Discuss about the Law of Commercial Association for Economic.
Copyright is a set of rights that are economic in nature and give the owner a right that is exclusive for doing things with respect to the object that it is protecting. It is automatically upon the creation that Copyright protection is achieved; it does not require registration of the work in any register officially.[1] The ownership of the copyright can be decided either by way of agreement (13.170 copyright dealings). Other than that Copyright Act sets out general rules that would be applicable.[2] These general rules are:
Thus, as stated under the act though the general rule is the author of the copyright (who is the person who has created or produced the work) work is the first owner of copyright work that has been created. In the case where authors are two or more than two who have contributed towards the work creation then in that scenario as per the general rule, it would be a work of joint authorship.[3] It is not required to register the copyright in the name of all the authors, simple contribution towards the creation of work is sufficient to ascertain the ownership over the work.[4]
The Act defines join ownership work as a work which has been produced through the collaboration between more than one author and in which the contribution of one of the authors cannot be separated from the contribution made by the other Authors. It is required that there should be some kind of collaboration between these authors for meeting of this requirement. In the given case Sam, Sally and Jack had contributed towards the making of the game and thus all three of them are the joint authors of the copyright for the game created (Copyright law in Australia, 2005).
In Australia, one of copy right protection’s essential requirement is that the authored work should be by a person who is qualified meaning a person who is residing in Australia or who is an Australian citizen. In the recent battle in the case of Telstra’s[5] with respect to the directories of the White and Yellow Pages, the court had opined that with respect to directories there could not be a copyright. All the joint authors could not be identified by Telstra and as the Court summed up that in a work for copyright to subsist this is essential. Though it is arguable whether an over-emphasis had been placed by the Court in the given case and whether there was a need for identifying the each and every author however the court’s emphasis is a good law and from the copyright works creators it would be encouraged as being the best practice (DEMPSEY, 1995).
Though there were some people, who had been identified by Telstra as being the Authors, however, the requisite level of collaboration could not be demonstrated by them for being able to produce a work that was of joint authorship among these authors.[6] While contributing towards the same work of directories, the performance of their functions were oblivious of and separate from each other. In the case of Primary Health Care[7] as well this issue had been echoed where an attempt was being made by them for copyrighting the ownership of records of the patients. It was held by the court that the patient record that PHC owned could not be given the protection of copyright as being a joint authorship work since each individual record was an enter made individually with respect to a certain patient and this entry that was made was independent and not through collaboration.
Thus in the case of Jack, Sally and Sam keeping in purview the above mentioned two cases (i) it can established who are the owners of the work that has been given copyright protection as there are not number of individuals that have been involved in the development of the game but only three people who were involved in the development and (ii) the entire work was by way of collaboration and each individuals work cannot be separated from the other thus the protection of joint ownership through copyright is available to Jack for the game that has been produced.
Thus as already been stated the general rules of the Act provides that the joint ownership of copyright arises when the contribution is made by the parties jointly towards the intellectual property creation, and thus they become joint inventors, joint creators or joint authors.
The law in this will provide for three questions of critical importance a default position (Business.qld.gov.au, 2016):
|
Sr. No. |
Question |
Default Position |
|
1. |
Does the copyright’s joint owner have the right of exploiting i.e. reproducing or copying the copyrighted work without the assent from the other joint authors of the work and without accounting such joint authors for any profit that has been made from such exploitation? |
No |
|
2. |
Can the interest of a joint author of a copyright be assigned to it in the copyright without the other joint authors consent? |
No |
|
3. |
Can the exclusive license of the copyrighted work be granted by the joint author without there being consent from the other joint authors? |
No |
The result of this is that the economic benefits from the copy right cannot be accrued by neither of the joint authors without there being a common consensus between all of them for doing the same together. This helps in fair operation as it ensures that the joint owners are together benefitted from the copyrighted work.
The trigger for joint ownership is joint authorship in the case where an agreement has not been put in place for joint ownership. Thus, in this case, there is a joint authorship that exists as already established this leads to the situation of default legal position that without the consent of Jack Sam and Sally cannot accrue profit from the game and also without his consent they cannot make grant the license of the work to a third party. Thus economic benefits that are accrued from the game cannot be enjoyed only by two of the authors even Jack has to be given an account of the profit. Thus the result of joint ownership of a copy right is that the economic benefits cannot be realised from the copyright unless it is for all the three joint authors that are Sally, Sam and Jack.
The joint authorship’s implications are that the ownership is taken by the author as a tenant in common (Acorn Computers Ltd v MCS Microcomputer Systems Pty Ltd (1984) 57 ALR 389) and authority is there which suggests that without the permission of the other co-owner the copyrighted work cannot be used by one owner for availing economic benefits. Further, each of the joint owners has the title to sue each other. In the case of where a work was adapted by a Composer and he was claiming royalties for it. However, the piece had been originally co-authored. The co-author sued the other for not been given a part of the profit and was successful in the same.
