BUS209 Marketing Law

ELECTRONIC ASSIGNMENT COVERSHEET

Name/ Number

Unit Code Unit Unit name name Date Date Assignment name Tutor

Lim Wanyi

3170 9002

Siti Aisah

31684203

Ng Siok Yee (M (Mandy)

3168 4221

Sia Chen Yian

3169 0443

Koh Yen Ye Yee (J (Jordan)

3154 8196

BUS209 Market Marketing ing and Adver Advertis tising ing Law 22 Nov Novembe emberr 2011 2011 Group Assignment (Topic 7 on on Copyrights) Anil Du Dube

Student’s Declaration: Except where indicated, the work I am submitting in this assignment is my own work and has not been submitted for assessment in another unit.

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This submission complies with Murdoch University's academic integrity commitments. I am aware that information about plagiarism and associated penalties can be found at http://www.murdoch.edu.a http://www.murdoch.edu.au/teach/plag u/teach/plagiarism/. iarism/. If I have any doubts or queries about this, I am further aware that I can contact my Unit Coordinator prior to submitting the assignment. •

I acknowledge that the assessor of this assignment assignment may, for the purpose of assessing this assignment: reproduce this assignment and provide a copy to another academic staff member; o and/or submit a copy of this assignment assignment to a plagiarism-checking plagiarism-checking service. This web-based o service may retain a copy of this work for the sole purpose of subsequent plagiarism checking, but has a legal agreement with the University that it will not share or reproduce it in any form. •

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I have retained a copy of this assignment.

I will retain a copy of the notification of receipt of this assignment. If you have not received a receipt within three days, please check with your Unit Coordinator.

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I am aware that I am making this declaration by submitting this document electronically and by using my Murdoch ID and password it is deemed equivalent to executing this declaration with my written signature. If you can, please insert this completed form into the body of each assignment you submit. Follow the instructions in the Unit Information and Learning Guide about how to submit your file(s) and how to name them, so the Unit Coordinator knows whose work it is. Unit Code: BUS 209E Marketing & Advertising Law - Group Report on Copyright

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1.

Introduction

The symbol © and expressions like ‘All Rights Reserved’ are associated to copyrights protection. However, there is no requirement in Australia and many other countries to attach such expressions for copyright protection due to international copyright treaties. It is essential to see copyright as recognition for creators of literary, dramatic, musical, or artistic work. Copyright allows creators fair economic rewards like royalties for their skill and labour in producing works of culture, entertainment, and knowledge – protecting against any unauthorized dissemination. 2.

Copyright Act and International Copyright

In Australia, the Copyright Act 1968 (Cth) is a federal legislation that sets out the copyright law, applicable throughout Australia. The Berne Convention1 formed in 1886 is the most important international treaties, establishing a unified international system for equal protection of a work regardless of origins, outlining obligations and provisions for protection and enforcement of copyrights. Other

applicable international

conventions

in Australia

include

the

TRIPS

Agreement2, World Intellectual Property Organisation (WIPO) Copyright Treaty, WIPO Performances and Phonograms Treaty, the Rome Convention3, the Geneva Convention4, or bilateral agreements with countries like United States5. As such, as a result of the agreements, formal registration is eliminated and a work automatically gains copyright once it is created.

1

Berne Convention for the Protection of Literary and Artistic Works.

2

World Trade Organisation, Agreement on Trade-Related Aspects of Intellectual Property Rights.

3

International Convention for the Protection of Performers, Producers of Phonograms and

Broadcasting Organisations. 4

Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their

Phonograms. 5

Australia-United States Free Trade Agreement.

Unit Code: BUS 209E Marketing & Advertising Law - Group Report on Copyright

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3.

