Copyright C - Defences, remedies, ownership and transmission

TOC \o "1-3" \h \z \u 7Copyright C - Defences, remedies, ownership and transmission PAGEREF _Toc450755785 \h 1
7.1The fair dealing provisions PAGEREF _Toc450755786 \h 1
7.1.1Fair dealing for the purpose of research or study PAGEREF _Toc450755787 \h 1
7.1.2Fair dealing for the purpose of parody or satire PAGEREF _Toc450755788 \h 3
7.1.3Fair dealing for the purpose of criticism, review and the reporting of news PAGEREF _Toc450755789 \h 3
7.1.4Fair dealing with subject matter other than works PAGEREF _Toc450755790 \h 4
7.1.5Unpublished work PAGEREF _Toc450755791 \h 5
7.1.6Implied licences PAGEREF _Toc450755792 \h 5
7.2Other statutory defences PAGEREF _Toc450755793 \h 5
7.3Compulsory or statutory licences PAGEREF _Toc450755794 \h 5
7.3.1Section 55 PAGEREF _Toc450755795 \h 5
7.3.2Part VB PAGEREF _Toc450755796 \h 5
7.4Actions for infringement of copyright PAGEREF _Toc450755797 \h 5
7.5Groundless threats PAGEREF _Toc450755798 \h 6
7.6Actions for infringement of moral rights PAGEREF _Toc450755799 \h 6
7.6.1Who enforces the right PAGEREF _Toc450755800 \h 6
7.6.2Defences PAGEREF _Toc450755801 \h 6
7.6.3Remedies PAGEREF _Toc450755802 \h 6
7.7Criminal sanctions PAGEREF _Toc450755803 \h 6
7.8Who owns the copyright in works PAGEREF _Toc450755804 \h 7
7.8.1The first owner is generally the author PAGEREF _Toc450755805 \h 7
7.8.2Ownership by employer - s 35(6) PAGEREF _Toc450755806 \h 7
7.8.3Newspaper proprietors - s 35(5) PAGEREF _Toc450755807 \h 7
7.8.4Photographs, portraits, engravings - s 35(5) PAGEREF _Toc450755808 \h 7
7.9Who owns copyright in a work when there is more than one author? PAGEREF _Toc450755809 \h 7
7.10Ownership of copyright in subject matter other than works PAGEREF _Toc450755810 \h 7
7.10.1Sound recordings PAGEREF _Toc450755811 \h 7
7.10.2Cinematograph films PAGEREF _Toc450755812 \h 7
7.10.3Broadcasts and editions PAGEREF _Toc450755813 \h 7
7.11Divisibility, transmission and licensing of copyright PAGEREF _Toc450755814 \h 8
7.11.1By assignment PAGEREF _Toc450755815 \h 8
7.11.2By will PAGEREF _Toc450755816 \h 8
7.11.3By licence PAGEREF _Toc450755817 \h 8

The fair dealing provisions
Fair dealing for the purpose of research or study
Works - s 40
SMOTW - ss 103A-103C
Some principles relevant to s 40 are discussed in De Garis in 7.1.3
Section 40(1)
A fair dealing with a literary, dramatic, musical or artistic work, or with and adaptation… for the purpose of research or study does not constitute and infringement of copyright in the work.

Extra defence for those who produce education material - s 40(1A). Exclusion of ‘lecture notes' (see broad definition) appears to prevent one educational institution copying from another
(1A)A fair dealing with a literary work (other than lecture notes) does not constitute an infringement of the copyright in the work if it is for the purpose of, or associated with, an approved course of study or research by an enrolled external student of an educational institution.
(1B)In subsection (1A) the expression "lecture notes" means any literary work produced for the purpose of the course of study or research by a person lecturing or teaching in or in connection with the course of study or research.

Meaning of ‘fair dealing' - s 40(2)
The matters to which regard shall be had, in determining whether a dealing… constitutes a fair dealing for the purpose of research or study include:
(a) the purpose and character of the dealing;
(b)the nature of the work or adaptation;
(c)the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price;
(d)the effect of the dealing upon the potential market for, or value of, the work or adaptation; and
(e)in a case where part only of the work or adaptation is reproduced - the amount and substantiality of the part copied taken in relation to the whole work or adaptation.

Extra protection/qualification for dealing with an article in a periodical publication - s 40(3)-(4). Note that qualification doesn't apply if you copy from the one source twice, for two different purposes.
(3)Despite subsection (2), a reproduction, for the purpose of research or study, of all or part of a literary, dramatic or musical work, or of an adaptation of such a work, contained in an article in a periodical publication is taken to be a fair dealing with the work or adaptation for the purpose of research or study.
(4)Subsection (3) does not apply if another article in the publication is also reproduced for the purpose of different research or a different course of study.

Quantitative test for ‘fair dealing' for material not published in a periodical publication - s 40(5)
Despite subsection (2), a reproduction, for the purpose of research or study, of not more than a reasonable portion of a work or