The Australian Copyright Act 1968 - Essay Example

Name: Lecturer: Subject and Code: Date: Information Law: Case Analysis Introduction The Australian Copyright Act 1968 (Cth) protects copyright in original works as well as musical and artistic work, video or sound recording. In each case, copyright arises automatically once they are created or published. This essay examines a case analysis where the specific copyrightable content is determined, the basis of bringing an action against copyright infringement, the parties that can bring such action and the possible defences available to the defendant. The remedies available to the plaintiff are also examined. Central Legal Issues Based on the facts presented by the case, the central legal issues include determining whether Hal is likely to infringe the publisher’s copyright and whether Hal is likely to infringe the artist’s moral rights. Specific content which may be of concern Copyright Act 1968 protects the copyright of original work, including sound recordings, musical work, artistic work, films and video, computer software or literary and dramatic works. Therefore, any specific content falling within this specification is likely to be infringed1. In the case, after Hal interviews Lady G, he reproduces word for word as well as some juicy information on Lady G’s forthcoming wedding. In addition, Hal adds some footage of the video, which he however edits into 45 seconds clips that he joins together. Therefore, the specific content that needs concern and whose publications are likely to amount to breach of the copyright include; the footage of Lady G’s Video, the sound recording and possibly the verbatim reproduction of the interview as specified by Section 24 of the Copyright Law 1968 (Cth). In any case, copyright does not protect ideas, processes, procedures, principles or discoveries. Rather it only protects physical representations2. Hence, anything that is not recorded is not copyrightable. In this case, the word to word verbatim of the interview is not copyrightable. Such facts were demonstrated in the case Zeccola v. Universal City Studios Inc3. At this stage, the specific content of concern whose copyright would be infringed once reproduced includes the video footage and the sound recording. However, since the sound recording is inseparable from the video footage and therefore forms part of the video footage, it is also not copyrightable, as was held in the case Autodesk v. Dyason4. Section 21(1) of the Copy Right Law 1968 species that the reproduction or copying of the musical or literary work refers to the dramatic, literary or musical work will be deemed to have been reproduced if the sound recording or video is made of the work. Legal action relating to that content Section 31(i) of the Copyright Act 1968 gives the copyright owner the exclusive right to reproduce, publish, perform, make an adaptation or communicate to the public about the original work. Therefore, any reproduction of publishing without the copyright owner’s permission would necessitate a legal action5. Based on the facts presented by the case, when Lady G released her new album “Geisha,” Big G Enterprises Inc made a series of music videos of the album. The videos were later uploaded onto Lady G’s YouTube channel. Hence, since the works were published online, it means they were copyrighted6. This implies that if Hal’s article is published, then it is likely to infringe on the copyright of the publisher of the video footage. In this case, a legal action may be brought against Channel 13, as specified by Section 36(i) of the Copyright Act 1968, which states that the copyright in musical, literary or artistic work shall be infringed by the person who is not the copyright owner and who uses the work in any way that does not comply with the copyright. Therefore, the most likely legal action that can be brought against Channel 13 is copyright infringement. The parties whom may bring an action of infringement of the copyright Publisher Section 30 of the Copyright Act 1968 specifies that the copyright owner is the person who in respect to doing a particular act is the prospective owner of the copyright. In this case, the copyright belongs to the publisher. Since Lady G’s works have been published online by Big G Enterprises Inc, the video rights belong to Big G Enterprises, the copyright is vested on Lady G’s videos’ publisher and so, Lady G has not right to contest on this ground. However, in the case, it is critical to understand that the video footage that Hal used was from Lady G’s YouTube Channel. YouTube has standing to bring legal action against Channel 13. Section 115 of the Copyright Act 1968 specifies that the copyright owner may bring an action of infringement of the copyright. Based on the facts of the case, it is therefore clear that YouTube, who is the publisher, has the right to take legal action for copyright infringement. The Artist Since the work is copyrighted, then it means it also attracts moral rights granted on the artist of the work given the legal assumption that the author is linked with their creative work and hence there is need for some rights to be accorded to them7. Lady G’s moral rights could be protected indirectly by her recording company. In any case, even though the publisher, who owns the copyright, can bring the legal action, Lady G can also bring the action for infringement on her moral rights as provided for by Section 119(b) of the Copyright Act 1968. The Australian Copyright Law recognises three types of moral rights. The first includes the right of attribution as provided for by section 193(1) of the Copyright Act 1968, which specifies that when creative work is published, the artist must be reasonably recognised in some way. In this case, the law recognises Lady G’s moral rights since she is the artist. The second right protects the artist against false attribution, in that someone else cannot claim to have published the