Intellectual Property Rights - Question 1

Issue-

  • Does UoM have a copyright over the staff handbook?
  • Who shall the owner of the staff handbook?
  • Whether Perth University did any infringement and if yes, then the possible defences?

Legislation-

Copyright Act, 1958

Application-

Copyright Act (CA) of 1968 is a regulative material that controls the copyright laws in Australia. It helps the people generate exclusive rights on of their work including to reproduce, perform and distribute it to all. It involves a wide ambit of works like paintings, photographs, music, software codes etc. Moreover, profession like different dance forms, yoga, aerobics etc are also included in this.

 The term 'copyright' is nowhere defined in CA 1968. However, the Act covers three ambits of works where it applies for to-original literary, dramatic, musical or artistic works; sound recordings, films or broadcasts; published editions of work.

To determine whether there has been an infringement, one has to see whether UoM is eligible for the copyright of the staff handbook. The term 'work' means any literary, dramatic, musical or artistic work as per section 10 of Part II. Part III Division 1 section 31 of the act states what shall be termed as copyright of the original works. This part states that an original work owns the privilege of exclusive copyright. Therefore if an original work gets reproduced again or published or if that work gets performed in public or is communicated to the public or the work gets adapted, then that shall come under the circumference of copyright. Section 32 states that where the author was authorized to do the unpublished work, then that work gets accustomed to copyright. Also where the work is published, then the work automatically gets the copyright. Further section 35 of the act entails that where the author of any literary work, dramatic, musical or artistic work does any work under his employment on a newspaper, magazine or any periodical under a contract, the author becomes the owner of that work for reproduction. Inferring the above sections, so it can be stated that the staff handbook written by Jenny and others while she was at UoM, did amount to the university having copyright over it. It prima facie involves the skills, labour and judgement of Jenny and hence it is deemed to be copyrighted. A very similar judgement was held in a case.[1] Therefore, the staff handbook of UoM is eligible to outlast for 70 years as per section 33 of the Act.

Furtherance to the above conclusion, the second issue that subsists is who shall be the owner of the copyright staff handbook. This is resolved by section 35 of the Act. Section 35 which talks about the ownership of the copyright of the original work, its subsection (4) states that where any literary, dramatic or artistic work is involved, and if that work is written by an author of the magazine, newspaper or any other periodical, then that author is deemed to be the owner of the copyright to the extent the work is to be reproduced in some book or is to be changed into a hard copy form. Subsection (6) of the same section states that where the author is under the employment to working on the literary, dramatic or artistic work, then the employer is deemed to be the owner of the copyright. This general is subject to modification in an agreement between employer and employee as per section 35(3). As per case[2],t was held that the work of the employee is an integral part of the business for the employer. So even though Jenny and others formulated that handbook, still UoM shall be the legal owner of that and without his permission, Jenny or any other person cannot reproduce the document. It could have been different if there was to be any agreement between Jenny and UoM that her work shall be deemed to be her work only. Therefore, UoM being the owner can only enjoy the exclusive rights enshrined in an owner. This includes all of the credentials under section 35(4). If any third party tries to copy the UoM staff handbook, then UoM has the right to legally sue for infringement.

As for the conduct of Perth University, as per section 36 of the Act do amount to infringement of copyright. As per the section, if any of the literary work, dramatic or artistic work, apart from the owner, any person not being the owner does any action against the owner of the copyright as per sections 37-39B, shall amount to infringement. The conduct of Perth university falls under section 37(1)(b)(ii). Jenny being the mutual person between Perth University and UoM had made a handbook using a 100-page template which she drafted for UoM with slight changes. Now whether a party has infringed the copyright is a matter of subjectivity and depends on what scenarios are interpreted by the court. In case[3],the court adjudges two things to decide whether the party has infringed copyright or not. First, is there any causal relation between the copyrighted work of the owner and the allegedly infringing work; and second, what part of the copyrighted work has been copied by the infringing party, the meaning is it substantial or mere time few things that were copied. What is substantial shall be decided on a qualitative basis and not quantitative basis as held in a case.[4] So Perth University did infringe the copyright that of UoM but there are available defences that it can claim.

As per[5] it was held that what shall amount to being termed as substantial shall be determined by the work of the infringing party and that of the copyright owner. Meaning first the value shall be counted and secondly how of the portion is copied by the infringing party. Like in[6] it was held that where the infringing party copied the work in extracts but with modifications, so that shall be decided by the court whether the defendant had misappropriated or not. Inferring this, Jenny did take reference of the template of UoM but the handbook she drafted for Perth had many changes like she deleted 5 pages that were irrelevant for Perth; included 5 pages and added languages too; added 2 pages from some other agreements; drafted 3 pages to change the legal rights of parties above 65 years of age; edited the style, grammar etc. Therefore, when deciding this, Perth University can take this defence that they took a reference from the template of UoM but did not copyright the whole of it. Also, division 3 section 40 states the areas where acts shall not be constituting infringement of copyright.

