Professional Documents
Culture Documents
I
MID-SESSION TAKE-HOME EXAMINATION
2
SESSION 1, 2012
1
2
3
Seven Network (Operations) Ltd v TCN Channel Nine Pty Ltd [2005] FCAFC 144 at [36], Messager v British Broadcating Co [1927] 2 KB 543 at 550
s10(1) CA.
s10(1) CA.
s86(b),(c) CA.
s195AL(a) CA.
Breach of contract.
(ii)
s 24 CA.
s 10(1) CA cinematographic film: means the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or
thing: (a) of being shown as a moving picture; or (b) of being embodied in another article or thing by the use of which it can be so shown; and includes the
aggregate of the sounds embodied in a sound - track associated with such visual images.
8
s 29 (1)(b) CA.
10
s 22(4) For the purposes of this Act:(a) a reference to the making of a cinematograph film shall be read as a reference to the doing of the things
necessary for the production of the first copy of the film; and (b) the maker of the cinematograph film is the person by whom the arrangements necessary
for the making of the film were undertaken.
& s 189(1) CA maker: , in relation to a cinematograph film, means the director of the film, the producer of the film and the screenwriter of the film.
11
s 98 CA (1)-(3).
12
s 86 CA.
13
s 101(1) CA.
14
15
by comparing the original work to the potentially infringing work and identifying the similarities from an ordinary persons perspective: Larrikin Music
Publishing Pty Ltd v EMI Songs Australia Pty lTd [2010] FCA 29; EMI Songs Australia Pty ltd v Larrikin Music Publishing [2011] FCAFC 47; Data Access
Corporation v Powerflex Services Pty Ltd [1999] HCA 49.
16
s 14(1) CA.
17
18
Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty lTd [2010] FCA 29;
19
s 21.
20
s 27-8 CA & Australasian Performing Right Association Ltd v Tolbush Pty Ltd (1985) 62 ALR 521.
21
s 22(6)(6A) & Telstra Corporation Ltd v Australasian Performing Right Association (1997) 191 CLR 140.
22
s 193-195AB CA.
23
s 195 AI-AL
Unconscious Copying Using Francis Day & Hunter Ltd v Bron32, a defendant
may rebut copying with evidence of independent creation or lack of familiarity. In
this scenario, CTU has been authorised33 by Raines with a licence to play her
article TP. CTU was not aware that Raines film was an infringed work and can
argue for Raines representation that the work was an independent creation and
the organisations lack of familiarity with Bauers work 34. CTU however must have
had reasonable knowledge of Bauers work or at least would have had
reasonable suspicion that an infringement had occurred. The fact that the work
had appeared at the Sydney Arts Festival, was screening in a museum
reasonably close to CTU and that Bauer had appeared in a conference and was
24
s 14(1) CA.
25
s 86 & 90 CA.
26
Bauer v Raines (2012) see above explanation of substantial part and causal connection
27
s 86(b)(c) CA
28
s 22(6)(6A) CA; Telstra Corporation Ltd v Australasian Performing Right Association Ltd (1997) 191 CLR 140.
29
30
31
APRA Jain (1990) 26 FCR 53; APRA v Metro on George Pty Ltd [2004] FCA 1123.
32
[1963]
33
s 101(1)-(A)
34
quoted in a press report justifies this reasonable presumption. CTU was required
to inspect the works before communicating them to the public.
(ii)
35
36
s 103A, 103B(1)(a).
37
S103C(2)-(7)
38
Hubbard v Vosper [1972] 2 QB 84; Pro Siben Media AG v Carlton UK Television Ltd [1999] 1 WLR 605; Commonwealth v John Fairfax & Sons Ltd
[1980] HCA 44 & TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2002) 118 FCR 417.
