Copyright

Contributed by DavidPrice at School of Law, Charles Darwin University and current to 1 May 2016

This section deals with the general principles and issues associated with the copyright laws, and the most commonly asked questions about copyright.

Abbreviations used in this chapter

What is copyright?

Copyright is a form of intellectual property, which in turn is an intangible form of personal property. Intellectual property is one of those concepts whose content is familiar but which is exceedingly difficult to define. It is easy to list specific forms of intellectual property protection, but problematic to formulate some general concept around which they can all be grouped. Besides copyright, the more common forms of intellectual property include patents, trademarks, designs, and trade secrets.

Copyright is a creation of statute and there is no concept of common law rights in copyright. Copyright law is designed to protect the interests of the makers and owners of original creative work. In Australia copyright is covered by Commonwealth legislation and the decisions of the courts. The legislative foundation for copyright in Australia is the Copyright Act 1968 (CA). The CA defines the rights of copyright holders and the kinds of creative work protected. Since 1968, the CA has been extensively amended or supplemented by related legislation to reflect the dynamic and developmental nature of copyrightable material and the emergence of new technologies, such as the internet. Just some of the more significant updates since 2000 alone include the Copyright Amendment (Digital Agenda) Act 2000 (Cth), to give effect to WIPO's Copyright Treaty (WCT) and Performances and Phonograms Treaty (WPPT), the Copyright Amendment (Moral Rights) Act 2000 (Cth), the Copyright Amendment (Parallel Importation) Act 2003 (Cth), the US Free Trade Agreement Implementation Act 2004 (Cth), the Copyright Amendment Act 2006 (Ct), dealing with internet technological protection measures, the Intellectual Property Laws Amendment (Rising the Bar) Act 2012 (Cth), which strengthened customs and border protection across all intellectual property laws, and the Copyright Amendment (Online Infringement) Act 2015 (Cth), which requires internet carriage service providers to block access to online locations (for example, websites) overseas that encourage or facilitate copyright infringement.

Why do we have intellectual property laws?

Intellectual property rights involve striking a balance between the interests of the original creator or the owner of the copyright, the interests of the creator's competitor(s), and the interests of the public at large. The debate in all specific instances about whether such balance should be tilted more or less in favour of the individual creator always contains various types of arguments:

• the moral ground: focuses on the legitimacy of recognition for creative effort, and the illegitimacy of someone 'reaping what they have not sown', or upon enjoying a free ride' upon someone else's effort;
• the economic argument: society has an economic interest in new ideas, inventions, and innovations. If the person who creates and gives expression to these ideas gets no benefit from them, then economic growth and the advancement of society will be hindered: there will be a strong disincentive to innovation or new ideas.

If there is too little protection, investment and innovation may not take place: Too much protection, on the other hand, may lead to useful matter being locked up or, more probably, becoming the source of monopoly profits. Ideally, the aim is to encourage the initial decision to invest in new ideas, while thereafter providing an appropriate climate for the benefit of those ideas to spread.

Copyright law is an integral part of our everyday life and is thus relevant to all, but primarily affects and benefits authors, artists, musicians, journalists, photographers, filmmakers and broadcasters. Associated intellectual property laws, such as those governing trademarks, patents or designs, are also relevant to scientists and inventors and to those who wish to exploit scientific or commercial innovations. However, anyone in small business, even those not involved in artistic fields, can benefit from a basic understanding of copyright. In the NT and elsewhere in Australia, copyright law is also important to Aboriginal artists and their communities, who have had their secret or sacred art and designs appropriated and exploited by unauthorised commercial interests.

What does Copyright Protect?

The CA gives authors and creators legal protection for the following types of work:

• literary works (for example, books, film scripts, articles; poems; short stories; lyrics; instruction manuals; compilations; advertising copy; journalism, and all other forms of writing except trivia words, names and slogans, and even private correspondence) [CA s32]
• dramatic and musical works (for example, plays and music compositions in the form of musical notation, film scripts; screenplays; scenarios; choreography, or any other work created for the purposes of performance) [CA ss10, 32]
• artistic works and works of applied art (for example, paintings, drawings, ceramics, craftworks, carvings, sculptures) [CA s10]
• maps, building plans and technical drawings
• photographic works
• motion pictures (for example, movies, documentaries, and interviews, visual images and sounds, such as those in a film or video, are protected separately from any copyright that may subsist in works recorded on a film or video, such as a screenplay, a novel on which the work is based, a photograph, painting or music contained in it [CA Pt IV s86].
• computer programs and databases [CA s10]
• sound recordings: including records, tapes and compact discs. Sound recordings are protected independent of any underlying works, such as a musical or literary work embodied in the recording. [CA s85]
• electronic and online communications (including the internet) [CA s31(1)]. 'Communicate' is defined in the CA to mean make available online or electronically transmit
• published editions: the typesetting and typographical arrangement of a published work that is separate from any copyright existing in the literary, dramatic, artistic or musical work it contains [CA s88].

The protection that the CA provides is to prohibit others from doing certain acts to utilise a protected work without the permission of the creator or owner (see CA s31). Copyright law is intended to protect authors by granting them exclusive recognition of their work and rights to exploit copies of their work in whatever tangible form (printed publication, sound recording, film, broadcast, etc.) is being used to convey their creative expressions to the public. Although copyright protection does not require a system of formal registration of a work, it is advisable for authors to place their name on the work. Copyright gives owners exclusive rights, usually for the life of the author plus 70 years. In the case of sound recordings and broadcasts, copyright is usually conferred for 50 years and is available to the person or company responsible for making the recording or broadcast.

Others who wish to exploit copyright material in these ways must usually seek the permission of the copyright owner or an organisation that represents copyright owners in a particular industry. Permission is likely to require payment of royalties. Copyright owners also have the legal rights to be identified on their work and to object to distortions of the work. These are known as moral rights and remain with the author even if the author transfers the copyright to somebody else, although in some instances these rights may be waived by agreement of the author.

'Neighbouring rights'

Sometimes the term 'neighbouring right' appears in respect of descriptions or commentaries on copyright. There are three types of 'neighbouring rights', namely:

• the rights of performing artists in their performances
• the rights of producers of phonograms in their phonograms
• the rights of broadcasting organisations in their radio and television programs.

Registration formalities

There are no formal registration requirements for obtaining copyright protection. Provided the requirements set down in the CA are met, copyright exists in a work. There is no need to sign the work or register it with anyone to get copyright protection.

A creator of an original work is entitled, but not obliged, to place the internationally recognised copyright symbol on their work, along with the name of the copyright holder and the year of creation or first publication. Failure to do so does not reduce a creator's legal rights. It is nevertheless a good idea to put the international copyright symbol on all copies of a work as a reminder to others. A typical addition is:

John Smith 2015.

However, placing the symbol on a work does not itself create any copyright if none already existed.

When Does Copyright Apply?

There are four basic principles or 'characteristics' that need to be grasped in respect of copyright and what it means, namely:

• Tangible v Intangible

The copyright in a work is distinct and separate from the rights of property in an object containing that copyright. For example, an individual may own a book (because they purchased it), but the author still owns the copyright over the story in the book. See Pacific Film Laboratories v Federal Commissioner of Taxation [1970] HCA 36; (1970) 121 CLR 154, in which Barwick CJ stated that there 'is authority for the proposition that the property in a chattel may be in one person and the copyright in another'.

• Idea v Expression

Copyright protects only the form in which the ideas and information are expressed. It does not protect ideas or pieces of information themselves. Rather, it protects the form or manner in which an idea is expressed, which doesn't need to be novel: a dichotomy which is said to be 'probably the most difficult concept in the law of copyright' and to be 'often honoured more in the breach than in the observance'.

Expressed in another way, to be protectable under the CA. a work must be in a 'material form' or other tangible embodiment, and not be just a concept.

See Zeccola v Universal City Studios [1982] FCA 241; (1982) 67 FLR 225; 46 ALR 189 (The 'Jaws' case); Thomas v Brown [1997] 215 FCA; [1997] FCA 215; (1997) 37 IPR 207 (the 'Aboriginal flag' case); and IceTV PTY LTD v Nine Network Australia Pty Ltd [2009] HCA 14. For a well-known and relevant UK case, see Baigent v The Random House Group Ltd [2006] EWHC 719 (the 'Da Vinci Code' case).

