1 Copyright in Australia 3 Copyright and the Internet 4

Copyright protects authors and creators from unauthorised reproduction or adaptation of original creations such as

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  books,
  
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  computer programs,
  
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  scripts,
  
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  paintings,
  
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  sculptures,
  
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  drawings,
  
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  photographs,
  
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  music,
  
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  film,
  
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  video,
  
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  broadcasts and the
  
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  choreography of a performance.
  

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  copy,
  
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  publish,
  
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  perform,
  
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  broadcast,
  
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  adapt (for example, a screenplay from a novel),
  
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  sell,
  
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  license or
  
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  import copyright protected creations.
  

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  Stallman’s concerns about use of this term.
  

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  Attorney General’s department A Short Guide to Copyright – http://www.law.gov.au/www/securitylawHome.nsf/AllDocs/DDE9E530E5D5ADD6CA256B8900079356?OpenDocument;
  
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  Australian Copyright Council’s Information Sheet An introduction to Copyright in Australia –http://www.copyright.org.au/PDF/InfoSheets/G010.pdf; and
  
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  World Intellectual Property Organisation’s Basic Notions of Copyright and Related Rights –http://www.wipo.org/copyright/en/activities/pdf/basic_notions.pdf.
  

1.1. Copyright in Australia

Amended by Copyright Amendment (Digital Agenda) Act 2000

1.2. Copyright and the Internet

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  typical website content will generally constitute a number of different copyright works in the form of
  
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    original literature (including computer programs),
    
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    dramatic,
    
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    musical,
    
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    artistic works,
    
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    sound recordings,
    
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    films,
    
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    broadcasts,
    
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    cable programs and
    
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    adaptations of the above (including compilations);
    
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  copyright owner enjoys an exclusive right to reproduce or to authorise another to reproduce, their work on to or from a website;
  
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  owner enjoys exclusive right of communication to the public literary, dramatic, musical, and artistic works and sound recordings, films and broadcasts (s 31(1)(a)(iv) Copyright Act).
  

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  only covers communication in the electronic domain
  
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  does not create an exclusive right of communication in the tangible print environment; and
  

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  copyright is unlikely to exist in a URL

  (see Exxon Corp v Exxon Insurance Ltd [1982] 1 Ch 119 - held a single invented word e.g ‘Exxon’ could not be subject to copyright, applying this to domain names it is unlikely a court will find copyright exists in a domain name. this does not matter as there are other ways of protecting URLs – see Domain names Part 2 – Disputes of the these course notes).

  
  

1.3. Existence of copyright

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  Copyright comes into existence automatically in relation to an original creation in Australia or in a country whose nationals are entitled to copyright protection in Australia.
  
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  Copyright in unpublished works does not begin to run until they are published.
  
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  No registration of copyright is required, protection is automatic. There is no register to search to ascertain if material is copyright protected.
  

1.4. Term of protection

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  for life of the author
  
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  plus 70 years from year of author’s death or 70 years from year of first publication (s 33 Copyright Act, see also ss 93, 94).
  
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  published edition of book is protected for only 25 years after first publication of edition (s 96)
  

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  period of copyright protection extended to 70 years in
  
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    European Union and UK (European Union Directive on Harmonising the Term of Copyright Protection),
    
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    US (Sonny Bono Copyright Term Extension Act).
    
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  US-A Free Trade Agreement : extended by 20 years in Australia
  

1.5. Exceptions to Copyright (not ‘rights’?)

1.5.1. Fair dealing

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  research or study,
  
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  criticism or review,
  
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  reporting of news and
  
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  professional advice given by a legal practitioner or patent attorney
  

Rules are provided to determine what is fair dealing in respect of

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  research and study (ss 40-43 Copyright Act)
  
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  newly created right of communication to public (ss 103A-C Copyright Act).
  

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  Following US-FTA (why?)
  
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  Federal AG’s Dept – no
  
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  further limited exceptions
  

1.5.2. Educational institutions and libraries (“Statutory licence”)

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  digitise printed material
  
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  reproduce and communicate reasonable proportion of digital material for same purposes as permitted in printed environment (see Part VB Copyright Act).
  

