Skip to 0 minutes and 4 seconds Copyright is based on a fairly simple idea. It’s simple to express it, but perhaps more complicated in practice sometimes. And that’s the notion that you can’t own copyright in an idea. Ideas freely circulate. You only own something when you have expressed that idea, given it original expression. So it’s what’s called, in sort of legal terms, the dichotomy between the idea and the expression of the idea. If all you do is articulate an idea, then you’ve got no copyright in that idea or that piece of information. It’s only the expression of that idea. And the other basic thing in copyright law is that it is limited in time. So copyright began with quite a short period of protection.
Skip to 0 minutes and 48 seconds I think it was around about 25 years, 200 years ago. It’s progressively got longer so that most recently in Australia, you now have copyright for the life of the author plus 70 years. After that, your– like the works of Shakespeare– those works are there for anybody to exploit in whatever way they choose. Carl could claim copyright protection for the words to his song as a literary work. And he might also claim copyright protection for the music that he’s written as a musical work. If somebody copies that song, he would have to show that his work’s original, whether it’s literary or musical. He hasn’t copied it from somewhere else, essentially. Also, he has to reduce it into material form.
Skip to 1 minute and 31 seconds If it’s just something that exists in his mind and he’s never actually written it down in any form– that could include electronic– then he won’t have copyright. Potentially he could have copyright in some representation of the music, maybe as an artistic work, possibly. Also, if he’s recorded it then he’s likely to have copyright in the sound recording under the specific section part four of the Australian Copyright Act that deals with sound recordings, films, and more slightly nontraditional types of creativity. If he wants to assert his copyright in the work, he needs to let people know that it’s his work. But otherwise, he doesn’t need to go to a copyright office, unlike in some other places.
Skip to 2 minutes and 12 seconds I think in the United States, you need to register a copyright. But in Australia, you don’t need to do that. It’s simply a matter of providing enough evidence that you are the person who is asserting your copyright. If we’re talking about an online environment, there are masses of information circulating all the time, and I guess people could entirely unintentionally infringe simply because the person hasn’t asserted their copyright ownership. So that’s what you need to do. If you want to show the world that you own work, then you would write that down. You would put your name and you’d put the date. And that would be good evidence that you are, generally, the person that created that work.
Skip to 2 minutes and 50 seconds Certainly if you let trusted people know, if you let the world know, you would be looking at some sort of independent evidence outside friends and family. If you had emailed it to, perhaps, colleagues at work, or something like that, so that they might be able to stand up, if necessary, and confirm that you genuinely are the person who created that work. And I guess if you’ve got confirmation of the date, it’s a matter of the types of evidence that you could bring, ultimately. If Carl is seeking to get commercial benefit from his song, then he would need to think about what’s his strategy.
Skip to 3 minutes and 26 seconds And his strategy may will be to give it to the world, put it out there on YouTube. He would, I’m sure, be aware that once he does that, there are going to be people linking it, and liking it, and sending it out in all kinds of ways that he can’t control. That may be part of his strategy. If he wants to sell CDs or he wants to exploit it, to hold it more tightly and personally, then he might want to think pretty carefully before he releases it in that kind of uncontrolled environment. In some environments, you might not be seeking immediate commercial benefit for your copyright, your work. And so you might be quite happy.
Skip to 4 minutes and 4 seconds I guess that the idea of the Creative Commons is really a form of licensing. By putting the work out there under those terms, you are allowing people to reproduce it as long as, I think, it’s in some sort of non-commercial context. And I guess there you’re primarily– you’re getting your name known, really. Rather than trying to sell each item of your work, you’d be seeking– I suppose if you’re looking at it in a commercial context– to be able to get your name known and then to look at other ways in which you might make money out of that copyright work. Or you might just be idealistic about it and be very happy for the world to share it.
Skip to 4 minutes and 51 seconds So if Sonia was to post a link to Carl’s song on YouTube, then technically it’s possible that she may be infringing copyright in the sense that she is facilitating the use by somebody else, the breach by somebody else of Carl’s copyright. And so it’s a little bit analogous, in a way, to the library that makes copyright works available for students to find a copy at will. And so the idea is that the library that does that is itself in breach of copyright because it has allowed or facilitated the breach of copyright by somebody else. And technically you could argue that the link to the YouTube post is of a similar nature.
