LWB486 Week 6 Copyright

LWB486 Intellectual Property LawPeter Black

[email protected]

3138 2734

Roadmap

This week: Authorisation of

infringement Indirect infringement Defences - including

parody and satire

Next week: Remedies Technological

prevention measures Performer’s rights Moral rights Indigenous art &

culture Tutorial questions Review of copyright

Tutorial Questions

Be prepared to discuss: Tutorial Question 2(d)

2.6.3 Authorisation of infringement

Copyright is also infringed when a person authorises the doing in Australia of any act comprised of copyright without the license of the owner (s 36(1)).

Authorisation means “sanction, approve or countenance”. University of NSW v Moorhouse and Angus and

Robertson (Publishers) Pty Ltd

A person who has under his control the means by which an infringement may be committed and who makes it available to other persons knowing or having reason to suspect that it is likely to be used for that purpose, and omitting to take reasonable steps to limits its use to legitimate purposes, would authorise any infringement. University of NSW v Moorhouse and Angus and Robertson

(Publishers Pty Ltd) A student at the University of NSW made two copies of a 10 page

story by Moorhouse at the photocopying machine in the library. No attempt was made to supervise the copiers to ensure that they were not being used to infringe copyright. Proceedings were taken by the author and publisher against the University for authorizing an infringement of copyright.

Held, the University had authorized an infringement of copyright – the University provided the books and the machines and failed to take adequate steps to warn about infringement.

2.6.3 Authorisation of infringement

Must establish that an act of infringement has taken place. RCA Corp v. John Fairfax & Sons Ltd

Must be some connection between the “authoriser” and the infringer – that is, the “authoriser” had some form of control over the infringer, or provided the materials used in the infringement. RCA Corp v. John Fairfax & Sons Ltd

A journalist published articles on the possibility of using private recordings of records as an alternative to buying records. The plaintiff claimed this was authorizing the infringement of copyright.

Held, no authorization as there was no control between the newspaper and the taper. Furthermore, the article did not sanction, approve or countenance taping – it was a factual report, not an invitation or incitement to infringe.

2.6.3 Authorisation of infringement

Examples: Australasian Performing Rights Association v Canterbury-

Bankstown League Club Ltd [1964-65] NSWR 138 Held, the Club authorised any infringement of the dance band as the

Club allowed the band leader to select any music to play. CBS Songs Ltd v Amstrad Consumer Electronics

Held, the manufacturer to two deck tape recorders, capable of copying tapes at twice the normal playback speed did not authorise an infringement of copyright – it facilitated copying, but did not authorise it.

In determining the issue of authorisation, the matters to be taken into account include (ss 36(1A) and 101(1A)):n the extent of the person’s power to prevent the doing of the act

concerned;n the nature of any relationship existing between the person and

the person who did the act concerned;n whether the person took any reasonable steps to prevent or avoid

the doing of the act, including whether the person complied with any relevant industry codes of practice.

2.6.3 Authorisation of infringement

2.6.3 Authorisation in an online environment Background:

The digital age has challenged the role of copyright law and the interests of copyright holders.

Advances in digital technology has made copying easier.

This challenge has arisen in the courts in the context of secondary liability, which in the Australian context is authorisation.

Many of the cases have been decided in the United States. However, there have been two important Australian decisions.

2.6.3 Authorisation in an online environment A&M Records v Napster

Held that that a computer system operator cannot be held liable merely because its system may be utilised for infringement, but that if a computer system operator learns of copyright infringement and does not remove the infringing materials, it will be liable.

Napster was held guilty of contributory infringement since the facts showed that Napster had a great degree of control; knowledge of copyright infringing music files which were shared through its system; a financial interest in the infringing activities; and had the capacity to stop the infringements through an ability to block the user's access to its system.

2.6.3 Authorisation in an online environment Metro-Goldwyn-Mayer v Grokster

Held, that peer-to peer software was capable of non-infringing activities so that it would not be liable for simply making and distributing its software.