Concepts of Copyright

The most important concept to understand is, unlike patents, copyright does not protect the idea but the way the idea is expressed and quality does not matter. Justice Farwell held in Donoghue v Allied Newspaper Ltd 6 that “it is not until it is… reduced into writing, or into some tangible form, that you get any right to copyright at all…” regardless how brilliant or clever the idea may be. Copyright Act provides that work must be in a material form, where it is defined as “any form (whether visible or not) of storage of the work…”7 Next, a work must be created by a qualified person, and to be original in order to attract protection.8 A qualified person is an Australia citizen or a person resident in Australia.9

Due to obligations under the various international agreements, the

definition is extended to include foreigners. Justice Petersen refers originality as a work that “…must not be copied from another work – it should originate from the author…”10 and this approach became a standard in determining the originality. Works of little labour or skill does not amount to having copyright.11 Originality dictates sufficient independent application of skill, effort, and judgment in its creation.

6

[1937] 3 All ER 503.

7

Copyright Act 1968 (Cth), s10.

8

Copyright Act 1968 (Cth).

9

Copyright Act 1968 (Cth), s32(4).

10

University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601.

11

Refer to IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14; Also refer to Feist

Publications, Inc. v Rural Telephone Service Company, Inc. [1991] 499 U.S. 340. Unit Code: BUS 209E Marketing & Advertising Law - Group Report on Copyright

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4.

Copyrighted Works

4.1

Original Works

Original literary works span across many different categories from storybooks to product labels. However, the ‘sweat of the brow’ theory12, had been rejected in recent years thus many databases are not valid for copyright protection. 13 Trade names and slogans must be substantial and is strictly limited by the Exxon14 principle, so trademarks law is a better protection. Copyright Laws includes both object codes and source codes too. 15 Original dramatic works - plays, film scripts, and choreographic shows – designed to be performed and may overlap with literary works. Original musical works refers only to musical scores, not the lyrics. Original artistic works includes artworks, craftsmanship, artefacts, photographs and buildings. Copyright for an artefact may overlap the copyright for the craftsmanship of the artefact itself. Copyright for the originality of artistic works need not be excessive as long as it is original. 4.2

Subject Matter Other than Works

Other than covering original works, Copyright Act is also extended to any publications like sound recordings, films, television or radio broadcasts and published editions of works as stated in Part IV. Sackville J16 supports, that it protects the skill, judgement and labours that goes into the planning of the publications.

12

Established in Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd [2002] FCAFC 112.

13

Refer to IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14; Also refer to Telstra

Corporation Ltd v Phone Directories Company Pty Ltd [2010] FCA 44. 14

Exxon Corporation v Exxon Insurance Consultants Ltd [1981 3 All ER 24.

15

Copyright Act 1968 (Cth), s10.

16

Refer to Nationwide News Pty Ltd v Copyright Agency Ltd [1996] 65 FCR


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4.3

Rights and ownerships of Works

Ownership of a works goes to the qualified persons like authors or creator of the works. In organisations, it must be established if the creator is an employee or contractor assigned to do the works in the course of his employment17. Ownership of the works can also be transferred or sold, with written agreement, to other party – exclusive license or jointly owned. However, copyright also has an expiry date, spanning a period of 2518 to 7019 years for different categories of works. Works can be protected by the creator’s right of integrity from any derogatory treatment that might affect the creator’s reputation20. 4.4

Infringement of Copyright

Copyright can only be infringed if the work is substantially copied leading a reasonable person to associate the work to another party21; affecting its business or reputation. Remedies might include injunction or damages. 5.

