The Copyright Act 1968 and Australian Consumer Law - Assignment Example

Law of Communication (Case Study) Name of Student Institution Date Has Sam breached any Codes of Ethics in relation to the collection of information for, and the content of, his article ‘Carey update – not her first brush with the law’? Social media is an important as well as integral part of marketing communications industry. It has increasingly become fluid, dynamic and powerful in its potential to capture people’s sentiment and often shape conversations among individuals, about brands and even beyond. As such, there exists a level of ambiguity as to what should be considered to an ethical behaviour when involving in social media either in a personal or business capacity1. Sam’s participation in social media especially in relation to collecting information has to be consistent with the social media code of ethics otherwise he will be practicing in contravention of the very code of ethics. In deed, Sam breached the code of ethics when collecting the information for his posts. First, the conduct of Sam that involves tracking down the phone number of Carey’s mother is illegal. In addition, he goes ahead to pretend to be Carey’s doctor. This is impersonation which is not acceptable under law. Although, the information may be accurate since it came from Carey’s mother, Sam failed to act professionally when collecting this information. Sam also failed to adhere to the aspect of confidentiality when collecting information2. This is personal information which I believe Carey’s mother would not share with Sam if she knew his really identity. Sam knew the information was confidential but he went ahead to get it by purporting to be Carey’s doctor. This is completely acceptable and in deed punishable before law. Sam is not being fair and respectful when collecting information about Carey and eventually posting it on social media. According to the social media code of conduct and ethics, a person should never post information considered to be misleading, malicious or even unfair about other persons3. As much as he would like to attract his funs, he should not violate Carey’s right to privacy. He consistently infringes on Carey’s privacy without her consent in the name of selling his ideas. It is completely unethical to collect of publish other person’s information without his or her due consent4. Therefore, it is ethical for Sam always be authentic, constructive as well as respectful when collecting and posting information on social media. Social media code of ethics also requires users to think before the make any posts. This is because social media is a public forum that can easily be accessed by many people across the world. Thus, posting information that humiliates others is not acceptable. The article ‘Carey update – not her first brush with the law’ is really demeaning to Carey. In addition, Sam does not acknowledge the source of his information in his upload. This is an indication that Sam does not adhere to the social media code of ethics and therefore he has breached the Codes of ethics as far as information collection and posting are concerned. Has Tom breached Sam’s rights under the Copyright Act 1968 (Cth) in publishing on his blog the article ‘Carey and I – An affair to remember’? In your answer, discuss any defences that might be available to Tom and what remedies might be available to Sam. Tom’s conduct of publishing on Sam’s blog was actually in breach of his rights under the Copyright Act 1968 (Cth). According to Section 31(1)(a) of the Copyright Act 1968 copyright in original work is deemed to have occurred if a person reproduces the work in a form of material, publishes the work, conducts the work publicly, adapts the work and communicates it to the public5. The first edition publication by Sam can be considered to be his original work which Tom had no idea about. Tom simply purports to be the original publisher of the article without consulting Sam and he goes ahead to edit Sam’s work which amounts to breach of Sam’s rights. Thus, Tom reproduced Sam’s original content of work in material form which he eventually published and exposed to the public through online blog. As indicated in Section 32(2)(a) of the Copyright Act 1968 copyright subsists in the original literary, dramatic, musical or artistic work upon its publication6. Therefore, Sam remains the owner of the copyright of his articles and Tom contravened both Section 31 and 32 of the Copyright Act 1968. Relevant to this case is the Section 36(1) of the Copyright Act 1968 which states that copyright in works is deemed infringed by an individual who, not being the owner of the copyright, and having not been authorized buy the owner the copyright, performs or authorizes the performance of any act contained in the copyright7. As indicated earlier, the original work belonged to Sam and Tom reproduced the same work in a different version without authority from Sam. This implies that Tom infringed copyright in Sam’s work which is an offense prosecutable under the Federal Court of Australia. However, when the matter is brought before court it would be necessary to determine, subject to subsection (1) the extent (if existed) of Sam’s power to prevent Tom from performing the act and the nature of their relationship8. Tom could be defensive in court as stated in Section 115(3) that although infringement of copyright did occur, at that particular time he was not aware, and did not have reasonable grounds for suspecting that his action constituting an infringement was actually an infringement of Sam’s copyright. This means that Sam would not be entitled under this section to any damages against Tom as per the infringement, but would only be entitled to account of profits related to the infringement9. However, subject to the Copyright Act 1968, Sam being the owner of the copyright might bring an action against Tom for infringing the copyright. The court could grant an injunction (subject to terms the court thinks appropriate) and damages or an account for profits. In addition, where the court is satisfied that an infringement of copyright did occur, and upon assessing damages for the infringement, Sam might be awarded additional damages considered appropriate in this particular circumstances10. Has Sam committed misleading and deceptive conduct under section 18(1) of the Australian Consumer Law in relation to his offer of a set of steak knives for new subscribers? Consumers in Australia have various protections as well as redress options that depends on their area of residence or where they purchase their products. These variations give inconsistent signals to consumers in regards to their rights and responsibilities. It also implies that consumers could be treated inconsistently in relation to the very issues of consumer protection11. In this scenario, Sam promises all new subscribers a set of steak knives only to be told that they are out of stock upon signing up to the website. This is being misleading and deceptive to his customers12. This is in relation to Section 18(1) of the Competition and Consumer Act 2010 which states that; “A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive”13. Sam’s publication was well intended and was in form of a notice implying that it is applicable to this section of the Consumer Law in Australia. This is unfair practice and is a violation of consumer rights and protection. Despite knowing that he has cash flow problems, Sam goes ahead and posts a notice that attract new subscribers to his website. This in itself is misleading as the new subscribers are convinced that upon signing up to the website they will get a free set of steak knives which is not the case. The new subscribers are deceived when they yare told that the steak knives are out of stock. According to Commonwealth of Australia consumers may seek compensation for loss caused by the supplier due to failure to adhere to consumer guarantees14. Under the Australian Consumer Law consumers have equal protections as well as expectations concerning business conduct irrespective of their location in Australia. Likewise, businesses have equal obligations and responsibilities irrespective of their area of operation in Australia concerning providing what they guarantee consumers15. Thus, by Sam acting in that manner means that he does not leave to spirit of Australian Consumer Law and commits an offense that is punishable before law. Sam has demonstrated a major failure with his service delivery since reasonable individuals could not have subscribed to the website if they knew that Sam lacked the potential to offer them free steak knives16. Sam can also be said to have represented himself falsely in a misleading way to the new subscribers. He actually caused damages to these new subscribers because they did not have the intention to access Sam’s website. Although he was reacting to Tom’s action of infringing his copyright, it was wrong to post a misleading notice on his websites simply to attract new subscribers so as to draw more attention to his online magazine17. Therefore, Sam’s actions were in contravention of Section 18(1) of the Competition and Consumer Act 2010 in Australia. References Australian Competition & Consumer Commission, (2010). Australian Consumer Law: what you need to know. Australian Competition and Consumer Act 2010. Act No. 51 of 1974 as amended. Australian Copyright Act 1968. Act No. 63 of 1968 as amended. Chapple, S. (2010). The New Australian Consumer Law: An Overview of Key Changes. Commonwealth of Australia, (2009). An Australian Consumer Law: Fair markets – Confident consumers. Commonwealth of Australia, (2010). Consumer guarantee: A guide for businesses and legal practioners. Communication Council, (2010). Best Practice Guide: Social Media Code of Conduct. Quinn, M. J. (2005). Ethics for the information age. Boston: Pearson/Addison-Wesley. Read More