Intellectual Property Law Australia Discussion 2022

Running head: INTELLECTUAL PROPERTY LAW
INTELLECTUAL PROPERTY LAW
Name of Student
Name of University
Author Note

1INTELLECTUAL PROPERTY LAW
Table of Contents
Part A...............................................................................................................................................2
Part B...............................................................................................................................................4
Issue.............................................................................................................................................4
Rule..............................................................................................................................................5
Application..................................................................................................................................6
Conclusion...................................................................................................................................7
Reference.........................................................................................................................................8

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Part A
In the present scenario the issue in discussion is regarding the protections available to
Matt under the provisions of Australian Copyright Law and how the intellectual property rights.
According to section 31 of the Copyright Act1 copyright of a work can be defined as the
exclusive right of an author in regard to a dramatic, literary or musical work for its reproduction
in any material form, performance, adaptation, publication or communication. Applying the
section it can be said that Matt has the exclusive rights in regard to copyright of all the songs he
has written including the lyrics and the music.
Under section 32 of the Act2 the copyright in any work can be seen to be subsisting in an
original dramatic, artistic, literary or musical work that has been unpublished and for which the
author had been a qualified person. Applying this section it can be said that Matt’s works in
relation to his music is considered to have copyright subsisting.
According to section 33 of the Act3 the copyright of any original work of a dramatic,
artistic, musical or literary work would be subsisting till the death of the author and 70 years
further after the author’s death. Applying this section it can be said that the protection of the
copyright of the works of Matt in regard to his work would be protected until his death and for
another 70 years after his death.
As per section 35 (1) of the Act4 the owner of the copyright that is being subsisting in any
work in relation to any dramatic, artistic, musical or literary work would be the author of the
1 Copyright Act 1968, s.31
2 Ibid, s. 32
3 Ibid, s.33
4 Ibid s.35(1)

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work. Applying this section it can be said that Matt would be the owner in relation to the songs
he wrote including all the lyrics and the music.
Under section 35(6)5 if any dramatic, musical, literary or artistic work that has been made
by any author in the course of employment under the contract of service then the owner of the
copyright of the work would be the person employing the author. Applying this section it can be
said that as the guitar played by Jimmy in Matt’s album was done in the course of employment
under the contract of services, hence Matt would be the owner of the copyright in relation to the
guitar played by Jimmy in the album.
As mentioned in section 856 unless a contrary intention is seen to be appearing in regard
to any sound recording, the copyright in sound recording as per this section is defined as the
exclusive right for making a copy of the sound recording, making communication to the public
for the recording, making the recordings available to be heard in the public or for entering in a
rental arrangement of commercial nature in relation to the sound recordings as seen in the case
Australasian Performing Right Assn. Ltd. (APRA) v. 3DB Broadcasting Co. Pty Ltd7. Applying
this section Matt would be having exclusive rights over his sound recordings for communications
to the public, publishing the sound records for communication to public or for entering into a
rental agreement of commercial nature.
As per section 115(1)8 of the Act9 an owner of a copyright can be bringing any action for
the copyright infringement. This was seen in the case Roadshow Films Pty Ltd & others v iiNet
5 Ibid, s.35(6)
6 Ibid, s.85
7 Australasian Performing Right Assn. Ltd. (APRA) v. 3DB Broadcasting Co. Pty Ltd [1929] VLR. 107; 35 A.L.R.
109; WCL, para.90.02.
8 Copyrights At 1968, s.115(1)
9 Ibid, s.115(1)

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Ltd10. Applying this section it can be said that if there is any infringement of copyright Matt has
the right for bringing an action for such infringement.
As per section 115 (4)11 of the Copyrights Act the infringement can be seen to be
establishing in regard to the Copyright of any work then the court might grant additional
damages by being satisfied with the factors that could be considered to be appropriate. It was
seen the case EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty
Limited12.Applying the section it can be seen that Matt would be eligible to claim for damages in
case any infringements would arise in relation to the work.
As per section 19013 Matt would have moral rights only as an individual.
As per section 208(1)14 the ownership of the photography of the album cover would be
lying with Matt as he was the owner of the material at the time of taking the picture.
Part B
Issue
In the current case the main issue in the whether any legal issues would be raised by the
facts that have been mentioned.
Rule
10 Roadshow Films Pty Ltd & others v iiNet Ltd [2010] FCA 24
11 Copyrighs Act 1968, s115(4)
12 EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47
13 Copyright Act 1968, s.190
14 Ibid, s.208(1)