Direct Infringement

5.1

Cummins V Vella (2002) FCAFC 218

Mr Vella is a famous painter who has produced many works of daisies and irises. Inspired by Vella, Cummins produced paintings similar to the works of Vella’s. The similarities lie in the style and colours whereas the differences lie with size and number of flowers. Vella sued for a breach of copyright and succeeded but Cummins succeeded the appeal to the Full Court of the Federal Court. The Court held that copyright only protects the expression and not the idea itself. As flowers are common objects to be drawn, there will definitely be some form of similarities between different artists. However, small differences will be sufficient to show that there were no infringements of copyright. 17

Redrock Holdings Pty Ltd & Hotline Communications Ltd v Hinkley [2001] VSC 91 Copyright Act 1968 (Cth) s96 19 Copyright Act 1968 (Cth) s33(2) 20 Snow v The Eaton Centre (1982) 70 CPR (2d) 105 21 As established in Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14 18


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5.2

Elwood Clothing Pty Ltd V Cotton On Clothing Pty Ltd (2008) FCAFC 197

Elwood sued Cotton On for a breach of copyright of artistic work as the latter had produced T-shirts which were similar to theirs but with different content. The Full Federal Court held that Cotton On had copied a substantial amount of the designs of Elwood. An injunction was granted to prevent Cotton On from selling the T-shirts which had similar designs to Elwood. Elwood:

Cotton On:


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6.

Indirect Infringement

6.1

The Polo/Lauren Company v Ziliani Holdings [2008] FCA 49

Ziliani purchased and imported Ralph Lauren garments into Australia for sale. Polo/Lauren Company held the copyright of Ralph Lauren ‘polo player logo’ in Australia. Polo/Lauren sought an injunction as Ziliani had infringed Polo/Lauren’s copyright by importing garments which bore the polo player logo without its permission. Ziliani argued that it had not infringed copyright. The court held that there was no copyright infringement. The polo player logo was a “non-infringing accessory” in the context of S44C as it was a “label” embroidered onto the imported garment. In addition, S77 of the copyright act explain that the polo player logo was a “corresponding design” as it was a “shape or configuration” embroidered in the garments. 6.2

Roadshow Films Pty Ltd v iiNet Ltd (No 3) [2010] FCA 24

34 major motion picture studios including Universal, Warner Bros etc alleged iiNet was authorising copyright breaches. iiNet users download films which infringed copyright through a peer to peer system known as BitTorrent which iiNet does not have control over and no involvement in. Court held iiNet not liable for authorising copyright breach for three reasons. Firstly, iiNet only provide access to the internet and not the ‘means’ of infringement unlike the Kazaa and Cooper case where they provided the ‘means’. There is a copyright infringement in the use of BitTorrent and not the provider. Secondly, iiNet did not have relevant power to prevent copyright infringement. It is, therefore, unreasonable to argue that iiNet did not take adequate and sufficient step to prevent it. Lastly, there was no evidence that iiNet sanctioned, approved or countenanced the copyright infringements.


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7.

Conclusion

Copyright protects an idea expressed in a fixed form such as in a recording or in writing - focusing on literary, dramatic, musical and artistic works as well as other subject matter like films, sound recordings, broadcasts, and published works. Copyright is a form of property and can be transferred. Like Patent and Trademark, Copyright is very important in businesses, particularly industries dealing with music, books, computers and advertising. Businesses must be mindful to avoid any direct and indirect copyright infringements. As a whole, there is no international copyright, they are protected by national laws of each state and they are similar. The original works is protected as soon as it is expressed in a tangible form without needing formal registrations. Berne Convention (1886), Universal Copyright Convention, UCC (1952), World Intellectual Property Organization, WIPO (1967) and The Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS Agreement) (1994) of the World Trade Organization (WTO) are all establishment in the whole to help protect Copyrights internationally. In a nutshell, as long as the intention of copying is not for any commercial exploitation and be able to meet the term "Fair Use" – violation of the Law of Copyright will be dismissed.