However, persons or organisations can be liable for inducingg infringement, so that one who distributes a device with the object of promoting it as able to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement (control), is liable for the resulting acts of infringement by third parties.

2.6.3 Authorisation in an online environment Universal Music Australia Pty Ltd v Sharman Licence

Holdings (Kazaa) Sharman ran a peer-to-peer file sharing platform of sound

recordings known as Kazaa. Held, that even though the Kazaa system had a number of

technological controls, these were insufficient to overcome a finding of liability for copyright infringement by authorisation. It was particularly relevant that:

warnings contained on the Kazaa website and the end user license agreement prohibiting infringing copyright were ineffective to prevent such conduct and Kazaa were well aware that their system was being utilized for sharing copyright files;

Kazaa did not implement any technical measures, such as key word and file filtering which could have curtailed the sharing of copyright files; and

Kazaa encouraged misconduct by including exhortations such as “Join The Revolution” to increase the incidence of infringing file sharing.

2.6.3 Authorisation in an online environment Cooper v Universal Music Australia

Cooper maintained website known as MP3s4free.com. This website provided an organised directory of hyperlinks to websites that had downloads of infringing copies of music. The website in Cooper did not actually store the infringing MP3s, rather it provided three different types of hyperlinks including:

hyperlinks that automatically commenced downloading a file from another website as soon as the hyperlink was clicked;

hyperlinks that brought a user to another website from which they could download a file; and

hyperlinks that brought a user to another website from which they would click other hyperlinks which brought them to other websites where they could download the file.

Held, there was an infringement as the defendant had the capacity to remove hyperlinks, or structure the website in such a way that operators of remote websites could not automatically add hyperlinks without some supervision.

2.6.3 Authorisation in an online environment Other issues:

Defences are also available to persons (including a carriage service provider) for infringement by authorisation in certain circumstances where facilities provided by them are used by someone else to infringe copyright.

ss 39B, 112E Safe Harbour Provisions

Division 2AA Notice and Takedown (DMCA)

2.6.3 Authorisation in an online environment Read:

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

What were the facts of the case?

What did Justice Cowdroy decide?

The decision has been appealed. How do you think the Full Court of the Federal Court will rule?

What do you think? How should the law treat the downloading and file-sharing of copyrighted material on the internet?

2.6.4 Indirect infringement

The main forms of indirect infringement involve infringing copies being:

1. imported for the purposes of trade without the license of the copyright owner (ss 37 and 102);

2. sold, hired out or otherwise made the subject of trade (ss 38 and 103).

As a general rule it is necessary to establish that a defendant knew or ought reasonably to have known that the article in which they were dealing had been made in breach of copyright, or in the case of an imported article, that it would have been an infringing copy if it had been made in Australia by the importer.

Raben Footwear Pty Ltd v Polygram Records Inc

2.6.4.1 Importation of infringing articles It is an infringement of copyright in any work in

which copyright subsists to import an article into Australia for sale, hire or other commercial purpose, without the license of the copyright owner, if the importer knew, or ought reasonably to have known, that if the article had been made by the importer in Australia, it would have constituted an infringement of copyright (ss 37 and 102).

Milpurrurru v Indofurn Pty Ltd A company imported carpets from Vietnam which

reproduced Aboriginal artworks made by the applicant. Held, the importing company had infringed the applicant’s

copyright - managing director either knew or should have known (one director’s knowledge was sufficient).

2.6.4.1 Importation of infringing articles However, there is an exception to the requirement

of proof of knowledge (ss 37(2), 102(2)): Where an “accessory” to an article includes a copy of a

work which was made without the licence of the owner of the copy in the country in which the copy was made, it is not necessary to establish proof of knowledge on the part of the importer – that is, the importation of the infringing article is sufficient.

“Accessory” defined to include, for example, labels on the article, the packaging or container in which the article is contained and written instructions or other information provided with the article (s 10(1)).

2.6.4.1 Importation of infringing articles Liability extends to the “parallel” importation of genuine

articles. Interstate Parcel Express Co Pty Ltd v Time-Life International

(Nederlands) B.V. Time Inc., which owned copyright in Australia and US, granted to

Time-Life an exclusive license to distribute the books in countries outside US and Canada. Rather than buy from Time-Life Angus and Robertson imported copies cheaply from the US. Time-Life sought an injunction to restrain sale of the books.