Jack can sue Sam and Sally for infringement of his copyrights with respect to the game. If the court is of the opinion that his rights have been infringed then, an order can be taken from the court for either (i) an injunction to stop the occurrence of the infringement, and (ii) account of profits or damages are made for using the copyrighted work.
The court’s powers to grant the injunction is given efficacy vide the Copyright Act 1968 (Cth.) and it either after or before the trial that the same can be done. In deciding whether there should be an order for an interlocutory injunction that prevents an individual from doing a certain act in the case of Beechman Group Ltd. v. Bristol Laboratories Pty. Ltd. (1988) 118 CLR 618, the High Court stated that there were two essential questions:[9]
However despite the fact whether there is granting of an injunction award or not the plaintiff will still have the option of seeking compensation and damages for the losses that have been incurred due actions that were infringing as has been provided under the Act.[10]
Account for profits and damages are remedies that are available alternatively.[11] The difference between damages and account for profits is that the main concern of damages is with the money which was lost or the potential money that could have been lost due to the conduct of the defendant which infringed the plaintiff’s copyright. The account of profits on the other hand looks instead at the profit which the defendant would have gained due to the infringement of the copyright and these profits being a consequence of such infringements.
The compensation of the plaintiff for the losses that have been suffered by him due to the infringement is the main purpose of awarding damages.[13] Thus in Jack’s case since he has suffered losses due to the assignment of the license and not sharing of the royalty by Sam and Sue he will be entitled to damages.
The damages that are calculated by the is on the basis of the depreciation which is caused because of the infringement to the value of the copyright.[14] It is necessary for the court to decide in the first instance to calculate damages that there has been some loss that has been incurred.[15] Thus in Jack’s case since he has suffered losses due to the assignment of the license and not sharing of the royalty by Sam and Sue he will be entitled to damages.
The aim of the Account of profit is to prevent the defendant’s unjust enrichment. The amount of profit that the defendant has made through the act of infringement is the amount which the plaintiff would be entitled to. It would be overheads proportion that would include the fixed cost which might be deducted from the profit further there is an account that defendant has to give with regards to where the costs which are attributed for sale and production of the product that has been infringed. The position that is appropriate shall vary as per the particular characteristics that the business has. Items such as interest and rent may be deducted as well in circumstances that are appropriate.
Thus in Jack’s case, the remedies that are available to him are that he may sue Sam and Sally for the royalties that they have received due to the licensing of the copyright. Further he may also seek remedies for infringement of his copyright before the court and seek orders for either injunction and even in the case where the court is of the opinion that granting of infringement will cause more damage to the defendants include the company to which the game has been licensed he still has the option of seeking damages or accounts of profits.
References
ALLEN, G. G., “Copyright And Copying In Australia; The Impact Of The 1980 Amendments To The Australian Copyright Act” (1982) 32 Libri
Dempsey, Gillian, “Evolution Of Copyright Protection For Software Programs In Australia” (1995) 17 Law & Policy
Gerrand, Peter, “Revisiting The Structural Separation Of Telstra [2004]” (2010) 60 TJA
Imoniana, J.O. and J.V.I. Pascual, “Comparative Study Of The Breach Of Software Copyright Laws In An Ethical Standpoint” (2006) 2 Revista Organizações em Contexto
K, Sridhar, “Intellectual Property Rights And Scope In Agricultural Biotechnology” (2016) 3 APAR
Puri, K., “Copyright Protection Of Software In Australia” (1992) 1 Information & Communications Technology Law
Rimmer, Matthew, “Robbery Under Arms: Copyright Law And The Australia-United States Free Trade Agreement” (2006) 11 First Monday
Roughton, A., “The Interface Between Intellectual Property Rights And Competition Policy” (2008) 3Journal of Intellectual Property Law & Practice
Beechman Group Ltd v Bristol Laboratories Pty Ltd (2016) 118 CLR
Interfirm Comparison (Aust) Pty Ltd v Law Society of New South Wales (Unreported, 1977)
International Writing Institute Inc v Similar Pty Ltd (1994) 30 IPR
Monte v Fairfax case [2015] FCCA
Polygram Records Inc v Raben Footwear Pty Ltd (1996) 35 IPR
Primary Health Care Ltd v Commissioner of Taxation [2010] FCA
Telstra Corporation Limited v Desktop Marketing Systems Pty Ltd (Unreported, 2001)
Your Rights As A Joint Owner Of Intellectual Property | Queensland Government (2016) Business.qld.gov.au <https://www.business.qld.gov.au/business/support-tools-grants/tools/intellectual-property-info-kit/browse/joint-ownership-IP>
Discuss about the Law of Commercial Association for Economic.
