Australian Intellectual Property Law - Essay Example

Name : xxxxxxxxxxx Institution : xxxxxxxxxxx Course : xxxxxxxxxxx Title : Copyright Act 1968 (Cth) Tutor : xxxxxxxxxxx @2010 Table of Contents Title : Copyright Act 1968 (Cth) 1 Introduction 3 Fan site 3 A Copyright Owners’ Rights 5 Fan website and Breach of Copyright 6 Fan site and copyright under the economic/utilitarian theory 9 The Economic/Utilitarian Theory 9 Conclusion 14 Bibliography 15 Introduction Copyright is a documented form of intellectual property. Its impact is not only in the public stage but also expands into the global sector. One cause for the existence of copyright concept is the economic/utilitarian theory where inventors are encouraged to establish innovative works by being given exclusive economic rights for a particular period of time. A fan page is at the moment an established phenomenon, which is made more accessible and famous though the internet. It has expanded from a relatively secluded activity to that of reasonable size and importance, sufficient to attract the awareness of the media and copyright owners. It has even developed to a self-sufficient point with some serious efforts at self conversation and scrutiny. Its expansion has largely lacked specific considering in the copyright law1. This paper considers the effect of opening a fan website in regard to copyright law and draw conclusions based on Copyright Act 1968 (Cth)2. It will also be done in relation to the commonly cited economic/utilitarian theory of copyright with discussions essentially based on Australian law. Fan site The fan site created by Didier Messi can be described as a form of fan fiction. A fan fiction is described as any kind of written inventiveness that is based on a particular segment of popular culture like television show as opposed to production as a professional writing. The growth of the Internet implies that other forms of non-written work could also be regarded as fan fiction. The fan site created by Didier Messi is based on the BSS Corporation television broadcaster that has acquired the rights t broadcast the expected World Football League Championship held in Namibia in 2010. It is worth noting that every activity of fan fiction an underlying fandom can be found. Fandom is described as the world of fans and enthusiasts particularly fans o science fiction magazines, web sites and conventions. The fandom in this fan site is composed of the fans that will be sending their opinions and suggestions concerning football matches to the site3. It is essentially the globe in which the fan fiction is founded, for instance Harry Potter fan fiction would be based in the Harry Potter fandom, X-Men fan fiction in the X-Men fandom. The fandom that fan fiction is founded emerges from the original source material whether fictional characters, world or ideal concepts. Didier’s fan site draws its content from the interactive experiences designed by the broadcaster firm and thus fits the description of fan fiction. Original source material is described as canon and it entails those of novels, stories and films which are taken to be real or formal and those events, characters and settings that are regarded to have inarguable survival within the imaginary universe. Different materials are regarded canon within diverse fictional worlds and diverse fictional worlds have their own system of analyzing canonical works. Canon is significant in creation of continuity by setting specific timelines. All fan fiction uses canon to various levels whether to simply utilize ideals and characters in a new discovered method from a story from a diverse point of view to diverge from canon at a specific point or even offering characters in a surrounding diametrically opposed to that canon. The chances for fan fiction are continuous, producing various types of fan fiction difficult to analyze4. A Copyright Owners’ Rights In Australia, copyright is controlled by the Copyright act 1968 (Cth)5. Ideas that can be offered the safety and rights under copyright are depicted as either works by part 111 of the Act while creative literary, theatrical, musical and artistic works or subject matter other than work’s by Part IV of the Act composed of sound recording, cinematograph films, TV transmission, sound transmission and published editions of works. Other jurisdictions have the same legislation which describes what types of innovative outputs can be accorded the protection and rights of copyright and the needs that should be fulfilled6. BSS Corporation holds the copyright to broadcast the proceedings of the championship and is thus entitled to benefit from the same. The existence and possession of legal copyright in works is normally not disputed in fan fiction. In Australia, copyright owners have restricted rights to do or to authorize particular acts. The rights accessible to copyright owners vary on the basis of the class of work or subject in question, normally Part III works have a wider range of rights than part IV subject matter different from other works. Exclusive rights possessed by copyright holders under Part III and Part IV of the Act can be classified as economic rights and are differentiated by moral rights provided under Part IX of the Act. Under these parts, BSS Corporation holds the exclusive rights to benefit from the acquired domestic broadcast rights. These are typically private to individual creators of specific