Held, infringement by importation.

However, parallel importation of books is now allowed in these circumstances (ss 44A and 112A):n The book is first published outside Australia and not published in

Australia within 30 days;n Copyright owner unable to meet an order for supply of the book

within 90 days;n An order for a single copy for non-commercial purposes;n An order for multiple copies from a non-profit library.

2.6.4.1 Importation of infringing articles Note also that there have been other relaxations on parallel

importation:1. Labels – provisions of the Copyright Amendment Act (No. 1) 1998 (Cth) now

prevent an overseas copyright owner controlling the distribution of goods in Australia by reliance on copyright in, for example, the label on a product (s 44C).

See definition of “accessory” and “non-infringing accessory” (s 10(1)). New provisions came into operation 18 months after 30 July 1998 – that is 1 February 2000.

2. Sound recordings – the Copyright Amendment Act (No. 2) 1998 effectively removed the restriction on the parallel importation of legitimate “sound recordings” as from 30 July 1998 (ss 44D and 112D).

1. The Copyright Amendment Act 2006 (Cth) introduced amendments dealing with the seizure of imported copies of copyright material that make it easier for copyright owners to use the Notice of Objection scheme and are consistent with the Trade Marks Notice of Objection scheme under the Trade Marks Amendment Act 2006 (Cth).

1. Amendments dealing with the seizure of imported copies of copyright material make it easier for copyright owners to use the Notice of Objection scheme and are consistent with the Trade Marks Notice of Objection scheme under the Trade Marks Amendment Act 2006.

2.6.4.2 Sale of infringing articles Copyright in a work is infringed by a person who sells or hires

an article if the person knew, or ought reasonably to have known, that the making of the article constituted an infringement of the copyright or, in the case of an imported article, would, if the article had been made in Australia by the importer, have constituted such an infringement (ss 38 and 103).

Example: Raben Footwear Pty Ltd v Polygram Records Inc

Raben imported 1000 copies of a Cher CD from Germany. Polygram sued for infringement of copyright. Raben argued that he had no knowledge – Raben had asked the supplier about licensing for the CDs and received a guarded supply.

Held, Raben had infringed copyright – supplier’s response ought reasonably have led the defendant to assume the true position and therefore reasonably knew that making the CD in Australia would have constituted an infringement of copyright.

2.7 Defences In copyright law, there is a need to achieve a balance of

interests – between encouraging and providing incentives to those who create innovative materials, on the one hand, and the interests of users of copyright materials, on the other hand, in being able to access materials embodying original ideas or information.

CLRC, Copyright and Contract (2002): The exclusive rights of copyright are partly defined by the

exceptions, in that the rights only exist to the extent that they are not qualified by the exceptions.

The rights conferred on copyright owners are subject to competing interests which require the delineation of exceptions and limitations to the exclusive rights.

2.7 Statutory defences

Statutory defences include:1. Fair dealing.

2. Specific royalty-free exceptions.

3. Statutory licenses.

2.7.1 “Fair dealing” The fair dealing provisions:

mark out areas of free use of copyright materials, in the public interest and provide a complete defence to an infringement action.

are commonly referred to as exceptions but are more accurately conceptualised as establishing limits to the scope of the bundle of exclusive rights.

apply to all categories of works and subject matter and to each of the exclusive rights but are confined to the doing of acts for four specific purposes.

permit royalty-free use of a substantial part or the whole of the work or subject matter without the authorisation of the copyright owner.

2.7.1 “Fair dealing” Read:

TCN Channel Nine Pty Ltd v Network Ten Ltd [2001] FCA 108

What did Justice Conti say about the various fair dealing defences?

How would you have decided this case?