Conclusion-

 Therefore as per the above contentions, Perth is liable for copyright infringement but can take the defence of having done many modifications in its work and was not a copy-paste thing which they did. 

Intellectual Property Rights - Question 2

Issue-

  • Can the Act be applied to this problem?
  • Is Jackie design unique as per the Act?
  • Can Jackie’s three new versions be protected under the same Act?

Legislation-

Design Act 2003

Application-

Designs can be associated with the functions and the appearance of any product. It is not necessary to be related to the physical structure of any product. Even the slightest change in a feature of any product gives the leverage to the party to patent its design. Therefore a separate legislation was formulated in Australia to set it apart from other IPR. It gives privilege to the party to refrain its design being copied by anyone. It is meant for something that could be used commercially. Some works like artistic works can be protected under the Designs Act 2003 and Copyright Act 1968.

The term ‘design’ as per Part 2, section 5 of the act states that when a design of a product is to be taken into consideration, then the product as a whole is to be looked at and not just one or two visual features. Part 4, section 15 states that any design that could set it apart from any prior art base, then that design is eligible to be registered. In[7], it was held that where a design is 'commonplace' thing meaning there is no uniqueness and that could attract someone's attention that product is not said to be an original product. It must be a creative work of the maker and must on be a 'commonplace' thing in that field. Like for e.g., Tesla cars. They bought novelty to the automobile sector and hence can claim copyright on their designs. A ‘product’ as per section 6 means a thing that is manufactured or hand-made. With reference to the mentioned sections, so Jackie’s milkshake maker falls under the purview of design and is a product and hence her milkshake maker can be eligible for protection under the said act.

Section 15 states that anything that can establish uniqueness and distinctiveness in the minds of the viewers, that design becomes registrable under this act. The fact that Jackie invented the design is undisputed as she has designs in her home computer and also hardcopies in her portfolio. The only thing which is ambiguous is whether Jackie's milkshake maker is a unique design. In[8], it was held that to determine whether any design is unique or not, so that questioned design has to be compared with other designs of the product available in the market. This depends upon the subjectivity of the case but we are to infer that if Jackie's milkshake maker is unique and therefore eligible to be registered under the act.

In 2020, Jackie accepted the position of a designer at CafeKing Ltd. There she made three new designs of her original milkshake maker. Part 4 of the act incorporates the registration of not only the new and distinctive designs and anything that is 'substantially similar' with the original design is eligible for registration. Division 2 of Part 4 section 19 gives a detailed version of what be considered as substantially similar. To determine whether designs are substantially similar or not, the person who formed the design should emphasize on their similarities and not their differences. He must also give a detailed version of the development of the two and if anything is the new design is distinct from the original design so that also should be bought into notice. Since Jackie never applied for the registration of her designs, the Café had made a $1 million profit by selling her designs. To ensure that the new versions of the milkshake maker are Jackie's invention only, she has to prove that those designs are substantially similar to her original designs. Since the original maker is her invention, she shall have no problem in pointing out the similarities of the three new versions with that of her original maker.

To seek her royalty charges from the café, Jackie should first register her design as per the requirement under section 21. This will include not only her original design but also her three new versions as well. After all the process followed for registration, she shall be granted the licence of the design. Then she must under section 73 file a suit against Café for infringing her designs and earning commercial benefits from that. Then as the court deems fit it shall either grant injunction or damages to the plaintiff for the loss he suffered on account of profits made by the other.

Conclusion-

To conclude, the substantial designs of Jackie are prone to fall under the said act as it constitutes improvised versions of her original work. She can sue the Café for commercially benefitting from her for a long time and can seek damages.

References for Intellectual Property Rights

Legislations-

Copyright Act of 1968

Designs Act 2003

Case laws

Ladbroke (Football Ltd) v William Hill (1964).

Beloff v Pressdram Ltd (1973)

Francis, Day and Hunter Ltd v Bron (1963)

Ladbroke (Football Ltd) v William Hill (1964).

Baigent & Lee v Random House Group Ltd (2007) FSR 579,

Designers Guild Ltd v Russell Williams (Textiles) Ltd (No 2) (2001)

C&H Engineering v F Klucznik & Sons Ltd (1992) FSR 421

Farmers Build Ltd v Carrier Bulk Materials Handling Ltd (1999) RPC 461

Remember, at the center of any academic work, lies clarity and evidence. Should you need further assistance, do look up to our Law Assignment Help

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