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  published literary work
  
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    (excluding a computer program (s 135ZE) or
    
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    electronic compilation such as a database) or
    
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  published dramatic work in electronic form
  

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  10% of the words in the work or,
  
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  if divided into chapters, one chapter.
  

1.5.3. ‘Technical processes’ and ‘temporary copies’

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  is not infringement of copyright
  
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  provided making of communication is not infringement
  
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  this exception covers browsing and certain types of caching (for example, by a software browser on a user’s PC) (ss 43A and 111A Copyright Act).
  
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  unclear whether exception applies to hypertext linking, framing, or caching by a proxy server.
  

1.5.4. Computer software

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  developing interoperable products,
  
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  security testing,
  
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  error correction and
  
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  making back-up copies do not infringe copyright (ss 47B-47F).
  

1.6. Copyright infringement

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  unauthorised access,
  
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  duplication,
  
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  storage,
  
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  transmission and
  
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  concealing of copyright works.
  

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  scanned into a file server connected to the Internet,
  
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  uploaded onto the Internet via a network,
  
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  downloaded into a hard drive,
  
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  sent by email or
  
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  printed to hard copy.
  

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  an original work, and
  
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  a substantial part is reproduced without authority
  

Infringement will not occur if:

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  the unauthorised use of the work fits within the above exceptions; or
  
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  a license from the copyright owner can be implied in the circumstances.
  

1.7. Penalties for copyright infringement

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  an injunction,
  
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  damages (including aggravated or exemplary damages) and
  
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  an account of profits (s 115 Copyright Act).
  

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  manufacture or possession for purposes of sale and distribution of infringing works;
  
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  tampering with electronic Rights Management Information (RMI)

  (information attached to or embodied in digital material that identifies material, author or copyright owner, or terms of use) or

  
  
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  dealing in material whose RMI has been tampered with; and
  
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  manufacture and dealing in ‘circumvention devices’ (circumvent technological measures employed by owners to protect material) for purpose not a permitted purpose (s 132).
  

1.8. General comments

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  you may freely buy then sell same book,
  
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  but cannot copy contents of entire book without copyright permission
  

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  If employee creates original work for employer, as general principle (subject to exceptions) employer owns copyright in work created
  

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  you do not own work
  
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  unless creator formally assigns their copyright to you
  
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    assignment must be in writing
    
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    signed by or on behalf of creator
    

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  joint (a work produced by two or more authors) or
  
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  divided eg unless otherwise assigned,
  
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    newspaper has copyright ownership of work created by journalist and published in newspaper,
    
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    but journalist retains copyright ownership re publication in book or film.
    

2. Licensing of Copyright

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  Ownership of copyright in material may be unclear:
  
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    physical ownership of a work…
    
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    does not automatically confer copyright ownership
    
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  User accessing material on Internet must recognise:
  
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    when permission from copyright owner is required and
    
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    when a license to exercise the copyright should not be implied.
    
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  A copyright owner who
  
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    places material on Internet
    
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    without notifying user of any RMI or use restrictions
    
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    is likely to be giving an implied license to user to download or print
    
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  A website provider may
  
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    license software used in website to third parties
    
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    where it has right to license software
    

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  website provider or employee developed software in course of employment, or
  
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  relevant software development contract confers right to license or sub-license use of software to third parties.
  

3. Test for ISP Liability

ISP liable only if authorises copyright infringement,

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  extent (if any) of ISP’s power to prevent doing of act concerned;
  
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  nature of relationship between infringer; and
  
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  whether the ISP took reasonable steps to prevent or avoid the infringement.
  

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  little or no control over most copyright material not directly hosted on their servers (material to which they merely provide Internet connectivity), and
  
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  no relationship with person who places material on such sites
  
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  correspondingly limited liability
  

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  greater control over websites on their own servers and
  
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  need to consider reasonable steps to avoid authorisation liability for such sites
  (ss 39B, amended by Copyright Amendment (Digital Agenda) Act 2000 (Cth), and s 112C).
  