2.7.1 “Fair dealing” A fair dealing with a Pt III work or adaptation

or a Pt IV audio-visual item (that is, a sound recording, film, sound broadcast or television broadcast) does not infringe if done for one (or more) of the following purposes: research or study (ss 40 and 103C); criticism or review (ss 41 and 103A); reporting of news (ss 42 and 103B); judicial proceedings or the giving of professional

legal advice (ss 43 and 104); parody or satire (ss 41A, 103AA).

2.7.1.1 “Fair dealing”: research or study “Research” and “study” are not defined – given dictionary

meaning.

“Research” means “a diligent and systematic enquiry or investigation into a subject in order to discover facts or principles”. De Garis v Neville Jeffress Pidler Pty Ltd

Held, the respondent, a press clipping and media research bureau, who supplied photocopies of published material in return for a fee was not “research” or “study” in the terms of s 40.

In determining whether a dealing is for the purpose of “research or study”, the relevant purpose is that of the person making the dealing, not the purpose to which the reproduction or adaptation is ultimately put. De Garis v Neville Jeffress Pidler Pty Ltd

Held, the purpose of the respondent’s press clipping service was not to conduct research, even though research may have been the purpose of its customers.

2.7.1.1 “Fair dealing”: research or study Several non-exclusive factors may be taken into

account in determining whether a dealing for research or study purposes is fair. In the case of Part III works and adaptations, these factors

apply only where the dealing is a reproduction of the whole or part of the work or adaptation, whereas for Part IV audio-visual items, the factors are relevant to the exercise of any of the exclusive rights.

The factors are (ss 40(2) and 103C(2)): the purpose and character of the dealing; the nature of the work or audio-visual item; the possibility of obtaining the work or audio-visual item within

a reasonable time at an ordinary commercial price; the effect of the dealing upon the potential market for, or

value of, the work or audio-visual item; where only part of a Pt III work, adaptation or audio-visual

item is reproduced or copied, the amount and substantiality of the part copied in relation to the whole item.

2.7.1.1 “Fair dealing”: research or study The Act provides more specific guidelines on

the reproduction of literary, dramatic and musical works and adaptations (but these do not apply to audio-visual items): If the work or adaptation is an article in a periodical, it

is a fair dealing for research or study to copy the whole of the article (s 40(3)(a)).

In any other case, copying is limited to a “reasonable portion” of the work or adaptation (s 40(3)(b)).

It is not a fair dealing to reproduce the whole or part of an article in a periodical if another article in the publication, dealing with a different subject matter is also reproduced (s 40(4)).

2.7.1.1 “Fair dealing”: research or study A quantum test applies in determining reasonableness:

Where a literary, dramatic or musical work (other than a computer program) is contained in a published edition of 10 pages or more, a reasonable portion is up to 10% in the aggregate of the number of pages in the edition (s 10(2)).

Where the work is divided into chapters, a reasonable portion is the whole or part of a single chapter even though it may exceed 10% of the number of pages in the edition (s 10(2)).

Where the reproduction is of part of a published literary work (other than a computer program or an electronic compilation such as a database) or a published dramatic work in electronic form, the reproduction contains a reasonable portion of the work if the number of words copied does not exceed, in total, 10% of the number of words in the work or, if the work is divided into chapters, the reproduction contains only the whole or part of a single chapter of the work, even though the number of words copied exceeds, in total, 10% of the number of words in the work (s 10(2A)).

2.7.1.2 “Fair dealing”: criticism or review There may be a fair dealing for the purpose of criticism or review

provided sufficient acknowledgment is made (ss 41 and 103A).

For an acknowledgment to be sufficient, it must identify the work or audio-visual item by its title or other description, as well as the author (s 10(1)).

“Criticism” and “review” are not defined – given dictionary meaning. In De Garis v Neville Jeffress Pidler Pty Ltd at 299-300, Beaumont J

referred to the Macquarie Dictionary definitions of “criticism” and “review”: “criticism” is used in the sense of “the act or art of analyzing and judging the

quality of a literary or artistic work; the act of passing judgment as to the merits of something; [and] a critical comment, article, or essay, a critique”; “review” is used in the sense of “a critical article or report, as in a periodical, on some literary work, commonly some work of recent appearance; a critique”.