Skip to 5 minutes and 39 seconds However, as we probably know, that’s daily practice in the online world. And I think she could argue that there’s an implied license in the fact that Carl has put this thing out there in that environment. He’s got basic familiarity with the norms of the online world. That he’s implicitly licensed behavior of the sort that Sonia has– the sort of thing that she’s done. If Sonia was to do something more explicit in terms of copyright breach, such as represent herself as having been the person who sang Carl’s song– perhaps she’s there with a microphone– then she would have gone beyond the implicit, the norms and conventions of this environment.
Skip to 6 minutes and 29 seconds And so she certainly couldn’t argue that Carl implicitly licensed her to behave in that way. So, yes, the test would be whether she has reproduced a substantial part of Carl’s song. And if she has done that, then she would be in breach of copyright. If Sonia was to do a cover version or a mash-up of the original song, then she may have some defenses available to her. She might argue that her work is a fair dealing. So we’ve got special defenses in Australia of fair dealing for certain purposes, like criticism over a view, for the purpose of reporting news, and we’ve also got a relatively new defense of parody or satire.
Skip to 7 minutes and 10 seconds So she could argue that she’s using his work for one of those purposes, in which case she’d have a slightly wider defense. But certainly people who behave in that way are placing themselves at risk of copyright infringement. I guess it depends whether they’re getting commercial benefit from that kind of behavior and whether the person whose work they’re taking is likely to sue those sort of realities. If Sonia downloads somebody’s movie, a movie that’s currently showing in the cinema, then she most certainly has breached copyright. She could be in receipt of a notice of infringement, of a letter of demand, or some sort of threat from the studio if they manage to trace that infringement.
Skip to 7 minutes and 56 seconds Piracy, as probably many of us– most of us– know, is extremely common. The piracy of films, and of songs, and so forth on pirate websites. And I guess that the really difficult issue now is the liability of the site that actually facilitates that form of infringement by people. But definitely, yes, it’s an infringement. The internet service provider could be liable for breach of copyright on the same principle as a university library that makes books available for students to photocopy would be in breach. By inviting people to infringe copyright, then you are under the Australian Copyright Legislation, infringing yourself. They might argue, look, we’re telling people that they shouldn’t infringe copyright, we’re not inviting that sort of infringement.
Skip to 8 minutes and 41 seconds So it can be a difficult issue. The companies who make money out of films and out of songs are interested in the ISPs, the internet service providers, because they’re likely to be the ones who’ve got the financial resources, and they’re the ones who are facilitating the large-scale infringement. All over the world, really, but particularly in the United States, also in Australia to some extent, this whole question of facilitating piracy has been of enormous interest to movie producers amongst others. And one example of that was the ‘Dallas Buyers Club’ film, in which case the maker of the film was very active in pursuing internet pirates, and I guess wanted to make an example.
Skip to 9 minutes and 20 seconds And so it was quite– It sent quite threatening letters, I understand, to people and asking for quite large sums of money. Money which they would probably be unlikely to actually get if the case was to go to court. So that was quite a well-publicised example of movie studios being very active in pursuing internet piracy. And I guess that sort of set the scene for the current debates that we’re having in Australia and elsewhere about internet piracy. If Sonia was to take an illegally download a video to a nursing home and play it to the residents of that nursing home, a particular type of infringement concerns playing a public performance of a copyright work.
Skip to 10 minutes and 7 seconds And the real question would be whether this was a purely private and domestic situation, or whether it was a public situation. I’d suggest if there’s any kind of commercial element to what she’s doing, then it’s likely to be viewed as a public performance, and she would be in breach of copyright.
Case study 1 analysis: Carl Copyright
Watch Stephen (Senior Lecturer, Faculty Law) explore intellectual property law and the way it operates with his analysis of the “Carl Copyright” case study.
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