COPYRIGHT LAW

INTRODUCTION

 Copyright law in Australia refers to a bundle of exclusive legal rights granted to the author or creator of an original work.  Whilst some jurisdictions require the completion of certain formalities and/or official registration for copyright protection to be awarded, most countries recognise the  existence of copyright protection providing certain requirements are satisfied.

THE ORIGINS OF COPYRIGHT LAW

Copyright law and the system of copyright dates back to the late 15th century, developing after a time when making copies of works was a laborious and time consuming process.

In the years following the invention of the printing press a vaulable commercial monopoly over the printing of books was conferred upon the Stationers’ Company.  The Stationers Company also performed a censorship function, and used powers they were given to search for, seize and burn any unlicensed books. The publishers of the books would be sent to prison. They regulated themselves and all Government works were also under their control

THE STATUTE OF ANNE 1709

In the early 1700s, Parliament decided to discontinue their support the stationers exercised including the power of censorship that the crown had enjoyed by virtue of the existence of the monopoly.

The Statute of Anne 1709-1710 gave authors recognition for rights in their works and provided the basis for the modern copyright system under which most powers over works created were vested in publishers rather than authors.

Over the ensuing two centuries, the scope of copyright protection was enlarged to cover new forms of creative output and ways of distributing those materials rendered possible by technological advancement.

Prior to  certain technological advancements such as the advent of the printing press, copying of works was time consuming and impractical, involving manual copying of works.   The advent of the printing press led to the need to control and regulate printers. A lot has changed since the first Copyright Statute, The Statute of Anne 1709, the first Act to protect the rights of authors, was passed in England. It granted authors protection for their works for a period of 14 years and 21 years in respect of works already in print.

A Federal Copyright Act was eventually passed in  United States in 1790, which was largely copied from the Statute of Anne except that it did not provide for the protection of maps and charts.  Even though copyright law has  been standardised to some extent by International Conventions and Agreements, jurisdictions still retain separate and discrete laws and regulations governing copyright.

The invention of the photocopier, audio recording, video recording and the internet have posed increasingly difficult challenges to copyright owners, including  end users of copyrighted works wanting to know whether or not the uses they make of such works is lawful. Manufacturers of such technologies are also seeking some certainty as to whether the use of their technologies are legal.

CONTEMPORARY CHALLENGES PRESENTED BY COPYRIGHT LAW

Creative materials are being produced and distributed on a very large scale in digital format.  The revolution in digital technologies has transformed the manner in which content is not only created but also how it is distributed, used and re-used.

Material produced in digital form can be easily copied, modified, combined with other materials and distributed on a broad range of equipment across broadband networks in high fidelity.

The accessibility of compression technologies such as mp4 and jpeg and the evolution of peer to peer distribution networks has made it possible to replicate and distribute copyrighted works in digital form instaneously on a  global scale.

THE CHALLENGE FOR COPYRIGHT OWNERS TO CONTROL THEIR WORKS

This new environment posed challenges for copyright owners wanting to enforce their rights in digital content created. Amendments were made to the Copyright Act 1968 (Cth) to update Australia’s copyright law to respond to the challenges posed by digital technologies and the internet.

LAW REFORM

In 1996 the WIPO Copyright Treaty (WCT) led to the enactment of the Copyright Amendment (Digital Agenda) Act 2000 to give effect to the WCT.

There have since been significant amendments to copyright law in the form of the Copyright Amendment (Computer Programs) Act 1999, the Copyright Amendment (Moral Rights) Act 2000 and the Copyright Amendment (Parallel Importation) Act 2003.

Far reaching changes were made by the US Free Trade Agreement Implementation Act 2004 (AUSFTIA Act) and the Copyright Legislation Amendment Act 2004, both of which were implemented to give effect to Australia’s international obligations to give effect to the AUSFTA.  The Copyright Amendment Act 2006 satisfied Australia’s obligations in the relation to providing for  circumvention of technological protection measures (TPMs), thus superseding the provisions in the Digital Agenda Act 2000. Provision was made for time and format shifting to accommodate the legallycopying from one device to another.

MORAL RIGHTS FOR PERFORMERS

In 2007 moral rights for performers were introduced into Australia upon Australia’s accession to the WIPO Performances and Phonograms Treaty 1996 (WPPT), Article 5 of which recognised the moral rights of performers in respect of both live and recorded performances. Perfomers are considered to be authors of their performances.

CONTENTIOUS ISSUES IN COPYRIGHT LAW

The liability of various online intermediaries operating on the Internet and their legal obligations to comply with certain procedures set out in the copyright legislation has been the subject of case law in several countries

The question has been whether internet intermediaries have liability for copyright infringement by users, where it occurs without their  authorisation. Online intermediaries have been held liable for  authorisation of copyright infringement.

The most recent case in Australia dealing with the liability of an Internet Service Provider (ISP) in Roadshow Films Pty Ltd v iiNet Ltd, The case revolved around the issue of iiNet allegedly allowing 100,000 illegal film, TV and music downloads through BitTorrent to take place over their service

The pursuit of online intermediaries demonstrates a pattern of holding them to account for authorisation of copyright infringement by it’s end users and seek criminal penalties against end users for copyright infringement.

The Federal court in February 2010 delivered judgement in iiNet’s favour. The court  set a precedent stating  ISPs are not responsible for what their users do with the services  provided to them by ISPs and was an important judgement in this regard

OWNERSHIP OF USER GENERATED CONTENT

Another topical area has been the issues relating to the ownership status of user generated content on websites such as 3D virtual world Second Life. Subscribers to Second Life who had previously agreed contractually to terms of use contained in the End User License Agreement, are beginning to successfully assert ownership rights over intellectual property arising from their participation and activities on the site.

Copyright law and other forms of intellectual property law such as trademark  law and designs law attempt to confer upon a creator a level of protection and reward for their individual creations.   However, in the online environment whenever you sign up to a website and  whenever you check the box pertaining to terms and conditions you are assenting that you agree to be bound by those terms and conditions.

You may not inspect the terms and conditions thoroughly during the sign up process, which upon closer inspection you discover contains clauses addressing ownership of intellectual property rights you create when you subscribe to a site.  For instance, when you sign up to Facebook you are granting a “non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook”.  Apart from issues relating to ownership of things between you and a social media site there are also things you need to be aware of in terms of what rights belong to you by virtue of you creating intellectual property or intellectual property type rights on social media sites in the capacity of an employee or within an employment like situation.

 You need to be aware of the fact that social networking and other sites have similar clauses which could deprive you of the rights which you own in any intellectual property you create on that site.  There is a question about the enforceability of EULAs, however be aware that you are entering into a contract and surrendering your intellectual property rights.

Disclaimer:  This site is intended to operate purely as an informational  resource, a general overview of intellectual property and other related legal issues arising online.   It isn’t a substitute for professional legal advice from a lawyer certified to provide legal advice in your jurisdiction.  Neither is it intended to create an attorney-client  relationship.   The law varies in each jurisdiction and we do not warrant the accuracy, completeness or usefulness of any material you read here.