Copyright
Part III - Literary, Dramatic, Musical, Artistic
Subsistence of copyright 存续
Protected categories: Part III Copyright Act ‘LDMA’
s 32 - ‘LDMA works’
Literary works 文学作品- s 10(1) books, plays, poems, etc…
a) a table, or compilation, expressed in words, figures or symbols (database); and
b) a computer program or compilation of computer programs (software)
Ø Fairfax Media Publications Pty Ltd – Not protect ‘single word and titles, headlines’
Dramatic works 戏剧作品 s 10(1)
a) a choreographic show 舞蹈表演 or other soundless show 无声表演
b) a scenario 场景 or script 剧本 for a cinematograph film 电影
Ø Zeccola – infringed, ‘ideas for a film, themes, plots and common materials’ significant
details have been taken, overlap in situations, characters and location, and even though
specific dialogue was different.
Musical works 音乐作品
• Sound 声音, melody 旋律, rhythm 节奏 & harmony 和声, score 配乐
• Do NOT include lyrics 歌词 – ‘literary work’
Artistic works 艺术作品- s 10(1)
a) a painting 绘画, sculpture 雕塑, drawing 素描, engraving 版画 or photograph 摄影
b) a building 建筑 or a model of a building 建筑模型
c) a work of ‘artistic craftsmanship’ 艺术工艺 (require ‘aesthetic quality’ 审美品质)
Ø ‘circuit layout’ – separate regime.
Ø Burge v Swarbrick – NO. ‘the drawing on the yacht ‘artistic craftsmanship’?’ it is
functionally based not artistically based. Art is unconstrained by functional considerations.
‘Objective assessment’.
Ø Roland Corporation – YES. ‘logos’ ‘digital material’ received the same protection as artistic
works created using a pen and paper.
Ø Elwood Clothing v Cotton On – YES. ‘arrangement/layout of text’ on T-shirts, sufficiently
detailed or sufficiently complex to amount to a particular expression. Elwood intended to
give the T-shirt s a particular look and feel, was taken by cotton on. The
arrangement/layout is identical, significant enough part was taken, a matter of expression.
, Design / copyright overlap ss 74 – 77A Copyright Act 1968
• Copyright lost – ‘registration’ or ‘industrial application’ of ‘corresponding design’
(*Except for works of ‘artistic craftsmanship’ s 77)
Material form ‘expression’
‘Reduced to writing or some other material form’ – s 22(1)
• s 10(1) ‘material form’ - any form of storage whether visible or not, can be digital (Roland).
Must be physically embodied (in some ways)
Ø Donoghue v Allied Newspapers – must be idea + material expression
Ø Creation Records Ltd – not protected. A ‘scene’ for a photograph (they didn’t copy that
original photograph; they took independent photo. The scene as an idea, the photograph of
it was the expression. ‘Originality’ s 32(1) + Authorship
Requirements -*IceTV
1. ‘originated’ by an author (not copied) - Acohs
2. an actual person / human - Telstra Corp, and contributed ‘independent intellectual effort’ or
‘sufficient effort of a literary nature’ - IceTV
3. no requirement as to the level of creativity, literary merit or inventiveness (for LDMA works) -
IceTV
Ø G A Cramp – not original - making a list or putting several lists together
Connection with Australia / Berne Convention
• Foreign works –Berne Convention / principle of reciprocity in Part 8 Copyright Act 1968
• Author – must be a ‘qualified person’ when the work was made, or work was first published
in Australia – s 32(4) consider: type of work, published or unpublished.
Duration
LDMA works = life of author + 70 years
LDM works made public after author’s death = 70 years after first publication
Ownership – s 35
Basic rule s 35(2) – held by the creator (author)
Collaborative work of joint authorship – s 10(1) two or more authors, contribution NOT separable
ss 78-83 (separate parts made by a separate people - separable)
Options to exploit:
• Use it
• Assignment – no further control over the use of the work
• Licensing – in whole / part – divisible, by time period / geographical location, etc.
Assignment s196
Copyright - personal property - s 196(1)
Assignment - must be in writing + signed – s 196(3) partial assignment – ss 196(2) and 30
• owner transfers ownership + control of the copyright to the assignee (*excluded moral rights)
• Future copyright can also be assigned, e.g., in recording contracts - s 197(1)
licensing?
Owner gives ‘permission / right to exploit’ the copyright, to do what would otherwise infringe
copyright.
