of that work or a substantial part of it, the fact that another work deals with the same ideas or discusses matters of fact also raised in the work in respect of which copyright is said to subsist will not, of itself, constitute an infringement. Were it otherwise the copyright laws would be an impediment to free speech, rather than an encouragement of original expression"​. (Hill J)
  
 +</​WRAP>​
  
 ## Literary, Dramatic, Musical, or Artistic Work ## Literary, Dramatic, Musical, or Artistic Work
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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.
  
 +<WRAP case>
 __//​University of London Press v University Tutorial Press Ltd// (([1916] 2 Ch 601))__ __//​University of London Press v University Tutorial Press Ltd// (([1916] 2 Ch 601))__
  
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 This case is discussed further under '​Originality'​ (below). This case is discussed further under '​Originality'​ (below).
 +</​WRAP>​
  
 Examples of literary works include: Examples of literary works include:
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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. 
  
 +<WRAP case>
 __//WH Allen & Co. v Brown Watson Ltd//​(([1965] RPC 191))__ __//WH Allen & Co. v Brown Watson Ltd//​(([1965] RPC 191))__
  
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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"​.
 +</​WRAP>​
  
 +<WRAP case>
 __//​McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd//​(([1980] FCA 159))__ __//​McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd//​(([1980] FCA 159))__
  
 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)) 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))
 +</​WRAP>​
  
 +<WRAP case>
 __//Exxon Corporation v Exxon Insurance Consultants International Ltd// (([1982] Ch. 119))__ __//Exxon Corporation v Exxon Insurance Consultants International Ltd// (([1982] Ch. 119))__
  
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 Held, although the name was original, it was not sufficiently substantial for copyright to subsist in the name. Held, although the name was original, it was not sufficiently substantial for copyright to subsist in the name.
 +</​WRAP>​
  
 +<WRAP case>
 __//Francis Day and Hunter Ltd v Twentieth Century Fox Corporation Ltd// ((UKPC 68))__ __//Francis Day and Hunter Ltd v Twentieth Century Fox Corporation Ltd// ((UKPC 68))__
  
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 Held, a name alone cannot possess copyright unless it is sufficiently original and distinctive. "To break the bank" is a hackneyed expression, and Monte Carlo is or was the most obvious place at which that achievement or accident might take place. Held, a name alone cannot possess copyright unless it is sufficiently original and distinctive. "To break the bank" is a hackneyed expression, and Monte Carlo is or was the most obvious place at which that achievement or accident might take place.
 +</​WRAP>​
  
 +<WRAP case>
 __//Fairfax Media Publications v Reed International Books// (([2010] FCA 984 ))__ __//Fairfax Media Publications v Reed International Books// (([2010] FCA 984 ))__
  
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 However, "[i]t may be that evidence directed to a particular headline, or a title of so extensive and of such a significant character, could be sufficient to warrant a finding of copyright protection"​. ([46]) However, "[i]t may be that evidence directed to a particular headline, or a title of so extensive and of such a significant character, could be sufficient to warrant a finding of copyright protection"​. ([46])
 +</​WRAP>​ 
 +<WRAP case>
 __//The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors//​__(([2010] EWHC 3099 (Ch) )) __//The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors//​__(([2010] EWHC 3099 (Ch) ))
  
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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))
 +</​WRAP>​
 +
 +#### Copyright protection for software and databases
 +
 +Computer programs (software) and databases are classified and protected as “literary works”. To understand why, it's necessary to briefly look at the definition of “literary works” under the Australian copyright law.((See the definitions of "​literary work" and "​computer program"​ in s 10 of the //Copyright Act 1968//​))  ​
 +
 +The definition of “literary works” includes “a table, or compilation,​ expressed in words, figures or symbols (whether or not in visible form) and a computer program or compilation of computer programs.” The law further defines a “computer program” as a set of instructions expressed in any language or code that causes “a device having digital information capabilities to perform a particular function.” Thus, the source code and object code of a computer program will be protected under copyright as a literary work. This gives a software developer the same rights as a creator of any other creative work.
 +
 +Databases are also protected as literary works. However, court cases have imposed some additional requirements for databases and data compilations. For a database to be protected under copyright, it has to satisfy two requirements:​
 +
 +* the database should be created by a human author i.e. not by a machine/​automated process; and
 +* there must be an intellectual effort involved in its creation.
  
-#### Computer Programs+These additional requirements are imposed because often data compilations consist of pure facts or information compiled in a logical order. The law considers that pure facts and information (most data) should be free for the public to use, unless there is an extra layer of creativity that goes into their compilation and organisation.
  
-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// (([1984] ANZCompuLawJl 13))__ __//​Computer Edge Pty Ltd v Apple Computer Inc// (([1984] ANZCompuLawJl 13))__
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