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As per the provision of section 75 of the Copyright Act15 any design that has been
designed under the provisions of the Designs Act 2003 where the copyright to any artistic work
can be seen to be subsisting, the reproduction of such work by way of embodying the design in
any product cannot be considered as infringement.
The Berne Convention can be seen to be an international agreement between the
countries that can be seen to be governing copyrights. As per the convention the parties are
required to be treating the copyright in relation to the works of the authors of the other nations
similarly to how the authors of the own nation are being treated. In the case Moberg v Leygues16
the court decided that any registration cannot be imposed on any work from any other nation that
is a member of the Berne Nation.
Section 5 of the Designs Act17 defines design of any product as the overall appearance of
any product which can be seen to be the result of one or more of the visual features present on
the product.
As per section 1418 the owner of registered design is the person entering into register as
the registered owner of the design.
Under section 7119 infringement of a design is when any person without the authority of
the registered owner of the design makes or offers to make any product in regard to the design;
imports product for sale or trade; sells, hires or disposes off the product as discussed in the case
Multisteps Pty Limited v Source and Sell Pty Limited20.
15Ibid, s. 75
16 Moberg v Leygues 666 F. Supp. 2d 415
17 Designs Act 2003, s.5
18 Ibid, s.14
19 Ibid, s.71
20 Multisteps Pty Limited v Source and Sell Pty Limited [2013] FCA 743

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Under section 7521 the court might, in infringement proceeding, grant relief including
injunction or an award of damage or an account of profit as was seen in Keller v LED
Technologies Pty Ltd22.
Application
As it has been mentioned in the section 75 of the Copyright Act23 any design that is
designed under the Designs Act 2003 where the copyright to any artistic work is seen to subsist,
the reproduction of such work by embodying the design in any product cannot be considered as
infringement, hence applying the section in the case it can be said that the design of the external
casing is an artistic design hence Orange Ltd would not be in infringement of the copyright of
Lemon Inc’s design.
As can be observed that according to the provisions of the Berne Convention the parties
are required to treat the copyright the works of the authors of other nations in a similar way as
they treat the copyright of work of authors of own nation, further in the case Moberg v Leygues24
it was decided that no infringement can be imposed on any other Berne nation. Applying the
decision of the case it can be seen that copyright cannot be imposed to Aldi by Orange Ltd as the
soundbar was imported from Korea, and Korea is a member of the Berne Convention.
Applying section 5 of the Designs Act25 the drawings for the external casing made by the
draftsman for Orange Ltd could be described as design because as per the section the drawing of
the overall appearance of external casing of the soundbar can be seen to be the visual feature of
the product.
21 Designs Act 2003, s.75
22 Keller v LED Technologies Pty Ltd [2010] FCAFC 55
23 Copyright Act 1968, s.75
24 Moberg v Leygues 666 F. Supp. 2d 415
25 Designs Act, 2003, s.5

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Applying section 1426 Orange Ltd is the owners of the registered design as at the time of
registering the design the name of Orange Ltd was entered as the registered owner.
Applying the decision of Multisteps Pty Limited v Source and Sell Pty Limited27 under
section 7128 the key-ring manufacturer is in infringement of the copyright of Orange Ltd’s
designs for manufacturing and selling novelty key-rings that are similar to the key-rings
produced by Orange earlier. As it can be seen in this section that making, importing, selling,
hiring or disposing off products in regard of the copyrighted design without the authority of the
owner is in infringement of the copyright, hence the key-ring manufacturer can be seen to be in
infringement.
Applying the decision of Keller v LED Technologies Pty Ltd29 under section 7530 Orange
Ltd can claim for damages from the key-ring manufacturer as the manufacturer has infringed the
copyright of Orange Ltd’s design of the novelty key-rings without their authority under section
71.
Conclusion
In conclusion it can be seen that legal issues can be raised by the facts that have been
mentioned.
26 Ibid, s.14
27 Multisteps Pty Limited v Source and Sell Pty Limited [2013] FCA 743
28 Ibid, s.75
29 Keller v LED Technologies Pty Ltd [2010] FCAFC 55
30 Ibid, s.71

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Reference
Australasian Performing Right Assn. Ltd. (APRA) v. 3DB Broadcasting Co. Pty Ltd [1929]
VLR. 107; 35 A.L.R. 109; WCL, para.90.02.
Copyright Act 1968
Designs Act 2003
EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47
Keller v LED Technologies Pty Ltd [2010] FCAFC 55
Moberg v Leygues 666 F. Supp. 2d 415
Multisteps Pty Limited v Source and Sell Pty Limited [2013] FCA 743
Roadshow Films Pty Ltd & others v iiNet Ltd [2010] FCA 24