Intarnational News

Broadcast Copyright notInfringed; New MoralRights LawTested;Inquiry into Relationshipbetween Copyright andCJ.lntrac:t.cLaw

Broadcast Copyrightnot Infringed

As reported in the April issue of Capyright

Warld, (issue 109) television broadcasterChannel Nine lost its bid to prevent rivalbroadcaster Channel Ten from re-broad­

casting its footage in the Iight-hearted cur­rent affairs program ealled The Pane/oFollowing judgement in the case, a furtherhearing was held to determine whetherChannel Ten had infringed copyright inChannel Nine's footage by making pre­broadcast copies.

Channel Nine's c1aim in relation to the

pre-broadcast copies was that each indi­vidual visual image in a television broadcast

is proteeted within the scope of broadcast

copyright. Section 25(4)(a) of the

Copyright Act provides:

... a reference to a dnematagraph film afa telev;s;on broadcast shall be read as ;0­

cluding a reference to a cinematographfilm, or a photograph, of any of the visualimages comprised in the broadcast ...

If this were the case, Channel Nine argued,

then Channel Ten's making of pre-broad­

cast excerpts reproduced substantial parts

of visual images contained in its broadcastsand therefore infringed copyright.

In dealing with this submission, JusticeConti referred back to his earlier judge­ment in which he had found that the appro­priate way to measure a broadcast, for thepurposes of broadcast copyright, was gen­

erally by reference to the program broad­cast or an identifiable segment of the

program (exclusive of advertising). He dis­missed Channel Nine's argument regardingthe individual images, finding (with refer­ence to extrinsic material) that it was notParliament's intention to grant broadcast

copyright in each and every image broad­cast. He found that this would be inconsis­

tent with the requirement that a

'substantial part' of copyright material mustbe taken before infringement is made out.

Therefore, the Court held that Channel

Ten had not infringed Channel Nine's

broadcast copyright as it had not copied asubstantial part of any particular broadcast.

Although not having to decide the issue,Justice Conti dealt with Channel Ten's sub­mission that it was entitled to copyChannel Nine's broadcasts beeause of ao

implied licence to do so based on industry

practice. Channel Ten argued that it is com­

mon praetice for ali broadcasters torecord each other's material. Justice Conti

found that there was no evidence to sup­port ChannelTen's assertion and that theredoes not exist in Australia, at least amongthe major television broadcasters, any es­tablished trade practice or custom consti­tuting a mutually implied licence to make

copies of one another's broadcast material.

New MoralRigbts.uw.IesteJt._In the first public test of Australia's moralrights legislation, an architeet has forced

the National Gallery of Australia to consulthim over plans to modify the building he

designed.The building housing the National

Gallery was designed by architect Mr ColMadigan in the late I960s. Last year, a firmof architects unconnected with Mr

Madigan was selected to redevelop thebuilding. Mr Madigan became concerned

about the proposed redevelopment and,with the support of the Royal Australian

Institute of Architects, challenged the

Gallery's plans for the building on the basisthat the proposed changes may infringe hismoral right of integrity of authorship if hewere not consulted in relation to the rede­

veloprnent.As a result of Mr Madigan's assertion of

his moral rights, the Gallery has put theplans for redevelopment on hold while itconsults Mr Madigan in accordance with a

procedure laid down in the moral rightslegislation. Under this procedure, a buildingowner has a defence to infringement of theright of integrity by reason of alterations toa building if it has consulted the archíteetabout the alterations iu good faith.

Inquiry into Relationshipbetween COpyright andC-ºnt['aá«La.w_ ...__.>.~~,~~_w~_.. ,_

As reported in the previous issue ofCopyright Warld, (issue 111) the Federal

Government has given its copyright ad'i1"

sory body, the Copyright Law ReviewCommittee, a reference to inquire into therelationship between contract and copy­right law. The inquiry is to focus particu­larly on online agreements that exclude ormodify the legislative exceptions to copy­right infringement.

The Commlttee has now published its

Issues Paper entitled "Copyright and

Contraet". The Issues Paper looks at

Australia's exceptions to infringement, in­c1uding the fair dealing provisions; the ofuse mass market agreements, such as'shrinkwrap' and 'c1ickwrap' agreements; is­sues relating to enforceabílity, including un­fair contraets and consumer protectionlegislation; jurisdietional issues; and interna­

tional approaches to the relationship 00­tween copyright and contract.

The Committee has asked for submis­

sions by August 10, 200 I. The Issues Paperis available from the Committee's web site

at http://www.law.gov.au/c1rc.

Moral Rights are notViolated by UnauthorizedPublication of CopyrightedWQJ:k.inWeMit~L ".,~..~~..,,~,The lawyer João Antônio César da Motta

sued the website Jurinformática S/C Ltda.,Wide Soft Sistemas and Mário César Bucci

for the unauthorized publication of hiscopyrighted articles in www.jurinforma.com.br . The plaintiff claimed for damagesestimated in $ 1.1 million Reais for infringe­ment of his moral rights.

Copyrights in Brazil are proteeted fromits creation and do not require any registra­

tion for the enforcement of the rights overits creation. Copyrights may be registered

with specific authorities according to thetype of the work. Registration is not a guar­antee of authorship a1though it will reversethe burden of proof.

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The copyright is divided in moral and pat­rimonial rights. Moral rights are not transfer­

abIe or assignable since it is considere<! a

personal right under Brazilian laws.Patrimonial rights may be licensed or as­

signed and require a formal agreement based00 an authorization of the author.

10 the present case, the court denied in­

friogement of moral rights granting onlydamages to infringement of patrimonialrights. The JudgeAlexandreAlves lazzarini ofthe State of São Paulo has issued a decision

based 00 the best interpretation of me pre­sent Brazilian copyright laws.

