mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Independent Television Publications Limited v Time Out Limited [1984] FSR 64
Outcome: considered
In Independent Television Publications Limited v Time Out Limited [1984] FSR 64, daily program schedules of programs to be broadcast by channels including the BBC were compiled for publication in weekly format in the TV Times and the Radio Times . It was accepted that ' a great deal of time, energy and skill ' was expended in producing the schedules for the programs ultimately listed in the two publications (at 66). The defendants took the date, title and time of transmission information ' either wholly from ' the published weekly schedules or ' possibly occasionally only checked ' the information they published by reference to those guides (at 67, 73). They published all or some of the information taken from the published schedules in Time Out , together with synopses which were independently drafted. The defendants accepted that sufficient skill and labour was invested in the production of the daily program schedules to justify a claim to copyright but argued that that ' what is being done...is no more than creating information '. Mere information, it was submitted, could not be the subject of copyright protection. The issue for determination was whether the schedules did any more than create information. Mr Justice Whitford rejected the submission that the program schedules were mere information that could not be protected by copyright (at 72). His Lordship also considered that a substantial part of the daily program schedules had been taken but recognised that what constituted a substantial part was a question of degree, depending on quantity taken and the importance of what was taken (at 73). It was accepted that selection on "a very limited basis" would not amount to infringement (at 74). The fact that synopses were added did not negate a finding of infringement. His Lordship emphasised that a person is free to start with a public source and from that source to produce his or her own work which may correspond very closely with the copyright work of the earlier author (at 69). 181 In neither of these two cases was there not only an absence of wholesale copying but also the checking of information against a third party aggregated guide, the checking of a selection of listed items and that selection being of the information for a given entry and the number of entries in the compilation. The cases illustrate that copying is an important factor and that it is a matter of fact and degree to ascertain whether there has been a taking of a substantial part. Each case turns on its own facts. While Independent Television Publications and Wireless League Gazette are examples that have fallen on one side of the line, they are not determinative of these proceedings.
Case: Leslie v J Young &amp; Sons [1894] AC 335
Outcome: cited
In Desktop , Lindgren J examined in detail a number of cases and secondary materials from which the following principles or observations are presently relevant: &#8226; A work is original if the work was not copied, but originated from the putative author (at [47]). &#8226; A person is not prevented from undertaking the original labour of recording a subject "open to all the world", for example a map of a geographical area ( Longman v Winchester (1809) 16 Ves Jun 269 at 272; 33 ER 987 at 988 cited in Desktop at [29]). &#8226; The mere publication of information that was open to all the world to publish is not an infringement of another's right ( Leslie v J Young &amp; Sons [1894] AC 335 at 340-1, cited in Desktop at [54]). &#8226; ' The owner of copyright has, in short, no monopoly in the subject-matter. Others are at liberty to produce the same result, provided they do so independently and, though they are not the first in the field, their work is none the less "original" in the sense in which that word is used in the Copyright Act 1911 ' ( Halsbury's Laws of England (2 nd ed, 1932, vol 7) at 521, cited in Desktop at [107]). &#8226; The fact that some facts would or might be described by independent authors in the same or similar words may necessarily follow from the subject matter and is not restrained by copyright ( Spiers v Brown (1858) 6 WR 352, cited in Desktop at [31] [32]). &#8226; Copying is not an "all or nothing" test. The degree of copying can be taken into account, that is, the degree to which the copyright work was not copied but originated with the putative author and the amount of that author's contribution to bringing a new work into being ( Desktop at [96]). &#8226; If a person is to carry out original labour, no part of another compilation can be taken ( Kelly v Morris (1866) LR 1 Eq 697, cited in Desktop at [35]). There is no right to make the results of another's skill and labour the foundation of a subsequent compilation or any material part of it ( Morris v Ashbee (1868) LR 7 Eq 34, cited in Desktop at [39]).