creators of copyright contents. Some of the significant rights copyright owners own in Australia are: For a part III literary, dramatic and musical works, the right to: Reproduce in a material form Communicate to the public Make an adaptation of the work · For a Part IV film or TV and sound broadcast, the right to: Communicate it to the public. The rights awarded to individuals possessing the copyright in Australia are not different to the rights awarded in some other jurisdictions. In U.S for instance a person possessing a copyright has exclusive rights to: To generate the copyrighted work in copies or phonorecords To generate derivative works founded on the copyrighted work To hand out copies or phonorecords of the copyrighted work to the public To present the copyrighted work publicly Fan website and Breach of Copyright Generally, a fan website can be claimed to infringe copyright without a complete scrutiny based on examples, the fan site could replicate, communicate to the public and/or be a version of copyright material. Despite copyright giving exclusive rights, some application of copyright material is allowed. This is part of the strategy of encouraging and offering incentives for those who carry out innovations on one side and permitting use in copyright content for interested individuals. Didier’s fan site can not be considered as a breach of the Copyrights of the BSS Corporation. This is because the fan site is not a perfect replacement of the interactive site created by BSS Corporation. The fan site created includes: daily match listings, BSS expert tipping data and a fan forum that allows fans to discuss and give their opinion and suggestions. It does not have the expert tipping competition and the fan tipping competition. It is different from that designed by the company and therefore not a perfect replacement. It does not infringe the rights of BSS Corporation since it does not entirely assume the functions of the interactive site designed by the firm7. While works may contain some other secondary or ultimate objectives, the work would as well contain an authentic piece of criticism and review for this defense to be relevant. The challenge in verifying whether copyrighted content was genuinely applied for criticism or review was shown in the TCN Channel Nine Pty Ltd v Network Ten Ltd where the court was compelled to take into account whether the Ten Network had infringed copyright by applying segment sourced from the Nine Network in the Ten Network’s (primarily) humorous program. The judges composing the panel at times differ in making a decision n whether applying specific segment constituted criticism or review. The motivation behind coming up with such work differ mainly depending on the creator. One famous response from authors concerning the reason as to why they come up with such works is that they enjoy the content. Criticism and review would compose a small proportion of fan fiction. Didier’s site does not criticize the interactive site designed by BSS Corporation. It is considered as a site designed entirely for enjoyment and not for commercial purpose. Only through the analysis of individual works would a person conclude whether this defense may be applicable, a task which is challenging due to the manner in which such cases have been concluded in Australian courts 8. Likewise, the defense of parody or satire as brought about by the copyright Amendment Act 206 (Cth), currently under Copyright Act 1969 (Cth) s 41A, would likely not be accessible due to the intent of the creators of not being for parody or satire. Similarly individual works would have to be taken into account but individuals can conclude with more certainty that this defense would normally not be accessible. Defenses to breach of copyright are also found in other jurisdictions. Other factors that are taken into account in defense against infringement of copyright include: The intention and character of the application, including whether such application is of a commercial nature or is for non-profit educational functions The nature of the copyrighted content The proportion of the content used in relation to the copyrighted work in general The effect of the application of upon the prospective market for or significance of the copyrighted work. Criticism, for instance, would not infringe copyright. There has been academic debate of all four issues as they relate to fan fiction. The precise status of fan fiction under this fair application exclusion again relies on the individual work, and the degree to which it is categorized under the four issues. Again, the challenge is not resolved since not many copyright infringement cases have been resolved in other nations. While fan fiction is not simply a precisely creative duplicate of canon works, it is established without considerable reference to already copyright content. Although one needs to take into account individual works individually, it can be concluded that infringement of copyright is present in various states9. Fan site and copyright under the economic/utilitarian theory The Economic/Utilitarian Theory A considerable concern of copyright is the economic rights accessible by copyright holders. A justification of the economic significance of copyright can be found in a speculative underpinning of copyright to enhance creativity by allowing sole economic rights for a particular period of time- the