The Law Handbook 2024

760 Section 7: Consumers, contracts, the internet and copyright have to be deliberate; if you have been exposed to the original work, do not consciously remember it, but unconsciously copy it, the copy is still a reproduction. A famous example is George Harrison’s unconscious use of ‘He’s So Fine’ in composing ‘My Sweet Lord’. Where it can be proved that two works are objectively similar, and the author of the second work has had access to the first work, a court is likely to conclude that the second work is a reproduction of the first work, unless the author of the second work can provide some evidence of independent creation. Conversely, if it is proved that the author of the second work has made conscious use of the first work, it is very likely that a court will hold that there is sufficient objective similarity to constitute infringement. A reproduction need not be made directly from the original work. For example, if you make a copy of a photograph of a picture, the copy is a reproduction of both the photograph and the picture. In Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49, the High Court held that the reproduction of a numerical table forming part of a computer program, whichwas achieved by a process of reverse engineering rather than direct copying, was still a reproduction. An artistic work can be reproduced from two dimensions to three dimensions and vice versa (s 21(3)); therefore, a house is a reproduction of its architectural plans. If you copy characters and plots from a work of fiction or drama but use a different language to tell the story, you may reproduce the original work. For example, the 1967 Disney ‘book of the film’ of The Jungle Book did not use the same language as Rudyard Kipling’s book, but it is still recognisable as a reproduction of a substantial part of Kipling’s book. Taking the underlying idea of a book (e.g. a child brought up by wolves), but not copying the way in which Kipling developed the character of Mowgli or copying specific incidents from The Jungle Book , would not be a reproduction of Kipling’s work. (Note that, because Kipling died in 1936, The Jungle Book is now out of copyright in Australia – see ‘Duration of copyright’, above.) Copying the ‘look and feel’ or functionality of a computer program will generally not infringe the copyright in the program if there has been no direct copying or reverse engineering of the source code (see EIFY Systems Pty Ltd v 3D Safety Services Pty Ltd [2017] NSWSC 1310). However, where there is access to the source code, copying aspects of the structure, sequence and organisation of the code may amount to infringement. Have I performed copyright material in public? A performance may be treated as a public performance even if there is no admission fee, or even if the audience is limited to a particular group. For example, a court has held that playing music to the workers in a factory was a public performance. For this reason, public performances include non- commercial performances (e.g. school concerts, or fundraising video nights held at private premises). Has the infringing act involved a substantial part of the work? Using a substantial part of a work (or other copyright material) is treated the same way as using the whole work (s 14). The Copyright Act does not define ‘substantial part’. While there are many cases dealing with what is substantial, it is difficult to generalise. Whether part of a work is substantial depends both on how large the part is in proportion to the whole work and on how important that part is. For example, approximately a quarter of a computer program has been regarded as a substantial part of the program. The reproduction of a relatively small part in length of a musical work may be treated as reproduction of a substantial part of the work, if the reproduction includes the main musical theme. A rule of thumb that has been quoted by courts is that if part of a work was worth copying, it is worth protecting. In other words, if copying part of the first work has saved the author of the second work significant time or trouble, it is probably a substantial part for the purposes of copyright law. However, when part of a work is not original, copying that part alone will usually not be treated as copying a substantial part of the work as a whole. Authorising an infringement of copyright If you authorise another person to do any of the things that are the exclusive rights of the copyright owner without the owner’s consent, you are infringing copyright yourself. Authorisation is not limited to expressly giving permission to do something, but can