4. Moral Rights

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  rights relating to creator’s reputation and creativity associated with work.
  
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  separate from economic rights such as right to reproduce
  
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  apply to authors of material on websites whose work is protected under Copyright Act.
  

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  right of attribution of authorship (s 193 Copyright Act)
  
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  right not to have authorship falsely attributed (s 193AC
  
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  right of integrity of authorship (s 193AI).
  

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  apply to individuals (s 190),
  
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  are not transferable (s 195AN) and
  
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  exist for same period as copyright of the published material (s 195AM).
  

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  standing only for individual author to sue if breached
  
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  if economic right breached, publisher also has standing
  

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  not attributing creator, in whole or in a way that is not a ‘reasonable form of identification’ (s 195) that is ‘clear and reasonably prominent’ (s 195AB);
  
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  falsely attributing the work to someone other than the creator;
  
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  treating work in a derogatory way (s 195 AI), that is materially distorting, mutilating or altering in such a way it is prejudicial to author's reputation (s 195AJ)
  
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  a dealing with a work that that has been subject to derogatory treatment such as reproducing the work (s 195 AI).
  

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  Australian Copyright Council’s Moral Rights Information Sheet
  http://www.copyright.org.au/PDF/InfoSheets/G043.pdf
  
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  OzNetLaw Factsheet
  http://www.oznetlaw.net.au/facts.asp.
  

5. Copyright Amendment (Digital Agenda) Act 2000 (Cth)

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  came into force on 4 March 2001
  
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  updates the law to ensure copyright extends to a full range of new media.
  

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  ensure efficient operation of relevant industries in online environment;
  
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  provide reasonable access and certainty for end users of copyright material online;
  
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  ensure that cultural and educational institutions can access copyright material online on reasonable terms (s 3 CADA).
  

Given changes created by CADA, Government reviewed legislation within three years of commencement (in 2003).

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  Overtaken by FTA
  

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  The new right of communication to the public – This is the most significant change and allows owners to control how their work is electronically transmitted and made available online. It is technology neutral and applies to literary, musical, artistic and dramatic work, as well as film and broadcast material available online. It also affords copyright protection to these types of online materials.
  
  
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  Exception to the owners right to communication – Generally most of the existing exceptions were extended to the digital environment, including fair dealing and the copying of 10% of an electronic text for research or study. Exceptions for libraries and archives has been broadened, including allowing the copy and electronic transmission of a work provided it has been requested by a user for research or study purposes and is not otherwise reasonably available; and making material available to the public in electronic form on a computer on the institution’s premises that does not allow electronic reproduction (e.g copying to a disk) or communication (e.g email). Lastly existing statutory licenses held by educational institutions authorising breach of copyright now extends to the digital environment.
  
  
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  Limitation of liability of ISPs – See section 3.
  

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  Department of Communication, Information Technology and the Arts Fact Sheet about CADA
  http://www.dcita.gov.au/Article/0,,0_1-2_1-4_13287,00.html
  
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  ACT Department of Education, Youth and Family Services Overview of the Act –http://www.decs.act.gov.au/policies/pdf/Copyright_Amendment.pdf
  
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  Australian Law Online’s Outline of CADA http://www.law.gov.au/agd/seclaw/CopyrightAmendmentAct2000.htm.
  

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  Bolster anti-circumvention
  
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  Increase penalties
  
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  Safe harbour rules as in US
  
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  Patent changes
  
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  Extend term by 20 years
  

6. Anti-circumvention in Australia

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  to control distribution and use of works, owners increasingly embedding access and copy protection mechanisms in digital works.
  
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  circumvention of access controls often infringes copyright, and paves way for dissemination of protected material
  
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  permissibility of such technologies is controversial, no easy way of reaching balance between holders’ right to have work adequately protected and right of consumer to freely use legitimately acquired material.
  
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  Copyright Amendment (Digital Agenda) Act 2000 (CADA) contains provisions to criminalise devices for purpose of ‘circumvention, or facilitating circumvention, of any effective technological protection measures’
  (now Part V Divison 2A of the Copyright Act).
  