Copyright is a set of rights that are economic in nature and give the owner a right that is exclusive for doing things with respect to the object that it is protecting. It is automatically upon the creation that Copyright protection is achieved; it does not require registration of the work in any register officially.[1] The ownership of the copyright can be decided either by way of agreement (13.170 copyright dealings). Other than that Copyright Act sets out general rules that would be applicable.[2] These general rules are:
Thus, as stated under the act though the general rule is the author of the copyright (who is the person who has created or produced the work) work is the first owner of copyright work that has been created. In the case where authors are two or more than two who have contributed towards the work creation then in that scenario as per the general rule, it would be a work of joint authorship.[3] It is not required to register the copyright in the name of all the authors, simple contribution towards the creation of work is sufficient to ascertain the ownership over the work.[4]
The Act defines join ownership work as a work which has been produced through the collaboration between more than one author and in which the contribution of one of the authors cannot be separated from the contribution made by the other Authors. It is required that there should be some kind of collaboration between these authors for meeting of this requirement. In the given case Sam, Sally and Jack had contributed towards the making of the game and thus all three of them are the joint authors of the copyright for the game created (Copyright law in Australia, 2005).
In Australia, one of copy right protection’s essential requirement is that the authored work should be by a person who is qualified meaning a person who is residing in Australia or who is an Australian citizen. In the recent battle in the case of Telstra’s[5] with respect to the directories of the White and Yellow Pages, the court had opined that with respect to directories there could not be a copyright. All the joint authors could not be identified by Telstra and as the Court summed up that in a work for copyright to subsist this is essential. Though it is arguable whether an over-emphasis had been placed by the Court in the given case and whether there was a need for identifying the each and every author however the court’s emphasis is a good law and from the copyright works creators it would be encouraged as being the best practice (DEMPSEY, 1995).
Though there were some people, who had been identified by Telstra as being the Authors, however, the requisite level of collaboration could not be demonstrated by them for being able to produce a work that was of joint authorship among these authors.[6] While contributing towards the same work of directories, the performance of their functions were oblivious of and separate from each other. In the case of Primary Health Care[7] as well this issue had been echoed where an attempt was being made by them for copyrighting the ownership of records of the patients. It was held by the court that the patient record that PHC owned could not be given the protection of copyright as being a joint authorship work since each individual record was an enter made individually with respect to a certain patient and this entry that was made was independent and not through collaboration.
Thus in the case of Jack, Sally and Sam keeping in purview the above mentioned two cases (i) it can established who are the owners of the work that has been given copyright protection as there are not number of individuals that have been involved in the development of the game but only three people who were involved in the development and (ii) the entire work was by way of collaboration and each individuals work cannot be separated from the other thus the protection of joint ownership through copyright is available to Jack for the game that has been produced.
Thus as already been stated the general rules of the Act provides that the joint ownership of copyright arises when the contribution is made by the parties jointly towards the intellectual property creation, and thus they become joint inventors, joint creators or joint authors.
The law in this will provide for three questions of critical importance a default position (Business.qld.gov.au, 2016):
|
Sr. No. |
Question |
Default Position |
|
1. |
Does the copyright’s joint owner have the right of exploiting i.e. reproducing or copying the copyrighted work without the assent from the other joint authors of the work and without accounting such joint authors for any profit that has been made from such exploitation? |
No |
|
2. |
Can the interest of a joint author of a copyright be assigned to it in the copyright without the other joint authors consent? |
No |
|
3. |
Can the exclusive license of the copyrighted work be granted by the joint author without there being consent from the other joint authors? |
No |
The result of this is that the economic benefits from the copy right cannot be accrued by neither of the joint authors without there being a common consensus between all of them for doing the same together. This helps in fair operation as it ensures that the joint owners are together benefitted from the copyrighted work.
The trigger for joint ownership is joint authorship in the case where an agreement has not been put in place for joint ownership. Thus, in this case, there is a joint authorship that exists as already established this leads to the situation of default legal position that without the consent of Jack Sam and Sally cannot accrue profit from the game and also without his consent they cannot make grant the license of the work to a third party. Thus economic benefits that are accrued from the game cannot be enjoyed only by two of the authors even Jack has to be given an account of the profit. Thus the result of joint ownership of a copy right is that the economic benefits cannot be realised from the copyright unless it is for all the three joint authors that are Sally, Sam and Jack.
The joint authorship’s implications are that the ownership is taken by the author as a tenant in common (Acorn Computers Ltd v MCS Microcomputer Systems Pty Ltd (1984) 57 ALR 389) and authority is there which suggests that without the permission of the other co-owner the copyrighted work cannot be used by one owner for availing economic benefits. Further, each of the joint owners has the title to sue each other. In the case of where a work was adapted by a Composer and he was claiming royalties for it. However, the piece had been originally co-authored. The co-author sued the other for not been given a part of the profit and was successful in the same.