Case: Longman v Winchester (1809) 16 Ves Jun 269; 33 ER 987
Outcome: cited
In Desktop , Lindgren J examined in detail a number of cases and secondary materials from which the following principles or observations are presently relevant: &#8226; A work is original if the work was not copied, but originated from the putative author (at [47]). &#8226; A person is not prevented from undertaking the original labour of recording a subject "open to all the world", for example a map of a geographical area ( Longman v Winchester (1809) 16 Ves Jun 269 at 272; 33 ER 987 at 988 cited in Desktop at [29]). &#8226; The mere publication of information that was open to all the world to publish is not an infringement of another's right ( Leslie v J Young &amp; Sons [1894] AC 335 at 340-1, cited in Desktop at [54]). &#8226; ' The owner of copyright has, in short, no monopoly in the subject-matter. Others are at liberty to produce the same result, provided they do so independently and, though they are not the first in the field, their work is none the less "original" in the sense in which that word is used in the Copyright Act 1911 ' ( Halsbury's Laws of England (2 nd ed, 1932, vol 7) at 521, cited in Desktop at [107]). &#8226; The fact that some facts would or might be described by independent authors in the same or similar words may necessarily follow from the subject matter and is not restrained by copyright ( Spiers v Brown (1858) 6 WR 352, cited in Desktop at [31] [32]). &#8226; Copying is not an "all or nothing" test. The degree of copying can be taken into account, that is, the degree to which the copyright work was not copied but originated with the putative author and the amount of that author's contribution to bringing a new work into being ( Desktop at [96]). &#8226; If a person is to carry out original labour, no part of another compilation can be taken ( Kelly v Morris (1866) LR 1 Eq 697, cited in Desktop at [35]). There is no right to make the results of another's skill and labour the foundation of a subsequent compilation or any material part of it ( Morris v Ashbee (1868) LR 7 Eq 34, cited in Desktop at [39]).
Case: Morris v Ashbee (1868) LR 7 Eq 34
Outcome: cited
In Desktop , Lindgren J examined in detail a number of cases and secondary materials from which the following principles or observations are presently relevant: &#8226; A work is original if the work was not copied, but originated from the putative author (at [47]). &#8226; A person is not prevented from undertaking the original labour of recording a subject "open to all the world", for example a map of a geographical area ( Longman v Winchester (1809) 16 Ves Jun 269 at 272; 33 ER 987 at 988 cited in Desktop at [29]). &#8226; The mere publication of information that was open to all the world to publish is not an infringement of another's right ( Leslie v J Young &amp; Sons [1894] AC 335 at 340-1, cited in Desktop at [54]). &#8226; ' The owner of copyright has, in short, no monopoly in the subject-matter. Others are at liberty to produce the same result, provided they do so independently and, though they are not the first in the field, their work is none the less "original" in the sense in which that word is used in the Copyright Act 1911 ' ( Halsbury's Laws of England (2 nd ed, 1932, vol 7) at 521, cited in Desktop at [107]). &#8226; The fact that some facts would or might be described by independent authors in the same or similar words may necessarily follow from the subject matter and is not restrained by copyright ( Spiers v Brown (1858) 6 WR 352, cited in Desktop at [31] [32]). &#8226; Copying is not an "all or nothing" test. The degree of copying can be taken into account, that is, the degree to which the copyright work was not copied but originated with the putative author and the amount of that author's contribution to bringing a new work into being ( Desktop at [96]). &#8226; If a person is to carry out original labour, no part of another compilation can be taken ( Kelly v Morris (1866) LR 1 Eq 697, cited in Desktop at [35]). There is no right to make the results of another's skill and labour the foundation of a subsequent compilation or any material part of it ( Morris v Ashbee (1868) LR 7 Eq 34, cited in Desktop at [39]).
Case: Network Ten Pty Limited v TCN Channel Nine Pty Limited [2005] HCATrans 842
Outcome: cited
Where the manner of presentation is the basis for the attraction of copyright, it may be that a presentation of the same information in different form would not infringe ( Victoria Park per Dixon J at 511). In such circumstances there may not have been a taking of a "substantial part", which is assessed by reference to the quantity and the quality of what is taken and the inter-relationship between them ( Eagle Homes Pty Ltd v Austec Homes Pty Ltd [1999] FCA 138 ; (1999) 87 FCR 415 at [70] per Lindgren J, cited in Gold Peg at [170]). It is a question of fact and degree (Crennan J in Gold Peg at [190]; also emphasised by McHugh and Kirby JJ in dismissing an application for special leave to appeal from the Full Court in Network Ten Pty Limited v TCN Channel Nine Pty Limited [2005] HCATrans 842). A defendant may rework the work of a plaintiff, capturing the ideas used or facts referred to but in a way that does not infringe because it is not a substantial reproduction. It may constitute a new original work. The taking of a substantial part of a copyright work will vary depending on the nature of the work and the degree of originality of the original work ( Skybase at 532 per Hill J, with whom French J agreed). The ' originality of that part of the work taken by the alleged infringer ' is critical ( Desktop at [409] per Sackville J).