economic/utilitarian theory. The economic/utilitarian theory is one among several theories that explains the existence of intellectual property. However it is claimed to be the most common cited reason for the existence. The concept is to enhance creativity by allowing the creative individuals to exploit their creative output for a restricted period of time. The economic/Utilitarian theory puts the economic value of any work in form of copyright10. Fan site and the Copyright Owners’ Economic Rights The fan site created by Didier does not reduce the economic benefits of the interactive site designed by BSS Corporation. This is because the fan site does not assume the functions of the company’s interactive site. It is very different from the BSS Corporation’s site and therefore not a perfect replacement. It does not prevent the company from benefiting from their site. Then economic rights of the company are thus not breached. If the fan site does not appear to minimize the economic capabilities of copyright owners or itself generates money, this will tend to imply that the site does not agree with the economic/utilitarian theory of copyright. Various jurisdictions regard the economic aspect at different levels. In Australia the consideration is done at the end, when evaluating the damages. When evaluating the effect of the application of the potential market for or worth of the copyright work, comparable eventual remedies are accessible. If copyright is breached, a financial remedy is normally available to the copyright possessor. In Australia, this can assume the form of damages or an account of revenues, further damages may also be compensated. A standard relating to damages is restitutio in integrum - to put back the plaintiff in the Initial financial position. In case of the tort law, as if the tort had not taken place in contract. In case of contract performance as if the contract executed in copyright had not been violated. However, there is no perfect technique of estimating damages when copyright has been infringed. In our case above, there is no evidence of any damages caused to the company since fans will continue visiting their site. The features found in the BSS Corporation’s site are different from those of the fan site designed by Didier. The functions of the company’s interactive site will not be reduced. In practice, courts normally apply two techniques; the loss of profits method and the license fees approach The loss of profits method takes into account the ‘value of the plaintiff’s lost prospects to profit from the utilization of…[their] rights due to the dealings of the defendant’11. This technique takes into account of the circumstances from the point of view of the plaintiff; this must not be mixed up with the profits the defendant generated. In this case it is assumed that the profits the plaintiff may have generated had the defendant not breached the copyrights… [Is not] the same value as the defendant’s proceedings from the action. This issue has led to the debate as to whether such a site or fun fiction in general would lead to loss making, and if it does, what is the value of the loss made? It is claimed that fan fiction does not essentially lead to any loss of profits. Fan fiction writers or creators themselves do not purport to buy any less copyright content simply because they are engaged in fan fiction. If anything, creators of fan fiction appear to buy more works. One fun site creator even claimed that he bought more and more material for research purposes. Didier’s fan site does not prevent BSS Corporation’s site from making profits in a similar manner it was making before the fan site was created. The fan site thus does not breach the copyrights of BSS Corporation. It is also highly improbable that probable readers of fiction would desire fan fiction over canon to such a level that they would aggressively stop purchasing canon12. There are also challenges in assessing the amount of profits lost. In Autodesk Australia Pty Ltd v Cheung13, the evaluation of benefits lost was not difficult since the violated material was a perfect replacement of the original composition. The loss was calculated by estimating the value of the original material that was not purchased. This is not the case with the fan site created since it can not be considered as the perfect match or replacement of the original work since it serves a different objective. Unlike the case of Autodesk Australia Pty Ltd v Cheung, Didier’s case is different in that the fan site is not a perfect match or replacement of the BSS Corporations site. Since it is not possible to calculate the losses incurred by the firm as a result of the fan site, then Didier does not breach the copyrights of the company. Given no ideal substitutable invention, other methods of Estimating the lost profit lost may well be more expensive than the gains from the process. Furthermore, fan fiction is not classically sold but freely accessible, making precise numbers a challenge to estimate. The task of calculating the lost gains following a breach of copyright through a fan site may thus be considered to be difficult or even impossible14. Another technique for estimating damages is the licensing technique. This applies the evaluation of the losses in terms of license levy that the copyright holder did not charge as a result of infringement of their rights. This technique is still not suitable for a fan