In the case of literary or artistic works (see What sort of Subject Matter is Protected under the CA?) the work must be in a 'material form' for copyright to subsist in it [CA s.22(1)].Thus copyright in a literary work comes into existence when the work is first reduced to writing. A speech, as such, cannot be protected unless it is delivered from a written text (which means that the written text itself would enjoy the protection).

Subject matter other than literary and artistic works is not subject to the 'material form' requirement [CA ss85-88]. 'Material form' includes any form (whether visible or not) of storage from which the work or adaptation, or a substantial part of the work or adaptation, can be reproduced [CA s10(1)].

• Derivation v Independent creation

Copyright confers a right against derivation, as opposed to a protection against independent creation. To establish that an infringement exists, it is essential to show the infringing work was copied or derived from someone else's work. There is no protection against the coincidental, independent creation of essentially the same work or subject matter by another author. Where two precisely similar works are produced wholly independently, the author of the first-published work has no right to restrain the publication of the second. For example, two virtually identical photographs of essentially the same scene, taken by different people at different times, may each be entitled to copyright protection.

See Bright Tunes Music Corp v Harrisongs Music 420 F Supp 177 (SDNY 1976) (The George Harrison's 'My Sweet Lord' case); see also Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd [2010] FCA 29 (the 'Men at Work' infringement.

• Originality

The crucial factor here is that the work must be original, irrespective of artistic or literary merit. The work must also show some mental effort or creativity on the part of the creator. The test for originality involves the extent to which the creator contributed skill, judgment or labour in producing the work in question. Hence the information that a list of business names and addresses represents may not be protectable, but the creativity that is added by compiling them into a business directory may give the directory copyright protection. Similarly, a racing guide may attract protection because of the nature of its compilation and not because of the accumulation of facts that it contains. For this distinction see Desktop Marketing Systems Pty Ltd v Telstra [2002] FCAFC 112, in which the full Federal Court held that Telstra held copyright in its white and yellow pages directories, albeit with a very low threshold of originality and creative contribution. In a similar case in 2010, Telstra Corporation Ltd v Phone Directories Companies Ltd [2010] FCAFC 149, the Court held that Telstra did not hold copyright in its yellow pages directories in this instance since the compilation had not been carried out through human endeavour, but by a sophisticated and fully automated computerised process. If copyright subsisted anywhere it was in the software program driving the automated system.

Other qualification for copyright protection

The CA requires two criteria or 'points of attachment' that must be satisfied for a work to qualify for copyright protection, namely:

• 'Qualified person' criterion: copyright protection for works created in Australia is limited to persons who are 'qualified' at the time the work was made. A 'qualified' person is described as an Australian citizen, an Australian protected person (that is, under the protection of the Australian Government - which included PNG citizens prior to their independence in 1975) or a person resident in Australia [CA s32(4)]. The CA relies on the Australian Citizenship Act 1948 to define these terms further.
• 'Territorial' criterion: the essential requirement is that the subject matter was first published or made in Australia. Thus works are protected where first publication took place in Australia: [CA s.32(2)]; films where the film was made in Australia or first publication took place in Australia [CA s.90(2), (3)]. In the case of performances, a live performances (but not necessarily the first) needs to have been made in Australia.

Works created overseas are protected in Australia as if they were created in Australia, providing that country in which they are created is signatory to the relevant international treaties, such as the WTO's TRIPS Agreement or the Berne Convention, to which Australia is also signatory. Under the 'national treatment' and 'most-favoured-nation' clauses of these treaties, Australian works may receive reciprocal copyright protection overseas, provided the overseas country is signatory to the treaty. By the same token, Australia is obliged to extend at least the same level of protection to the citizens of other country as it does to its own citizens.

What sort of Subject Matter is Protected under the CA?

The CA distinguishes between two broad categories of protectable subject matter, namely:

• original literary, dramatic, musical and artistic 'works' under Part III
• subject matter other than works under Part IV.

Literary, dramatic, musical and artistic works (CA Part III protected)

The CA Part III works include the following:

• literary works (for example, books, film scripts, and even private correspondence)
• dramatic and musical works (for example, plays and music compositions recorded in the form of musical notation)
• artistic works and works of applied art (for example, paintings, ceramics, carvings)
• maps and technical drawings
• photographic works
• motion pictures and sound recordings (for example, movies, documentaries, and interviews)
• computer programs and databases.

The CA definition of literary works is non-exclusive, and can include a table, or compilation expressed in words, figures or symbols, as well as a computer program or compilation of computer programs [CA s10(1)]. This clearly protects computer programs and tables, but says nothing about what in a more traditional context might be considered 'literary'. Business documents, catalogues, advertisements, lists, newspaper reports and so forth are considered to be 'literary works': almost any kind of writing can qualify, but not single words or titles which are considered in themselves too trivial or inherently unoriginal to have copyright protection. See Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479. Latham CJ opined that: 'the law of copyright does not operate to give any person an exclusive right to state or to describe particular facts. A person cannot by first announcing that a man fell off a bus or that a particular horse won a race, prevent other people from stating those facts.'

Problems arise where all a person has done is present a mass of factual data, such as the results of a horse race. In such cases it is only the author's particular presentation of the factual material that will be protected and this must display the application of some element of skill or labour. As illustrated by the two Telstra cases above, there must be more than bare recital of facts
and figures: there must be some creative effort or human intervention selection, compilation or abridgement to achieve an 'original result'.

Dramatic works have an inclusive definition under CA s10(1) of the CA as a choreographic show or other dumb show; and a scenario or script for a cinematograph film. However, the latter does not include a cinematograph film as distinct from the scenario or script for a cinematograph film.

Musical works are not defined in the CA. As with literary work, there is probably no requirement that the music be of a particular quality. Thus the score of a song is a musical work, whether it is an advertising jingle or an operatic aria. The words would be a literary work: thus the copyright in the words and music may be owned by two separate people. If the song is recorded then another copyright exists in the sound recording (see CA Part IV). The requirement of 'material form' means that improvised or traditional music will not attract copyright protection unless or until written down or otherwise recorded. See Schott Musik International GMBH & Co v Colossal Records (1996) 71 FCR 37; 36 IPR 267.

A dramatic or musical work must be reduced to a 'material form' in order to be protected. Hence it is not the performance, but the script or score which receives copyright protection. See Zeccola
v Universal City Studios [1982] FCA 241; (1982) 67 FLR 225; 46 ALR 189 (the 'Jaws' case, and Green v Broadcasting Corporation of New Zealand (1988) 16 IPR 1.

Artistic work is defined in CA s10(1) as a:

(a) painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;

(b) building or a model of a building, whether the building or model is of artistic quality or not; or

(c) work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b); but does not include a circuit layout within the meaning of the Circuit Layouts Act 1989.

Painting is not defined in the CA, which has generated some interesting case material. An earlier case in respect of the Archibald Prize, for example, considered whether a caricature is a painting or a cartoon or whether a charcoal drawing can be a painting. See Attorney-General v Trustees of the National Art Gallery (NSW) (1945) 62 WN (NSW) 212.

While photographs are protected, the act of taking another photograph of the same subject matter as an earlier photograph does not infringe copyright, even where an identical photograph is produced - only the copying of the first photograph itself will do this.

It should be noted that the above forms of copyright do not carry a requirement for the establishment of artistic quality or craftsmanship, and the threshold of originality is set low. See Lincoln Industries Ltd v Wham-O Manufacturing Co (1984) 3 IPR 115; Interlego AG v Croner Trading Pty Ltd (1992) 39 FCA 624; 25 IPR 65; Greenfield Products Pty Ltd v Rover-Scott Bonnar Ltd (1990) 95 ALR 275; 17 IPR 417.

However, some aesthetic considerations are relevant to the existence of copyright in this category. The test may be whether the main object of the creator was to create an article which, even if it be utilitarian, nevertheless would have a substantial appeal to the aesthetic tastes of those who observed it. However, in Coogi Australia Pty Ltd v Hysport International Pty Ltd [1998] FCA 10; (1998) 86 FCR 154, the court held that a mass-produced and machine made article can still be a work of artistic craftsmanship.

Subject matter other than literary and artistic works (CA Part IV)

Part IV of the CA introduces new subject matter for copyright protection, essentially in recognition of the broader nature of neighbouring rights. The purpose of these new categories is more to protect entrepreneurial investment, rather than authorship or creative endeavour, although performers have recently been given rights over their performers that had not previously existed. Part IV of the CA protects live performances, sound recordings, cinematograph films, television and sound broadcasts, and published editions of works.

