Intellectual Property Law UG - Assignment Example

Intellectual Property Law UG Legal Research Question Proposal 20 October 2010, 1500 hrs Hani Nawaf u3032939 Research Supervisor Mr Bruce Arnold Room 6C63 Table of Content I ELECTION 1 II SYNOPSIS 2 Table 1: Comparative Case Analysis 3 COPYRIGHT LAW IN AUSTRALIA 5 Introduction 5 Requirements 6 Duration of copyright 7 Case study 1: 7 Case study 2: 10 Telstra v Desktop Marketing 10 CANADIAN COPYRIGHT LAW 13 Background information 13 Case study 3 16 Lime Wire Company 16 CONCLUSION 18 I ELECTION Part 1 – Election of Method A1 – Post to Moodle I have elected to post my research question to Moodle in week 10.The proposed question discusses an Australian case law under the Copyright Act 1968, and makes a comparison with the Canadian case law experience. A2 – Response to questions The question that I am proposing affords fellow students with the opportunity to make enquiries and ask questions through the Moodle forum about my topic, which focuses on the key area of copyright infringement from a case analysis viewpoint concerning TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2002), Telstra v Desktop Marketing (2002), Ice TV v Nine Network (2007), and any Chinese case law experience. II SYNOPSIS Argument: Australia and Canada – Copyright Infringement I will compare the Australian experience with Canada by analyzing how the courts determined copyright infringement. Although, Australian cases show how the courts are very willing to uphold an author’s copyrights, the Canadian experience reflected in the courts decisions in their jurisdictions might not be as aggressive to impose strict orders against an infringer in a way that Australia has, and so deter others from similar conduct. In simple terms, my research will compare three Australian cases with similar Canadian legal cases on the issues concerned. Therefore, it will be more like comparing the copyright laws dealing with the two countries named before. Part 1 Proposed Research Question The purpose of Australian copyright law under the Copyright Act 1968 (Cth) and ‘International conventions’, is to protect an author’s creative works in any of the literary, arts and sciences. Case law in Australia has deterred others from similar conduct involving copyright infringement. The Canadian experience appears to be not as aggressive in imposing sanctions upon infringers of copyright. Although, Australia has had some insight from leading cases as to how infringement of copyright is to be tested and dealt with, this might be lacking when viewing Canada’s jurisdiction. It is proposed, through the exercise of discovery and case law analysis to present a reasoned view of how the courts determined infringement of copyright in Australia, and how the Canadian courts have done the same in their jurisdiction. Because the focus of this research concerns only two international jurisdictions, e.g., Australia and Canada, the research will be limited to them. We considered these two countries as the ones that will bring out the issue of copyright infringement in the best possible way. Part 2 Preliminary Research The ‘Table 1’ shows the particular legal cases and forms part of the preliminary research which will be relied upon as the basis for analysis and discussion forming the content of the research paper. Essentially, copyright retains its original meaning of using someone else’s ideas without recognizing their efforts towards the same research both in the mentioned countries. However, there might be slight variations in the manner in which consequences from copyright are tackled in the two countries. As mentioned before, we are going to use cases listed below to analyze the difference between the two nations then come up with a tangible conclusion. Table 1: Comparative Case Analysis Australian Cases Canadian Cases (to be added) TCN Channel Nine Pty Ltd v Network Ten Pty Limited [2002] FCAFC 146 (22 May 2002) Desktop Marketing Systems Pty Ltd v Telstra Corporation Limited [2002] Lime Wire Company story[2010] COPYRIGHT LAW IN AUSTRALIA Introduction The term copyright in Australia is an intangible intellectual property that has been got through an individual’s talent and skill1. Therefore, to help govern the manner in which original works are used, the government protects the articles by enforcing some laws. Such laws include moral rights and the right to ownership of the work. This protection is only limited to intangible property, physical property such as the book in which the writer’s words are in it are not covered. These laws are followed to the latter to encourage the minds that came up with such ideas to continually do so. Without such actions then there would be no meaning of coming up with a idea which then ends up in everybody’s computer so to say. If these could have been allowed to happen then most probably the technology of the world would have stagnated eons ago. The likes of Bill Gates would not have been motivated enough to continue carrying out research in the area of computer technology. This is the case in some countries. For such countries, it can be observed that the affected industry stagnates. The economic effects of neglect in copyright laws will have its ripples felt in other sectors of the economy. It is therefore fatal to neglect a country’s intellectual property. Requirements Australia deals with this issue in such an effective way that it has categorized the products to be dealt with into trademarks, patents, circuit layouts, designs, plant breeder’s, music , drama, arts among others. For the last