1

Cyberspace Law materials – Copyright

1.Copyright Overview

1.1.Copyright in Australia

1.2.Copyright and the Internet

1.3.Existence of copyright

1.4.Term of protection

1.5.Exceptions to Copyright

1.5.1.Fair dealing

1.5.2.Educational institutions and libraries

1.5.3.Technical processes and temporary copies

1.5.4.Computer software

1.6.Copyright infringement

1.7.Penalties

1.8.General comments

2.Licensing of Copyright

2.1.1.Background

2.1.2.You and Facebook

3.Test for ISP Liability

4.Moral Rights

4.1.1.Background

4.1.2.Indigenous Australians and Copyright Law

5.Copyright Amendment (Digital Agenda) Act 2000 (Cth)

6.Anti-circumvention in Australia

6.1.Case Study: Sony Computer Entertainment v Stevens

7.Anti-Circumvention in the United States

7.1.Case Study: United States v Elcomsoft

7.1.1.Background

7.1.2.Arguments at trial

7.1.3.The decision

8.Protection of Computer Programs

8.1.Copyright Amendment (Parallel Importation) Act 2003

9.Protection of Online Databases

9.1.Satisfying ‘Originality’

9.2.Limitations associated with ‘online’ databases

10.The International Regime

10.1.European Union Directives

11.Case Study: Napster

1.Copyright Overview...... 2

1.1.Copyright in Australia2

1.2.Copyright and the Internet2

1.3.Existence of copyright3

1.4.Term of protection3

1.5.Exceptions to Copyright3

1.5.1.Fair dealing3

1.5.2.Educational institutions and libraries43

1.5.3.Technical processes and temporary copies43

1.5.4.Computer software4

1.6.Copyright infringement4

1.7.Penalties4

1.8.General comments54

2.Licensing of Copyright...... 5

3.Test for ISP Liability...... 5

4.Moral Rights...... 65

5.Copyright Amendment (Digital Agenda) Act 2000 (Cth)...... 76

6.Anti-circumvention in Australia...... 7

6.1.Case Study: Sony Computer Entertainment v Stevens87

7.Anti-Circumvention in the United States...... 98

7.1.Case Study: United States v Elcomsoft109

7.1.1.Background109

7.1.2.Arguments at trial109

7.1.3.The decision1110

8.Protection of Computer Programs...... 1110

8.1.Copyright Amendment (Parallel Importation) Bill 20021110

9.Protection of Online Databases...... 1211

9.1.Satisfying ‘Originality’1211

9.2.Limitations associated with ‘online’ databases1211

10.The International Regime...... 1312

10.1.European Union Directives1412

11.Case Study: Napster...... 1413

12.Indigenous Australians and Copyright law?

1.Copyright Overview

Copyright protects authors and creators from unauthorised reproduction or adaptation of original creations such as books, computer programs, scripts, paintings, sculptures, drawings, photographs, music, film, video, broadcasts and the choreography of a performance. The copyright owner has the exclusive right to copy, publish, perform, broadcast, adapt (for example, a screenplay from a novel), sell, license or import copyright protected creations. Copyright is a type of intellectual property as it protects the creative and inventive endeavours.

Some useful links that contain general information about copyright protection include:

Attorney General’s department A Short Guide to Copyright –

  • Australian Copyright Council’s Information Sheet An introduction to Copyright in Australia – and
  • World Intellectual Property Organisation’s Basic Notions of Copyright and Related Rights –

1.1.Copyright in Australia

In Australia copyright is chiefly protected by the Copyright Act 1968 (Cth) ( and its various amendments.

In 2000 the Act was amended by the Copyright Amendment (Digital Agenda)Act 2000 ( which extended copyright protection to the full range of digital media.