work. The third moral right is of ‘integrity,’ which protects the right of the artist from having their work treated in a manner that is derogatory or that prejudices their reputation8. In the case, Hal adds some footage of music video extracted from Lady G’s YouTube Channel to his article. He downloads four most popular videos that he edits into 45 seconds clips, which he then joins together. Based on this fact, it can be argued that it is possible that Hal treated Lady G’s work in a derogatory manner. As demonstrated in the case law Meskenas v ACP Publishing, moral rights will arise in the court in the context of copyright action9. In the case law, the court held that since the artist had no copyright, she however had moral rights that had been breached. The moral right of integrity with regard to an artist’s work is enshrined in Section 195AI of the Copyright Act 1968 that protects an artist’s musical work from being subjected to derogatory treatment. The court will often interpret “derogatory treatment” of musical work as any action that is “prejudicial to the artists honour and reputation.” These facts were demonstrated in the Australian case law Perez & Ors v Fernandez10, where the court held that in order to demonstrate that musical or creative work has been subjected to “derogatory treatment,’ it must be established whether the work was prejudicial in nature and whether it caused harm to the artist’s reputation or honour11. These facts were also demonstrated in the case Confetti Records v Warner Music UK Ltd, where the court held that the plaintiff failed to convince the court that adding some words to a music track was prejudicial12. In which case, the artist’s right to object to derogatory treatment of the work will not exist if the artist is merely aggrieved with how her work has been treated. In the case however, even though Hal edited some of the four best videos into 45 seconds clips which he then joins together, it cannot be ascertained whether this has the potential to be prejudicial. It can therefore be concluded that Hal has not breached Lady G’s moral rights. Defenses to copyright infringement The main defense to copyright infringement is ‘fair dealing.’ Section 42(i)(a) of the Copyright Act 1968 (Cth) specifies that an act will not be termed as constituting infringement of copyright if it is fair dealing for the purpose of reporting news13. In this case, fair dealing provides Hal with the privilege to use the video footage without the copyrighter’s consent. In determining whether the privilege should exist, judges will determine the purpose of the copying, for instance, fair dealing may be awarded for news purposes as was established in the case Religious Technology Center v. Pagliarina14. Other factors include the nature of the original, the amount of the portion copied and the effect of copying on the market of the original. These facts were established in the case Hustler Magazine, Inc. v. Moral Majority Inc, where the court held that fair dealing could be awarded if the copying did not affect the sale of the work15. Therefore, since Hal intended to use the video footage for news purposes, he stands to benefit from the defense of fair dealing.   Possible remedies which could be awarded against channelthirteen.com As provided for by Section 116 of the Copyright Act 1968, YouTube may seek an injunctive order against infringement, demand restitution for unfair enrichment, demand damages or demand for measures to recover reputation. Section 119(b) of the Act gives Lady G the exclusive rights of action as the copyright owner and is therefore entitled to the same remedies. In this case, Lady G may also demands for such aforementioned measures16. However, in the event that copyright infringement and infringement of moral rights indeed happened, the rights holders may ask for injunctive relief against the infringement to stop the article from being published or using the footages in future17. Indeed, damages may also be demanded for from the publisher of the article according to Section 116D(b) of the Act, where benefit can be accrued by the defendant as a result of publishing the article. In this case, the plaintiff may recover actual damages as well as the defendant’s profits. Conclusion Based on the facts presented by the case, Hunter is not correct in his assessment. Further, the publication of Hal’s content will not expose Channelthirteen.com to the risk of legal action. This is since Hal intended to use the video footage for news publication (fair dealing), in which case, Channelthirteen.com will not be treated as having infringed the copyright. Further, Hal has not breached Lady G’s moral rights, since the video footage he edited stands to pass the “derogatory” test, as it was not prejudicial to Lady G’s reputation. Works Cited APEC. Remedy for Copyright Infringement, 2004. 3 Oct 2013, Australian Copyright Council, A Case Involving the Moral Right Of Integrity, 2013 Fitzgerald, Brian, Fuping Gao, Damien O'Brien and Sampsung Shi, Copyright Law, Digital Content And The Internet In The Asia-Pacific, Sydney University Press: Sydney, 2008. Frohlich, Anita. "Copyright Infringement In The Internet Age—Primetime For Harmonized Conflict-Of-Laws Rules?," Berkeley Technology Law Journal, 24.1, (2009); 851-896 Radack, David."Remedies for Copyright Infringement." Journal JOM, 50.5 (1998): 51 Rosenblatt, Betsy. Copyright Basics, 1998. Stim, Rich. Summaries of Fair Use Cases. Stanford University Libraries and Academic Information Resources, 2013. 3 Oct 2013 Case Laws Autodesk v. Dyason (No.2) (1993) 111 ALR 385 Confetti Records v. Warner Music UK Ltd [2003] EMLR (35) 790 Perez & Ors v Fernandez [2012] FMCA 2 Hustler Magazine, Inc. v. Moral Majority Inc., 606 F. Supp. 1526 (C.D. Cal. 1985), Meskenas v ACP Publishing Pty Ltd [2006] FMCA 1136 Religious Technology Center v. Pagliarina, 908 F. Supp. 1353 (E.D. Va. 1995) Zeccola v. Universal City Studios Inc. (1982) 46 ALR 189 Read More