The Analysis of the Copyright Act of 1968 - Essay Example

ADVICE TO HAL a) The Copyright Act of 1968 gives BIG G Enterprises Inc the right to publish reproduce and communicate the music to the public to which Hal has no rights.1 According to Section 29(1)(a) of the Copyright Act any musical work or its variant forms of the given work will be deemed published if it is availed through sale or other means to the public.2 The music will be availed on Channel database by Hal and hence it may be deemed to have been published. This is copyright infringement even if Hal were to warn the users of his website that the material on the website may infringe someone else’s copyright. According to Section 36(1) of the Copyright Act copyright with regard to musical works may be violated if a person not having the legal rights of ownership of copyright and having no express permission of the holder of copyright publishes or sells the musical work.3 BIG G Enterprises Inc has all the rights of ownership of the music that Hal wants to publish and hence express permission ought to have been sought in order to avoid copyright infringement. Sections 45 to 47 A of the Copyright Act sets out exceptions to the infringement of copyright but these do not apply to Hal. Even if Hal were to give a disclaimer on the website as to possible copyright infringement, it is clear that he does not have the defence of lack of knowledge or suspicion of infringement.4 Given that BIG G Enterprises Inc has the ownership of the music they may claim damages due to infringement of copyright. Given that Hal has not received permission from BIG G Enterprises Inc to publish the work Hal and Channelthirteen.com may be liable in copyright infringement. b) Under the Copyright Act 1968 (Cth) ideas are not protected under Australian Copyright law. Ideas and concepts in themselves are not protected by copyright and neither are facts information and systems. Methods and techniques are also excluded from copyright protection. However copyright protects the way in which information is expressed. The duty of confidentiality is expected in many professional relationships. A duty of confidence comes into play in instances in which a person gains access to information of a confidential nature in circumstances which would make it unfair for the owner of the information if such information were disclosed to the public Fair Trading Act 1989. The legal issue in this instance is that Hal was offered a chance to interview Lady G and in the process he gained access to private confidential information about her wedding. Coco v Clark set out the relevant legal aspects which have to be taken into account in the determination of liability in the instance of breach of confidentiality. For a case in breach of confidentiality to succeed it must be shown that the information has the necessary quality of confidence about it; it was imparted in circumstances importing an obligation of confidence; and there must be unauthorized use of the information to the detriment of the party communicating it. Confidential information is information received in circumstances which give rise to an obligation of confidence. This is tested by the question of whether a reasonable person having access to such information would have realized that the given information in confidence would have published the information. Lady G had kept her wedding information confidential and had only disclosed it to her close friends and relatives. It may be reasonably concluded that the information was meant to be confidential and therefore publishing it would be in breach of confidentiality. Confidential information must not be in the public domain, need not be absolutely secret5 and the information must not be stale. While the information was not absolutely secret since it was known to close friends and family, it will still be deemed confidential Trade Practices Act 1974 (Cth). Confidential information law will apply in instances of acquisition of information in a surreptitious or illegal manner as was held in Franklin v Giddins [1978] Qd R 72. Given that Hal acquired the information illegally from Lady G’s phone without her permission he has acquired the information illegally. While the defence of just cause or excuse exists, it only applies in the instance of disclosure of iniquity, disclosure in public interest and where public interest outweighs duty.6 c) Part III of the Copyright Act 1968 protects literary works from being infringed upon by unauthorized persons. Literary works may be defined as anything which includes compilations or tables which are expressed in symbols and figures.7 An interview would fit this definition of a literary work and hence the interview may be deemed copyrighted material under Section III of the Copyright Act. Hal holds the copyright of the interview which he conducted and therefore has the right to publish, perform, reproduce and communicate its contents to the public in its various forms or adaptations