(ii)
39
s 24 CA References to sounds and visual images embodied in an article: For the purposes of this Act, sounds or visual images shall be taken to have
been embodied in an article or thing if the article or thing has been so treated in relation to those sounds or visual images that those sounds or visual
images are capable, with or without the aid of some other device, of being reproduced from the article or thing.
40
41
s 98(2) CA.
42
s 29(1)(b) CA.
43
by comparing the original work to the potentially infringing work and identifying the similarities from an ordinary persons perspective: Larrikin Music
Publishing Pty Ltd v EMI Songs Australia Pty lTd [2010] FCA 29; EMI Songs Australia Pty ltd v Larrikin Music Publishing [2011] FCAFC 47; Data Access
Corporation v Powerflex Services Pty Ltd [1999] HCA 49.
44
45
Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984; Infopaq International A/S v Danske Dagblades Forening
[2009] ECR 1-6569.
46
s 36 CA.
47
S38(1)
(ii)
48
49
s31(b)(i)CA s 21 CA; Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964 1 WLR 273
s31(b)(iii)CA s 22(6)&(6)(A); Telstra Corporation Ltd v Australasian Performing Right Association Ltd (1997) 191 CLR 140.
50
51
s 193-195AB CA.
52
53
54
55
Greenfield Products Pty Ltd v Rover-Scott Bonnar Ltd (1990) 95 ALR 275 at 284.
56
S32(1)-(3); Sands & McDouggal Pty Ltd v Robinson (1917) 23 CLR 49.
57
S29 & s 35(2) CA: Publication/creation and Ownership of artistic work vesting with Palmer.
58
59
s 32 CA.
60
61
62
s 32(2) CA.
s31(1)(b) s 21 CA.
s 36(a) CA.
63
s31(b)(i)CA s 21 CA; Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964 1 WLR 273
64
s31(b)(iii)CA s 22(6)&(6)(A); Telstra Corporation Ltd v Australasian Performing Right Association Ltd (1997) 191 CLR 140.
65
66
s 193-195AB CA.
67
[1963]
68
s 32(1)-(3) CA.
69
70
71
s 10(1) CA.
72
73
s 90 CA.
74
75
76
s 98 CA.
CBS Records v Telmark Teleproducts [1987] FCA
s 86(b)(c)
77
s14(1) CA: TCN Channel Nine v Network Ten [2001] FCA 108 (Panel 1); Network Ten v TCN Channel Nine[2004] HCA 13; (2004) 218 CLR 273.;
Larrikin Music Publishing v EMI Songs Australia[2010] FCA 29.
78
79
80
The Panel Case [No 2] 2005 FCA, Los Angeles News Service v CBS Broadcasting Inc.
81
The Panel Case [No 2] 2005 FCA, Roy Expert Co Establishment of Vaduz Liechtenstein
82
Miller & Lang, Limited v Polak [1908] 1 CH433 (Christmas cards considered a drawing).
83
Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197.
84
s 35(1)(2) CA.
85
Coogi Australia Pty ltd v Hysport International Pty Ltd FCA [1998]
86
Ibid.
87
s29(1)(a) CA.
88
89
90
91
92
s 91 CA.
93
S101(1); s31(1)(b)(i)(ii)(iii)
94
(ii)
95
s 29 CA.
96
s 22(2) CA.
97
s 35(2)&(4)(a) CA: If the author is the song writer, namely The Strokes or presuming the band was under a contract for services and engaged in
contractual negotiations to make their recording company (RCA Records) join-owners of the copyright then s35(3).
98
s 32(1)(a)(b) CA.
99
s 35(3) CA.
100
101
s 193-195AB CA.
102
103
104
Ibid
105
106
107
s 36(1) CA.
reproduce the work108, publish the work109 and perform/communicate the work in
public110.
(iii) Defences to Infringement Fair dealing for purpose of parody or satire could
provide Bauer with an opportunity to escape liability 111. Bauer appropriated the
Strokes musical work from Masons youtube clip which may be argued to be a
parody112. Furthermore, his own appropriation of the clip may be seen as
complimenting his overriding purpose for making TP, that being to provide a
social critique on our obsession with time113.