“criticism” includes all kinds of criticism – it is not restricted to literary criticism - “review” is cognate with the word “criticism”; one is the process, the other is the result of the critical application of the mental faculties.

2.7.1.2 “Fair dealing”: criticism or review “Criticism” and “review” are words of “wide and indefinite scope which

should be interpreted liberally” and extend to “the thoughts underlying the expression of copyright works or subject matter”.

TCN Channel Nine Pty Ltd v Network Ten Ltd [2001] FCA 108 at [66] per Conti J

They involve the passing of judgment and may be strongly expressed but, provided they are genuine and not a pretence for some other purpose, need not be balanced:

TCN Channel Nine Pty Ltd v Network Ten Ltd [2001] FCA 108 at [66] per Conti J

In TCN Channel Nine Pty Ltd v Network Ten Ltd (2002) 55 IPR 112 Hely J (Sundberg and Finkelstein JJ agreeing) at [115] said the test is:

“[I]s the program incorporating the infringing material a genuine piece of criticism or review, or is it something else, such as an attempt to dress up the infringement of another’s copyright in the guise of criticism, and so profit unfairly from another’s work? As Lord Denning said in Hubbard v Vosper [1972] 2 B 84 at 93, ‘it is not fair dealing for a rival in the trade to take copyright material and use it for its own benefit’.”

2.7.1.3 “Fair dealing”: reporting of the news Copyright in a Pt III work or adaptation or a Pt IV

audio-visual item is not infringed if it is dealt with for the purpose of, or associated with, the reporting of news (ss 42 and 103B): in a newspaper, magazine or periodical, provided sufficient

acknowledgement is made of the work or audio-visual item;

by means of an electronic communication; in a cinematograph film.

It covers music incidentally recorded in the course of reporting news by means of broadcast or film, but does not extend to music added to the soundtrack which does not form part of the news being reported (s 42(2)).

2.7.1.3 “Fair dealing”: reporting of the news The fact that news coverage is interesting or

may even be entertaining does not negate the fact that it is news, even though it may sometimes be difficult to draw a distinction between news and entertainment. News reported with humour may still fall within

the ambit of the fair dealing provisions. TCN Channel Nine Pty Ltd v Network Ten Ltd (2002)

55 IPR 112 at [66] per Conti J and at [98] per Hely J

2.7.1.4 “Fair dealing”: Judicial proceedings or the giving of professional legal advice

Professional legal advice: It is not an infringement to make a fair dealing with a Part III work

for the purposes of giving of professional advice by a legal practitioner, a registered patent attorney or a registered trade mark attorney (s 43(2)).

There is no fair dealing counterpart in relation to the use of audio-visual items for these purposes.

Judicial proceedings: Any act done in relation to a literary, dramatic, musical or artistic

work for the purpose of a judicial proceeding or the report of a judicial proceeding is exempted from copyright infringement (s 43(1)).

A general exception from infringement of copyright in sound recordings, films, broadcasts and published editions applies for acts done in the course of judicial proceedings or the reporting of such proceedings (s 104(a)) or in the course of obtaining professional advice from a lawyer, patent attorney or trade marks attorney (s 104(b) and (c)).

The new provisions (ss 41A and 103AA) apply where a person or organisation can demonstrate that their use of copyright material (both works and audio-visual subject matter) is a fair dealing for parody or satire.

The Act does not include a definition of ‘parody’ or ‘satire’ or require sufficient acknowledgment of the work to be made.

TCN Channel Nine Pty Ltd v Network Ten Ltd [2001] FCA 108 at [17] per Conti J

Defences relating to parody can be found in other jurisdictions, including the US and member countries of the European Union. The defence for satire may be unprecedented.

The Panel involved parody and satire but was over before the defence was introduced. Would it have made a difference?

2.7.1.5 “Fair dealing”: parody or satire

2.7.1.5 “Fair dealing”: parody or satire

Should parody and satire be protected? criticism (even, or especially, when

done with humour) is necessary for public debate and discussion? [Endless Love];

original author is unlikely to lose proceeds for a work of parody or satire?

copyright should not be used as a means of censorship [NSW Mineral Council]?

