Intellectual Property Law: Legal Problem Solving - Case Study Example

Intellectual property Law Student’s Name: Grade Course: Tutor’s name: Date: Introduction In Australia, just like in other multiple countries, intellectual property is recognised and protected with different laws. Copyright law is one such law, which recognise that authors and creators of original works have the moral and legal rights to make use of their creations without others taking undue advantage of the same. As such, the creator or author of an original work has the legal right to distribute, make copies and amendments to the work. Anyone who wishes to use the copyrighted work must contact the copyright owner. The scenario hereunder is a reflection of how people unknowingly contravene the copyright law. Scenario/Material Facts Chris has written music, performed and recorded the same as a solo artist, and jointly with his friend Al. Although the music is in public domain now, Chris is yet to put a notice of copyright in any of his work. Luckily, the 1968 Copyright Act of Australia does not require the owner of an original work to complete any formalities in order to become the copyright owner1. The fact that he (and in some cases with Al) owns the original creations of the music automatically means that he/they are the copyright owners. Interestingly though, it is best practise to place a copyright notice in his work, something that he has not done2. During one of Chris and Al’s recordings, they included the ‘first two bars of Waltzing Matilda’. Although the latter has become more of a national anthem in Australia, the fact that Chris and Al included it in recordings intended for commercial use is a gross violation of the copyright law. Now that Chris knows that they violated the law, he can either recall the distributed music and record new songs exempting the ‘Waltzing Matilda’ bit, or contact the person who owns copyright for the Waltzing Matilda and possibly pay him some royalty fees for the use of his work. The interactive music quiz game developed by Chris with help from his commissioned friend is also subject to copyright. The fact that Chris ended up giving it away to a local primary school, does not mean that the game does not have commercial potential in the future. As such, copyrighting the work would ensure that potential interested parties would have to contact him first before using it for commercial purposes. Interestingly, the copyright to the interactive music quiz game belongs to Chris alone, because the service input from his friend Simon was paid for. By receiving payments for his input, Simon transferred his copyright to Chris. Legal Issues Legal issues that arise in Chris’ scenario include copyright co-ownership with his friend Al, copyright infringement by the use of Waltzing Matilda in their recordings, and the possibility that Simon, the author of the interactive music quiz game could later claim copyright. Still the school where Chris gave away his interactive music quiz game could want to copy or reproduce the games in future. This then begs the question; under what legal grounds could they do so without infringing copyright? Pertaining to copyright co-ownership with Al, Chris would need to understand that the two of them have equal rights over songs they wrote, performed and recorded jointly3. Pertaining to songs written by Chris alone, and performed by Chris and Al, and sometimes Betty (Al’s girlfriend), Chris legally owns the wording of the songs, but copyright to the recorded songs would be shared amongst the performers4. Concerning the use of ‘Waltzing Matilda’ in Chris and Al’s music recordings, it is rather evident that the two artists infringed copyright by using another person’s song without their explicit authorization. In the 1968 Copyright Act5, the extent of Chris and Al’s infringement of the copyright law will be judged based on three considerations. They are - the extent of the infringing parties’ power to prevent copyright infringement; the relationship between the infringing parties and the copyright owner; and whether the infringing parties took ‘any reasonable steps to prevent or avoid’ infringing on the copyright of the aggrieved party. From the case scenario, it is rather evident that Chris and Al infringed on the copyright of ‘Waltzing Matilda’ based on ignorance. Aptly put, the two did not know about copyright and hence did not take any necessary measures to avoid doing the same. Since ignorance cannot be a defence in the law, the two would need to take remedial measures. Legally, Chris owns the copyright for the interactive music quiz game. Having written the computer program used to set up the music quiz game and having been paid for the same, Simon transferred his copyright to Chris as stipulated in section 35(5) of the 1986 Copyright Act6, which provides that the commissioning party should be regarded as the first copyright owner for artistic and literal works. Notably however, there exists a contrast between provisions of the Copyright Act and provisions contained in the Designs Act. In the latter, the copyright of a commissioned work belongs to the creator or author, unless otherwise stated7. The fact that Chris designed a music quiz game using facts extracted from the Canberra Times over a period of three months also indicates that he infringed on the newspaper’s copyright. Since copyright in materials published in newspapers is split between the publishers and the journalists8, Chris needed to contact either one of these entities in order to get authorization to use the published information. In case Chris faced difficulties in establishing or contacting the writer of the published content, the Australian Copyright Council advices that the media entertainment and Arts Alliance could have assisted in contacting the writer. Chris can however argue that his use of the published materials was for research purposes9, in which case he would have to prove that his use of the information published in the Canberra Times constituted fair dealing Pertaining to the copies of the music quiz game that Chris gave to the primary school, the school administration can only make copies in consultation with Chris, in accordance with the screenrights scheme, or after obtaining a relevant license10. The copies made should be educational purposes (which includes co-curricular activities), and should not be used for commercial purposes of whatever manner. Relevant Law Several laws are applicable in Chris’s case. Section 35 of the 1986 Copyright Act11 is especially relevant to the scenario since it addresses the issue of copyright ownership in ‘literary, dramatic, musical or artistic work’. This law settles three issues in Chris’s scenario: first, his right to own copyright in his written and recorded music; second, Al’s rights as a co-writer, and performer, and three, the infringement of copyright that occurred when Chris and Al used two bars of ‘waltzing