2.5.2 Infringement of Literary Works or Sound Recording
It is clear that Bauer would in turn be found liable for infringing the literary value of the
Strokes song 12:51 by incorporating their lyrics into his film which would similarly be
found to hold causal connection and substantial similarity. Infringement would be analysed
in accordance with s31,32 & 36 CA. In addition to this, the work may also be considered a
sound recording114 as per the definition in s10(1). For this reason copyright would subsist 115
in the work and prevent others, apart from the owner 116, from infringing copyright by doing
acts comprised in copyright117. RCA would more specifically be looking to categorise
Bauers infringement as a sound recording of which they have greater rights to as opposed
to the musical value of the work.
108
s31(1)(a)(i) CA.
109
s 31(1)(a)(ii)
110
s31(1)(a)(iii)(iv) CA.
111
S41A CA.
112
113
114
s 85(1) CA.
115
s 89(1) CA.
116
s 97(1) CA.
117
S101(1) CA.
118
s 98(2) CA.
119
s 10(1) CA.
120
s 90(1)-(3) CA.
121
s 101(1) CA.
122
s 103 CA.
123
s 193 CA.
124
s 195AC CA.
125
CBS Records Australia Ltd v Telmark Teleproducts (Aust) Pty Ltd [1987] FCA
126
127
Copyright Act 1968 (Cth) s14(1), The panel decisions number one.
128
The Panel Case [No 2] 2005 FCA, Los Angeles News Service v CBS Broadcasting Inc.
Bauer could attempt to negate liability by invoking s103A or s103AA and classifying his
taking of the film as a fair act to criticise or parody129 Masons work. Bauer could argue his
work as a social critique on the notion of time.
129
130
s 189 CA.
131
132
s 195ANA CA.
133
134
s 195AXA CA.
135
136
137
s 195AXB CA.
138
139
140
s 195 AXG.
the definition due to the fact that she did not contribute to the sound
as she was lip-synching.
2.8.1 Introduction
Almeida will attempt to highlight Bauers detrimental conduct in an attempt to solidify their
rights under s98141 and Part IX142 CA. In order to uphold their entitlements, Almeida must
provide evidence that they are joint owners or acting under a contract of service. Almeida
& Co are not author or maker143 and thus have no entitlement to ownership/copyright for
the film.
2.8.2 Joint Ownership
Under s22(4)(a)(b) the maker of a cinematographic film is the individual makes
arrangements necessary for the making of the film. This is reemphasised in s98(2)(3)
which protect the individual that made initial arrangements for the production of the film.
Whilst in certain circumstances substantial contributions to a work may accompany claims
to joint-authorship144, it is clear that original contributors who provided the significant
creative output145 from the onset should uphold complete ownership 146. Almeida were hired
to source clips for Bauer so that he could combine to form the article which represented
his own individualistic expression of the concept of time. Claimants provided minimal
creative input and objectively can not be identified as arranging any aspect of the
cinematographic film. No contract was created to establish joint authorship 147.
2.8.3 Contract of Service
Using Beloff v Pressdram148,it is clear that Almeidas work of sourcing clipsetc was
controlled by a higher authority, namely Bauer, and may be considered as work
produced in the course of that employment and therefore under a contract of service 149.
Whilst the control element was disputed in Redrock Holdings v Hinkley150, particularly in
141
147
s98(3) CA.
[1973] 1 All ER 241.
148
149
150
s 98(5) CA.
[2001] VSC 91.
cases such as this were greater skill is required to perform such computer based editing
functions, it is clear that these employees had been integrated into the business151.
Evidence in the current scenario would suggest Almeida & Co were employed under a
contract of service: fixed salary, provided with equipment and programs to assist them in
sourcing the clips and would attend Bauers studio to fulfil their tasks.
151