Other relevant legislation includes:p.157

Copyright Amendment (Parallel Importation) Act 2003 (Cth) (

US Free Trade Agreement ImplementationAct 2004 (Cth) (‘USFTAI Act’) (

Copyright Legislation Amendment Act 2004 (Cth) (

Australia’s AUSFTA obligations in relations in relation to the circumvention of technological protection measures have also been met addressed by the Copyright Amendment Act 2006 (Cth) (

See changes p.157

1.2.Copyright and the Internet

In the Internet context:

  • typical website content will generally constitute a number of different copyright works in the form of original literature (including computer programs), dramatic, musical, artistic works, sound recordings, films, broadcasts, cable programs and adaptations of the above (including compilations);
  • a copyright owner enjoys an exclusive right to reproduce or to authorise another to reproduce, their work on to or from a website;
  • a copyright owner enjoys an exclusive right of communication to the public in relation to literary, dramatic, musical, and artistic works and sound recordings, films and broadcasts (s 31(1)(a)(iv) Copyright Act). The right protects copyright material that is made available online or transmitted electronically (eg uploading of copyright material onto a server connected to the Internet). The right only covers communication in the electronic domain and does not create an exclusive right of communication in the tangible print environment; and
  • copyright is unlikely to exist in a URL (see Exxon Corp v Exxon Insurance Ltd [1982] 1 Ch 119 where it was held that a single invented word e.g ‘Exxon’ could not be subject to copyright, applying this to domain names it is unlikely a court will find copyright exists in a domain name. In any case, this does not matter as there are other ways of protecting URLs – see Domain names Part 2 – Disputes of the these course notes).

For further reading see the Australian Copyright Council’s Internet: copying and downloading Information Sheet –

1.3.Existence of copyright

Copyright comes into existence automatically in relation to an original creation in Australia or in a country whose nationals are entitled to copyright protection in Australia. Copyright in unpublished works does not begin to run until they are published.

No registration of copyright is required, protection is automatic. There is no register to search to ascertain if material is copyright protected.

1.4.Term of protection

Subject to exceptions, protection generally runs for the life of the author plus 50 years from the year of the author’s death or 50 years from the year of first publication (s 33 Copyright Act, see also ss 93, 94). A published edition of a book is protected for only 25 years after first publication of the edition (s 96). Once copyright expires, the material enters the public domain and can be freely used by others.

The period of copyright protection has been extended to 70 years in the European Union and the UK (European Union Directive on Harmonising the Term of Copyright Protection), as well as the US (Sonny Bono Copyright Term Extension Act).

p.157[see p157 of Fitzgerald et al, Internet and E-Commerce Law]

Extensive amendments were made by the US Free Trade Agreement Implementation Act 2004 (USFTAI Act) and the Copyright Legislation Amendment Act 2004, both of which entered into force on 1 January 2005, giving effect in large part to Australia’s obligations under the Australia-United States Free Trade Agreement (AUSFTA). Extension of 50 years to 70 years.Among the changes introduced by the USFTAI Act were:

(i)an extension of the 50-year period of protection to 70 years,

(ii)an expansion of the protection given to performers,

(iii)enhancement of the scope of protection for electronic rights management information,

(iv)new criminal offences for commercial and significant infringements of copyright, and

(v)limits on liability of carriage service providers.

The USFTAI Act extended moral rights to performers of live and recorded performances, which entered into force in April 2007 when Australia acceded to the WIPO Performances and Phonograms Treaty 1996.

1.5.Exceptions to Copyright

1.5.1.Fair dealing

The use of copyright material for the purpose of research or study, criticism or review, reporting of news and professional advice given by a legal practitioner or patent attorney generally does not constitute an infringement of copyright. Rules are provided to determine what is fair dealing in respect of the research and study and the newly created right of communication to the public (ss 40-43,103A-C Copyright Act).

1.5.2.Educational institutions and libraries

Educational institutions and libraries may digitise printed material and reproduce and communicate a reasonable proportion of digital material for the same purposes as permitted in the printed environment (see Part VB Copyright Act). A reasonable proportion of a published literary work (excluding a computer program (s 135ZE) or electronic compilation such as a database) or a published dramatic work in electronic form is 10% of the words in the work or, if divided into chapters, one chapter.