Sound recordings may be protected whether embodied in a video tape, cassette tape or some other form. Protection is not available for sound recordings made prior to the commencement of the Act, although copyright might be claimed in some aspect of the recording such as the literary work on which it is based [CA s85]. The protection is only for the actual recording itself, and would not prevent 'sound alike' or cover versions. The copyright owner now possesses the right to enter into a commercial rental arrangement with respect to a sound recording [CA s85(1)(d), (2)].

Copyright protection for films is a separate copyright from any underlying copyright in the script, choreography or score [CA ss86, 90]. This is a relatively narrow type of copyright protection, covering only the film itself: it does not therefore cover copyright infringements of the type which occurred in Zeccola (the Jaws case). Video games involving computer generated images have been held to be cinematographic films for the purposes of this definition: see Galaxy Electronics Pty Ltd v Sega Enterprises Ltd (1997) 75 FCR 8; 145 ALR 21.

Sound and television broadcasts, again, are a separate copyright [CA ss87, 91]. Broadcasts made before the 1968 Act are not protected by copyright law. Before the Copyright Amendment (Digital Agenda) Act 2000, the definition of broadcasting included a concept of broadcasting to the public at large. There were therefore considerable difficulties with copyright for pay television, since it (like Sky Channel etc) was arguably only transmitted to a narrow range of subscribers and hence not to the public at large. There is now no distinction between free-to-air and cable services.

A special category of protection exists for publishers who make particularly beautiful 'special editions' of works (particularly those on which copyright has expired) [CA ss88, 92].

Performers/performances

Prior to amendments to the CA in 2004, performers gained virtually no protection for their live performances, although playwrights, composers, set designers and choreographers acquired copyright protection for their work. If the performance was recorded the copyright belonged to the maker of the recording. The unsatisfactory convention was that performers relied on some form of protection through a contractual arrangement with the producer or entrepreneur. The limited form of performers' rights was not proprietary in nature, and only lasted for 20 years. Consequent upon changes arising from the US-Australia free trade agreement, as given effect by the US Free Trade Agreement Implementation Act 2004, performers now have proprietary rights over the recording (by sound or cinematograph film), for a period of up to 50 years [CA ss248A, 248CA] of their live performance, and hence have the same exclusive rights as other owners of recordings. These changes are also retrospective to 1994.

A performer can:

• refuse any request to allow a performance to be taped, recorded or filmed
• stipulate, as a condition of entry to a performance, that any taping, recording or filming done is to be used for domestic and non-commercial purposes only
• negotiate a contractual arrangement with anyone filming, taping or recording for commercial purposes with regard to any or all subsequent uses of the filmed, recorded or taped material.

Note also that a person who records a performance may be infringing on the rights of the writer or musician who wrote the work being performed [CA Pt.XIA].

The inclusion in the definition of performance of an expression of folklore has significance, since it may extend protection to certain indigenous performers whose work has not otherwise been reduced to material form.

Protection for computer software

Computer programs ordinarily receive copyright protection as 'literary works'.

A basic problem for protection of computer programs is that copyright law protects only the expression of an idea, not the idea itself. Thus, for example, suppose a computer program is developed which performs a certain function (for example, provides a means for restricting or gaining access to confidential information). Suppose a rival manufacturer produces a program which replicates that function. The second program might only be in breach of the first manufacturer's copyright if a court considers that the 'source code' or written expression of the second computer program - and possibly also the 'object code' or electronic impulses which cause the computer to function - reproduce the first manufacturer's source and object codes so closely that it can be considered that the 'expression' of the idea has been taken. If the second program merely performs the same 'function' but by using a different program - something which, for an experienced programmer, is often relatively easy to accomplish - then the second program will arguably not be in breach of copyright. See Computer Edge Pty Ltd v Apple Computer Inc [1986] HCA 19;; 65 ALR 33; Autodesk Inc v Dyason [1992] HCA 2; (1992) 173 CLR 330; Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49; 166 ALR 228.

The Copyright Amendment (Digital Agenda) Act 2000 (the Digital Agenda Act), revised the definition of computer programs to 'an expression, in any language, code or notation, of a set of instructions, intended ... to cause a device having digital information processing capabilities to perform a certain function' [CA s.10(1)]. The Act also introduced a new right of communication, further defined in s10(1) CAto mean 'to make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise)'This right is technology neutral and clearly includes transmission over the internet.

Another area of debate concerns whether copyright protection extends to databases or works stored in computer memory. The existing CA definition of 'literary work' appears broad enough to apply to all forms of databases, including traditional hard-copy databases, databases stored in computer memory, and databases stored in other forms of storage such as floppy discs, tapes and CD ROMS. Whether a compiler of a computer database has copyright in that database will depend particularly on whether the database satisfies the requirement of 'originality' in the CA, which will depend in turn on whether 'sufficient skill and judgment have been exercised in devising the arrangements of the whole work'. However, the intellectual property rights of the compiler of the database do not in themselves diminish the possible rights of the supplier of the information.

A question arises as to the duration of copyright protection for computer databases, and also when copyright first comes into existence. When an electronic database is being constantly updated, the question becomes who is the 'author' and when the database is first 'made'.

Copyright v design

A certain degree of overlap exists between the CA and the Designs Act 2003 (Cth) (DA). Hence it is possible for an artistic work in particular to qualify for a form of protection as a work of copyright under the CA or as a design under the DA.

Copyright protection generally aims to give certain exclusive rights to the creators of literary, dramatic, musical and artistic works. Design protection aims to provide legal protection for designs incorporated into commercial or industrial products, such as furniture, textiles, clothes or household appliances. With these two different types of protection, the law makes a distinction between creative and commercial work. Creative works generally would qualify for copyright protection, while products with an industrial application would qualify for designs protection. In practice, however, it is often difficult to distinguish between creative and industrially applicable products. The end result of the attempt to maintain the distinction has been complex provisions governing the overlap of the two laws. Under these provisions some works qualify for copyright protection only, some for designs protection only, some for both and some for no protection at all. The intention of the legislature is to limit copyright protection for utilitarian three-dimensional products, whether or not they are registrable as designs. However, copyright protection lasts longer than designs protection. Designs, which must be registered to gain protection, can be protected for ten years only. See Gold Peg International Pty Ltd v Kovan Engineering (Aust) Pty Ltd [2005] FCA 1521; (2005) 67 IPR 497

What Sort of Rights are Provided by Copyright?

The copyright owner has two types of rights - economic or exploitative, and moral.

Economic or commercial rights

These are the main type of rights, and the ones which are more commonly infringed upon. In respect of economic rights, the copyright owner of a literary, dramatic or musical work or artistic work (the CA Part III category) generally has the exclusive right to:

• publish or reproduce the work in a material form
• perform the work in public or communicate it to the public
• make an adaptation of the work
• enter into a commercial rental arrangement for the work

or authorise another party to do so in each case.

For other subject matter (the CA Part IV categories), the exclusive rights include the exclusive right to [CA ss85-88]:

• make a copy of the sound recording or film
• cause the sound or film to be heard in public or otherwise communicate it to the public
• enter into a commercial rental arrangement in respect of the sound recording
• make a film or sound recording of a TV or sound broadcast, copy it, and re-broadcast it or otherwise make it publicly available.

In respect of printed editions of published works, the rights are limited to making a facsimile, or authorising another party to do so.

Moral rights

Moral rights are rights which an author, artist or creator retains even after the right to exploit the copyright (the economic rights) in the work has been transferred. They are personal rights which cannot be sold. They give the author or artist the right to be credited as the creator of a work, and to restrain derogatory treatment of it which might affect their honour or reputation.

Traditionally, copyright laws in Australia were only concerned with economic rights. They did not prevent work being distorted, mutilated, or used in an insulting, prejudicial or offensive way. Nor did they protect a person's right to be recognised as the creator of the work. In 2000 the Federal Government passed the Copyright Amendment (Moral Rights) Act 2000, as an amending Act to the CA.

The CA specifically provides for three moral rights:

• the right of attribution - an author's right to be identified as the author of a work [CA ss193-195AB]
• the right to take action against false attribution by another party [CA ss195AC-AH]
• the right of integrity - the right to object to derogatory treatment of a work which prejudicially affects the author's honour or reputation [CA ss195AI-AW].

Note in particular that under CA s193 - 'the moral rights of an author of a work are in addition to any other rights in relation to the work ...', and also CA s195AN(3) - 'a moral right in respect of a work is not transmissible by assignment, by will, or by devolution by operation of law'.