three examples in the list already provided, no monopoly is offered , unlike patents and designs. Once the works are registered, they are dealt with in a desirable level of secrecy so as not to leak out any information out of carelessness. For one to be registered then the involved person must: Be an Australian citizen Have their work published in the country Be a member of the international treaty of which Australia is a member. Have original work A particular work could have more than one owner for instance, having a CD with recordings from different artists. From the above-mentioned copyright works, we would like to single out musical, literary, and dramatic works. In section 7.2 of the Australian copyright law, a closer look of music, drama, and literature is done. The owner of the work has the following rights according to the law: Reproduction of the work Publishing of the work by another person Performance of the same piece of work in public Adapting the work to suit specific needs Duration of copyright The Australian copyright gives duration of 70 years after the creator of the work having passed on. This applies for all forms of works with the exception anonymous works. Any work that has been exposed to the public through selling, performing or any other legal way will be subject to this. Fair dealings Fair dealings refer to situations where exceptions in applying the laws are enforced. According to the Australian Law, they are as follows. Research work; Criticism or analysis; News reporting, Professional advice However, private or public photocopying is illegal. We have done a case study of two cases that were taken to court due to copyright controversy. These two cases present the relevant example of what could happen in case of parody, infraction or any form of infringement of copyright laws. Case study 1: This case involves TCN Channel Nine Pty Ltd v Network Ten Pty Limited [2002] FCAFC 146 (22 May 2002). We will tackle this case in a comparative way. It actually speaks of an instance where Network Ten recorded broadcasts from TCN Channel together with other short clips. These short clips were then brought together for a weekly report that featured guest panelists. The name of the program was called “The Panel.” This viewer interactive program involved infringed copyright laws according to TCN Channel Nine2. TCN took the matter to court with the claim that Network Ten Pty Ltd had infringed Section 87(c) of the Copyright Act 19683. Legal rights had to be put clearly on the table to determine whether the allegation was true. Despite the fact that TCN did not make it in their first attempt to take Network Ten to Court, the courts reconsidered the case after critically analyzing the complaint of TCN. I beg to quote the part of the act, together with other amendments that regards copyright and realty TV formats according to the official website of the High Court of Australia. This documentation relates directly to the case since the whole article is under the title of the case in question. ‘The broadcasting authority should have the right to prevent the copying of its programmes either by re-broadcasting, or by the making of records for sale and subsequent performance.’ It is on this basis that Network Ten was taken to court by TCN. TCN had to take the bull by its own. Thumbs up to this section of the act. It provides the leeway in an easier way for a company to ask for its rights. That is why a still stress that the Australian Court system has the right measures in place to curb this type of “theft.” To add to these, the Gregory act (1952) led to an amendment 31 to the 1968 Act). It stated that: We now turn to the question whether a new right should be given to the broadcasting organizations in their own programme, additional to any copyright there may be in the individual items, which go to make up those programmes. We deal at this stage solely with a right to prevent other persons from copying the programme either by way of again broadcasting a programme (in the event of there being more than one broadcasting authority in the future) or by way of recording such programmes for subsequent performance in some other way. The quoted portions of the 1968 Act were substantial for TCN to move to Court. In spite of this NETWORK Ten still said, the Court did not interpret “Television broadcast” correctly. Three out of the possible five judges were for TCN while two refuted4. It was then agreed that whatever Network Ten was doing was wrong and it had to stop taking clips from TCN and using them as images in their television broadcast of “The Panel.” The court then agreed that every matter would be dealt with in accordance to the Act and not “regarding the second recipient have an upper hand in acquiring an original article.” The whole situation was so complex but the Australian law dealt with it in a way that left both parties satisfied. The court was of the idea that infraction of copyright laws had the intent of using someone else’s intellectual power without the other person’s permission. This is not very contentious to say the least but Hely J (One of the judges) refuted the proffer of having copyright indictment being proportional to amount of copyright information used. This still stresses the idea that, the final decisions is not indicative of someone’s thinking but depends entirely on the underlying regulations. If the right procedures are not followed then all the above-mentioned cases only serve as a red tape. It almost boils down to an individual’s opinion on the matter, inter alia, pressure