(word count: 1,441 excluding footnotes)


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Here is a summary works may be protected under copyright law: ( Extracted from Intellectual Property Office of Singapore (IPOS – 16 Nov 2011) Literary works such as

Written works/Books Articles in journals or newspapers

Lyrics in songs Source codes of computer programs

Dramatic works such as

Scripts for films & drama Choreographic scripts (as applied) for shows or dance routines

Musical works

Music (i.e melody)

Artistic works such as

Paintings Drawings Sculptures Engravings Photographs

Buildings or models of buildings Works of artistic craftsmanship. e.g. unique pieces of designer furniture

Published editions of literary, dramatic, musical or artistic works

Typographical arrangements of a published work

Sound recordings

An aggregate of sounds recorded on tapes, CDs, on digital files, etc

Films

An aggregate of visual images and sounds recorded on tapes, video compact discs, digital files, etc

Television and radio broadcasts

Broadcasts by way of television or radio

Cable programmes

Programmes (visual images and sound) included in a cable programme service sent by means of a telecommunication system

Performances

By performers such as musicians, singers and comedians


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References Australia Copyright Council. (2007). An Introduction to Copyright in Australia. Retrieved from: http://www.copyright.org.au/ Australia Government: Attorney-General’s Department. Copyright and Classification Policy . Retrieved from: http://www.ag.gov.au/www/agd/agd.nsf/Page/Copyright Australian National University, Intellectual Property Materials, Nationwide News Pty Ltd v Copyright Agency Ltd [1996] 65 FCR. Retrieved from: http://law.anu.edu.au/Itlaw/5_CopyrightInfring/CaseSummaries5.htm Copyright Act 1968 (Cth). AustLII. Retrieved from: http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/ Copyright Act 1968. ComLaw. Retrieved from: http://www.comlaw.gov.au/Details/C2011C00750/Html/Text#_Toc303865018 Employer Ownership of Software Confirmed, Redrock Holdings Pty Ltd & Hotline Communications Ltd v Hinkley [2001] VSC 91. Retrieved from: http://www.xyz.au.com/members/intelligence/details.cfm?info_id=459&sub_cat=37 Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24. FEDERAL COURT OF AUSTRALIA (4 February 2010). Retrieved fr om: http://www.scribd.com/doc/26343177/Judgment-Summary-Roadshow-v-IiNet-2010FCA-24-2 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14. High Court of Australia (11 March 2004). Retrieved from: http://www.ipsofactoj.com/international/2005/Part02/int2005(2)-014.htm Intellectual Property Office of Singapore (IPOS). (2011). About Copyright . Retrieved from: http://www.ipos.gov.sg/leftNav/cop/ Janus Corporate Solutions Pte Ltd. (2011) Guide Me Singapore, An Introduction to Copyright Law in Singapore. Retrieved from: http://www.guidemesingapore.com/incorporation/trademarks/singapore-copyrightlaw-introduction Unit Code: BUS 209E Marketing & Advertising Law - Group Report on Copyright

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Mallesons Stephen Jaques. (2008). Article on Ralph Lauren copyright case against importer . Retrieved from: http://www.mallesons.com/publications/marketAlerts/2008/Documents/9302731w.htm Middletons. (2009). Article on Cotton On caught copying . Retrieved from: http://www.middletons.com/news/news.asp?id=168 Moral Rights, Snow v The Eaton Centre (1982) 70 CPR (2d) 105 . Retrieved from: http://www2.derby.ac.uk/ostrich/The_law_of_the_music_industry/Moral %20rights/page_15.htm Singapore Academy Of Law (2011). Intellectual Property Law . Retrieved from: http://www.singaporelaw.sg/content/iplaw2.html Thomson Reuters (Professional) Australia Limited (2011). The fine line between inspiration and copyright infringement . Retrieved from: http://www.findlaw.com.au/articles/1041/the-fine-line-between-inspiration-andcopyright-in.aspx World Intellectual Property Organization (2011). Copyright and Related Rights. Retrieved from: http://www.wipo.int/copyright/en/ World Intellectual Property Organization (2011). Berne Convention for the Protection of Literary and Artistic Works. Retrieved from: http://www.wipo.int/treaties/en/ip/berne/index.html World Trade Organization (2011). TRIPS (trade-related aspects of intellectual property rights material). Retrieved from: http://www.wto.org/english/tratop_e/trips_e/trips_e.htm


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BUS209 Marketing Law

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