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ausip:copyrightsubsp3 [2019/09/11 14:43]
nic
ausip:copyrightsubsp3 [2019/10/28 17:58] (current)
220.233.35.68
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 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. 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.
  
 +<WRAP case>
 __//​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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 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.
 +</​WRAP>​
  
 +<WRAP case>
 __//​Autodesk Inc v Dyason// (No 2) (([1993] HCA 6))__ - Liability for reverse engineering computer programs __//​Autodesk Inc v Dyason// (No 2) (([1993] HCA 6))__ - Liability for reverse engineering computer programs
 +
 +**Video overview by Zoe Cannan on [Autodesk v Dyason (No 2)](https://​www.youtube.com/​watch?​v=MolI2YH3l84)**
  
 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”.
  
 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.
 +</​WRAP>​
  
-**Video overview by Zoe Cannan on [Autodesk v Dyason (No 2)](https://​www.youtube.com/​watch?​v=MolI2YH3l84)** +<WRAP case>
 __//Data Access Corp v Powerflex Services Pty Ltd// (([1999] HCA 49))__ __//Data Access Corp v Powerflex Services Pty Ltd// (([1999] HCA 49))__
  
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 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. 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.
 +</​WRAP>​
  
 ### Dramatic Work ### Dramatic Work
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 **Video overview by Brandon Hoffler on [Dramatic Works](https://​www.youtube.com/​watch?​v=D9OxidyITdw)** **Video overview by Brandon Hoffler on [Dramatic Works](https://​www.youtube.com/​watch?​v=D9OxidyITdw)**
  
 +<WRAP case>
 __//Green v Broadcasting Corp. of New Zealand//__ (([1989] RPC 469)) __//Green v Broadcasting Corp. of New Zealand//__ (([1989] RPC 469))
  
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 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. 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.
  
 +</​WRAP>​
  
 +<WRAP case>
 __//Nine Network Australia Pty Ltd v ABC// (([1999]48 IPR 333))__ __//Nine Network Australia Pty Ltd v ABC// (([1999]48 IPR 333))__
  
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 The ABC could have potentially used the fair dealing exception of reporting the news in this instance. The ABC could have potentially used the fair dealing exception of reporting the news in this instance.
 +</​WRAP>​
  
 ### Musical Work ### Musical Work
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 '​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) ))
  
 +<WRAP case>
 __//Metix v Maughan//​__(([1997] FSR 718)) __//Metix v Maughan//​__(([1997] FSR 718))
  
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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)
  
 +</​WRAP>​
  
 #### Copyright in Buildings #### Copyright in Buildings
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 Building includes a structure of any kind. ((//CA// s 10(1) )) Building includes a structure of any kind. ((//CA// s 10(1) ))
  
 +<WRAP case>
 __//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.
 +</​WRAP>​
  
 +<WRAP case>
 __//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.
 +</​WRAP>​
  
 #### Copyright in Works of Artistic Craftsmanship #### Copyright in Works of Artistic Craftsmanship
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 **Video overview by Joseph Auclair on[artistic craftsmanship and design protection](https://​www.youtube.com/​watch?​v=rwYoDjYoFE4)** **Video overview by Joseph Auclair on[artistic craftsmanship and design protection](https://​www.youtube.com/​watch?​v=rwYoDjYoFE4)**
 +<WRAP case>
 __//​Cuisenaire v Reed//__ (([1963] VR 719)) __//​Cuisenaire v Reed//__ (([1963] VR 719))
  
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 Held, no copyright subsisted as a work of artistic craftsmanship as cutting up pieces did not constitute craftsmanship and it wasn’t a work of artistry. Held, no copyright subsisted as a work of artistic craftsmanship as cutting up pieces did not constitute craftsmanship and it wasn’t a work of artistry.
 +</​WRAP>​ 
 +<WRAP case>
 __//George Hensher Ltd v Restawhile Upholstery (Lancs.) Ltd//__ (([1976] AC 64)) __//George Hensher Ltd v Restawhile Upholstery (Lancs.) Ltd//__ (([1976] AC 64))
  
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 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"​.
 +</​WRAP>​
  
 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))
 +<WRAP case>
 __//Coogi Australia Pty Ltd v Hysport International Pty Ltd//__ (( (1998) 86 FCR 154)) __//Coogi Australia Pty Ltd v Hysport International Pty Ltd//__ (( (1998) 86 FCR 154))
  