from the party that has brought the issue to court, as much as the court will actually come up with a ruling. The fact remains that intellectual property must be protected at all costs. It makes no sense at all for a profession to come up literary work or any other work after a long time of toil and moil, and then his work reproduced everywhere else. The above example can be summarized in one sentence: The Australian High Court did a good job. It therefore is understood that copyright laws must be strict5. Case study 2: Telstra v Desktop Marketing According to a court case article on Desktop Marketing Systems Pty Ltd v Telstra Corporation Limited [2002] http://www.deliades.com.au, Telstra Corporation limited brought copyright violation forward, claiming that Desktop marketing had acquired “yellow and white pages” of the telephone directory. The point of argument was that Desktop Marketing had taken CD ROMS containing the entries of 55 geographical locations. These were then arranged alphabetically in a similar way to how Telstra was doing. The issue of concern for the courts was to determine whether truly, Telstra had the full ownership of the database. The other thing was to know whether Desktop Marketing had gone against copyright laws by posting telephone directories same as those of Telstra. The head of Desktop Marketing however, justified the action by saying that it was just but a trivial gathering of information from a wide range of sources merged together and sold, for that matter; he saw no need for copyright protection. The judges were now supposed to determine whether Telstra met all the Copyright requirements. This was so because it looked like coming up with a telephone directory only needed labour and some cost along with it. No innovation or ingenuity seemed to have been used anywhere. The ruling went on with reference to a previously heard case between Apple Computer Inc and Computer Edge Pty Ltd (1994). Telstra had actually just compiled facts from different places to come up with the directory. The judges now had the task of defining ‘compilation” before proceeding with the case. Compilation is to put together out of existing material. Another meaning is that it is a thing, structure or result produced by the operation, action, or labour of …a person or other agent’6. After this, Telstra wanted to know if the directories had an author and were somebody’s independent idea. Desktop at [160 para 2]; Walter v Lane [1900] AC 539; University of London Press Ltd vUniversity Tutorial Press Ltd [1916] However the court gave it a very new look and said that Telstra had utilized a lot of labour in coming up with the “yellow and white pages” and therefore the company warranted a copyright. The decision of the court went against this and it was said that there was a threshold touch of originality of the matter at hand7. It can be concluded that it really does not matter whether the first person compiled the article, created it, or ingeniously came up with it. The only thing that counts is if the second person reproduced a previously existing work or not. The lesson that can be leant from this is that previously constructed work needs to be protected. It is another form of just appreciating the effort incurred. Another case study is Ice TV v Nine Network Nine Network Australia Pty Ltd v Ice TV Pty Ltd [2007]. It is still in the same country as the first two cases. This clearly illustrates that Australia is serious in dealing with copyright infringement. CANADIAN COPYRIGHT LAW Background information Just like any other copyright law, the Canadian Copyright Law seeks to give the creator of internet graphics, literary, drama, artistry, and musical and architectural work full control to know how their work spread and is utilized. For citizens of Canada once work has been written, saved on the internet, or recorded it is under the umbrella of copyright law. The use of the original copies is possible in the event of reviewing the article posted or any form of analysis of the already written work. Together with this, we have non-profit making organizations. The Federal government helps in matters to do with the administration of copyright owners throughout the country. At this point, a comparison with the Canadian system of dealing with copyright affairs could be looked at. The Canadian copyright law, which was started all the way from 1832 and is concerned with enforcing rights to the inventors. However, the act was passed later on in 1921. The Canadian law is slightly different compared to the Australian copyright law. The style used in Canada is imperial, similar to that used in the US and other European countries. To add to these, the Federal Canadian Government played a great deal to ensure that there is copyright protection to technological, literary, and creative arts. These regulations ensure that whosoever came up with the idea fully enjoys the fruits of his labour. However, not everything can be copyrighted according to the Canadian law. For anything to qualify it must meet the requirements of the copyright act. As stated before there are only few categories of invention go through namely literature, drama, music, or arts. The deserved valuation of rights is squarely based on the ability of the article to deliver as per the expectations in the market. In crassly financial point of view, it will make little sense if any to pay for losses incurred by artists and at the same time, it beats logic as to why copyright bodies are formed. Though it is clear to me that whichever way you look at it artists