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ausip:copyrightsubsp4 [2018/11/02 16:40]
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ausip:copyrightsubsp4 [2019/03/10 12:01] (current)
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 # Copyright Subsistence:​ Subject Matter Other than Works (Part IV) # Copyright Subsistence:​ Subject Matter Other than Works (Part IV)
  
- +The //Copyright Act 1968// (Cth) (//CA//) introduced new categories of subject matter in order to protect entrepreneurial investment. Part IV aims to protect "​new"​ technologies and the investment of resources in the production of media and content.
-The //Copyright Act 1968// (Cth) introduced new categories of subject matter in order to protect entrepreneurial investment. Part IV aims to protect "​new"​ technologies and the investment of resources in the production of media and content.+
  
 The content protected by Part IV is known as "​subject matter other than works" or, more succinctly, "other subject matter"​ This subject matter includes: The content protected by Part IV is known as "​subject matter other than works" or, more succinctly, "other subject matter"​ This subject matter includes:
  
-* Sound recordings; ((//CA// s 89)+* Sound recordings; ((//CA// s 89))
 * Cinematograph films; ((//CA// s 90)) * Cinematograph films; ((//CA// s 90))
 * Television and sound broadcasts; ((//CA// s 91)) and * Television and sound broadcasts; ((//CA// s 91)) and
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 ## Cinematograph Films ## Cinematograph Films
  
-Section 90 of the //Act// provides for the subsistence of copyright in cinematograph films. "​Cinematograph films" is defined in s 10 to mean:+Section 90 of the //Act// provides for the subsistence of copyright in cinematograph films. ​ 
 + 
 +"​Cinematograph films" is defined in s 10 to mean:
  
 “the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing: “the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing:
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 (b) of being embodied in another article or thing by the use of which it can be so shown; (b) of being embodied in another article or thing by the use of which it can be so shown;
  
-and includes the aggregate of the sounds embodied in a sound track associated with such visual images"​ ((s10(1) )) +This includes the aggregate of the sounds embodied in a sound track associated with such visual images"​((s 10(1) ))
  
 The means by which a "​moving picture"​ is produced is not relevant in determining whether the end result is a “film”. The means by which a "​moving picture"​ is produced is not relevant in determining whether the end result is a “film”.
 +
  
  
 __//Sega Enterprises Ltd v Galaxy Electronics Pty Ltd//;__ (([1996] FCA 761)) __//Galaxy Electronics Pty Ltd v Sega Enterprises Ltd//__ (([1997] FCA 403)) __//Sega Enterprises Ltd v Galaxy Electronics Pty Ltd//;__ (([1996] FCA 761)) __//Galaxy Electronics Pty Ltd v Sega Enterprises Ltd//__ (([1997] FCA 403))
  
-Sega wanted to stop parallel imports of its video games. ​ As there is no restriction on importing non-infringing computer programs, Sega argued that the games were "​films"​.+In the cases [Sega Enterprises Ltd v Galaxy Electronics Pty Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​1996/​761.html) and [Galaxy Electronics Pty Ltd v Sega Enterprises Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​1997/​403.html) ​Sega wanted to stop parallel imports of its video games. ​ As there is no restriction on importing non-infringing computer programs, Sega argued that the games were "​films"​.
  
  
-Held, the moving images in a computer-generated video game was a film.+It was held that the moving images in a computer-generated video game was a film. The definition should not be interpreted narrowly, but is intended to cover new technologies,​ the emphasis being on the end product rather than the means adopted to create those pictures.
  
-    * The definition should not be interpreted narrowly, but is intended ​to cover new technologiesthe emphasis being on the end product rather than the means adopted to create those pictures.+Virtual Cop was in reality very similar ​to a traditional movie; two protagonist police officers struggle to investigate criminal activities at various locationscomplete with an introduction and triumphant finale.
  
-    ​Virtual Cop was in reality very similar to a traditional movie; two protagonist police officers struggle to investigate criminal activities at various locationscomplete with an introduction ​and triumphant finale.+  ​it is not the means by which the video is shown on the screenbut the end result that is important. 
 +  * The important distinction is that the video game is capable of producing the video imagery ​and the soundtrack, and hence that video and soundtrack was '​embodied'​ in the game.
  
-        * it is not the means by which the video is shown on the screen, but the end result that is important. 
  
-        * The important distinction is that the video game is capable of producing the video imagery and the soundtrack, and hence that video and soundtrack was '​embodied'​ in the game. +**Video overview by Caitlin Low on [Cinematography films](https://​www.youtube.com/​watch?​v=C_8Wl-pdDJY).**
- +
- +
-**Video overview by Caitlin Low on [Cinematography films](youtube>C_8Wl-pdDJY).**+
  
  
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 __//Telstra Corp Ltd v Australasian Performing Right Association Ltd//__ (( (1997) 191 CLR 140)) __//Telstra Corp Ltd v Australasian Performing Right Association Ltd//__ (( (1997) 191 CLR 140))
  
-APRA argued that when Telstra played music on hold to subscribers,​ it was broadcasting that music to the public.+In the case of[Telstra Corp Ltd v Australasian Performing Right Association Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​HCA/​1997/​41.html) ​APRA argued that when Telstra played music on hold to subscribers,​ it was broadcasting that music to the public.
  
-Held, music on hold played ​it to individual callers was played "to the public"​.+It was held that music on hold played to individual callers was considered to be played "to the public"​.
  
