The Law Handbook 2024

Chapter 7.6: Copyright 759 Sound recordings and films (ss 85, 86) Right to make a copy of the sound recording or film The copyright owner is the only person permitted to make a copy of the sound recording or film. The copy must reproduce the actual sounds or images contained in the sound recording or film, not merely resemble them. As a result, a shot-by-shot remake of a film does not infringe the copyright in the original film (although it may infringe the copyright of the original film’s screenplay). Right to cause the sound recording or film to be heard or seen in public, or to communicate it to the public The copyright owner is the only person permitted to cause the sound recording or film to be heard or seen in public or to communicate it to the public. These rights are discussed under ‘Literary, artistic, dramatic and musical works (s 31)’, above. Right to enter a commercial rental arrangement The copyright owner is the only person permitted to enter into a commercial rental agreement. This right applies to sound recordings, but not to films. For more information, see ‘Right to enter into a commercial rental agreement’, above, in the section dealing with literary, dramatic, musical and artistic works. Television and sound broadcasts (s 87) The copyright owner of a television or sound broadcast has the exclusive right to make a film or recording of the broadcast, or a copy of such a film or recording, and to rebroadcast the broadcast. Published editions (s 88) The owner of the copyright in a published edition of a work has the exclusive right to make a facsimile copy (i.e. an exact copy) of the edition. Loss of copyright protection Copyright protection for an artistic work can be lost, in part, if the copyright owner allows the artistic work to be applied industrially, and articles to which the artistic work have been applied are offered for sale anywhere in the world (s 77). An artistic work is taken to be applied industrially if it is applied to over 50 articles (reg 12 Copyright Regulations 2017 (Cth)). However, depending on the facts, industrial application can occur with less than 50 articles. For example, if an artist draws a design for a chair, once 51 chairs are made and offered for sale, other people can make identical chairs without infringing the copyright in the artist’s drawing. This can be a real trap for designers and small-scale manufacturers. To prevent other people applying an artistic work industrially, the copyright owner must register the work as a design under the Designs Act 2003 (Cth) before an article to which the design has been applied industrially has been publicised or sold, or within the 12 months’ grace period. Information about design registration is available from IP Australia’s website at www.ipaustralia.gov.au Copyright protection for an artistic work is not lost if the work is applied to the surface of an article (e.g. a drawing on a greeting card), or if the work is a building, a model of a building, or a work of artistic craftsmanship (see ‘Artistic works’, above). Infringement of copyright Actions that are exclusive rights of the copyright owner If you do any of the things that are exclusive rights of the copyright owner without the owner’s consent, you will infringe copyright, unless one of the exceptions set out in the Copyright Act applies. The following section deals with practical issues that often arise in deciding whether a copyright infringement has taken place. Have I reproduced the work? You must have used the original work to produce the reproduction. If you have created a very similar work independently, without reference to the original work, it is not a reproduction. However, the copying doesn’t