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  similar to its US predecessor, the DMCA (see below).
  

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  importation and manufacture of circumvention devices and circumvention services (s 116A Copyright Act),
  
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  removal or alteration of electronic rights management information (s 116B)
  
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  commercial dealings with works whose electronic rights management information is removed or altered (s 116C).
  

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  commercially distributing
  
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  importing copy of a work
  
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  communicating copy to public or
  
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  using a copy, knowing electronic rights management information removed or altered without permission of copyright holder (s 116C, s 116B)
  

6.1. Case Study: Sony Computer Entertainment v Stevens

Found: 'mod-chips' installed on Playstation consoles to circumvent copy protections do not breach new provisions of Copyright Act as amended by CADA because:

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  device did not prevent actual copying of games
  

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  mod chips avoid authentication process, allowing pirated versions of game to run
  
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  but chips do not ‘prevent or inhibit infringement of copyright’, since actual ‘infringement of copyright’ occurs when game is copied, not when played.
  

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  intervened as amicus curae (friend of the court)
  
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  argued chips not have ‘limited commercially significant purpose or use, or no such purpose or use, other than circumvention’, since also worked to overcome Sony’s regional protection measures – a legal purpose
  
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  However, Fed Court did not deal with this issue
  

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  playing is not copying
  
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  temporary copies in RAM etc are OK
  
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  has other purpose (regional coding bypass)
  

7. Anti-Circumvention in the United States

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  most comprehensive reform of United States copyright
  
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  seeks to update law to reflect copyright concerns of Digital Age
  

DMCA is divided into five titles:

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  Title I, ‘WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998,’ implements the WIPO treaties.
  
  
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  Title II, the ‘Online Copyright Infringement Liability Limitation Act,’ creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities.
  
  
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  Title III, the ‘Computer Maintenance Competition Assurance Act,’ creates an exemption for making a copy of a computer program by activating a computer for purposes of maintenance or repair.
  
  
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  Title IV contains six miscellaneous provisions, relating to the
  
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    functions of the Copyright Office
    
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    distance education
    
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    exceptions in the Copyright Act for libraries and
    
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    for making ephemeral recordings
    
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    “webcasting” of sound recordings on the Internet
    
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    the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures
    
    
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  Title V, the ‘Vessel Hull Design Protection Act,’ creates a new form of protection for the design of vessel hulls. (Extracted from http://www.loc.gov/copyright/legislation/dmca.pdf).
  

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  anti-circumvention provisions affect way software engineers, computer scientists, and computer security specialists work
  

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  how librarians and educational institutions acquire new works,
  
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  how Internet users can protect their privacy, and even
  
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  how journalists can report on stories involving technical protection measures.
  

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  copyright holder can turn traditionally permissible access to or use of digital content
  
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  into a civil violation.
  

Electronic Frontier Foundation (EFF) noted DCMA also seriously inhibits encryption research, as current provisions are too narrow to cover all legitimate research methods

DMCA and pitfalls:

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  detailed outline of Act and chief provisions.
  http://www.loc.gov/copyright/legislation/dmca.pdf
  
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  http://www.eff.org/IP/DMCA/ -
  full version of legislation, other resources, hosted by Electronic Frontier Foundation, consumer rights group opposed to many applications of DMCA. 1998 American legislation is one of most widely discussed and controversial laws in the. gives sweeping protection to copyright holders by making almost all copyright circumventions criminal offences
  
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  http://www.chillingeffects.org/anticircumvention/faq.cgi –
  detailed FAQ page about DMCA;
  
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  http://anti-dmca.org/faq_local.html
  Anti-DMCA homepage – problems associated with DMCA
  

7.1. Case Study: United States v Elcomsoft

7.1.1. Background

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  Russian software company ElcomSoft became the defendant in the first federal criminal prosecution under the DMCA’s anticircumvention provisions.
  
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  The Adobe eBook Reader enables electronic books to be read, moved between computers, backed up, printed, copied and to be read aloud through a text to speech feature. A publisher of a particular electronic book can disable any or all of the functions provided by the Adobe eBook Reader, which is usually done to protect the intellectual property in the book.
  