• express / implied – express licence binds grantor’s successors in title – E.g., computer
programme – implied licence to use but not access source code
Part III - Literary, Dramatic, Musical, Artistic
Subsistence of copyright 存续
Protected categories: Part III Copyright Act ‘LDMA’
s 32 - ‘LDMA works’
Literary works 文学作品- s 10(1) books, plays, poems, etc…
a) a table, or compilation, expressed in words, figures or symbols (database); and
b) a computer program or compilation of computer programs (software)
Ø Fairfax Media Publications Pty Ltd – Not protect ‘single word and titles, headlines’
Dramatic works 戏剧作品 s 10(1)
a) a choreographic show 舞蹈表演 or other soundless show 无声表演
b) a scenario 场景 or script 剧本 for a cinematograph film 电影
Ø Zeccola – infringed, ‘ideas for a film, themes, plots and common materials’ significant
details have been taken, overlap in situations, characters and location, and even though
specific dialogue was different.
Musical works 音乐作品
• Sound 声音, melody 旋律, rhythm 节奏 & harmony 和声, score 配乐
• Do NOT include lyrics 歌词 – ‘literary work’
Artistic works 艺术作品- s 10(1)
a) a painting 绘画, sculpture 雕塑, drawing 素描, engraving 版画 or photograph 摄影
b) a building 建筑 or a model of a building 建筑模型
c) a work of ‘artistic craftsmanship’ 艺术工艺 (require ‘aesthetic quality’ 审美品质)
Ø ‘circuit layout’ – separate regime.
Ø Burge v Swarbrick – NO. ‘the drawing on the yacht ‘artistic craftsmanship’?’ it is
functionally based not artistically based. Art is unconstrained by functional considerations.
‘Objective assessment’.
Ø Roland Corporation – YES. ‘logos’ ‘digital material’ received the same protection as artistic
works created using a pen and paper.
Ø Elwood Clothing v Cotton On – YES. ‘arrangement/layout of text’ on T-shirts, sufficiently
detailed or sufficiently complex to amount to a particular expression. Elwood intended to
give the T-shirt s a particular look and feel, was taken by cotton on. The
arrangement/layout is identical, significant enough part was taken, a matter of expression.
, Design / copyright overlap ss 74 – 77A Copyright Act 1968
• Copyright lost – ‘registration’ or ‘industrial application’ of ‘corresponding design’
(*Except for works of ‘artistic craftsmanship’ s 77)
Material form ‘expression’
‘Reduced to writing or some other material form’ – s 22(1)
• s 10(1) ‘material form’ - any form of storage whether visible or not, can be digital (Roland).
Must be physically embodied (in some ways)
Ø Donoghue v Allied Newspapers – must be idea + material expression
Ø Creation Records Ltd – not protected. A ‘scene’ for a photograph (they didn’t copy that
original photograph; they took independent photo. The scene as an idea, the photograph of
it was the expression. ‘Originality’ s 32(1) + Authorship
Requirements -*IceTV
1. ‘originated’ by an author (not copied) - Acohs
2. an actual person / human - Telstra Corp, and contributed ‘independent intellectual effort’ or
‘sufficient effort of a literary nature’ - IceTV
3. no requirement as to the level of creativity, literary merit or inventiveness (for LDMA works) -
IceTV
Ø G A Cramp – not original - making a list or putting several lists together
Connection with Australia / Berne Convention
• Foreign works –Berne Convention / principle of reciprocity in Part 8 Copyright Act 1968
• Author – must be a ‘qualified person’ when the work was made, or work was first published
in Australia – s 32(4) consider: type of work, published or unpublished.
Duration
LDMA works = life of author + 70 years
LDM works made public after author’s death = 70 years after first publication
Ownership – s 35
Basic rule s 35(2) – held by the creator (author)
Collaborative work of joint authorship – s 10(1) two or more authors, contribution NOT separable
ss 78-83 (separate parts made by a separate people - separable)
Options to exploit:
• Use it
• Assignment – no further control over the use of the work
• Licensing – in whole / part – divisible, by time period / geographical location, etc.
Assignment s196
Copyright - personal property - s 196(1)
Assignment - must be in writing + signed – s 196(3) partial assignment – ss 196(2) and 30
• owner transfers ownership + control of the copyright to the assignee (*excluded moral rights)
• Future copyright can also be assigned, e.g., in recording contracts - s 197(1)
licensing?
Owner gives ‘permission / right to exploit’ the copyright, to do what would otherwise infringe
copyright.
• express / implied – express licence binds grantor’s successors in title – E.g., computer
programme – implied licence to use but not access source code
