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Intellectual Property law — Australia — Copyright 3 Essay Example

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Intellectual Property Law—Copyright

Under Copyright Act 1968, individuals have exclusive rights to print, perform, create or copy their own original work. Therefore as shrined in this Act, it balances the owner and the rights and needs of the public to use these works. Consequently, it is worth mentioning with regard to the case study presented that copyright applies automatically as soon as an idea is expressed in materials.

Applying the above point to the case and beginning with accessing the e-Reserve and subsequently printing out a copy for her to read, it is enshrined within the law that the act as committed, is an infringement that deal with all or a substantial of copyrighted book in a way that is exclusively reserved to the copyright owner without permission. In as much as the student used peer to peer (P2P) to make available files without the authority of the owner makes her liable. Secondly, Emily Pankhurst was acting within the course of the University therefore the institution may be vicariously liable for this infringement. In as much as this is the case there are some remedies and or exceptions available to Emily Pankhurst as well. First, P2P per se is regarded as unlawful. That is, Emily Pankhurst can argue that the usage of the software(s) that aided access of the book are in most cases, made available freely by the owners of copyright in situations giving rise to implied license. Secondly, this is a case of mere conduit. Under section 39B of the Act she may be excused because the University provided mechanisms for infringing and therefore mere use of such facility does not constitute infringement from her side. Thirdly, under ss 41, 103A what she did was merely fair dealing for the sake of study and research. Again, mere provision or availability of a link on the website—in this case, within content does not itself bring copyright issues. Lastly, Internet Service Providers did not authorize infringement by just providing the internet access. This was also the case between Universal Music Austl. Pty Ltd. v. Sharman License Holdings Ltd. (2005).

The second issue is the sharing of Emily Davison photo. First, the photos are regarded by the Act as artistic works that are covered under the law. Therefore by using substantial portion of the photo and consequently sharing the same is an infringement to the copyright. Secondly there is the aspect of indirect infringement if by use of the photos already infringes a patent then supplying the same photos is on the other hand infringement to the Emily Davison. The sharing of photo further contravenes the aspect of fair dealing under the Act. Thirdly, failing to acknowledge the creator’s moral rights is further a contravention of s 38 (distribute or exhibit it by way of trade) questions whether the intention was for personal use. However, it must be noted that as social network, s 116 116AA of the Copyright Act 1968 (Cth) as amended allows for a given safe harbours provisions for Internet Service Providers. Additionally, the Act also stipulates specific exemptions for ISPs with regard to authorization of the said infringement.

The third issue in this case is downloading a copy of the movie to watch. As already argued, P2P per se is regarded as unlawful. That is, Emily Pankhurst can argue that the usage of the software(s) that aided access of the movie are in most cases made available freely by the owners of copyright in situations giving rise to implied license. Additionally, Sections 103A-103C of the Australian Copyright Act is specific and only touches on “criticism or review,” “research or study” and “reporting news.” This is a fact that even narrows the potential scope of what constitutes legitimate downloads as far as Emily Pankhurst is concerned now that this is done through P2P file-sharing platforms. When this matter is looked into in terms of secondary liability then the use of file sharing software as it is with this case and as applied by end-users for the sake of downloading “The Suffragettes”—a clearly copyrighted material is considered as a primary infringement of copyright.1 However, owing to the fact that the movie is available and can be viewed or accessible using P2P networks or software does not give Emily Pankhurst legitimate right to download the file. Similarly, the file was downloaded for personal use and therefore can be remedied under specific fair dealing exceptions.

Finally, Keir Hardie case represents another twist on the liability of the ISPs and Keir Hardie as an entity. Sub-section (1A) that comes after amending Copyright Amendment (Digital Agenda) Act 2000 acts as the guiding principle. It underpins;

  • The nature of any relationship existing between the Emily Pankhurst and Keir Hardie,

  • Whether Keir Hardie took any other reasonable steps to prevent or avoid the doing of the act

With this argument pending, Emily Pankhurst’s copyright has been infringed by Keir Hardie and ISPs hold passive conduit position with regard to information accessed and sent by Keir Hardie using P2P networks therefore could face secondary or primary liability and such may arise with regard to Keir Hardie who posts links to infringing files on the website hosted by ISP.

1Metro-Goldwyn-Mayer, 125 S. Ct. at 2778; Universal Music Austl. Pty Ltd.