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  Dmitry Sklyarov, an employee of Russian software programmer ElcomSoft, designed the “Advanced eBook Processor”, which enables the user of an Adobe eBook Reader to disable restrictions that the publisher of a particular electronic book might have imposed. Among other things it meant that a reader using the Advanced eBook Processor could make copyright content available for unlimited duplication and distribution.
  
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  ElcomSoft sold the Advanced eBook Processor over the Internet. About 20 copies were sold worldwide, including nine in the United States. Adobe became aware that ElcomSoft had developed the Advanced eBook Processor and contacted ElcomSoft asking that they cease and desist from manufacturing and selling the software program. ElcomSoft refused and Adobe then alerted the United States Government who charged ElcomSoft with trafficking in, and offering to the public, a software program that could circumvent technological protections on copyright material.
  

7.1.2. Arguments at trial

Instructions by judge:

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  jury had to agree not only that ElcomSoft broke law,
  
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  but did so willfully,
  as conscious violation of DMCA anti-circumvention provisions
  

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  no intention of doing anything improper when it created a program to provide eBook customers with more options for using content they purchased.
  
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  ‘ElcomSoft believed at the time it was creating a program that would allow legitimate users of eBooks more flexibility’
  

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  ElcomSoft ‘were selling a burglar tool for software to make a profit’
  
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  ElcomSoft representatives knew law and willfully violated it,
  emphasising ElcomSoft’s President and Managing Director’s admission about awareness of DMCA.
  

Public’s right to make fair use of copyright works is entrenched part of copyright law

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  US: ‘fair use’ seen as necessary to provide balance between copyright law and First Amendment guarantee of free speech.
  

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  asked jurors to compare generous rights afforded to paper book purchaser to rights afforded eBook purchaser.
  
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  purchaser of paper book can lend, resell, or give it away
  
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  Unlike paper book, eBook seeks to control what user can do with it
  

Under cross examination Adobe engineer acknowledged his company did not find any illegal eBooks on Internet even after hiring two companies to search Web for unauthorised copies.

7.1.3. The decision

Jury Foreman Dennis Strader said:

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  ‘Under eBook formats, you have no rights at all, and jury had trouble with that concept’.
  
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  jurors didn’t understand why million dollar company would put on web page an illegal thing that would ruin whole business if caught.
  
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  jury itself found DMCA confusing, easy for jurors to believe executives from Russia might not fully understand it!
  

8. Protection of Computer Programs

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  source and object code of computer program
  
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  any expression of systems or methods,
  
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  but not functionality of program (covered by patent)
  

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  source code is protected as a literary work
  
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  definition includes computer programs (s10 Copyright Act).
  
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  developers may create functionally compatible software programs without infringing copyright provided no underlying expression is misappropriated (Div 4A Copyright Act).
  

8.1. Copyright Amendment (Parallel Importation) Act 2002

Purpose: amend Copyright Act to allow parallel importing of:

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  computer software
  
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  computer games
  
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  books
  
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  periodicals and
  
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  sheet music
  
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  in both electronic and print form.
  

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  Believed that prohibition of parallel importation results in segregated market.
  
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  Its authorisation is aimed primarily at encouraging competition.
  

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  because parallel importation weakens ability to identify importation and distribution of pirate copies
  Bills Digest 133 (http://www.aph.gov.au/library/pubs/bd/2001-02/02bd133.htm)
  

9. Protection of Online Databases

invest in collection of data and creation of databases, and information accumulated represents significant commercial value.

organizations discover online databases accessible not only to average consumers, but also competitors.

Protection is afforded to databases under the Copyright Act as a ‘literary work’

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  s 10 defines literary work to include
  “table, or compilation, expressed in words, figures or symbols”
  
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  provided database is original within meaning of section 32(1) and
  
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  provided ‘traditional’ common law threshold of originality satisfied
  

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  databases considered as compilations, and qualify for protection as a literary work, bringing databases under protection of the Act (below).
  

9.1. Satisfying ‘Originality’

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  database contains original content or
  
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  has sufficient labour, skill, judgement or ingenuity used in its selection and arrangement.
  