With the exception of the right of integrity in film, moral rights normally last as long as the author's economic rights. Authors can consent in some circumstances to an act or omission which constitutes a breach of moral rights [CA ss195AW, AWA and AWB]. There is no scope for an enforceable generalised waiver outside the scope of these provisions.

Only individuals can possess moral rights. Thus, for example, where a body corporate was the producer of a film, only the director or screenwriter could exercise moral rights. It also means that an Aboriginal clan that traditionally owned a design or painting could not exercise moral rights if that painting was shown in a derogatory manner, without designating or deferring that right to an individual member.

How Long Does Copyright Protection Last?

Prior to the 2004 US-Australia Free Trade Agreement (USFTA), the general term of copyright protection for 'works' was the life of the author plus 50 years; other subject matter was protected for 25 years [CA s33]. These terms were generally in accordance with the minimum standard terms as enshrined in the WTO's TRIPs Agreement.

The general term has since been increased to 70 years, as an outcome of the FTA, although there a still a few exceptions to this: see the following table.

*Subject Matter*	*Duration*	*CA Section*
Published literary, musical, dramatic works	From time made to 70 years after year of author's death	s33(2)
Unpublished literary, musical, dramatic works at the time of author's death	From time made to 70 years after first published	s33(3)
Unpublished engravings at the time of author's death	From time made to 70 years after year of author's death
Anonymous and pseudonymous works	70 years after first publication	s34(1)
Sound recordings	70 years after first publication	s93
Films made in Australia or by a 'qualified person'	From time made to 70 years after publication	s94(1)
Films not made in Australia	70 years after publication	s94(2)
TV and sound broadcasts	50 years after year of production	s95
Live performances	20 years after the year of performance	s248CA(1)
Sound recording of live performance	50 years after year of performance
Printed editions of works	From time made to 25 years after year of publication	s96
Literary and musical works subject to Crown copyright	From time made to 50 years after year of publication	s180(1)
Artistic works subject to Crown copyright	50 years after year of being made	s180(2)
Engravings and photographs subject to Crown copyright	From time made to 50 years after year of being published	s180(3)
Sound recordings and films subject to Crown copyright	50 years after year of first published	s181
Original works by international organisations not otherwise covered	From time made to 70 years after first publication	s187
Sound recordings/films by international organisations		s188(2)
Published editions by international organisations	From time made to 25 years after first publication

Who Owns the Copyright?

The basic rule is that the author or creator is the first owner of copyright [CA s35(2)]. But the rights pertaining to copyrighted creations can also be transferred to other natural or legal persons. Hence major global music and recording companies such as Warner Bros and Sony Music can own and exploit the copyright to creations which were created and performed by artists, authors and performers (see Can Other Parties be Authorised to Exploit the Copyright). Copyright ownership can also be decided by agreement. If there is no agreement, the rules in the CA apply. There are some exceptions to the general rule of ownership and these are briefly outlined below.

Joint ownership

Copyright in a work can be held jointly where the individual contributions of each creator cannot be distinguished. A group of people writing/preparing a play would be an example. In such cases, the CA assumes that each creator has an equal share of rights in the creation. The phrase 'work of joint authorship' is defined in CA s10(1) to mean 'a work that has been produced by the collaboration of two or more authors and in which the contribution of each author is not separate from the contribution of the other author or the contributions of the other authors'.

Accordingly, a joint owner must obtain the permission of all other joint owners to exercise their ownership rights; no single creator can exercise rights without the consent of the other(s). However, the share can be varied if all joint owners agree that some have contributed more than others [CA s10(1)]. See Prior v Landsdowne Press Pty Ltd [1977] VicRp 6; [1975] VR 65; (1975) 29 FLR 59; 12 ALR 685.

In all situations where a group of people are participating in a collaborative project, it is advisable to set out a written agreement clarifying questions of ownership and the rights and conditions of exploitation of any work produced.

If different parts of a work, such as the music, lyrics or choreography of a play, can be clearly identified as the work of different individuals, copyright in each part resides with each individual that created that part.

Commissioned work

The copyright of a commissioned work ordinarily remains in the author of a 'commissioned' work or other subject matter, subject to any agreement made between the parties as to assignment or other dealing with copyright: there are limited exceptions for commissioned photographs, portraits and engravings [CA s.35(5)], and for commissioned sound recordings and films [CA s.97(3), 98(3)].

The exceptions are made if the commissioned work is a portrait, drawn or painted, or a photograph or engraving. The copyright in a work falling into any one of these categories is owned by its commissioner. The artist still retains their moral of integrity and a right of restraint - that is, the right to prevent the work being used for any other purpose than that for which it was originally commissioned [CA s.35(5)].

To avoid any problems, a commissioner and a creator should, as a first priority, negotiate a written agreement with regard to copyright ownership. The creator of the work should be satisfied that payment adequately compensates them for producing the work and to relinquishing rights over it.

Journalist's copyright

Section 35(4) of the CA provides for a division of ownership of copyright between the journalist authors of works and their employers. However, the journalist's copyright provisions only apply to the print media, where a work is made by the author under the terms of their employment by the proprietor of a newspaper, magazine or similar periodical. In such a case the author is the owner of the copyright only in so far as the copyright relates to reproduction of the work for inclusion in a book, and reproduction of the work in the form of a hard copy facsimile made from a paper edition of an issue of the newspaper etc, but not including reproduction by the proprietor for a purpose connected with the publication of the newspaper and so on.

Employee authors

The normal rule expressed in CA s35(6) is that the copyright in works created by employee authors in the course of their employment remains with their employer. There are therefore two questions that need to be first answered: first, is an author employed pursuant to a 'contract of service' as distinct from the independent 'contract for services'; and second, is the work in question made pursuant to the terms of their employment? This question is especially relevant where the work is prepared with little or no 'direction' from the alleged employer. In the case of an independent contractor, the copyright would rest with the contractor. See Oceanroutes (Australia) Pty Ltd v M C Lamond [1984] AIPC 90-134; Redrock Holdings Pty Ltd v Hinkley [2001] VSC 91; (2001) 50 IPR 565.

See also University of Western Australia v Gray [2009] FCAFC 116, in which the absence of specific terms relating to employee research obligations in contracts of employment caused the court to find for Professor Gray. The HCA refused the University special leave to appeal.

Crown copyright

Copyright in any original work created or first published by or under the direction or control of the Crown belongs to the Crown. In this context, the Crown refers to all Federal, State and Territory government departments and some statutory authorities. Special rules govern the length of time the Crown can retain copyright (see How long does copyright protection last? ). A compulsory licence scheme authorises the Crown to exercise any of the rights of a copyright holder on subject matter if such exercise is 'for the services of' the Crown' [CA ss182B-183A].

Crown copyright has a very wide scope. For example, the copyright of a school text published by the Department of Education would belong to the Crown, even if no payment had been made to its author. A person producing a work for a government department or working on a government-funded project should ensure that copyright ownership is clear before beginning work. Government departments have a tendency to assume total ownership of copyright or tacitly ignore the issue [CA ss176-179].

It is unclear as yet whether prisoners own copyright in artworks or other creative works they produce in jail. If they use materials provided by the prison their works may be considered as produced under the direction or control of the Crown. On the other hand, if the prison exercised no creative control over the artist's work, it is arguable that the prisoner retains copyright. This issue has not yet been tested before the courts.

In respect of 'equitable' ownership of copyright between the Crown and the individual, see Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd [1988] HCA 25 (the 'Spycatcher' case).

Can Other Parties be Authorised to Exploit the Copyright?

Copyright is private property. It can be bought, sold, resold, licensed or willed. Rights intrinsic to copyright can be categorised in the ways listed below.

Assignment of copyright

An assignment is a transfer of the exploitation rights of copyright. It enables the creator of an original work to sell or transfer their copyright in all or in part to another individual or corporation.

When a right is assigned the assignor has no power to control the way the work is exploited unless by contract with the assignee. Under CA s196(1), 'Copyright is personal property and, subject to this section, is transmissible by assignment, by will and by devolution by operation of law'. An assignment may be unlimited, giving the purchaser rights for all purposes throughout the entire life of the copyright. An assignment may be limited, that is apply only in relation to a limited part of the rights under copyright [CA s196(2)], or to a period of time, or to a specific purpose, or to a certain region or territory. The assignment (whether total or partial) does not have effect unless it is in writing signed by or on behalf of the assignor [CA s196(3)]. It is possible to make an agreement in relation to future copyright to assign such copyright to another person [CA s197].