he deems fit. On the other hand, given that he is reproducing the interview word for word and not paraphrasing it, Lady G may claim joint ownership of the said interview.8 There will be a case for direct infringement of copyright given that the interview is composed substantially of the words of Lady G.9 In G. A. Cramp & Son Ltd v Frank Smythson Ltd [1944] AC 32910 it was held that what determines the substantiality of a literary work is the quality as opposed to the quantity. If a part of a literary work is reproduced yet the original work lacks any originality will not be deemed to have fulfilled the requirement of substantiality as set out in the Copyright Act and hence will not be actionable.11 If the work forms a material or important part of the plaintiff’s work they may claim infringement.12 It is important to take into account whether the posting of copyright materials is going to interfere with the original work Zomba Production Music (Australia) Pty Ltd v Roadhouse Productions Pty Ltd (in liq) [2001] FCA 1526.13 In this scenario Hal intends to use the verbatim words of Lady G, her you tube videos and make a mash up. It may be assumed that his shortened video clips in the mash up were edited in order to include material that is most appealing to persons interested in Lady G. Through offering shortened versions of these videos in his mash ups on Channelthirteen.com he is likely to reduce the sales numbers on other digital media such as iTunes Canadian Private Copying Collective v. Canadian Storage Media Alliance, [2004] 2 F.C.R. 654. In such an instance publishing the interview with the mash up would make Hal and Channelthirteen liable in copyright infringement directly since the shortened you tube videos would be deemed substantial reproduction of copyrighted material. Hal may claim copyright ownership of the interview on the grounds that the interview was given willingly by the plaintiff. Lady G consented voluntarily to an interview by Hal and therefore it is assumed that she consented to the contents of the interview being published as was held in Re Equity Access Pty Ltd and Westpac banking Corp (1989) 16 IPR 431. That Hal reproduced the interview word for word does not make the voluntary consent any less relevant since the interview and its format was rightfully Hal’s. Hal may only be liable to damages on charges of defamation if he were to assert things which were untrue14. However, the decision on paraphrasing or producing the interview word for word is Hal’s to make. According to the Copyright Act 1968 persons that music works may be excluded from the law of copyright if they are used for transformative use. Transformative use refers to the use of pre-existing works in the creation of something novel and different from the original works. Mash-ups remixes and sampling are usually deemed transformative and are thus excluded from copyright infringement law. However, for the most part mash ups are only allowed if fair dealing may be proved. The Copyright Act 1968 covers the circumstances under which a person may make a mash up of copyright-protected material without the permission of the copyright owner. If the mash up is intended to make a genuine satire or parody of the video or images. If there is a commercial element to the distribution and creation of the mash ups then the use of the mashed up images would be illegal and actionable under copyright law Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490. Fair dealing for the purpose of review criticism parody or satire is not considered an infringement of copyright. In Perez v Fernandez it was held that a mash-up which contained only a few words mixed into the song was prejudicial to the artist’s moral integrity. Copying a part of a video or DVD requires permission unless special exceptions are applicable. A person is allowed to copy part of a video or DVD into any electronic from as long as it is for domestic or private use Scootmore Holdings Pty ltd v Bidvest Australia Ltd [2001] QSC 329. Copyright owners have the right to control the reproduction and communication of their material to the public. Infringement of copyright is the use of material without obtaining permission in circumstances when no exception is applicable. Copyright may be infringed through the printing or distribution of copies of material from a website without implied or express permission. Uploading, downloading or sharing of unauthorized copies of movie album or software is also copyright infringement. Hal has made a mash up of the original works and hence Channelthirteen.com may claim the right to publish the interview mash-up. However Channelthirteen.com is a business enterprise and hence publishing it would be deemed a commercial enterprise. The exception of using the mash up for parody or satire does not apply and Hal and Channelthirteen.com would be liable for damages to BIG G enterprises Inc which has the ownership rights to the material and videos. Fair dealing may not be applicable