1.5.3.Technical processes and temporary copies

Temporary reproduction of a work that occurs as part of a technical process of making or receiving an electronic communication is not an infringement of copyright provided the making of the communication is not an infringement of copyright. This exception covers browsing and certain types of caching (for example, by a software browser on a user’s PC) (ss 43A and 111A Copyright Act). It is unclear whether this exception applies to hypertext linking, framing, or caching by a proxy server. Remedies in relation to hypertext linking and framing may be available under trade practices legislation.

1.5.4.Computer software

Copies of computer software made in the normal course of running the program, for the purposes of developing interoperable products, security testing, error correction and making back-up copies do not infringe copyright (ss 47B-47F).

1.6.Copyright infringement

Electronic digital technology employed by the Internet facilitates unauthorised access, duplication, storage, transmission and concealing of copyright works. Protected work or material may be scanned into a file server connected to the Internet, uploaded onto the Internet via a network, downloaded into a hard drive, sent by email or printed to hard copy. Copyright infringement (of the exclusive right to reproduce, adapt or communicate to the public) will occur in each case if the work or material is an original work and a substantial part is reproduced without authority (see s 36 which deals with copyright infringement generally, s 36(1) provides that copyright is infringed if an act is undertaken that is inconsistent with the terms of the copyright).

Infringement will not occur if:

  • the unauthorised use of the work fits within the above exceptions; or
  • a license from the copyright owner can be implied in the circumstances.

A substantial part (defined as a qualitative and not quantitative measure) of any copyright work must be reproduced to infringe copyright (Autodesk v Dyason (1993) 176 CLR 300 -

1.7.Penalties

Copyright owners are entitled to civil remedies for copyright infringement, such as an injunction, damages (including aggravated or exemplary damages) and an account of profits (s 115 Copyright Act). Criminal sanctions may also apply to:

  • the manufacture or possession for purposes of sale and distribution of infringing works;
  • tampering with electronic Rights Management Information (RMI) (information attached to or embodied in digital material that identifies the material, its author or the copyright owner, or any terms of use) or dealing in material whose RMI has been tampered with; and
  • the manufacture and dealing in circumvention devices (devices which circumvent technological measures employed by copyright owners to protect their material) for a purpose that is not a permitted purpose (s 132).

1.8.General comments

A copyright owner does not control the medium in which the idea is expressed, for example, a person may freely buy then sell the same book, but they cannot copy the contents of the entire book without copyright permission.

If an employee creates an original work for an employer, then as a general principle (subject to exceptions) the employer owns the copyright in the work created.

Generally, if a person commissions a person other than an employee to create an original work, the person does not own that work unless the creator formally assigns their copyright to the person. The assignment must be in writing and signed by or on behalf of the creator.

Copyright ownership may be joint (a work produced by two or more authors) or divided (eg unless otherwise assigned, a newspaper has copyright ownership of work created by a journalist and published in the newspaper, but the journalist retains copyright ownership with respect to publication of the material in a book or film).

2.Licensing of Copyright

2.1.1.Background

For most material used on the Internet, permission to digitise is unlikely to have been obtained or included in any license agreement covering that material. Ownership of the copyright in the material may be unclear, as physical ownership of a work does not automatically confer copyright ownership. A person accessing that material on the Internet must recognise when permission from the copyright owner is required and when a license to exercise the copyright should not be implied.

A copyright owner who places material on the Internet without notifying the user of any RMI or use restrictions is likely to be giving an implied license to the user to download or print the material.

A website provider may license to third parties any software used in its website where it has the right to license such software. This may occur for example where the website provider or an employee in the course of employment developed the software, or the relevant software development contract confers the right to license or sub-license the use of the software to third parties.

2.1.2.You and Facebook

Facebook is a networking website which has over 64 million active users worldwide. It is also the most popular website for uploading photos, with 14 million photos uploaded daily. Due to the website's popularity, Facebook has met with much criticism and controversy, especially with regards to privacy concerns. Discussed below are some contentious provisions that appear on the website’s Terms of Use.

  • Facebook has unlimited discretion
    : We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Use at any time without further notice.

By creating an account with Facebook, users will be bound by the rules of the website, which can change at any time without notice. By continuing to operate an account, one is deemed to be in acceptance of these rules whether or not they are aware it has changed.