It is possible to make an agreement to assign the copyright in works not yet created. For example, an aspiring musician may make an agreement with a record company to assign the copyright in all works they will create in the next five years. Such assignments should be avoided because they are rarely made in the interests of the creator. Aboriginal painter Albert Namatjira assigned all his copyrights in his work to a publishing company and, as a consequence, his surviving family does not benefit from the income his work generates. Note that there is the possibility that inequitable or unfair assignments of copyright may be treated as being in restraint of trade. In the United States, artists have successfully taken record companies to court over this issue.

Licensing of copyright

In contrast to assignment, a licence arrangement may involve nothing more than a bare permission to do an act in relation to a work or subject matter that would otherwise be an infringement. But licences granted by a copyright owner are binding on successors in title of the grantor to the same extent [see CA ss196(4) and 197(3)]. A licence may be verbal or in writing or implied by the conduct of the copyright holder; it may cover any aspect of the copyright; it may be exclusive, sole, or non-exclusive. But an implied licence can result in confusion and thus litigation over the scope and limits of the implied licence. See Seven Network (Operations) Ltd v TCN Channel Nine Pty Ltd [2005] FCAFC 144; (2005) 22 ALR 569.

An exclusive licence gives its holder the exclusive right to do certain things with the work concerned. No one else, including the copyright holder, will then be able to use the photographs for this purpose. Such a licence can be limited to specific purposes, for certain territories or for specified time limits. To be fully effective an exclusive licence must be in writing and signed by the copyright holder. See Flashback Holdings Pty Ltd v Showtime DVD Holdings (No 6) [2010] FCA 694.

A non-exclusive licence gives its holder the right to do certain things, but does not prevent the copyright holder issuing licenses to others to do the same things. A non-exclusive licence does not have to be in writing and can be implied from the conduct of the copyright holder. A creator of a work would, however, be strongly advised to issue a written licence.

Preservation of moral rights

However, it should be noted that, irrespective of the nature of the licensing or assignment agreement, the moral rights of the creator of the work still exist, since the 'the moral rights of an author of a work are in addition to any other rights in relation to the work' [CA s192]. See also CA s195AN(3) CA- 'a moral right in respect of a work is not transmissible by assignment, by will, or by devolution by operation of law'.

What Constitutes an Infringement of Copyright?

In simple terms, the copyright in a literary, dramatic, musical or artistic work or recordings, films or broadcasts:

Sections 37-39 and 101-102 add to the generality of the above statement by identifying infringements by virtue of:

• unlicensed importation of the copyright good for sale and hire
• sale and other dealings
• permitting a place of public entertainment to be used for performance of the work
• infringing copies made photocopying machines in libraries and archives.

Generally, copyright is infringed if copyright material is used without permission, in one of the ways exclusively reserved to the copyright owner.

There are some situations in which copyright material can be used without permission, either for free or on other terms, which serves as a defence against charges of infringement. One of these is the 'fair use' defence.

A copyright owner is entitled to commence a civil action in court against someone who has infringed his or her copyright, and may be entitled to various remedies.

Some infringements of copyright - generally those that involve a commercial element - are also criminal offences.

Infringement: the 'substantial part' requirement

Under section 14(1) of the CA, the infringing act must be done in relation to a 'substantial part' of the copyright work or subject matter. The reproduction or other act need not be done in relation to all the work, therefore, in order for infringement to occur. On the other hand it is possible to copy an 'insubstantial part' of a copyright work without infringing. What is a 'substantial part', however, is subject to interpretation by the courts.

There is no precise quantitative or percentage test for a 'substantial part'. The test is 'qualitative' rather than quantitative: even a reproduction of a very small amount of the work could be substantial if the part was critically important. The quoting of a short passage from a long work may infringe copyright if the passage is a paragraph which neatly sums up all that has preceded it. A substantial part may be one of the underlying components or 'sinews' of a work rather than a simple block or section of it, such as a few pages or a few bars. See EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 47. In Milpurrurru v Indofurn Pty Ltd (1994) FCA 1544 [1994] FCR 240; 130 ALR 659, von Doussa J accepted that there were four major matters to be taken into account in deciding whether copying is substantial (at FCR 260):

'Authorisation' and infringement of copyright

What might constitute 'authorisation'?

In the leading case of University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1, Gibbs J stated that 'authorise' had its dictionary meaning of 'sanction, approve, countenance', and could also mean 'permit'. There is no need for "express or formal permission or sanction, or active conduct indicating approval"; rather "inactivity or indifference, exhibited by acts of commission or omission, may reach a degree from which authorisation can be inferred". Note, however, that a mental element is included in the meaning of 'authorise'.

See APRA Ltd v Jain (1990) 26 FCR 53; 18 IPR 663, in which it was stated that:

"Jain had the power to control what music was played at the tavern and also to determine whether a licence from the appellant would be applied for. He did nothing about the matter at all.... The evidence revealed a 'studied and deliberate course of action in which Mr Jain decided to ignore the appellant's rights and to allow a situation to develop and to continue ... Mr Jain authorised the infringement of copyright in question contrary to section 36 of the Act."

In Computermate Products (Aust) Pty Ltd v Ozi-Soft Pty Ltd (1988) 20 FCR 46; 12 IPR 487, it was accepted that the word 'licence' in CA s37 meant no more than simply 'consent'. The importer argued that it had a 'bare licence' or one not supported by consideration, which could be revoked at will on giving reasonable notice. The court accepted this interpretation of 'bare licence'. However, it held (at FCR 52) that 'nevertheless there must be evidence of the necessary facts from which one can properly infer the giving of that consent or permission by the copyright owner'.

See also CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] UKHL 15; (1988) 11 IPR 1.

Indirect infringement of copyright - 'knowing or having reason to know'

Indirect infringement means dealing with unauthorised reproductions of works, rather than actually reproducing the material itself. Its main forms involve infringing copies being imported without the license of the copyright owner, or sold, hired out or otherwise made the subject of trade [CA ss37-38, 102-103].

It is necessary to establish that the defendant 'knew or ought reasonably to have known' that the article with which they were dealing was an infringing copy. Note the policy questions which arise where copies have been made lawfully abroad and the copyright owner in Australia seeks to prevent their importation. This raises the issue of parallel importation.

Parallel importation

Importing copyright material for commercial purposes or dealing with such material without the approval of the copyright owner is an infringement of copyright

However, a mechanism exists for the importation of foreign published books, without the permission of the copyright owner, in limited circumstances - primarily where a foreign published book is not available in Australia within 30 days of the first publication. The result of this is that foreign publishers can continue to maintain their effective monopoly so long as they meet the demands of Australian readers. If the book is not made available within 30 days, the person wishing to import must place a written order for the book with the copyright owner: if this order is not fulfilled within 90 days, copies of the book may be imported for sale [CA s44A].

Note, however, the trend towards phasing out parallel importation restrictions as anti-competitive and price distorting: see Copyright Amendment (Parallel Importation) Act 2003 (Cth). See also Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442.

Criminal offences involving copyright infringement

Generally, infringements of copyright that involve commercial dealings or infringements that are on a commercial scale are criminal offences. Under the CA, it may be an offence to:

• cause infringement on a commercial scale, even if the infringer makes no financial gain;
• make an article that infringes copyright for sale or hire or to obtain a commercial advantage or profit, or to sell or otherwise deal with such an article, sometimes with the intention of obtaining a commercial advantage or profit, in specified ways;
• import an article that infringes copyright for trade purposes, or to obtain a commercial advantage or profit;
• distribute an article that infringes copyright for trade purposes, or to obtain a commercial advantage or profit, or for any other purpose that prejudicially affects the copyright owner; or
• possess an article that infringes copyright, for specified commercial purposes, including for distribution to obtain a commercial advantage or profit or in a way that prejudicially affects the copyright owner.

It may also be a criminal offence to:

• make or possess a 'device that is to be used to make infringing copies of a copyright work;
• advertise the supply of infringing copies of copyright material; or
• cause the public performance of some copyright material at 'a place of public entertainment, with the result that copyright in the material is infringed.

There are a number of categories of criminal offences that apply to copyright infringement cases. Sometimes, the matter can go to court as an indictable or summary offence. Indictable offences are the most serious, and can be tried before a jury. Whether an offence is an indictable or summary one depends on the state of mind of the alleged offender. For the third category of offences, 'strict liability offences, the state of mind of the alleged offender is irrelevant - it is enough if they do the acts that constitute the offence.