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  most databases are a compilation
  
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  of material that is generally available.
  

Australia’s position on standard of originality:

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  applicant's motor vehicle database protected under ‘sweat of the brow’ doctrine
  

If compilation argument is successful, generally

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  combination or arrangement of material in online database is protected,
  
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  rather than underlying information or data
  

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  in the database as an entire work
  
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  not in each individual piece of information that comprises the database.
  

9.2. Limitations associated with ‘online’ databases

Substantial copying has been referenced to:

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  quality of the replication
  
• 
  rather than quantity.
  

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  But doubtful if courts will consider taking a few pieces of insignificant data from a database as sufficient to constitute a substantial reproduction of the copyright work in that database.
  

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  where computer program contributed or created an online database,
  
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  apparent requirement of ‘human’ authorship may not be satisfied.
  

• 
  Even if given standing as compilation works,
  
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  difficulties in other elements of copyright, such as originality
  

10. The International Regime

3 basic principles:

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  National Treatment –prevents discrimination against copyright holders of other countries;
  
• 
  Automatic protection –works automatically protected
  
• 
  Independence of protection –work protected within signatory state irrespective of copyright status in country of origin.
  

• 
  administered by the World Intellectual Property Organisation (WIPO).
  
• 
  shortfall: lacked effective enforcement measures.
  

• 
  administered by the World Trade Organisation (http://www.wto.org).
  
• 
  embodies many principles of Berne Convention, and
  
• 
  contains a powerful enforcement mechanism.
  

• 
  can be disciplined through the WTO's dispute settlement mechanism,
  
• 
  capable of authorising trade sanctions against dissident states.
  

• 
  important trade-focused source of copyright protection.
  

• 
  administered by UNESCO.
  
• 
  initially offered as alternative to Berne Convention
  
• 
  today shadowed by Berne
  http://www.wikipedia.org/wiki/Universal_Copyright_Convention .
  

• 
  protect copyright in electronic media and computer programs,
  
• 
  updating the Berne Convention to reflect TRIPS.
  

• 
  computer programs protected as literary works (Article 4)
  
• 
  arrangement and selection of material in databases protected (Article 5).
  
• 
  authors of works control rental and distribution (Articles 6-8)
  (not under the Berne Convention alone)
  

• 
  circumvention of technological measures for protection of works (Article 11)
  
• 
  unauthorised modification of rights management information in works (Article 12).
  

• 
  protection for exported works assured by in signatory country,
  
• 
  protection for imported works guaranteed by domestic legislation which reflect principles within these agreements
  

10.1. European Union Directives

• 
  classifies website as a database
  
• 
  protection to creator of databases from extraction and re-ultilisation of …
  
• 
  whole or substantial part of content of database,
  
• 
  based on qualitative or quantitative measurements
  

seeks to further harmonise copyright law across the EU

• 
  harmonises the rights of reproduction and distribution;
  
• 
  sets out a new right of communication to the public by wire or wireless (that is, by non-traditional, including electronic) means;
  
• 
  specifies an exhaustive list of optional exceptions to the rights;
  
• 
  imposes obligations on member states to protect technological measures employed by
  
• 
  rights owners to prevent unauthorised use and to protect rights management information attached to works by rights owners to enable them to keep control of their works; and
  
• 
  contains limited safeguards to enable legitimate users to use copyright works. (http://www.pro.gov.uk/about/copyright/copyright_directive.pdf)
  

11. Case Study: Napster

Nine record companies and other rights holders, including Sony Music and Capitol Records had sued Napster for copyright infringement

Napster provided a central registration and indexing facility for end-user sharing of MP3 files. By sharing files through uploading and downloading, the US Court of Appeal found that Napster’s subscribers were dealing with musical copyright works in breach of the true copyright owner’s exclusive rights of reproduction and distribution under US copyright law.

• 
  Napster, although not itself engaging in direct copyright infringement,
  
• 
  nevertheless had both actual and constructive knowledge of direct infringement by its subscribers, and
  
• 
  therefore contributed to breaches.