Mind map
Copyright.
Map content
Copyright.
(1) Introduction
- Property right
- Gives owner exclusive right to deal with work and prevent others from doing so
- Arises by operation of law [CPDA]
- Unregistered right
- Arises on fixation (expression of idea in permanent form)
(2) Subsistence [s. 1]
- (i) Is it a protected type
- Classic (literary, musical, dramatic or artistic) [s. 1(1)(a)] [s. 3] [s. 4]
- Must be original (e.g. not news, as public knowledge)
- Derivative (sound recording, film or broadcast) [s. 1(1)(b)] [s. 5A] [s. 5B] [s. 6]
- Need not be original
- E.g. a remix
- Typographical arrangements of published editions [s. 1(1)(c)]
- E.g. layout of dictionary
- Classic (literary, musical, dramatic or artistic) [s. 1(1)(a)] [s. 3] [s. 4]
- (ii) Is it the expression of an idea [Green]
- (iii) Is it de minimis [Exxon v Exxon - name of company or title of book are de minimis, and should be protected by trademark not copyright]
- (i) Is it a protected type
(3) Identify Owner
- (i) Owner is person with right to exploit the work and perform restricted acts [s. 16]
- (ii) Generally the author [s. 11(1)]
- To determine author, consult s. 9(1) and s. 9(2)
- Joint authorship - more than one author collaborates to make the work, with a common aim, and the contribution of each is not distinct from the other [s. 10(1)]
- Must make substantial and original contribution to be joint author - need not be equal contributions but slight is insufficient [Hadley v Kemp - only band member that wrote the song was the author, not the members that played it]
- The contribution is significant if it is a distinct and important part of the work [Fisher v Brooker]
- Merely tweaking the work is insufficient - must be pre-concerted joint design [Levy v Rutley - author died, someone tried to tweak and claim joint authorship - insufficient]
- Must make substantial and original contribution to be joint author - need not be equal contributions but slight is insufficient [Hadley v Kemp - only band member that wrote the song was the author, not the members that played it]
- Exception: employees [s. 11(2)]
- Commissions: artist is still owner - client cannot distribute/copy the work
- (iii) Duration
- Life of author + 70 years
- Depending on type of work, consult s. 3, s. 4, s. 13A, s. 13B, s. 14 and s. 15
(4) Infringement
- (i) Has a restricted act been performed [s. 16]
- (ii) Can a claim be established
- Are the works objectively similar
- Is there a causal connection (was D aware of the work, did he have access, etc.)
- Was a substantial part of the work copied
- Substantial: identify similarities/differences, use of material in original and D's explanation for similarities [Da Vinci Code]
- (iii) Defences
- Didn't copy
- Fair dealing [s. 29, s. 30(1), s. 30(2)]
- Incidental inclusion [s. 31]
- Consent/license [s. 16(2)]
- (iv) Remedies
- Damages (reflecting C's position had the infringing act not been performed)
- Exemplary if flagrant infringement
- Account of profits, reflecting D's gain from infringement
- Injunction
- Delivery up
- Damages (reflecting C's position had the infringing act not been performed)
(5) Moral Rights
- Personal right of author that cannot be assigned
- Enforced via breach of statutory duty
- Can be waived in exchange for acknolwedgment
- Right of paternity must be asserted [s. 77/78]
- Rights granted
- Integrity (no derogatory treatment) [s. 80]
- No false attribution [s. 84]
- Privacy of certain photos/films [s. 85]
- Personal right of author that cannot be assigned
(6) Performers Rights
- Right to equitable remuneration for exploitation of performance [s. 182D]
- Non-property right to consent to broadcasting/recording
- Property right to consent to tangible reproduction/distribution
- Rights under exclusive recording contract [s. 185(1)]
- Right to record, play in public or import/deal with illicit recording [s. 186, 187 and 188]
Information
- Description
- LPC CLIP Mind Map on Copyright., created by jc94055z on 10/08/2015.
- Created by
- jc94055z · Aug 2015
- Updated
- Feb 19, 2016
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