Restrictions on the Exercise of Rights: Defences and Fair Dealing

There are a number of provisions allowing the free or paid use of copyright materials. These include use by educational institutions, by libraries and archives, for judicial proceedings, government use, various uses related to public performance and display of works, and fair dealing.

Libraries can copy certain types and amounts of copyright material for their users, for their own collections, and for other libraries. To be entitled to copy and supply to users and to other libraries, a library's collection (or part of it) must be accessible to members of the public. Libraries can use copyright material to maintaining their collections or for archives, provided certain conditions are met. Amendments to the CA by the Copyright Amendment (Digital Agenda) Act 2000, extend the protection provided to a library (including libraries within educational institutions) in relation to copying and recording equipment it provides (such as photocopiers, scanners, computer terminals, and audio and video recording equipment), where this equipment might be used to infringe copyright.

The major fair dealing provisions are for:

• research or study [CA s40]
• criticism and review [CA s41]
• reporting news [CA s42]
• judicial proceedings or [CA s43]
• parody or satire [CA s41A].

'Research' must be a diligent and systematic inquiry or investigation into a subject in order to discover facts or principles. Also, the term 'research' and its application must apply to the research of the defendant, not that of its customer [CA s40].

In respect of the use of copyright material for the purpose of criticism or review, there must be 'cognitive input' [CA s41]. See TCN Channel Nine Pty Ltd v Network Ten Pty Ltd [2002] FCAFC 146; (2002) 118 FCR 417; 190 ALR 468.

In respect of use for news reporting, there must be a 'report of a recent event' or at least a 'productive or creative' analysis improving the original. See Nine Network Australia Pty Ltd v Australian Broadcasting Corporation[1999] FCA 1864; (1999) 48 IPR 333; De Garis v Neville Jeffress Pidler Pty Ltd [1990] FCA 352; (1990) 37 FCR 99; 18 IPR 292.

The meaning of 'fair' is a question of degree. The CA sets out two situations deemed fair when dealing with copyright material for research or study and sets out guidelines which should be applied in other cases. First, for text or music published as an edition of ten or more pages, it is fair to copy 10% of the number of pages or one chapter, if the work is divided into chapters (for text material published in electronic form, it is deemed to be fair to reproduce one chapter or 10% of the number of words). Second, it is fair to reproduce an article from a newspaper or journal or more than one article if each article relates to the same subject matter.

The CA lays down some factors for working out whether the copying is fair in relation to copyright material for research or study purposes, namely:

• the purpose and character of the copying (for example, whether for a course of study or a commercial activity)
• the nature of the work
• whether the work being copied is commercially and readily available
• the effect of the dealing on the copyright holder's market potential market for, or value of, the work (for example, making more than one copy is less likely to be fair than making one copy)
• in a case where part only of the work is copied, the amount and substantiality of the part copied in relation to the whole work.

According to Lord Denning in Hubbard v Vosper [1972] EWCA Civ 9; [1972] 2 QB 84:

You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then, you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair.

However, even with the exemption provided by the fair dealing provisions above, the copyright holder is still entitled to 'sufficient acknowledgement' of the work [CA ss41-42]. This means 'an acknowledgement identifying the work by its title or other description and, unless the work is anonymous or pseudonymous, or the author has previously agreed or directed that an acknowledgement of his name is not to be made, also identifying the author [CA s10(1)].

Copyright and Indigenous Knowledge

Indigenous art has often been commercially exploited in ways that are particularly offensive to indigenous peoples, who attach sacred significance to much of their art. In the past, indigenous artists and communities have had considerable difficulty taking copyright infringement actions.

A major problem with the effective and just protection of indigenous knowledge is that the creative work or knowledge must still fit in with western ideas of intellectual property in general and copyright in particular, and the legislative structure which develops from it, that is, a personal property right. But copyright mechanism which are intended to function in a trade-related, private protectionist context, do not adequately respond to the essential nature of traditional knowledge and cultural heritage. The CA and other intellectual property laws still require a copyrighted work or creation to be in material form, to belong to an identifiable individual or group of individuals, and to be independently created rather than derived. See Bulun Bulun v R & T Textiles Pty Ltd [1998] FCA 1082.

Since much indigenous creation is derived, that is, handed down from generation to generation in an oral tradition, and is owned communally, it does not comply with the definitions of copyright as enshrined in the CA. For example, there is no copyright protection for rock art because the original artists who created the work are no longer identifiable or they created it too long ago for copyright protection to continue to exist. Australian law does not recognise the communal rights of an indigenous community in works of art.

A further problem may arise in respect of transforming a work in an oral tradition into a material form, particularly where such transformation may be contrary to tradition and custom.

However, there have been a few recent successes by indigenous communities or their representatives. See Milpurrurru v Indofurn Pty Ltd [1995] FCA 1544; Bulurru Australia v Oliver (2000) 49 IPR 384. See also Australian Competition and Consumer Commission v Australian Dreamtime Creations, [2009] FCA 1545; (2009) 84 IPR 326. This case proceeded under ss52 and 53(eb) of the then Trade Practices Act (TPA), which prohibited making a false or misleading representation concerning the place of origin of goods. Mansfield J opined that 'to a reasonable group of persons who buy or may buy Aboriginal art, to describe a painting as "Aboriginal art" is to convey that it is painted by an Aboriginal person or a person of Aboriginal descent. If that is not explicit, as I think it is, it is clearly implied.'

And ACCC v Nooravi [2008] FCA 2012, which also proceeded under s52 of the TPA.

Recently there have been proposals for legal change in this area. One proposal include the development of a separate set of copyright and other intellectual property laws designed specifically to meet the particular characteristics of indigenous and traditional knowledge. Another mooted proposal includes amending current copyright laws to allow for:

• extending copyright protection to oral works and non-assigned community works
• protecting traditional knowledge material through original and non-original database protection
• extending the moral rights provisions in copyright to traditional knowledge
• making greater use of international conventions on the protection of the rights of performers (for example, 1961 Rome Convention for performers, producers broadcasters, TRIPS, and the 1996 WIPO Performances and Phonograms Treaty)
• using a domain public payant system, under which royalties continue to be paid for the use of literary and musical works in the public domain
• using the droite de suite, a resale royalty under which an artist receives a share of the price paid for their original work from all sales subsequent to the first sale of the work by the artist.

The Resale Royalty Right for Visual Artists Act 2010 (Cth), provides for a resale royalty of 5% to be payable on works of art with a minimum qualifying threshold of $1000 (inc GST). The royalty only
applies to commercial resales through art market professionals - that is essentially those conducted through and by art galleries and auctioneers. However, the Act does not draw a distinction between non-indigenous and indigenous art, with the word 'indigenous' appearing only once in the whole of the Act. Nor does it contain special provisions, protections or exemptions to give particular
redress to the perceived particular exploitation of indigenous artists.

Copyright and the Digital Environment

The internet

The digital revolution has impacted significantly on every intellectual property regime, and none more so than copyright protection. It has required, and will continue to require, fundamental changes to copyright law to attempt to keep pace with new technologies and communications practice. Digitisation has exponentially increased the ease of creation, modification, distribution, and particularly access to all information. It has created a new medium in which works can be accessed and distributed to the public in a virtual, instantaneous and real-time fashion. As this access increases, the capacity to monitor and control copyright protection reduces in an equally dramatic fashion.

Hence protection of copyright can be extremely difficult, if not at times impossible, to enforce in relation to digital communications, particularly over the internet and at the end-user level, since there are so many avenues for, and instances of, alleged infringement. Furthermore, the current copyright legislation, nearly a half-century old in its primary form, is not equipped to adapt easily and smoothly to the digital and internet revolutions. As has been demonstrated in a series of leading cases over the last decade, internet technology is developing faster than the laws that govern it or protect the information it transmits. See A&M Records Inc v Napster Inc [2001] USCA9 92; 239 F 3d 1004 (9th Circuit 2001)( the 'Napster' case); Kabushiki Kaisha Sony Computer Entertainment v Stevens (2002) 55 IPR 497; Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 65 IPR 513; Universal Music Australia Pty Ltd v Cooper [2005] FCA 972; (2005) 65 IPR 409; Universal Music Australia Pty Ltd v Sharman Licence Holdings [2005] FCA 1242; (2005) 65 IPR 289 (the 'Kazaa' case);Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16 (the 'Bit-Torrent' case); Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317.

