Copy Right Law and Property - Case Study Example

Law- Copy Right Property can be understood in fundamentally different ways. Ordinary conception of property is based on the understanding of ordinary people regarding the control and use of things in their usual dealings with others.[Tom Allen- The Right to property in Common Wealth p.120].The first and foremost question regarding the issues faced by Donaghy is whether he holds some properties or not. No doubt he holds some properties in the parallel world. The pertinent point here is whether Jack Donaghy has got any right over his properties under the existing law or not. The answer is yes. Donaghy has got certain rights and there are provisions in the copy right Act 1968 (cth).to make a claim against Parallel World Enterprises Ltd. and others who has infringed his rights. The virtual toys, cars and cloths are computer programs. These virtual properties are accessed through an access control technological protection measure. As per section 10 of the Act, it is a device used in connection with the exercise of the copy right. Section 47 B says that a computer program includes any literary work incorporated in or associated with a computer program and essential to the effective operation of a function of that computer program. The avatars, virtual toys clothes and land are creations. It is created as a result of the brain work of the creator. It is defined as the literary work. In that sense it is an intellectual property. The creator of the computer program has copy right on his product. Here Donaghy has copy right on his virtual land, toys, cars and clothes. Section 31 of the copy right Act confers on him the exclusive right to reproduce the work in a material form, to perform the work in public, to communicate the work to the public, to make an adaption of the work etc. Donaghy can enjoy these exclusive rights on his creation till he ceases to be a subscriber of PWE. The ceasing of the subscription has to come either as a natural end of the contract or termination of the contract on violation of the contractual terms. In the present issue neither the contract was naturally ended nor terminated as a result of the violation of the contractual agreements. It was a unilateral termination adopted by PWE. Because of this unwarranted action, the rights conferred on Donaghy by the copy right Act have been infringed. The virtual land, cars, toys and cloths are the creations of Donaghy and he alone or the person authorized by him has the exclusive copy right on those things. But without the permission of Donaghy, PWE is using the virtual land and selling it to others. PWE is neither the owner nor they have the license from Donaghy to use the virtual property owned by him. Though Donaghy created those virtual properties, he has no power to prevent PWE from using it because the computer system is with PWE. The nature of relationship existing between Donaghy and PWE is a subscriber and provider of a facility. Being the provider of a facility, PWE has the access and means to snatch away the control of the copy right holder. As a subscriber of PWE, Donaghy can do only according to the EULA agreement. Donaghy has not violated any terms of the EULA. The action of PWE in stopping Donaghy to access his virtual land and reselling it to others is a blatant violation of section 36 of the copy right Act. Donaghy has the right to initiate action against PWE as per section 116 for having infringed the copy right by reproducing the virtual land sold to Donaghy and selling it to others. As per section 115 of the copy right Act, Donaghy can initiate action for getting an injunction against PWE and Devon Banks and for either damages or account of profits. In the present case PWE and Banks have made a trespass into the property of Donaghy and they are liable to compensate for it. Donaghy can initiate action against Devon Banks for stealing his virtual clothes for dollars 40 thousand and reselling it to others. He is eligible to get the reliefs as if he was the owner of the virtual land if any sold by PWE. One pertinent point here is that whether PWE by denying access to Donaghy, has done a conversion with respect to the computer programs. The decision in pen folds wines pty. Ltd Vs Elliot asserts that Donaghy can move for an injunction. In that case the plaintiff company sued the defendant for having used the plaintiff’s bottles for his business. The Appellant Company carries on business as a vigneron and wines and spirit merchant in NSW. The Company uses a large number of bottles for its business. All their bottles borne upon them the words ’the bottle is the property of Penfolds Wines Ltd’ or ‘this bottle always remains the property of Penfolds Wines Ltd’.It was proved beyond doubt that the company never sold bottles but only the contents of the bottle. When it sold wine it delivered an invoice also which clearly mentioned that the bottles are not sold and it remained the property of the company. It was insisted that when the contents are used the bottles are to be returned to the company or its agents and it must not be used for any other purpose and destroyed. The defendant filled two of the bottles with wine other than that of Penfolds and delivered to one Mr. Moon who had authority to act as a honorary Food Inspector. The wine was delivered to Moon for a consideration of eight shillings. The Plaintiff argued that it was a conversion. The Defendant contested that he did not fill wine in the bottle and it was done and brought by his brother. The trial court found that there was no contractual obligation between the Plaintiff and the Defendant. Upon appeal to the full court of the federal court it was held that there was tress pass by the defendant to the goods of Plaintiff. The