Jack can sue Sam and Sally for infringement of his copyrights with respect to the game. If the court is of the opinion that his rights have been infringed then, an order can be taken from the court for either (i) an injunction to stop the occurrence of the infringement, and (ii) account of profits or damages are made for using the copyrighted work.
The court’s powers to grant the injunction is given efficacy vide the Copyright Act 1968 (Cth.) and it either after or before the trial that the same can be done. In deciding whether there should be an order for an interlocutory injunction that prevents an individual from doing a certain act in the case of Beechman Group Ltd. v. Bristol Laboratories Pty. Ltd. (1988) 118 CLR 618, the High Court stated that there were two essential questions:[9]
However despite the fact whether there is granting of an injunction award or not the plaintiff will still have the option of seeking compensation and damages for the losses that have been incurred due actions that were infringing as has been provided under the Act.[10]
Account for profits and damages are remedies that are available alternatively.[11] The difference between damages and account for profits is that the main concern of damages is with the money which was lost or the potential money that could have been lost due to the conduct of the defendant which infringed the plaintiff’s copyright. The account of profits on the other hand looks instead at the profit which the defendant would have gained due to the infringement of the copyright and these profits being a consequence of such infringements.
The compensation of the plaintiff for the losses that have been suffered by him due to the infringement is the main purpose of awarding damages.[13] Thus in Jack’s case since he has suffered losses due to the assignment of the license and not sharing of the royalty by Sam and Sue he will be entitled to damages.
The damages that are calculated by the is on the basis of the depreciation which is caused because of the infringement to the value of the copyright.[14] It is necessary for the court to decide in the first instance to calculate damages that there has been some loss that has been incurred.[15] Thus in Jack’s case since he has suffered losses due to the assignment of the license and not sharing of the royalty by Sam and Sue he will be entitled to damages.
The aim of the Account of profit is to prevent the defendant’s unjust enrichment. The amount of profit that the defendant has made through the act of infringement is the amount which the plaintiff would be entitled to. It would be overheads proportion that would include the fixed cost which might be deducted from the profit further there is an account that defendant has to give with regards to where the costs which are attributed for sale and production of the product that has been infringed. The position that is appropriate shall vary as per the particular characteristics that the business has. Items such as interest and rent may be deducted as well in circumstances that are appropriate.
Thus in Jack’s case, the remedies that are available to him are that he may sue Sam and Sally for the royalties that they have received due to the licensing of the copyright. Further he may also seek remedies for infringement of his copyright before the court and seek orders for either injunction and even in the case where the court is of the opinion that granting of infringement will cause more damage to the defendants include the company to which the game has been licensed he still has the option of seeking damages or accounts of profits.
References
ALLEN, G. G., “Copyright And Copying In Australia; The Impact Of The 1980 Amendments To The Australian Copyright Act” (1982) 32 Libri
Dempsey, Gillian, “Evolution Of Copyright Protection For Software Programs In Australia” (1995) 17 Law & Policy
Gerrand, Peter, “Revisiting The Structural Separation Of Telstra [2004]” (2010) 60 TJA
Imoniana, J.O. and J.V.I. Pascual, “Comparative Study Of The Breach Of Software Copyright Laws In An Ethical Standpoint” (2006) 2 Revista Organizações em Contexto
K, Sridhar, “Intellectual Property Rights And Scope In Agricultural Biotechnology” (2016) 3 APAR
Puri, K., “Copyright Protection Of Software In Australia” (1992) 1 Information & Communications Technology Law
Rimmer, Matthew, “Robbery Under Arms: Copyright Law And The Australia-United States Free Trade Agreement” (2006) 11 First Monday
Roughton, A., “The Interface Between Intellectual Property Rights And Competition Policy” (2008) 3Journal of Intellectual Property Law & Practice
Beechman Group Ltd v Bristol Laboratories Pty Ltd (2016) 118 CLR
Interfirm Comparison (Aust) Pty Ltd v Law Society of New South Wales (Unreported, 1977)
International Writing Institute Inc v Similar Pty Ltd (1994) 30 IPR
Monte v Fairfax case [2015] FCCA
Polygram Records Inc v Raben Footwear Pty Ltd (1996) 35 IPR
Primary Health Care Ltd v Commissioner of Taxation [2010] FCA
Telstra Corporation Limited v Desktop Marketing Systems Pty Ltd (Unreported, 2001)
Your Rights As A Joint Owner Of Intellectual Property | Queensland Government (2016) Business.qld.gov.au <https://www.business.qld.gov.au/business/support-tools-grants/tools/intellectual-property-info-kit/browse/joint-ownership-IP>
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