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 >"​The statute by its definition of "​artistic work" requires that a work of artistic craftsmanship be "of artistic quality";​ in this context, that seems clearly to require that it have some aesthetic value. That a segment of the public can be found which may have been persuaded by advertising or by a transient fad to want to own the work because of its visual appeal does not necessarily mean that it must have the requisite minimum level of aesthetic value. I do not think the Court can, in determining whether a work is one of artistic craftsmanship,​ avoid the task of making a judgment, on the evidence before it, whether the work has a sufficient level of aesthetic appeal to be "of artistic quality"​. "​Before a work will qualify as a work of craftsmanship,​ it must be a manifestation of pride in sound workmanship and the result of the exercise of skill on the part of its creator in using the materials of which the article is made and the devices by which those materials are turned into the article"​. >"​The statute by its definition of "​artistic work" requires that a work of artistic craftsmanship be "of artistic quality";​ in this context, that seems clearly to require that it have some aesthetic value. That a segment of the public can be found which may have been persuaded by advertising or by a transient fad to want to own the work because of its visual appeal does not necessarily mean that it must have the requisite minimum level of aesthetic value. I do not think the Court can, in determining whether a work is one of artistic craftsmanship,​ avoid the task of making a judgment, on the evidence before it, whether the work has a sufficient level of aesthetic appeal to be "of artistic quality"​. "​Before a work will qualify as a work of craftsmanship,​ it must be a manifestation of pride in sound workmanship and the result of the exercise of skill on the part of its creator in using the materials of which the article is made and the devices by which those materials are turned into the article"​.
  
 +</​WRAP>​ 
 +<WRAP case>
 __//Burge v Swarbrick//​__ (([2007] HCA 17)) __//Burge v Swarbrick//​__ (([2007] HCA 17))
  
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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.
 +</​WRAP>​
  
 **Video overview by Shonagh Hunter on [Burge v Swarbrick](https://​www.youtube.com/​watch?​v=Pj0oHFWNJKU).** **Video overview by Shonagh Hunter on [Burge v Swarbrick](https://​www.youtube.com/​watch?​v=Pj0oHFWNJKU).**
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 **Video overview by Kylie Pappalardo on [Originality](https://​www.youtube.com/​watch?​v=52-IJvRzNq8&​list=PLL6gyWv948RU57yYR5ruBZ9tF7pZ_aEra&​index=3).** **Video overview by Kylie Pappalardo on [Originality](https://​www.youtube.com/​watch?​v=52-IJvRzNq8&​list=PLL6gyWv948RU57yYR5ruBZ9tF7pZ_aEra&​index=3).**
  
 +<WRAP case>
 __//​University of London Press Ltd v University Tutorial Press Ltd//__ (([1916] 2 Ch 601)) __//​University of London Press Ltd v University Tutorial Press Ltd//__ (([1916] 2 Ch 601))
 +
 +
 +**Video overview by Christine Apurel on [University of London Press v University Tutorial Press](https://​www.youtube.com/​watch?​v=FfQjfmFt-_8).**
  
 Examiners were hired to create exam scripts for the University of London. A condition of appointment for examiners was that copyright in the papers belonged to the University. ​ The University subsequently assigned copyright to the plaintiff publisher. ​ The defendant publisher then published exams with answers and comments. ​ The plaintiff publisher sued for infringement of copyright. Examiners were hired to create exam scripts for the University of London. A condition of appointment for examiners was that copyright in the papers belonged to the University. ​ The University subsequently assigned copyright to the plaintiff publisher. ​ The defendant publisher then published exams with answers and comments. ​ The plaintiff publisher sued for infringement of copyright.
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 >"​The word '​original'​ does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of '​literary work', with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work — that it should originate from the author"​. (Peterson J, 609-10) >"​The word '​original'​ does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of '​literary work', with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work — that it should originate from the author"​. (Peterson J, 609-10)
  
 +</​WRAP>​
  
-  
-**Video overview by Christine Apurel on [University of London Press v University Tutorial Press](https://​www.youtube.com/​watch?​v=FfQjfmFt-_8).** 
  
 +<WRAP case>
 +__//Budget Eyewear Australia v Specsavers//​__ (([2010] FCA 507))
  
- +**Video overview by Emma Taylor on [Budget Eyewear Australia v Specsavers](https://www.youtube.com/​watch?​v=n5rWzSkzUpc).** 
-__//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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 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:​//​www.youtube.com/​watch?​v=n5rWzSkzUpc).**  +</WRAP>
  
 ### Compilations and Databases ### Compilations and Databases
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 **Major Cases** **Major Cases**
 +<WRAP case>
 __//Feist Publications Inc v Rural Telephone Service Co Inc.//__ (US) __//Feist Publications Inc v Rural Telephone Service Co Inc.//__ (US)
  
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 Feist was not followed in Australia. Feist was not followed in Australia.
 +</​WRAP>​
  
 __//Desktop Marketing Systems Pty Ltd v Telstra Corp Ltd// (([2002] FCAFC 112))__ __//Desktop Marketing Systems Pty Ltd v Telstra Corp Ltd// (([2002] FCAFC 112))__
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 * **Important:​** While Desktop Marketing has not been explicitly overruled, it must now be treated with caution. * **Important:​** While Desktop Marketing has not been explicitly overruled, it must now be treated with caution.
- 
  
  
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