Case: Nine Films &amp; Television Pty Ltd v Ninox Television Ltd [2005] FCA 735 ; (2005) 146 FCR 144
Outcome: cited
The Act provides a statutory cause of action for groundless threats of infringement, even if made bona fide ( Nine Films &amp; Television Pty Ltd v Ninox Television Ltd [2005] FCA 735 ; (2005) 146 FCR 144 at [48] per Lindgren J). Section 202 relevantly provides: '(1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding in respect of an infringement of copyright, then, whether the person making the threats is or is not the owner of the copyright or an exclusive licensee, a person aggrieved may bring an action against the first-mentioned person and may obtain a declaration to the effect that the threats are unjustifiable, and an injunction against the continuance of the threats, and may recover such damages (if any) as he or she has sustained, unless the first-mentioned person satisfies the court that the acts in respect of which the action or proceeding was threatened constituted, or, if done, would constitute, an infringement of copyright. ... (4) The defendant in an action under this section may apply, by way of counterclaim, for relief to which he or she would be entitled in a separate action in respect of an infringement by the plaintiff of the copyright to which the threats relate and, in any such case, the provisions of this Act with respect to an action for infringement of a copyright are, mutatis mutandis , applicable in relation to the action. ' 229 Nine contends that Ice cannot, as a matter of procedure and of statutory construction, commence proceedings by way of originating process or cross-claim once proceedings for infringement have commenced. Nine submits that the commencement by it of the action for infringement "extinguishes" the existence of the threat of an action or proceedings in respect of an infringement of copyright.
Case: Spiers v Brown (1858) 6 WR 352
Outcome: cited
In Desktop , Lindgren J examined in detail a number of cases and secondary materials from which the following principles or observations are presently relevant: &#8226; A work is original if the work was not copied, but originated from the putative author (at [47]). &#8226; A person is not prevented from undertaking the original labour of recording a subject "open to all the world", for example a map of a geographical area ( Longman v Winchester (1809) 16 Ves Jun 269 at 272; 33 ER 987 at 988 cited in Desktop at [29]). &#8226; The mere publication of information that was open to all the world to publish is not an infringement of another's right ( Leslie v J Young &amp; Sons [1894] AC 335 at 340-1, cited in Desktop at [54]). &#8226; ' The owner of copyright has, in short, no monopoly in the subject-matter. Others are at liberty to produce the same result, provided they do so independently and, though they are not the first in the field, their work is none the less "original" in the sense in which that word is used in the Copyright Act 1911 ' ( Halsbury's Laws of England (2 nd ed, 1932, vol 7) at 521, cited in Desktop at [107]). &#8226; The fact that some facts would or might be described by independent authors in the same or similar words may necessarily follow from the subject matter and is not restrained by copyright ( Spiers v Brown (1858) 6 WR 352, cited in Desktop at [31] [32]). &#8226; Copying is not an "all or nothing" test. The degree of copying can be taken into account, that is, the degree to which the copyright work was not copied but originated with the putative author and the amount of that author's contribution to bringing a new work into being ( Desktop at [96]). &#8226; If a person is to carry out original labour, no part of another compilation can be taken ( Kelly v Morris (1866) LR 1 Eq 697, cited in Desktop at [35]). There is no right to make the results of another's skill and labour the foundation of a subsequent compilation or any material part of it ( Morris v Ashbee (1868) LR 7 Eq 34, cited in Desktop at [39]).
Case: Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378
Outcome: cited
The originality of a compilation may lie in the selection or arrangement of the information. It also may reflect the skill and labour of gathering the facts. As already noted, in the present case, the Weekly Schedule reflects both. It is only the originality of expression that is relevant, not the originality of the idea the subject of the expression ( Donoghue v Allied Newspapers Limited [1938] Ch 106 at 110 per Farwell J). It must be determined whether the part that is taken is an essential or material feature of the whole work, regarded as a copyright work; that is, ' whether the part or parts taken represent a substantial part of the labour, skill and judgment of the author that made the whole work "original" ' ( Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378 at [55] per Wilcox and Lindgren JJ). As one should not dissect a work to determine if a part could be protected by copyright standing alone ( Ladbroke at 277 per Lord Reid), so it is inappropriate to dissect the work for the purposes of infringement. The correct approach is to decide whether the work as a whole is protected by copyright and then to determine whether the work or a substantial part of the work as a whole has been taken.
Case: T R Flanagan Smash Repairs Pty Ltd v Jones [2000] FCA 625 ; (2000) 102 FCR 181
Outcome: cited
In T R Flanagan Smash Repairs Pty Ltd v Jones [2000] FCA 625 ; (2000) 102 FCR 181, Hely J observed that copyright may even subsist in compilations that consist entirely of existing material. Originality may lie in the selection or arrangement of such material ' provided that sufficient skill, judgment and labour was involved ' (at [29]). Any of the latter three may be sufficient for the work to be original ( Desktop per Lindgren J at [159]).