-    * "The use of the words "to the public"​ conveys a broader concept than the use of the words "in public"​ since it makes clear that the place where the relevant communication occurs is irrelevant. That is to say, there can be a communication to individual members of the public in a private or domestic setting which is nevertheless a communication to the public."​+"The use of the words "to the public"​ conveys a broader concept than the use of the words "in public"​ since it makes clear that the place where the relevant communication occurs is irrelevant. That is to say, there can be a communication to individual members of the public in a private or domestic setting which is nevertheless a communication to the public."​
  
  
-**Video overview by Thomas Gardner on [Telstra Corp Ltd v Australasian Performing Right Association Ltd](youtube>WRUtG398Ygw).**+**Video overview by Thomas Gardner on [Telstra Corp Ltd v Australasian Performing Right Association Ltd](https://​www.youtube.com/​watch?​v=WRUtG398Ygw).**
  
  
 __//Network Ten Pty Ltd v TCN Channel Nine Pty Ltd ("The Panel"​)//​__ (( (2004) 218 CLR 273)) __//Network Ten Pty Ltd v TCN Channel Nine Pty Ltd ("The Panel"​)//​__ (( (2004) 218 CLR 273))
  
-Network Ten had a variety show called The Panel, which broadcast clips taken from other networks. A panel of commentators then provided (often humorous) commentary on the clips. The Panel used several short clips taken from Channel Nine. Nine sued under right to rebroadcast.+In the High Court of Australia case of [Network Ten Pty Ltd v TCN Channel Nine Pty Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​HCA/​2004/​14.html) ​Network Ten had a variety show called The Panel, which broadcast clips taken from other networks. A panel of commentators then provided (often humorous) commentary on the clips. The Panel used several short clips taken from Channel Nine. Nine sued under right to rebroadcast.
  
 The Full Federal Court held that any unauthorised rebroadcasting of a broadcast would be an infringement of copyright (subject to any defence of fair dealing that Ten might have had). The Full Federal Court held that any unauthorised rebroadcasting of a broadcast would be an infringement of copyright (subject to any defence of fair dealing that Ten might have had).
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 Broadcast "means visual images broadcast",​ not the "​aggregate of visual images"​ like films. Therefore, the rebroadcast of very short clips from a program could still constitute an infringement. Broadcast "means visual images broadcast",​ not the "​aggregate of visual images"​ like films. Therefore, the rebroadcast of very short clips from a program could still constitute an infringement.
  
-Ten appealed to the High Court. +Ten appealed to the High Court. The High Court, by a three to two majority, overturned the Full Federal Court'​s decision. The High Court held that a single image appearing on a television screen with accompanying audio does not constitute a television broadcast.
- +
-    * The High Court, by a three to two majority, overturned the Full Federal Court'​s decision. The High Court held that a single image appearing on a television screen with accompanying audio does not constitute a television broadcast.+
  
-The majority held at [74]:+The majority held at [74]:
  
 >"​There can be no absolute precision as to what in any of an infinite possibility of circumstances will constitute ‘a television broadcast’. However, the [twenty] programmes which Nine identified in … its pleading … answer that description. These broadcasts were put out to the public, the object of the activity of broadcasting,​ as discrete periods of broadcasting identified and promoted by a title, such as The Today Show, Nightline, Wide World of Sports, and the like, which would attract the attention of the public"​. >"​There can be no absolute precision as to what in any of an infinite possibility of circumstances will constitute ‘a television broadcast’. However, the [twenty] programmes which Nine identified in … its pleading … answer that description. These broadcasts were put out to the public, the object of the activity of broadcasting,​ as discrete periods of broadcasting identified and promoted by a title, such as The Today Show, Nightline, Wide World of Sports, and the like, which would attract the attention of the public"​.
  
-The majority also noted at [77]:+The majority also noted at [77]:
  
-    * "… the circumstance that a prime time news broadcast includes various segments, items or ‘stories’ does not necessarily render each of these ‘a television broadcast’ in which copyright subsists …"+>"… the circumstance that a prime time news broadcast includes various segments, items or ‘stories’ does not necessarily render each of these ‘a television broadcast’ in which copyright subsists …"
  
-Copyright is only infringed if you rebroadcast the program, or a substantial part of the program. ​ Otherwise broadcast makers would get much more protection than other copyright owners.+Copyright is only infringed if you rebroadcast the program, or a substantial part of the program. ​ Otherwise broadcast makers would get much more protection than other copyright owners.
  
-In dissent, Kirby J and Callinan J held in separate judgments that any short series of images will be a broadcast, so any re-broadcasting of any images must be re-broadcasting of a broadcast, regardless of length.+In dissent, Kirby J and Callinan J held in separate judgments that any short series of images will be a broadcast, so any re-broadcasting of any images must be re-broadcasting of a broadcast, regardless of length.
  
 ## Published Editions of Works ## Published Editions of Works
  
-Section 92 of the //Copyright Act// provides that "​copyright subsists in a published edition of a literary, dramatic, musical or artistic work, or of 2 or more literary, dramatic, musical or artistic works"+Section 92 of the //Copyright Act// provides that "​copyright subsists in a published edition of a literary, dramatic, musical or artistic work, orof 2 or more literary, dramatic, musical or artistic works".
  
 The published edition copyright protects the layout and formatting of printed pages. For example, the precise layout and formatting of newspaper pages will attract separate copyright protection than the underlying literary and artistic works forming the actual newspaper articles. The published edition copyright protects the layout and formatting of printed pages. For example, the precise layout and formatting of newspaper pages will attract separate copyright protection than the underlying literary and artistic works forming the actual newspaper articles.
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-**Video overview by Elizabeth Morrell on [Published Editions](youtube>HPX8ojJ-R6A).**+**Video overview by Elizabeth Morrell on [Published Editions](https://​www.youtube.com/​watch?​v=HPX8ojJ-R6A).**
  
  
  
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