in this instance given that the moral integrity of the artist is not included in the mash up Milwell Pty Ltd v Olympic Amusements Pty Ltd (1999) 43 IPR 32. Hal is interested in creating a mash up which includes Lady G’s interview, her you tube videos and information on her wedding which is supposed to be confidential information. Hal would be infringing on copyright and would violate the moral integrity of the artist and hence would be in infringement of copyright15. Hal is violating the copyright of Lady G by making use of a substantial part of their videos which only Lady G and BIG G Enterprises have a right to reproduce and communicate to the public. Channelthirteen.com does not have implied or express permission to publish the videos obtained from YouTube. Uploading the videos on the website would be an infringement of copyright and hence Hal and his employer would be liable to pay damages. The Copyright Act asserts that copyright may be infringed by a party which authorizes a person to infringe on the copyright of another without express or implied permission of the owner.16 In the determination of whether there has been an infringement due to authorization by a party, the instance of infringement must be shown to have a causal relationship with the infringement Data Access Corporation v Powerflex Services Pty Ltd (1999) 45 IPR 353. In this instance Channelthirteen.com would be liable if a causal connection would be established in terms of the company authorizing Hal to publish his mash-up without authorization from Lady G or BIG G Enterprises Inc. University of New South Wales v Moorhouse and Angus & Robertson is a good example of the principle of authorization in practice17. In this instance it was held that the UNSW library which provided access to a photocopier to learners and other persons without proper restrictions against copyright infringement was akin to the authorization of learner infringement of copyright.18 The presiding judge asserted that authorization of copyright may be inferred in instances in which the person that controls the means to prevent or allow copyright infringement avails it to other persons when he has reasonable suspicion that such action may result to copyright infringement; and does not take necessary measures to ensure that the means are employed only for legitimate purposes19. With regards to authorization it is not a must to show formal authorization of infringement since even an implication of authorization is enough.20 With regards to Hal and head of content Gator, Gator has the means through being the manager of content of allowing Channethirteen.com to be used in the infringement of copyright through publishing Hal’s mash up. If Gator were to allow Hal to make use of Channelthirteen.com website and does not take into account issues of copyright infringement he would be liable21. Given that Gator is a content manager he would have the necessary legal knowledge to determine what would be deemed an infringement of copyright if published. BIBLIOGRAPHY Articles, Books and Reports: Arthur Hoyle, Updated Section on Intellectual Property from the forthcoming Kluwers International Encyclopedia of Laws 2006, Canberra, University of Canberra. Clark, Eugene; Cho, George; and Hoyle, Arthur, E-Law for Business and Government, (2003) Canberra, University of Canberra. Fitzgerald, Anne & Fitzgerald, Brian, Intellectual Property in principle, (2004) Sydney, Lawbook Co. Case Law: Australian Broadcasting Corporation v Lenah Game Mats Pty Ltd [2001] HCA 63. Coco v A N Clark (Engineers) Ltd [1969] RPC 41. Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39. Data Access Corporation v Powerflex Services Pty Ltd (1999) 45 IPR 353. Dixon Investments Pty Ltd v Hall (1990) 18 IPR 490. Franchi v Franchi [1967] RPC 149. Golden Editions Pty Ltd v Polygram Pty Ltd (1996) 61 FCR 479. Ithaca Ice Works Pty Ltd v Queensland Ice Supplies Pty Ltd [2002] QSC 222. Jefferys v Boosey (1854) 4 HLC 815. Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273. Microsoft Corp v Blanch [2002] FCA 895. Milwell Pty Ltd v Olympic Amusements Pty Ltd (1999) 43 IPR 32. Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414. Nationwide News v Copyright Agency Limited (1996) 65 FCR 399. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191. Re Equity Access Pty Ltd and Westpac banking Corp (1989) 16 IPR 431. Redrock Holdings Pty Ltd v Hinkley (2001) 50 IPR 565. Saltman Engineering Co v Campbell Engineering Co (1948) 65 RPC 203. Sony Music Entertainment v CEL Music [2002] FCA 193. Smith Kline & French Laboratories (Aust) Pty Ltd v Department of Community Services and Health (1990) 22 FCR 73. University of New South Wales v Moorhouse and Angus & Robertson (1975) 133 CLR 1. Zomba Production Music (Australia) Pty Ltd v Roadhouse Productions Pty Ltd (in liq) [2001] FCA 1526 Legislation: Copyright Act 1968 (Cth). Copyright Amendment (Digital Agenda) Act 2000 (Cth). Fair Trading Act 1989 (Qld). Trade Practices Act 1974 (Cth). Read More