Therese Catanzariti

 separate copyright from the chattel right ◦ Pacific Film Laboratories Pty Ltd v. Commissioner of Taxation (1970) 121 CLR 154 ◦ re Dickens, Dickens v Hawksley [1935] 1 Ch, /3/09 Therese Catanzariti2

 Copyright only protects the particular way that the idea is expressed  NOT an accounting system – Baker v Selden  NOT how to make rabbit’s pie  NOT who won the horse race - Victoria Park Racing v Taylor (1937) 58 CLR /3/09 Therese Catanzariti3

 Donoghue v. Allied Newspapers Ltd  a jockey is paid for a series of interviews published by the interviewing journalist  Jockey can’t stop publication of articles based on these interviews  Jockey provided the ideas – but jockey didn’t create the written form  journalist wrote the ideas down so journalist is the author and owns the copyright 11/3/09 Therese Catanzariti4

 whether a physical object is an infringing copy of a drawing depicting the object  “Of course, it is trite law that there is no copyright in ideas, and it may be that if all the respondents were shown to have copied from the appellants was the idea of some sort of external latching of the moulded corner pieces and clips to the extrusions this would have been a sound enough conclusion. But, of course, as the late Professor Joad used to observe, it all depends on what you mean by “ideas.” What the respondents in fact copied from the appellants was no mere general idea” – Lord Hailsham Therese Catanzariti5

 A television show  A television show set in an office  A television show set in an office with a really smarmy boss  A television show set in an office with a really smarmy boss and an “everyman” character  A television show set in an office with a really smarmy boss an an everyman character which is shot in mock documentary style 11/3/09 Therese Catanzariti6

7 1 Idyllic beach town setting 2 Untroubled by sharks 3 Person in water vanishes 4 Audience aware of big shark 5 Townsfolk unaware of shark 6 It dawns on some townsfolk 7 There’s conflict/suppression 8 Proper precautions not taken 9 Shark attacks made public 10 Posse try to catch/kill it 11 Measures inadequate 12 They think normal shark 13 Audience knows big shark 14 Townsfolk ‘cop on’ 15 Fearless fisherman called 16 Fisherman hunts shark 17 Shark eats fisherman 18 But shark is blown up

 “The exclusive rights comprised in the copyright in an original work subsist by reason of the relevant fixation of the original work of the author in a material form. To proceed without identifying the work in suit and without informing the enquiry by identifying the author and the relevant time of making or first publication, may cause the formulation of the issues presented to the court to go awry.” Gummow, Hayne, Heydon at para /3/11 Therese Catanzariti/ Professor Natalie Stoianoff8

Original works in which copyright subsists (1) Subject to this Act, copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished and of which the author: (a) was a qualified person at the time when the work was made; or (b) if the making of the work extended over a period--was a qualified person for a substantial part of that period (2) Subject to this Act, where an original literary, dramatic, musical or artistic work has been published: (a) copyright subsists in the work; or (b) if copyright in the work subsisted immediately before its first publication--copyright continues to subsist in the work; if, but only if: (c) the first publication of the work took place in Australia; (d) the author of the work was a qualified person at the time when the work was first published; or (e) the author died before that time but was a qualified person immediately before his or her death. 19/3/11 Therese Catanzariti Professor Natalie Stoianoff9

 connecting factors  Subject matter  material form  originality  duration Therese Catanzariti10

 first published in Australia  national/resident in Australia  Copyright (International Protection) Regulations  first published in Convention country  national / resident of Convention Country 11/3/09 Therese Catanzariti11

 I will treat your citizens and residents just like I treat my own  even if you have more rights and more protection in your home country  even if you have less rights and less protection in your country  contrast reciprocity  You only get what you get at home 11/3/11 Therese Catanzariti Professor Natalie Stoianoff12

 literary, artistic, musical, dramatic  sound recordings, films, broadcasts, published editions  NOT fashion designs (contrast France)  NOT boat hulls (contrast US)  NOT circuit layouts  NOT database (contrast Europe) Therese Catanzariti13

 Work must be recorded in material form  Copyright protects expression not idea  “material form” - any form of storage  includes temporary storage (eg computer RAM)  Nine Network Australia Pty Limited v Australian Broadcasting Corporation (Y2K fireworks) IPR 335 Therese Catanzariti14

 Originate from author, not creativity, novelty, merit  Some intellectual effort  Link to authorship  Link to infringement  Whether copied / communicated “substantial part”  Substantial part assessed by originality of what taken 19/3/11 Therese Catanzariti Professor Natalie Stoianoff 15

The word “original” does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of “literary work”, with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work — that it should originate from the author. 19/3/11 Therese Catanzariti Professor Natalie Stoianoff16

 French, Crennan, Kiefel at para 33  The requirement for copyright subsistence that a literary work be "original" was first introduced into the Copyright Act 1911 (Imp), although it had already been recognised at common law. Originality for this purpose requires that the literary work in question originated with the author and that it was not merely copied from another work. It is the author or joint authors who bring into existence the work protected by the Act. In that context, originality means that the creation (ie the production) of the work required some independent intellectual effort, but neither literary merit nor novelty or inventiveness as required in patent law. There has been a long held assumption in copyright law that "authorship" and "original work" are correlatives  The requirement of the Act is only that the work originates with an author or joint authors from some independent intellectual effort. 19/3/11 Therese Catanzariti Professor Natalie Stoianoff17

 skill, labour and effort- industrious collection, sweat of the brow  Some intellectual effort  Walter v Lane – shorthand verbatim transcript of public speech, skilled and time consuming activity, more mere transcribing or writing from dictation  University of London Press – maths exam papers, drew upon the stock of knowledge common to mathematicians, small amount of time preparing questions, common type of questions  Ladbroke (Football) Ltd – football coupons, more than negligible work, labour or skill  A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd (1996) – motor spare parts catalogue, indexing not unique but work putting catalogue together 19/3/11 Therese Catanzariti Professor Natalie Stoianoff 18

 Feist v Rural Telephone (US) – required some modicum of creativity, not just sweat of the brow  Desktop Marketing v Telstra (Full FC) – industrious collection, undertaken substantial labour and incurred substantial expense  Icetv v Nine (Telstra as amicus) - independent intellectual effort “it may be that the reasoning in Desktop Marketing with respect to compilations is out of line with the understanding of copyright law over many years. These reasons explain the need to treat with some caution the emphasis in Desktop Marketing upon "labour and expense" per se and upon misappropriation.”  Telstra v Phone Directories – no human author 19/3/11 Therese Catanzariti Professor Natalie Stoianoff19