site for the same reason- fan site is not a suitable replacement for a canon. It can thus be concluded that Didier’s fan site does not breach the copyrights of the company in the sense that the loss incurred by the firm can not be calculated. Another financial remedy is a report of profits. This objective is the ‘restitution of Profits generated by the defendant from the breach of the plaintiff’s copy rights. This remedy is also a challenge as far as a fan site is concerned. Normally, fan fiction creators do not generate any finances from their effort. This is particularly true of fan fiction accessible on the internet; an example is the fan site. It is claimed that fan fiction is characterized as being generously accessible to all interested parties. An infringement of copyright may also warrant a copyright holder to be compensated for further damages. This award does not necessarily consider the financial loss experienced by the plaintiff or financial gain by the defendant, although any profit accrued to the defendant may be taken into account. Cases have always emphasized on the other issues accessible. In situations where estimation of the loss in financial terms has to be considered, then it is difficult to conclude a case of infringement of copyrights. It is difficult in this case to estimate the damages that a fan site would cause to the original copyright owner15. Financial consideration in Australian financial remedies is not different to the consideration of the fourth issue of fair use as per the law, which considers the impact of the application upon the probable market for or worth of the copyrighted material. This fourth issue is not taken into account in isolation. All the issues are to be analyzed and the results compared in order to evaluate the effect of copyright infringement. The market will not probably be harmed if the infringed work does not serve as a perfect replacement of the initial content. The fan site does not breach the copyrights of the Company on the basis of imperfect replacement. Conclusion It can be claimed that the fan site serves as free marketing for those copyright works upon which it is founded. It is well renowned that copyright puts two absolutely opposing ideas together. The two ideas are the granting of limited rights on one side, and the craving through this to advance further innovation and innovative works for the benefit of the general public. A similar dispute can be made on pure financial bases that granting limited domination rights is an essential evil for ‘attracting economic investment required in the facilitation of generation and allocation of the inventive work. Once a work has received copyright defense, the copyright holder is in a position to implement their rights as approved under statute. The law does not necessarily take into consideration the achievement of economic utilization as allowing the chance for the copyright holder’s solely to reasonably benefit16. If one of the intentions of copyright is to promote inventive activity through granting limited financial rights for duration of time, it would then emerge that those processes which would tend to raise the financial benefit that copyright holders can gain would also be optimistic and allowed. These would then be encouraged and promoted. The economic/utilitarian theory is a normally established theory for the continuation of copyright. It places significance on the financial rights of a copyright holder in making efforts to foster more inventive output. While fan site would be claimed to infringe copyrights its financial impact does cause a reasonable damage and arguably helps, copyright holders. It is thus feasible to conclude that fan fiction in form of a fan site and copyright may, at least on one stage, coexist17. Bibliography Copyright Act 1968 (Cth) Copyright Amendment Act 2006 (Cth) Autodesk Australia Pty Ltd v Cheung (1990) 17 IPR 69 TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2001) 108 FCR 235 Cohen, F, Dialogue on Private Property, 2000, 369 quoted in Edgeworth, B et al, Sackville and Neave Property Law- Cases and Materials, 7th ed, Chatswood, NSW : LexisNexis Butterworths, Drahos, P. (ed), 2000, Intellectual Property, Aldershot : Dartmouth Edgeworth, B et al, Sackville and Neave Property Law- Cases and Materials, 7th ed (Chatswood, NSW : LexisNexis Butterworths, 2004) Fitzgerald, A. & Fitzgerald, B. 2004, Intellectual Property in principle (Sydney : Lawbook Co,) Fisher,W. 2001, ‘Theories of Intellectual Property’ in Munzer, Stephen (ed), New Essays In the Legal and Political Theory of Property (Cambridge University Press, 2001), 168-173 quoted in Ricketson, Sam & Richardson, Megan Nadel, M S, 2004, ‘How Current Copyright Law Discourages Creative Output : The Overlooked Impact of Marketing’ 19 Berkeley Tech. L.J. 785 Ranon, C Z, ‘Honor among Thieves: Copyright Infringement in Internet Fandom’ (2005 2006) 8 Vand. J. Ent. & Tech. L. 421 Stendell, L, ‘Fanfic and Fan Fact: How Current Copyright Law Ignores The Reality Of Copyright Owner And Consumer Interest In Fan Fiction’ (2005) 58 SMU L. Rev. 1551 The Concise Oxford Dictionary of Current English 9th ed FANDOM page 487 (1995) quoted in McCardle, M, ‘Fan Fiction, Fandom, and Fanfare: What's All the Fuss’ (2003) 9 B.U. J. Sci. & Tech. L. 433, 435 Tushnet, R, ‘Legal Fictions: Copyright, Fan Fiction, and a New Common Law’ (1996 1997) 17 Loy. L.A. Ent. L.J. 651 Read More