2.7.1.5 “Fair dealing”: parody or satire

Historically parody and satire has been accommodated within copyright law to some degree by: “substantial part”.

Joy Music v Sunday Pictorial Newspapers [1960] 1 All ER 703 AGL Sydney v Shortland County Council (1989) 17 IPR 99 TCN Channel Nine Pty Ltd v Network Ten (2001) 108 FCR 235

fair dealing for the purposes of criticism or review. TCN Channel Nine Pty Ltd v Network Ten Ltd (2001) 108 FCR

235 at [66] per Conti J TCN Channel Nine Pty Ltd v Network Ten Ltd (2002) 118 FCR

417 Hely J (Sundberg and Finkelstein JJ agreeing) at [115] fair dealing for the purposes of reporting the news.

Beloff v Pressdram [1973] 1 All ER 241 BBC v BSB [1992] Ch 141 Nine Network Australia v ABC (1999) 48 IPR 333 TCN Channel Nine Pty Ltd v Network Ten Ltd (2001) 108 FCR

235 at [66] per Conti J

2.7.1.5 “Fair dealing”: parody or satire

Law reform leading to this new exception: Government considered the introduction of a fair

use doctrine, but instead introduced further exceptions, including one for parody or satire.

The new provisions (ss 41A and 103AA) apply where a person or organisation can demonstrate that their use of copyright material (both works and audio-visual subject matter) is a fair dealing for parody or satire.

The Act does not include a definition of ‘parody’ or ‘satire’ or require sufficient acknowledgment of the work to be made.

In TCN Channel Nine Pty Ltd v Network Ten Ltd (2001) 108 FCR 235 at [17] per Conti J defined the terms by reference to the Macquarie Dictionary.

2.7.1.5 “Fair dealing”: parody or satire

What is the likely scope of the new exception? The US courts, in interpreting fair use, have traditionally

made a distinction between parody and satire: Parody is generally more likely to be considered fair use.

Under the fair use doctrine, the courts have regard to four factors:1. the purpose and character of the use, including whether

such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;3. the amount and substantiality of the portion used in relation

to the copyrighted work as a whole; and4. the effect of the use upon the potential market for or value

of the copyrighted work. Examples:

Campbell v Acuff-Rose, 510 US 569 (1994) Dr Suess Enterprises v Penguin Books USA, Inc, 109 F.3d

1394 (9th Cir. 1997) Sun Trust v Houghton Mifflin, 268 F.3d 1257 (11th Cir. 2001)

2.7.1.5 “Fair dealing”: parody or satire

Consider the following case studies: JibJab! This Land Chinese Backstreet Boys Time Warp featuring Tony Abbott The Fanatics songbook Piracy Ad Changes Where the Bloody Hell Are You? Censored Count Here Comes Another Bubble I Still Call St Lucia Home

2.7.2 Specific, royalty free exceptions: time shifting (s 111) If a person makes:

a cinematograph film or sound recording of a broadcast

solely for private and domestic use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast is made

then the making of the film or recording does not infringe copyright in the broadcast or in any work or other subject‑matter included in the broadcast.

This exception will not apply if an article or thing embodying the film or recording is:

sold;

let for hire;

by way of trade offered or exposed for sale or hire;

distributed for the purpose of trade or otherwise (not including loaning the article or thing to a member of the lender's family or household for the member's private and domestic use);

used for causing the film or recording to be seen or heard in public;

used for broadcasting the film or recording.

2.7.2 Specific, royalty free exceptions: private copying - format shifting Books, newspapers and periodicals (s 43C):

You can copy a book, newspaper or periodical that you own to use in a different format (eg scanning an article from a magazine onto your personal computer to keep as a reference).

Photographs (s 47J): You are permitted to copy a photograph:

where the copy you own is in hardcopy form – into an electronic form (for example by scanning into a computer), or

where the copy you own is in electronic form – into a hardcopy form (for example by printing a digital file).