Case: Telstra Corporation Limited v Australasian Performing Right Association Limited [1997] HCA 41 ; (1997) 191 CLR 140
Outcome: cited
The requirement under the Act that the "communication" must be "to the public" means "to the copyright owner's public" ( Telstra Corporation Limited v Australasian Performing Right Association Limited [1997] HCA 41 ; (1997) 191 CLR 140). Ice submits that Ice's subscribers cannot be considered to be Nine's "public" because ' Nine could not reasonably expect payment from anyone...for receipt by [Ice] subscribers of the [Weekly Schedule]'. It points to Mr Marshall's evidence that there is no paying market for a program guide in non-aggregated format. This does not address Nine's contention. Nine's public includes persons who wish to view Nine's programs. This would include Ice subscribers. Indeed, if it did not, there would be no commercial reason for Ice to include Nine program listings information in the IceGuide. 223 Ice also points to s 22(6) of the Act which relevantly provides that a "communication" is taken to have been made by the person responsible for determining the content of the communication. That person is said to be the subscriber rather than Ice. Ice relies on the fact that users determine the regularity by which data are downloaded and the subsets of IceGuide data that are downloaded (eg, Sydney rather than Melbourne channels). It follows, Ice submits, that there has been no relevant "communication" by Ice.
Case: Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd (2001) 181 ALR 134
Outcome: cited
The author of a compilation does not acquire copyright in the facts that have been published. The facts do not originate from the author. If the selection or arrangement of the facts involves sufficient skill or labour then the form of selection or arrangement is protected. If there is sufficient work done or expense incurred in gathering the facts, that is also protected ( Desktop at [313] per Sackville J citing the primary judge, Finkelstein J in Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd (2001) 181 ALR 134 at [64]; see also Desktop at [409] per Sackville J).
Case: The University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1
Outcome: cited
Accepting that there is no reproduction or substantial reproduction of the Weekly Schedule on the hard drives of subscribers' PCs or Media Centres, authorisation does not arise. If there is such reproduction, the facts support the contention that Ice "authorises" the reproduction of the Weekly Schedule by users of the IceGuide within the meaning of s 36 of the Act. It "sanctions, approves and countenances" such activity ( The University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1 at 12-13 per Gibbs J and at 20-21 per Jacobs J). Ice encourages use of the IceGuide and is, at best, indifferent as to whether the Weekly Schedule is reproduced on the hard drives of subscribers' PCs or Media Centres ( Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 210 ALR 244). Ice has the power to prevent such reproduction and takes no steps to do so. The actions of Ice are not dissimilar to those of the proprietor of software made available from websites enabling copying and communication of sound recordings ( Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1).
Case: Universal Music Australia Pty Ltd v Cooper [2005] FCA 972 ; (2005) 150 FCR 1
Outcome: cited
The IceGuide is made available online in such a way that it can be electronically transmitted as a result of a request by the user of the IceGuide. The fact that a user may elect to download the IceGuide for only some channels and determine the regularity of "fetch" is not to the point. The content of such data as is downloaded is plainly "determined", "formulated" or "created" by Ice ( Universal Music Australia Pty Ltd v Cooper [2005] FCA 972 ; (2005) 150 FCR 1 at [74] per Tamberlin J). That satisfies s 22(6) of the Act. 225 It follows that, had the first infringement been made out, I would have been of the view that Ice communicates the Weekly Schedule to the public within the meaning of s 31(1)(a)(iv) of the Act. 226 At the hearing, Ice sought leave to file the second cross-claim seeking a declaration, injunction and damages for unjustified threats pursuant to s 202 of the Act. Leave is required because Ice did not comply with O 5 r 9(1) of the Federal Court Rules (O 5 r 9(2)). Nine opposes leave being granted on the basis that the right to bring the cross-claim does not arise under s 202 and that the discretion should be exercised to refuse leave where Ice sought to file the cross-claim on the second day of hearing. Nine reserves its right to object to the cross-claim as drafted.
Case: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1
Outcome: cited
Accepting that there is no reproduction or substantial reproduction of the Weekly Schedule on the hard drives of subscribers' PCs or Media Centres, authorisation does not arise. If there is such reproduction, the facts support the contention that Ice "authorises" the reproduction of the Weekly Schedule by users of the IceGuide within the meaning of s 36 of the Act. It "sanctions, approves and countenances" such activity ( The University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1 at 12-13 per Gibbs J and at 20-21 per Jacobs J). Ice encourages use of the IceGuide and is, at best, indifferent as to whether the Weekly Schedule is reproduced on the hard drives of subscribers' PCs or Media Centres ( Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 210 ALR 244). Ice has the power to prevent such reproduction and takes no steps to do so. The actions of Ice are not dissimilar to those of the proprietor of software made available from websites enabling copying and communication of sound recordings ( Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1).