Intellectual Property Protection of Fact-based Works: Copyright and Its Alternatives

Sharon K. Sandeen Bibliography
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It might be thought that Telstra would have been able to rely on presumptions of subsistence and ownership that. PF [69] P Several additional statutory presumptions operate in particular circumstances where this does not apply. For example, section provides a rebuttable presumption of subsistence with respect to a literary work published in Australia within the 70 years prior to the year an action is commenced if a name purporting to be that of the publisher appeared on copies of the work as first published.

Meanwhile, section gives rise to a presumption of originality and the location of first publication in the case of a work that has been authored anonymously or pseudonymously. In so doing, it hoped to avoid having to nominate individual joint authors and their contributions. However, Gordon J found that the presumptions were unhelpful in a situation in which an issue in question was the identity of the author s.

PF [70] P Telstra also raised the section presumption concerning anonymous and pseudonymous works. However, as the works were neither anonymous nor pseudonymous — Telstra had simply failed to identify the individual authors, although it had placed evidence of authorship before the court — Gordon J rejected the arguments.

This approach has been strongly criticised by some legal commentators who suggest that her Honour erred in the application of this area of copyright law. PF [71] P Regardless of whether the Court applied the law correctly or not in this case, there is arguably a case for parliamentary intervention to eliminate the resulting confusion, to clarify the scope of the statutory presumptions, and to avoid future misunderstandings. This would cover situations in which authorship is undertaken by workers and results in ownership vesting in the employer.

PF [73]. In the absence of reform in the nature proposed by Pallaras, it would arguably be sensible for Parliament to at least clarify the situations in which the existing presumptions do and do not apply.

No section

Continuing to apply principles set down in IceTV , the next case in the literary works evolution addressed questions of authorship and originality in newspaper headlines. In Headlines , newspaper publisher Fairfax claimed that Reed had infringed its copyright by providing abstracts of newspaper articles to subscribers.

The material that Fairfax claimed was infringed included headlines of newspaper articles. Adopting the reasoning used by Gordon J in Phone Directories which had not been departed from by the appellate court in that case , neither authorship nor joint authorshipPF [75] P was thus demonstrated. PF [76] P No appeal was pursued in relation to this decision. The requirement that the authors of each original contribution be identified seems unnecessarily burdensome on plaintiffs who can demonstrate that they would be the owner of copyright because, for example, the work was authored by one or more of their employees who had assigned copyright in a contract of employment.

It also seems to impose onerous record keeping requirements on businesses that produce collaboratively authored works, and it may raise privacy concerns in some instances. PF [77]. Judicial disagreement about the authorship threshold causes commercial uncertainty for businesses that have previously created supposed copyright protected works whose subsistence may now be in doubt.

Unless suitable records were kept at the time the work was made, it might now be impossible to identify the individual authors, and it may therefore be impossible to demonstrate subsistence. Meanwhile, lawyers are advising their clients to keep detailed records to help forestall future problems. PF [78]. If, in due course, it were to be decided by the Full Court of the Federal Court or the High Court that all authors do individually need to be identified, this could also create an impractical administrative burden for those wishing to claim copyright in collaboratively authored works.

PF [79] P From a purely legal perspective, this may make sense. However, it seems unrealistic in a real world context where news articles are written to tight deadlines by employees in various roles contributing parts of a story. It seems unrealistic when employees in diverse types of businesses cope with heavy workloads or difficult workplaces, are not always as careful at keeping records as might be ideal, or are not as precise in their details as might ultimately be needed as legal requirements may change over time, what is adequate for evidentiary purposes at one point in time may not be so several decades later.

A difficulty could also arise because many creators of literary works are unaware of the vagaries of copyright law.

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Many copyright issues arise when creators have not been cognisant of the law before a dispute develops. In cases in which creators have not been aware of the requirement to prove authorship, or of what is needed to be able to prove authorship, the tightening of subsistence criteria relating to authorship could result in subsistence not being demonstrated even when literary output has clearly been created, has been published in Australia within the copyright term, and would be owned by the plaintiff due to its employment of the original author s. In this context, it seems unwieldy to require that evidence be provided of the contributions of all joint authors to a purported literary work.

A few months or years after a work is created, it may still be possible to track down those who collaborated on the joint authorship of a literary output. The purported copyright holder may once have expected to be able to rely on the presumption attaching to anonymous works in such circumstances.

Product details

However, authority in Headlines puts in doubt the availability of this presumption in conditions where the identity could have been demonstrated. On that view, if a person claiming copyright could have — but did not — put the identity of the authors into evidence, the person cannot profit from this omission.

The question would arise as to whether the omission to maintain adequate records when the work was made would be sufficient to deprive an employer of copyright in that material. In a world that is ever more globalised, these sorts of issues seem destined to become even more complex. Many businesses that rely on copyright law to protect their literary output — such as publishers, news organisations and software companies — produce works that are jointly authored by their employees and contractors.

Those people may work together in the same office in Australia, or they may be scattered around the world, working remotely but collaboratively via international communications technologies.

The Copyright Pentalogy

Intellectual Property Protection of Fact-based Works. Copyright and Its Alternatives. Edited by Robert F. Brauneis, Associate Professor of Law, Co- Director. Download file Book PDF Intellectual Property Protection of Fact-based Works: Its Alternatives, Robert F. Brauneis, ed., Edward Elgar, to the question.

It is not unusual for a news organisation to have a reporter in Australia write a story that is subedited at a news desk in Hong Kong and is published simultaneously in various jurisdictions by the UK or US corporate group that employed all the people who collaborated on producing the work. In light of these considerations, a strong case could arguably be made that a subsistence threshold requiring that all joint authors be individually identified would be unnecessarily onerous.