should get a value for their money back. It is self-defeating if such stunts are taken because it causes a negative impression to the public arena. Intellectual property must be at all times treated with utmost respect. A lot of ascendency will however demean the need for innovation, as aforementioned. Nevertheless there is need to create realistic barrier to inhibit intellectual theft. This is my stand. The whole idea is beneficial especially for the long-term needs of the human society. Secondly, it is true that when social law is applied in Canada, a piece of art can only be termed as having been burlesqued if the former work was original. Therefore, a particular writer in Canada will claim that his work has undergone spoofing if his words are applied in an order that almost resembles his work. Spoofing could be likened to plagiarism, where a certain order of words from a particular writer cannot be used without having quoted the writer to appreciate their contribution8. This notwithstanding, it remains that producing another person’s work in another way while still targeting the same market is parody. To add more weight to the aforementioned issue of originality issue, an article must undergo a lot of scrutiny before being accepted as being original. Originality can be defined as the ability to think and act independently. The Canadian act just demands therefore that the work should come from an independently thought idea Finally, for an article to a copyright, the author must be a member of Canada copyright society or part of the larger multinational association of copyrights or any agreements done in the past. After a thorough analysis it can be shown that, the laws in Canada are stricter compared to the situation in Australia. There are no major loopholes as the case is in Australia. There is no much room given to an individual decision but instead the underlying laws are put to practice. The laws themselves have different interpretation in lieu with the case at hand. For example after five years have passed for a work that has been co-authored, then the copyright law enforcement is relaxed. In Canada, the copyright of a writer or an artist would stay up to 50 years beyond the time that the writer lived. This looks more pleasing and real in protecting the ideas of one person from being abused by the rest. An example is given from Canadian Copyright law website (http://creativecommons.ca/index.php?p=cacopyright) that, if a poet penned a poem in 1925 and lived another eighty years, her poem would not enter the public domain until December 31, 2055, for a total of 130 years. However, if the same poet died in 1936, her poem would have already entered the public domain in 1986. The two cases mentioned above help to shed some light on how fair or unfair court systems have been in dealing with parody and other copyright crimes. Still on Canadian way of dealing with these crimes it can be added on that, the terms are different depending on the time a particular article has been in the public domain. Section 9(1) of the act states that for an article worked on by more than one person, until a time of five decades after the final of the writers has passed on they shall remain protected. In the same act, it is provided in section 6(1) for a work whose author cannot be traced then its protection will be for a limited period than the first case. The latter applies for all the literary forms mentioned above together with works in t he telecommunications industry9. In any court session handling cases to do with intellectual property, the points of focus are usually; The way directories are developed authorship originality For comparison purposes, I will analyze a case study from Canada in this area of Copyright and reality TV formats. Case study 3 Lime Wire Company Canada does not really have many case studies as Australia in the field of television formats. The closest my search came to is Lime Wire Company that is based in the US but operates some of its branches in Canada. The company was shut down 27 October 2010, because having been involved in copyright infringement The major issue of violation that has been disturbing the companies for like four years was about the technology that it uses for its operation. The company had claimed that close to 97% of its data is copyright protected. However, this turned out to be a way of defrauding those who accessed their site. Lime Wire had the ability to stop copyright infringement, but it rather did it on purpose that it earned a lot money from 2004-2006. The calculated amount is too big to be repaid by the company as some analysts suggest. The ugly truth is that whatever Lime Wire claimed to be copyright protected was actually not. The company was using its site to share movies and music illegally10. All the same, copyright infringement is very unacceptable. It is also true that the copyright laws of Canada are weaker compared to those of Australia. Not much has been invested towards the same. Due to this, there are concerted efforts to amend the copyright laws of Canada to ensure that it protects its citizens in the best way possible. CONCLUSION The chosen question was to know whether copyright laws protect the parties involved in the TV industry. Yes, some substantial work has been done especially in countries with the right structures in place like Australia. Investments are encouraged in this filed to protect the present technology and safeguard against brain drain. With the right structures in place, more people will be get inspired towards the same. Read More