The law 9610/98 lists in Section 24 what

are the moral rights of the author. The de­fendants published the artides io its integrity,mentioned the author's name and the arti­

des were already being published in otherwebsite.

10 view of these faets, the court has deter­

mioed mat 00 moral rights described ioSectioo 24 of the law 9610/98 was violated.

The court however recognized that ai­though 00 violation of moral rights wasfouod, the unauthorized publicatioo violatesauthor's patrimooial rights.

The damages of patrimonial rights werecalculated by the oumber of hits the website

received for the page containing the articIesin questioo as defendants have presented ev­idence.ln cases where it is not possible to de­termine the number of unauthorized copiesof a copyrighted word, the Sole Paragraph ofSection 103 of the law 9610/98 determines

that it will be deemed as being 3000 copies.

&ica Aoki. Partner, Moreira Uma.Royster & Ohno. Brazil

Associated with Steel. Hector & Davis

Ardsts RQyaltyRights.The European Parliament has voted to intro­duceroyalties for artists as early as 2006 butno later than 2012 The measure was sup­ported by 405 MEPs,with 101 against and 32abstentions. The European law awards resaIeroyalties to artists and their heirs which aresimilar to rights to writers and composers.

Britain had lobbied omer EU member

states to delay me plans by up to 15 years

and increase minimum sale price underwhich royalties would oot be paid toEur4,OOO.But pressure from me EuropeanParliament reduced me transistion periodand lowered the mreshold to Eur3,OOO.

Under me new law, the total royalty paidmay not exceed EurJ 2,000.

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Govemment to MotionWTOReviewofTRIPs

The World Trade Organisation (WTO) isdrawing up a detailed report 00 theAgreement on Trade Related Aspeets ofIntellectual Property Rights (TRIPs) in order

to take account of e-commerce. The report,motioned by the Swiss Govemmeot, will as­certain how the Agreement should beameoded to take account of recent intema­

tional copyright conventions, which havebeen written with the intemet in mindAmendments will consider me 1996 World

Intellectual Property Organisation (WIPO)Copyright Treaty as well as the 1996 WlPO

Performance and Phooograms Treaty. Thelatter hands the control of"me making avail­

able to me public of the work in such a Wirf

that members of me public may access thework from a place and at a time individuallychosen by them" to the authors of the work.The TRIPs Agreement, instead, is currentlybaseei on the 1971 Beme convention. This

grants authors few rights. The contrai over

public access to their work is not 000 ofthem, as this was not a requirement in thepre-internet worId. lt is oow considered tobe a 'minimum', however. as the Swiss

Govemment stated, "me TRIPs Agreemeotmight have to be amended to include mese

two Treaties._to provide for a sufficient min­ima! levei of copyright protection_.in mecontext of the internet."

British Govemment SettoSinkPirates

The British Govemment is set to introduce a

range of measures to help brand owners inthe fight agaiost the ever increasing proIifera­tion of counterfeit and pirate goods. TheAllianceAgainst Counterfeiting and Piracy es­timates that counterfeiting and piracy costBritish industry around €.9 billion Iast year - afigure which equates to around ll.5 billion inlost ta){ revenue.

Speaking at me Alliance AgainstCounterfeiting and Piracy AGM in london onJuly 11, 200 I, MeIanie johnson Mp,the newIyappointed Department ofTrade and Industry(DTI) Minister for Consumer Afl"airs,pIedgedme govemment's support for a number oflegisIative reforms. The Minister said that the

Govemment will support a Private MembersBillto make it easier to bring the people re­sponsible for such fakes to justice.

10 particular, the govemment recognisesthat there are currently particular difficultiesin enforcing the criminal sanctions for coun­terfeiting and piracy. For example, as the cur­

rem law stands, it is up to the rights owner toprove that he did not Iicence the defendam toproduce the goods.lt is proposed that the Iaw

will be changed to place me burden on thedefendant to prove that he was in faet Ii­censed Robert lands, Head of Anti­

Couoterfeiting at law firm Finers StephensInnocem, said "Proving a negative can causeenormous and uonecessary problems forrights-holders. The burden must be reversed:'

Tracking down aod apprehending crimi­

nais will be made easier with new powers

for law enforcement officers including new

search warrants and powers of forfeiture.Furthermore, it is envisaged mat the maxi­mum sentence for copyright offeoces will

be raised from two years imprisonment to10 years imprisonment, in line with TradeMarkLaw;

The DTl has identified Intemet related

counterfeiting and piracy as being a top pri­ority. Melanie johnson. MP,said that whilst theimplementation of me European direetiveson E-Commerce and copyright will be of as­sistance, we "need to make sure there are no

loopholes in the IP Crime provisions".The government is also keen to dispel the

myth that counterfeiters and pirates are 00more than lovable rogues. lodeed, lavinia

Carey, Chair of me Alliance AgainstCounterfeiting and Piracy points out that the

proceeds of counterfeit and pirate goods"feed directly into a criminal underworld ofdrug smuggling, mooey laundering, pomogra­phy and racketeering". NCIS (the NationalCriminal Intelligence Service) has identifiedintellectual property crime as having a "high

impaet" and is expected to make the tackling

of IP crime a priority when its report is pub­

lished inAugust 200 I.

Such a move would be welcomed by rightsowners. Nick Kounoupias, Head of ütigationat me Mechanical Copyright ProtectionSociety, saro "There is a pressing need forchanges to the law in this area, as iIlustratedby the demands of the Alliance AgainstCounterfeiting".

It seems the UK govemment has taken

note of me very serious implications ofcounterfeiting and piracy and it is likely thatwe will see major legislative changes, com­bined with a campaign to raise public aware­ness, within the oext year.

MarkStephens. Head aflntemational.Mediaond IP,Finers Stephens Innocent. tJl(