Legal issues relating to internet use and the roles and responsibilities of internet service providers (ISPs), or carriage service providers as they are also known, can be divided into two mainareas:

• the publication of information and provision of content including text, sound and images
• the sale of goods and services - known generally as e-commerce.

The issues include:

• ownership and control of the content being published, including copyright
• consumer protection laws
• the classification regime
• privacy
• the legislation and common law that regulates e-commerce.

The three types of people or organisations involved in enabling access to the internet are:

• the internet content provider - the person who creates the material, which will be uploaded on to a website
• the internet content host - the person or organisation that provides the website (the space on the internet for this content) and has control over what is uploaded (published)
• the internet service provider (ISP) - the organisation that supplies internet carriage services so that the material can be transmitted to individual computers, and then viewed and downloaded by members of the public.

Protection mechanisms

Protection measures include:

• making protected material accessible only on payment of a fee or acceptance of contractual terms of use;
• advising the ISP of restrictions to be placed on access to protected material on the site
• encrypting (that is, using a technological means to prevent copying).

Scanning, uploading and downloading images

Scanning an image to produce a digitised version involves making a reproduction of the image. Uploading to a website or emailing the digital version involves communication of the image.

Both reproduction and communication of a copyright-protected work are specific rights of the copyright owner under the CA, and both require the permission of the copyright owner.

Copying by downloading part of an image or photograph from the internet may still be infringing copyright if it is copying what is considered a substantial or important part of the image or photograph. What must be considered is the image itself, not the website or page where it was found. Altering or adding to a digital image to create a new image will require the permission of the copyright owner if an important part of the first image is recognisable in the new image. A person may also be in breach of the creator's moral rights if the work is not properly attributed to them or if it is altered in a prejudicial manner.

Amendments to the CA contained in the Copyright Amendment Act 2006(Cth) include amendments relating to time-shifting, format-shifting and space-shifting, and technological protection measures;

Time-shifting: recording from TV and radio for later private use

It is permissible to record a television or radio program to watch or listen to at a later time, but only if the recording is made solely for private and domestic use, and then only for watching or listening to the program at a more convenient time. The new exception does not apply to podcasts or webcasts (except programs streamed simultaneously with a broadcast by a 'traditional' broadcaster such as the ABC, SBS or one of the commercial free-to-air broadcasters). The copied material will become an infringing copy if it is later commercially traded or played or shown in public or broadcast. Nor does the above permissibility extend to recording a broadcast and keeping it indefinitely in a collection of films or sound recordings for repeated use.

'Space-shifting' of recorded music

A person who owns a copy of a sound recording, such as a CD, is now allowed to make a copy of that recording, for private and domestic use, to play on a device that they own. This provision does not apply if the copy the person owns is already an infringing copy (such as a pirate CD or an unauthorised digital download), or if either copy is later commercially traded or played or shown in public or broadcast.

Format-shifting: copying from one 'format' to another for private use

People who own certain types of material are allowed to make a copy of that material, for private and domestic use, into certain other 'formats', such as from a hard copy into a digital copy or vice versa. The provision does not apply if the person:

• has already made a copy in that format
• commercially trades in the copy or disposes of the original
• makes a copy for someone else or makes a copy from a copy owned by someone else.

Technological Protection Measures (TPMs)

Criminal penalties and civil remedies exist for making, importing and commercially dealing in devices and services which circumvent technological copyright protection measures (such as decryption software). There is an exception if the device or service is going to be used for various 'permitted purposes' (such as certain activities by libraries, educational institutions, governments, and decompilers of software organisations for the relevant purpose). There are also criminal penalties and civil remedies for manufacturing or dealing in devices designed to enable the unauthorised reception of encoded subscription broadcasts (for example, decoders designed to allow unauthorised reception of pay TV signals).

As a result of the US-Australia FTA, amendments were required to amendments to the CA to include the following provisions:

• sanctions against the use, manufacture and supply of devices designed to circumvent TPMs that control access (whether or not that access control is for the purposes of inhibiting or preventing infringement)
• sanctions against the use of a circumvention device or service to get access to copyright material
• considerably restricted exceptions, rather than 'permitted purposes', relating to the supply or use of a circumvention device or service
• introduction of legislative or administrative proceedings to greater control the conditions under which a person may be allowed to circumvent a TPM in order to make non-infringing uses of copyright material.

Rights management information

Amendments to the CA in 2000 introduced sanctions against tampering with electronic rights management information, and against distributing or commercially dealing with material whose rights management information has been tampered with. (Rights management information is information attached to or embodied in digital material that identifies the material and its author or copyright owner, or which relates to the terms or conditions of use of the material.)

Website design

The design and/or layout of a website can be protected by copyright. This is quite separate from copyright ownership of the various components of the site such as the text, images and sound. The future development of a website requires that rights to the website design be considered. The website developer usually owns copyright in the site. They may assign or give permission to allow for modifications to the design in the future.

When a person uses content that they do not own - that is, that they have not created personally - they should identify the copyright owner and seek permission to use the material. If the owner is not identified on the website, it may be possible to discover their identity by sending an email to the website or to the webmaster responsible for the site where the material was obtained.

Linking to another website

Before linking to or framing a third party website, a person should review it for any prohibition on linking or framing. If linking is permitted with conditions, those conditions should be adhered to, as you may be making representations about another site inadvertently.

Hypertext linking to or framing a third party website that includes copyright infringing material may constitute an endorsement or re-publication of the infringing material and expose the website owner to liability under copyright law. Hypertext linking to pages deep within other sites and the use of frames on a website can raise issues of liability under copyright and trade practices legislation. See Cooper v Universal Music Pty Ltd [2006] FCAFC 187; (2006) 156 FCR 380.

Copyright Holders and ISPs

Roadshow Films Pty Ltd & Ors v iiNet Limited [2012] HCA 16, was significant for its impact on copyright law in the digital environment, and was the first Australian case to consider the liability of ISPs for authorising copyright infringements of its users. The High Court focussed on the factors set out in CA s101(1A) in respect of the core issue of authorisation liability, namely:

• whether iiNet had the power to prevent the doing of the act concerned;
• the nature of the relationship between the iiNet and the person who did the act concerned;
• whether iiNet took any other reasonable steps to prevent the infringements.

The High Court held that iiNet had an insufficient degree of power over its users in relation to the downloading of the infringing content. More specifically, it had no technical power at its disposal to prevent its customers from using the BitTorrent system to download the studios' films. iiNet did not control the BitTorrent system, nor the choice of its customers to use it. Nor could it modify the BitTorrent software or remove the studios' films once made available online.

Rather, the extent of iiNet's power was limited to an indirect power to prevent primary infringement by terminating the internet access of its subscribers. Accordingly, the Court found in favour of iiNet.

Three years after the iiNet case, in May 2015, the Federal Court handed down another controversial decision in Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317. Perram J ordered the ISPs provide discovery of account holder details, however stayed this order subject to Dallas Buyers Club providing the Court with a copy of the letter they proposed to send infringers. While the decision in Dallas was clouded with controversy, the shift in position was a small step, and reasonably foreseeable in lieu of comments made in the Roadshow v iiNet case.

The Copyright Amendment (Online Infringement) Act 2015 (Cth) was enacted in June 2015, essentially to counteract the outcome of the High Court's decision in Roadshow Films Pty Ltd & Ors v iiNet Limited. The amending act inserted a new s115A into the CA to allow for an injunction requiring ISPs to block infringing material located outside of Australia, without the need to establish any fault on the part of the provider.

What Remedies are Available Against Copyright Infringement?

The main remedies are those listed below.

Injunction

This equitable remedy usually requires the defendant to refrain from a particular course of conduct; rarely, it may require the defendant to carry out a particular act. The source of the court's power to award an injunction is CA s115(2). The same equitable considerations apply as for the grant of an injunction in equity. The injunction may be interlocutory or final. The court will grant an interlocutory injunction where there is a 'serious question to be tried'. It is an invariable condition of the grant of an interlocutory injunction that the plaintiff should give an undertaking to pay damages to the defendant in the event that a final injunction is not granted at trial;

Damages

The common law remedy of damages is also provided for in CA s115(2), with provision for aggravated damages in s115(4) and conversion damages in s116. The purpose of damages is to compensate the plaintiff for the loss which he or she has sustained as a consequence of the defendant's contravention of their right. See Milpurrurru v Indofurn Pty Ltd [1994] FCA 975; (1995) 54 FCR 240; 130 ALR 659.