  • Facebook has the power to do whatever it wishes with uploaded content
    : By posting User Content… you automatically grant…to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt… and distribute such User Content for any purpose on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.

Another controversial provision is the following:

All content on the Site…are the proprietary property of the Company, its users or its licensors with all rights reserved. No Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means…without the Company's prior written permission, except that the foregoing does not apply to your own User Content (as defined below) that you legally post on the Site…Any use of the Site or the Site Content other than as specifically authorized herein, without the prior written permission of Company, is strictly prohibited and will terminate the license granted herein.

Effectively, once content is uploaded on Facebook, they are given copyright over the uploaded material. For example, it may be possible for Facebook to sell its members’ uploaded photos and text without any of these funds benefiting the member who uploaded it. Furthermore, there may be restrictions on the user’s ability to engage in fair dealing (or fair use, or any other exception to copyright). Doing so may mean that whatever limited licence they have granted the user to use the content of the site will terminate. Whether this is enforceable in Australia is still uncertain.

  • Facebook is not responsible for harm caused by external applications
    : [W]hile we have undertaken contractual and technical steps to restrict possible misuse of such information by such Platform Developers, we do not screen or approve Developers, and we cannot and do not guarantee that all Platform Developers will abide by such restrictions and agreements. Facebook users have the option of adding numerous external applications onto their profile (for example, quizzes, games, etc).

However, Facebook takes no responsibility for any harm cause by these applications, or if the external applications were written with a purpose to obtain the information of Facebook users for misuse.

  • Privacy is not guaranteed by Facebook
    : [W]e cannot and do not guarantee that User Content you post on the Site will not be viewed by unauthorized persons. We are not responsible for circumvention of any privacy settings or security measures contained on the Site.

If, for example, Facebook is hacked and a user’s information is misused, there may be a remedy against the hacker but not Facebook. Furthermore, there is scope for Facebook’s third-party contractors to misuse a member’s information.

3.Test for ISP Liability

An ISP is not taken to have authorised any infringement of copyright in a work merely because it provides facilities used by a person to do something the right to which is included in the copyright.

A ISP will be liable only if it authorises a copyright infringement, which is determined according to:

  • the extent (if any) of the ISP’s power to prevent the doing of the act concerned;
  • the nature of the relationship between the ISP and the infringer; and
  • whether the ISP took reasonable steps to prevent or avoid the infringement.

Given that ISPs have little or no control over most copyright material not directly hosted on their servers (that is, material to which they merely provide Internet connectivity) and no relationship with a person who places material on such sites, their liability is correspondingly limited. ISPs have greater control over websites on their own servers and will need to consider taking reasonable steps to avoid authorisation liability in respect of such websites (ss 39B as amended by the Copyright Amendment (Digital Agenda)Act 2000 (Cth), and s 112C).

The Copyright Amendment Act 2006 does not change s 39B of the Copyright Act, remain the sameThe Broadcasting Services Act 1992 (Cth), Schedule 5, clause 92 allows an avenue for an ISP to obtain merits review at the AAT. An ISP can seek review on the decisions of ACMA to (i) give an ISP access-prevention notices (standard and special) – see cl 92(1)(e) and cl 92(1)(f).

Clause 92(g) allows the AAT to give, vary or revoke a decision that applies to an ISP. Furthermore, an application may be made to the AAT for a review of a decision of the ACMA to refuse to register a code.

3.1.1.Roadshow v iiNet – ISP liability for authorisation infringement

Roadshow Films Pty Ltd v iiNet Ltd (No 3) [2010] FCA 24; (2010) 263 ALR 215; (2010) 83 IPR 430 LawCite: Computerworld tag: decided in the Federal Court of Australia on4th February 2010, resulted in the ISP (iiNet) successfully defending itself from the claims of a broad array of movie industry plaintiffs (organised by AFACT) that it should be responsible for ‘authorisation infringement’ of its users. This is part of a long running attempt to force ISPs to cease claiming the benefits of common carrier status and in effect accept that they become co-offenders.