branded bottles of the Plaintiff were bailed to the users and the users were not entitled to make use of it for any other purpose. The Judge ruled that the defendant filled the bottles knowing that it belongs to the Plaintiff. It was held that the defendant had committed the tort of conversion in respect of two bottles belonging to the plaintiff. As per section 116.1(b)of the Copy Right Act 1968,a device includes a circumventing device used for making infringed copies. Here PWE was actually using the circumventing device to reproduce the virtual land sold to Donaghy. Using a circumventing device for reproducing the copy righted material is conversion. It is true that PWE only denied access to Donaghy to his avatar. But this is equal to a conversion. Donaghy can enjoy the copy right of avatar etc. only when he has access to it. If somebody deliberately makes obstruction in getting access to that particular copy righted material, it is an infringement. Preventing the copy right owner from enjoying the right is equal to use in a circumventing device which is equal to conversion. Apart from the rights conferred by the Copy Right Act 1968, the issue has got some dimensions of a contractual obligation.PWE and Donaghy are parties to a contract. There is an offer and acceptance and Donaghy became a subscriber after fulfilling the terms and conditions put forward by PWE. One important point to be considered here is whether Donaghy holds some property or not. Yes, he has some properties purchased from PWE and some properties created by him in the computer system. The virtual land, toys, cars and cloths are properties because internet users buy it for a consideration. PWE and Donaghy are bound together by EULA. EULA is an agreement between the parties for using Software. It is a contract between the manufacturer and an ultimate user of an application. The EULA details how the license is to be used and the restrictions imposed on the user with regard to the using of the license. Being a legal contract between the parties, the EULA provides provision for the protection of both the manufacturer and the end user. It is clear that the contract between PWE and Donaghy has been concluded after observing the usual formalities. The terms and conditions offered by PWE in using the license were accepted by Donaghy and he continued to use it for quite a long time and made a substantial benefit out of it. But it seems that it was not an informed consent on the part of Donaghy. PWE did not reveal all the details to him including the circumstances under which the facility would be stopped. The decision in Moore Vs The Regents of the University of California suggests that there must be a consideration of the merits of the causes of action for lack of informed consents and breach of fiduciary duty. In that case the Plaintiff went for the treatment of Leukemia. The defendant used cells from his spleen for profit. The Plaintiff sued the Doctor for conversion of his spleen cells, lack of informed consents and breach of fiduciary duty. Though the computer and the program are under the PWE, Donaghy with the user license has the possession of the virtual land, avatar and virtual cloths. The point to be cleared here is that whether he will have the possession of his property created in the computer program kept by PWE. According to the agreement between PWE and Donaghy, Donaghy has the right to create virtual cloths and sell it to other customers. Since the computer and accessories are possessed by PWE, it is apparent that PWE possess the whole property created by all the customers. Though the subscribers are free to create and sell virtual toys and cloths, those items are stored in the computer kept by PWE. PWE has not allowed to do all what the subscribers desire. Even though there is EULA between the subscribers and PWE, it is very clear that PWE retains the power and right to stop the subscribers who are using the ;license against the terms and conditions. So long as PWE retains that right, they have the liability to protect the properties created in the computer program by the subscribers. It is also very clear that PWE has the access, power and right to avoid though subscribers who are using the license against the interest of PWE. Stoppage of the subscription without informing the subscriber, PWE has refused the access of the subscriber to the computer program. That means they are in possession of all the programs created in the computer. Being the possessor of all the virtual properties, PWE has the liability to safeguard the interest of each subscriber. Each subscriber subscribed to PWE on the firm belief that their properties will be in tact. In the present issue Donaghy’s virtual clothes were stolen by another user, Devon Banks. Banks was able to take away and resell the virtual clothes created by Donaghy. There is nothing wrong in Donghy’s criticism against PWE about the internal security. The internal security of the system is to be protected by PWE. If it is possible to take away the properties of one subscriber by another, the entire system will collapse within no time. Here Donaghy has not acted against the EULA. He only commented about the prevailing security system. On the basis of a comment by a subscriber on the failure of the security system, PWE cannot close the subscription and prevent the subscriber from using the computer system. PWE has no right to convert the properties of Donaghy. In Cooper Vs Universal Music Australia Pty Ltd (2006) the Federal Court has confirmed on appeal that the web site operators and inter net service providers may be liable for authorizing copy right infringement by the operators and users. In that case Stephen Cooper owned a domain name mp3s4free.net and operated a free web