Account of profits

Again, this is provided for in CA s115(2). This is an equitable remedy which requires the defendant to give up the profits they have made from the unauthorised use of the plaintiff's property. The plaintiff's loss (the basis for damages) may be either less or more than the defendant's gain (basis for account of profits). Note that the estimation by the court of an account of profits may be a difficult exercise, particularly when the defendant legitimately seeks to offset against its direct profit, its general overheads and other expenses related to making the profit.

Orders to deliver up

Courts with equitable jurisdiction have an inherent power to order a defendant to deliver up articles made in contravention of the plaintiff's intellectual property rights.

Anton Piller orders

These ex parte orders entitle the plaintiff and their solicitors to enter the defendant's premises in order to inspect and remove any material relevant to the case. This can be done without prior notice to the defendant. Courts will require undertakings from a plaintiff as to damages in the event that there is improper execution or disregard of the defendant's rights. Plaintiffs must advise the defendants of their rights to seek legal advice before complying with the order, and also serve the defendant with a statement of claim.

Mareva injunction

This is another ex parte order which restrains the defendant from disposing of or removing from the jurisdiction assets that would otherwise be available to satisfy any subsequently obtained judgment for damages.

Groundless threats

A defendant may restrain the making of 'groundless threats' of court action and may also recover any damages they may suffer as a result of the threats [CA s202]. Thus a defendant may be prevented from going out of business by the mere making of a threat by a powerful plaintiff and the consequent high legal costs.

Collective Administration of Copyright Rights and Compulsory Licence Schemes

There are a large number of compulsory licence and royalty collection and payment schemes.

The best known collecting agency is probably the Australasian Performing Rights Association (APRA), which was formed for the purpose of granting licences for the public performance of musical works. The members make an assignment to APRA of the public performance, broadcasting and diffusion rights in their past and future compositions, subject to a reservation of 'grand rights' to the copyright owner. APRA enters into licence agreements with television and radio stations, with film companies, cinemas and theatres, the operators of discos and juke boxes. It receives money from all these sources which it pools and distributes following complex procedures designed to ensure that fair payment is received by each copyright owner for the use of their music.

The Copyright Agency Limited (CAL) fulfils a similar role in respect of universities and educational institutions in respect of reproduction of works or extracts for teaching and research purposes.

In summary, some of the more significant schemes include the following:

• copying by educational institutions: under copyright law educational institutions are, provided certain procedures are followed, allowed to make copies of works for their students. The institutions are obliged to make equitable payments to the CAL (see Useful organisations, this section) which then distributes payments to copyright owners.
• copying of musical works: no infringement of copyright occurs where cover versions of previously recorded musical works are made for the purposes of retail sale. A royalty must, however, be paid to the owner of the copyright. This royalty is collected by the Australasian Mechanical Owners' Society.
• broadcast of musical works: a commercial radio station must pay royalties to the copyright owners of songs it broadcasts. The amount of this royalty is fixed by the Copyright Tribunal and in practice is collected by the record companies. A person who owns premises where copyright works are played or performed, such as a juke box, venue for live music or a shop or office where music is played, must also pay a royalty to the copyright owner. This royalty is collected by the Australasian Performing Rights Association.
• copying by institutions assisting intellectually disabled people: institutions are permitted to copy work to assist intellectually disabled readers in their research, study or instruction. Again equitable payments have to be made to CAL.
• copying by government departments: Federal, State or Territory governments can copy work without permission from the copyright owner. However, a government department is obliged to notify the copyright owner as soon as possible, and the owner of copyright is entitled to charge a fee for the use of the work. CAL has entered into agreements with the Commonwealth, State and Territory governments about the copying of its members' works. It is important to note that these agreements only relate to work owned by CAL members.

Useful Contacts and Organisations

A number of organisations either collect copyright fees, or deal extensively in copyright issues, including assistance with getting copyright clearances arranged.

Australian Copyright is administered by the Commonwealth Attorney-General's Department.

Australian Copyright Council (ACC)

The ACC is an independent, non-profit organisation, founded in 1968. It represents the peak bodies for professional artists and content creators working in Australia's creative industries and Australia's major copyright collecting societies. The ACC is also a major source of advice and assistance. Its staff includes specialist lawyers who can provide free advice on copyright and related areas of law. It also publishes information sheets on particular aspects of the law for specific user groups. Many of the ACC's information sheets can be found at the website www.copyright.org.au. This is a particularly useful site with references to recent papers on issues intellectual property law reform and judicial application and interpretation on the corpus of copyright-related statute.

32/45 Chalmers St Redfern
NSW 2016 PO Box 1986,
Strawberry Hills NSW 2012
Tel: 02 9318 1788
Website: www.copyright.org.au
Email: info@copyright.org.au

Copyright Agency Limited (CAL)

The Copyright Agency collects fees and distributes royalties to its members who are creators of copyright material for the reuse of text and images. It manages educational copying schemes, Commonwealth, State and Territory copying schemes, the Resale Royalty for Visual Artists scheme, and special provisions for institutions assisting people with print disabilities. CAL also has agreements with international affiliates to licence the use of foreign content in Australia, and collect licence fees for Australian content used overseas.

Since 2012, CAL has combined with Viscopy, which licences images of artworks, have joined forces. Viscopy's members are visual artists., and can help collect money from outside Australia.

Contacts for both CAL and Viscopy:

Level 11, 66 Goulburn Street,
Sydney, NSW 2000
Tel: 02 9394 7600
Fax: 02 9394 7601
Toll-free phone number (landlines only): 1800 066 844
Email: info@copyright.com.au; Website: www.copyright.com.au

Audio-visual Copyright Society - "Screenrights"

This Society operates in similar fashion to CAL, but deals with licensing:

• Educational institutions in Australia and New Zealand, enabling them to copy broadcast material, and put these copies on internal networks or email them to staff and students
• Pay television, mobile phones, IPTV and other services that retransmit free to air broadcasts
• State and federal government departments, enabling them to copy from television and radio.

Contact details are:

Australia

Level 1, 140 Myrtle Street,
Chippendale NSW 2008
Postal: PO Box 853,
Broadway NSW 2007, Australia
Phone: + 61 2 9904 0133
Fax: +61 2 9904 0498

New Zealand

Freephone: 0800 44 2348
Freefax: 0800 447006
Website: https://www.screenrights.org/talk-to-us/

Australasian Performing Rights Association/ Australasian Mechanical Copyright Owners' Society (AMCOS)

APRA is an association of authors, composers, music publishers and other music copyright owners. APRA distributes money collected through licensing radio and television stations, as well as most hotels, clubs etc where recorded music is played to the public.AMCOS is made up of music publishers. AMCOS administers on their behalf the recordings of music and music on film or video. It also operates a licensing system for schools to allow copying of sheet music. AMCOS also has reciprocal arrangements with overseas organisations.

Contacts: National and NSW/ACT Office

16 Mountain Street,
Ultimo NSW 2007
(02) 9935 7900
apra@apra.com.au

Postal Address:
Locked Bag 5000,
Strawberry Hills NSW 2012

State Offices

VIC and TAS

3-5 Sanders Place,
Richmond VIC 3121
(03) 9426 5200

QLD

3 Winn Street,
Fortitude Valley QLD 4006
(07) 3257 1007

SA

Suite 29, 8-20 O'Connell Street,
North Adelaide SA 5006
(08) 8331 5800

NT

Level 1, 29 Cavenagh Street,
Darwin
GPO BOX 4519,
Darwin NT 0801
(08) 8941 0988

WA

Suite 1, 12-20 Railway Road,
Subiaco WA 6008
(08) 9382 8299

Website: http://apraamcos.com.au/about-us/

Phonographic Performance Company of Australia (PPCA)

PPCA performs a similar function to APRA on behalf of copyright owners in sound recordings. PPCA is a non-profit organisation that provides licences to Australian businesses to play recorded music in public. The net fees are distributed to record labels & registered Australian artists. The licences issued by PPCA cover public performances and broadcasts.

PO Box Q20
Queen Victoria Building, NSW 1230

Level 4, 11 - 17 Buckingham Street,
Surry Hills, NSW 2010
Tel: (02) 8569 1100
Fax: (02) 8569 1183
Email: ppca.mail@ppca.com.au
Website: www.ppca.com.au

Copyright by the contributing authors. All material on this collaboration platform is the property of the contributing authors.
Ideas, requests, problems regarding AustLII Wiki? Send feedback