Videotapes (s 110AA): You are able to copy a video cassette that you own into an

electronic form (for example to a DVD).

2.7.2 Specific, royalty free exceptions: private copying - format shifting The limits to the new exceptions are:

The original copy you own must be a legitimate copy. You cannot sell, hire, lend or give away any copy made but you

can lend a copy to a member of your family or household. You are free to dispose of the original legitimate copy of a sound

recording, but you must not keep any copy you have made from the original.

Making multiple copies in a similar format is not allowed, either from the original copy you own or from a later copy.

Copying computer games is not allowed. You are not authorised to remove any anti-copying measures

applied by the manufacturer to the material you own.

2.7.2 Specific, royalty free exceptions: private copying of music (s 109) If:

the owner of a copy (the earlier copy ) of a sound recording makes another copy (the later copy ) of the sound recording using the earlier copy; and

the sole purpose of making the later copy is the owner's private and domestic use of the later copy with a device that:

is a device that can be used to cause sound recordings to be heard; and

he or she owns; and the earlier copy was not made by downloading over the Internet a

digital recording of a radio broadcast or similar program; and the earlier copy is not an infringing copy of the sound recording, a

broadcast or a literary, dramatic or musical work included in the sound recording;

then the making of the later copy does not infringe copyright in the sound recording, or in a literary, dramatic or musical work or other subject‑matter included in the sound recording.

2.7.2 Specific, royalty free exceptions: private copying of music (s 109) This exception will not apply if the earlier copy or the later

copy is: sold; let for hire; by way of trade offered or exposed for sale or hire; distributed for the purpose of trade or otherwise (not including

loaning the earlier copy or the later copy to a member of the lender's family or household for the member's private and domestic use);

used for causing the film or recording to be seen or heard in public;

used for broadcasting the film or recording.

2.7.2 Other specific, royalty free exceptions Other specific, royalty-free exceptions include:

Performance of a literary, dramatic or musical work or playing a sound recording or film in a school classroom does not infringe copyright (s 28).

Public performance of a literary, dramatic or musical work or an adaptation of such a work, by the use of reception equipment or a record, at “premises where people reside or sleep, as part of the amenities provided exclusively for residents or inmates of the premises or for those residents or inmates and their guests” (s 46 – see also s 106(1) in respect of sound recordings).

It is not an infringement to photograph, paint, draw, film or include in a television broadcast a building, a model of a building, a sculpture or a work of artistic craftsmanship which is permanently displayed in a public place or in premises open to the public (ss 65 and 66).

Copyright in an artistic work is not infringed if the work is included in a film or television broadcast, incidentally to the principal matters represented in the film or broadcast (s 67).

It is not an infringement to read or recite in public or to include in a sound or television broadcast of a reading or recitation, a reasonable length extract from a published literary or dramatic work or an adaptation of such a work, as long as the work is given sufficient acknowledgement (s 45).

Copyright in an artistic work is not infringed by the creator of that work if he or she makes a later artistic work which does not repeat or imitate the main design of the earlier work (s 72).

Where there is copyright in a building, copyright is not infringed by reconstructing it (s 73).

2.7.3 Statutory licenses Statutory licenses include:

Use of copyright material “for the services of the State” (ss 183 and 183A – C).

Educational institutions and institutions assisting persons with a print disability or an intellectual disability - copy and communicate sound and television broadcasts (Part VA) and to reproduce and communicate works and published editions (Part VB), on condition that equitable remuneration is paid to an approved collecting society).

re-recording of musical works, as long as the subsequent recording does not debase the work (s 55).

the making of sound broadcasts of literary and dramatic works by the holders of a print disability radio licence (s 47A).

recording of musical and literary works (Part III, Div 6). retransmissions of free-to-air broadcasts (Part VC). public performance and broadcasting of sound recordings

(ss 108(1) and 109(1)).

Next Week

Final class on copyright and related rights: Remedies; Technological prevention measures; Performer’s rights; Moral rights; Indigenous art & culture; Tutorial questions; Review of copyright.