Copyright and Fair Use

It is likely to produce a situation whereby some people will be deprived of copyright in what would otherwise be literary works to which they were prima facie entitled. Even if policy makers were to disagree with the reasoning above and decide that all authors and their contributions should be individually identified, clarity about the requirement would arguably be preferable to the uncertainty that currently prevails.

Tonnex illustrates the continuing difficulty surrounding the protection of databases.

That is, since IceTV shifted emphasis to the originality of the particular form of expression required in a compilation, it can be difficult to predict whether or not a particular database will meet the authorship threshold required for copyright subsistence. PF [80]. The Tonnex case concerned allegations of infringement of a compilation of information made by Dynamic showing the compatibility of printers and computer consumables. Trade rival Tonnex produced its own compatibility chart, which Dynamic alleged was partly copied from the compilation made by its employee. Justice Yates found that an identifiable employee of Dynamic, Mark Campbell, had invested intellectual effort, skill and labour selecting particular information from a product database and arranging it to create the compatibility chart.

PF [81] P. PF [82] P Evidence was presented that other compatibility sheets were laid out differently, indicating that the nature of the information compiled by Campbell did not dictate the form in which it was expressed in his compatibility chart. In this respect, IceTV where it had been found the layout of the television guides was constrained by the limited number of ways of expressing time and date information for television programming could be distinguished on the facts. This decision was affirmed on appeal.

PF [83] P. Tonnex demonstrates how IceTV principles may be applied to protect certain types of compilations, albeit a more limited range than may previously have been possible. The threshold for deciding whether sufficient human intellectual effort had occurred would be met when a human author had thoughtfully selected and arranged the material.

It would not be met where that information had merely been copied from one database into another compilation. Tonnex thus provides welcome assistance as to how to assess these standards on a case by case basis, but in doing so it implicitly reinforces the view that some databases will now fail to meet the authorship—originality requirements for copyright subsistence. PF [85] P Michael Bradley and Hannah Marshall succinctly summarised the commercial difficulty with the current position:. Often a lot of work goes into gathering information for a database.

PF [86]. In light of such criticisms, a comprehensive review of Australian copyright law might usefully include a re-examination of this issue. The issue of database copyright is complex and has been subjected to detailed examination. PF [87] P Rather than reproducing arguments made elsewhere, the following points outline options that could be relevant to a review of database copyright in an Australian context. Possibilities include:. While such an approach offers somewhat marginal and unpredictable protection to databases, this may be justified in the interests of preserving the idea—expression dichotomy.

Explaining such a position, Sandra Gosnell has argued:. Preserving the time, labour and expense involved in collecting data for a compilation effectively extends protection to the data itself, where there is only a limited number of ways in which facts and information can be expressed in a table or compilation form.

PF [89]. Consideration of these issues in a systematic, objective policy review of copyright law could give rise to legislative provisions that expressly set out statutory requirements for any copyright subsistence to be afforded to databases under Australian law. This would arguably be preferable to the piecemeal development of this area of law that has arisen since the discussion of infringement of compilations in IceTV. If Parliament were to adopt an intellectual property minimalist position, it may choose reforms that specify — in accordance with post- IceTV jurisprudence — that databases are to continue to be protected by Australian copyright law only where compiled in a particularly original manner.

It may also decide that database copyright would have a far shorter duration than databases would currently enjoy as literary works.

Copyright in Europe

While this would disappoint some commercial interests, it would at least allow businesses to make plans and decisions based on an understanding of the law that will lead to more predictable outcomes. By contrast, if lawmakers wish to adopt a more maximalist approach, the Australian Parliament could include database rights in part IV of the Copyright Act or introduce a sui generis law that provides for term limited protection for databases, including those compiled by computers.

PF [90] P Perhaps a rethink of this structure is in order. Various alternatives would arguably produce a more nuanced and effective outcome.

WIPO and the Sustainable Development Goals

Following the current territoriality principle and the lex loci protectionis rule, this task seems to be impossible. The copyright act required authors and proprietors to deposit a copy of the title of their work in the office of the district court in the area where they lived, for a nominal fee of sixty cents. Works of literature books, poems, magazine articles, blogs, etc. Various alternatives would arguably produce a more nuanced and effective outcome. In addition, the application of a country of origin approach would lead to the situation where players in the same market would be subject to different laws which means the infringement of par condition concurrentium principle. We recommend using ours!

One option would be to move databases to part IV of the Copyright Act. Copyright subsists in part IV works such as published editions with which analogies to databases could be drawn and broadcasts, which would not have attracted literary work copyright. It is not impossible to envisage the inclusion of databases in part IV , where provisions could be designed specifically with respect to the protection of databases. Like other part IV copyright material, databases could be awarded shorter copyright duration than literary works, and tailored thresholds could be established for their subsistence.

Mark Davison has argued that several features of copyright law — including its duration, its rights, its infringement test, its exceptions from infringement, and compulsory licensing issuesPF [91] P — are inappropriate in the context of databases. This would be in line with the approach taken by the European Union, which has also been incorporated into UK law which has a similar copyright framework to Australia.

PF [98] P. Proposals for sui generis database laws are not without their critics. PF [] P Problems experienced abroad should be taken into careful consideration if a law reform process were to recommend a sui generis database law suited to Australian conditions. Would the introduction of distinct database rights be advisable? However, policy decisions about the scope of such rights could prove contentious. Copyright minimalists would no doubt oppose the creation of yet another branch of Australian intellectual property law.