Matilda’ at the beginning of one of their recordings. Section 14 (1) of the copyright Act is also relevant to Chris’s scenario, especially in relation to the use of the first two bars of ‘waltzing Matilda’. According to the law, infringement occurs when a person uses ‘either a whole or a substantial part’ of a copyrighted work. The extent of Chris and Al’s infringement of copyright will therefore be judged quantitatively. Interestingly however, the Copyright Act does not offer an exact definition of ‘substantial part’ as has been used in the legislation. This means that even the two bars of the song that Chris and Al used could still amount to infringement. Cases/ precedents Past cases involving infringement of copyright include SW Hart Co. Pty Ltd v Edwards Hot Waters Systems12 and Larrikin Music Publishing Ltd v EMI Songs Australia Pty Ltd13. Although SW v Hart relates to infringement of copyright in drawings, the prosecution has a burden to proof that there was sufficient similarity, causal connection and ‘substantial’ portion of copyrighted work in the accused party’s creations. In the ruling, the presiding judge stated that whether the reproduced qualifies as a substantial depends on its importance, recognition, and appreciation that other people have towards the artistic work and the artist who created it14. In the Larrikin v EMI case, the plaintiff accused EMI of using two bars of a different folk song without seeking permission or license from the copyright owner. During the case, it was argued that there was an undisputed causal connection between the two musical works, and objective similarity between the two identified parts of the songs. The prosecution however had the burden of proving that the two bars used from the earlier work amounted to a substantial part. In the ruling, the court stated that Larrikins copyright had indeed been infringed and hence awarded them damages. Policy The Australian copyright law is based on the government’s policy to help the citizenry create a powerful media industry, where artists can benefit from their creative content15. As such, the copyright law has ensured that artists benefit from royalties collected from different platforms where their literary work is being used. Judging by the strict copyright laws and the line of judgement given by courts, there seems to be a deliberate effort by legislators and members of the justice system to use copyright as a fence to guard intellectual property from threats that could diminish artists’ earnings. Applying the law to Facts The main facts in the scenario under review are that Chris has copyright over his solo compositions; Chris has joint copyright with Al in the compositions and recordings they did together; and that Chris and Al infringed on then copyright of ‘Waltzing Matilda”. As provided for in the Copyright Act (1968), reproducing Chris’s work or using it for commercial purposes without his express permission or license would amount to copyright infringement. Their joint authorship with Al is also provided for in the law whereby, both have equal rights for copyright, attribution, and integrity16. Infringing copyright on ‘waltzing Matilda’ calls for voluntary remedial actions by Chris and Al, failure to which, the aggrieved copyright owner may rightfully move to court to claim his rights. In the copyright law, ‘Waltzing Matilda’s’ owner can sue for the detention or conversion of all infringing copies, in which case he (the owner) could be granted remedies to cover for the damages caused by the publishing of the infringing work. Conclusion In my view, Chris still has a chance to remedy his infringing actions against the ‘waltzing Matilda’s’ owner. Since making a product recall is not a viable idea under the circumstances, contacting the infringed party and explaining the situation would be the more appropriate action to take. By contacting the infringed party, Chris (and his partner Al) will ensure that they plead their case, hence increasing the possibility that the aggrieved party would let them out easily without suing them for copyright infringement. Chris would also need articulate the non-commercial use of music quiz game given to the local primary school clearly to the school administration. Should anyone in the school seek to use the same for commercial purposes, Chris should make it clear that they must contact him for purposes of discussing the commercial aspect of using the games. Reasons The inclusion of the word ‘substantial’ in the copyright Act makes interpreting the law quite subjective. The fact that Chris now knows that he may have infringed on ‘Waltzing Matilda’s’ copyright gives me a reason to believe that avoiding the courts is the best option for Chris. After all, the courts could rule that the two bars of Waltzing Matilda that Chris and Al used in one of their recordings amount to copyright infringement. Although Chris and Al did not infringe on the law knowingly, they would still be liable for their actions because ignorance cannot be used as a defence in a court of law. Possible Areas for Law Reform Since presiding judges can interpret the law either objectively or subjectively, s14 (1) of the copyright Act should be considered for reform. Precisely, the word ‘substantial’ needs to be omitted and replaced with a more accurate term, which would aid in determine the quantitative or qualitative nature of work that constitutes infringement References Attorney-General’s department, How do you obtain copyright protection? ‘no formalities- including no registration’, Attorney-General’s Department, Canberra, 2009, viewed 15 February 2010, Australian Copyright Council Education – using AV materials, Australian Copyright Council- Information sheet G104v02, 2009, viewed 15 February 2011, < http://www.copyright.org.au/admin/cms-acc1/_images/17260606584d0032b719e99.pdf> Australian Copyright Council, Response to ALRC issues paper no. 11: Designs, Australian Copyright Council, Redfern NSW, 1993, viewed 15 February 2011, < http://www.copyright.org.au/admin/cms-acc1/_images/20972227924c97f8051741e.pdf> Australian Government, Copyright Act 1968-Act compilation- C2010C00476, Australian Government – ComLaw, Sydney, 2010, viewed 15 February 2011, http://www.comlaw.gov.au/Details/C2010C00476/Html/Text#param38 Australian Government, Copyright Act 1968-Act compilation- C2010C00476, Australian Government – ComLaw, Sydney, 2010, viewed 15 February 2011, Australian Government, Copyright, IP Australia- Australian government , Sydney, 2008, viewed 15 February 2011, Ben Eltham, The copyright cops, Inside Story- Current Affairs and Culture, 2010, viewed 15 February 2011, Copyright Office, Ownership of Copyright ‘who owns copyright?’ , Copyright Office –University of Melbourne, Melbourne, 2010, viewed 15 February 2011, Cornwallstodart, Copyright Infringement of a musical work: Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29, 2010, viewed 15 February 2011, Read More