site which provided hyper links to remote website that stored infringing MP3 copies of sound recordings. E-talk was the internet provider that hosted the website, along with other company. Liam Bal was the controlling mind behind E-talk. The Court considered the extent of ‘authorize’ in section 10 (1) of copy right Act and found that there was authorization of copy right infringement on line. Donaghy’s next issue is the return of unclaimed dollars 40 which he found on the floor of the shopping centre and entrusted with desk service of the same shopping centre to hand it over to the real owner. The shopping centre and the commodities inside there are the properties of the shopping centre. The things unclaimed found on the floor of the shopping centre are to be collected and kept for proper disposal by the shopping centre. Donaghy’s action of taking the dollar note from the floor and entrusting the service desk for handing it over to the real owner is correct. The owner of the land has a better title on the lost property found on the land than a passer by. In the case of a lost property found on a place where public has frequent access, the situation is less clear. The decision in Parker Vs British Airways Board (1981) was in a similar situation. Mr. Parker found bracelet on the floor of Heathrow Airport and he handed it over to a staff with a request that it be given back if not claimed by the owner. The Airways sold the bracelet and kept the proceeds. Mr. Parker brought an action in the Court against the Airways and the Court awarded him 850 pounds as damages. The appeal Court upheld the lower court’s decision and ruled that the owner of the land where the bracelet was found would have to positively assert its intention to retain title for the lost property. If the shopping centre does not assert its intention to retain the title for the dollar note found on the floor, Donaghy can make a claim against the shopping centre. Similar was the decision in Waverley Borough Council Vs Fletcher. In this case Mr. Fletcher dug out a gold brooch from a park owned and controlled by the council. In the appeal it was held that the owner of the land has a better title on found property. With regard to the purchase of the office building, Donaghy has a right to claim the air conditioning unit of KPE. The air conditioning unit is a fixture to the building. It is a chattel attached to the building constructed in the land other than by its own weight. The air conditioning unit has to be fixed on the building by screws and nuts and so it is a fixture. The decision in Holland Vs Hodgson (1872) it was held that the spinning loom bolted to the floor of the factory is part of the land. In this case the owner of the mill who became bankrupt assigned all his properties to the defendant as trustees for the benefits of the creditors. The defendant’s then seized equipments and tools from the mill and some looms were attached to the floor of the mill. The question as to whether the mills formed part of the land was decided that even if the attachment is slight the mills formed the part of the land. Same was the decision in Australian Provincial Assurance Company Ltd.Vs. Coroneo (1938). In this case it was held that in determining whether a chattel has become a fixture, the purpose or object of the attachment involves an examination of whether the item was attached to the land with intent to remain in position permanently or for an indefinite or substantial period or whether it was attached with intent to remain in position only for some temporary purpose. In Donaghy’s case, the air conditioning unit was intended to remain there for an indefinite period and so it is part of the land. KPE cannot take it away. Another issue that pops up before Donaghy is the mixing of shirts having different values. It was not an intentional mixing but it was an inadvertent action of on of the ware house employees. Due to the mixing up of shirts with different values, the whole property has become under the combined ownership of Donaghy, and Grizz and Dot Com. The decision in Indian Oil Corporation Ltd Vs Greenstone shipping SA[Panama] [1988] 1 QB 345 was in a similar situation. In that case the ship owner a quantity of its crude oil with that of the Plaintiff. There was no firm evidence of wrong doing in the mixing. There was short of delivery to the plaintiffs who claimed that they are entitled for the whole quantity of oil. The dispute was taken to arbitration and an arbitration award was made for damages for conversion of all oil. On appeal it was held that the ownership was in common and the Plaintiff was entitled for damages only to the contract amount. It was also held that the respective shares could be ascertained with precision. The mixing of shirts of Donaghy was not a deliberate action of any body. It was a mistake by one of the employees of the ware house. There is only a hint of wrong doing. Since the owners do not know clearly about their stock, the only way is to have common ownership and take back their share. 1) Reference : Tom Allen- The Right to property in Common Wealth p.120 2) Copy right Act 1968 (cth) sections 10, 31, 36, 116. 3) Parker Vs British Airways Board, QB 1004. 4) Waverley Borough Council Vs Fletcher (1995) QB 334. 5) Indian Oil Corporation Ltd Vs Green Stone Shipping (SA) Panama 1988 QB 345. 6) Holland Vs Hodgson 1972 (LR) 7 CP. 328. 7) Australian Provincial Assurance Company Ltd Vs Coroneo (1938)38 SR (NSW). 8) Moore Vs Reagents of the University of California. Sc of California, 1990. 51 CAL, 3D 120, 793 P, 2D 479, 271, CAL P RPTR 146. 9) Penfolds Wines Pty Vs Elliot (1946) HCA 46; (1946) 74 CLR 204 (November 25th 1946). 10) Cooper Vs Universal Music Australia Pty Ltd (2006) FCAFC 187 (December 18, 2006). Read More