Intellectual Property Law Issue 2022

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

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Table of Contents
Part A...............................................................................................................................................2
Issue.............................................................................................................................................2
Rule..............................................................................................................................................2
Application..................................................................................................................................3
Conclusion...................................................................................................................................4
Part B...............................................................................................................................................4
Issue.............................................................................................................................................4
Rule..............................................................................................................................................5
Application..................................................................................................................................6
Conclusion...................................................................................................................................7
Reference.........................................................................................................................................8

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Part A
Issue
The issue in the case is whether Matt has any protection under Australian copyright law.
Rule
Under section 31 of the Copyright Act 19681 copyright is the exclusive right in case of a
literary, dramatic or musical work for the reproduction in a material form, publication,
performance, communication, adaptation of the particular work.
As per section 32 of the Act2 copyright of any work subsists in an original literary,
dramatic, musical or artistic work which is unpublished and of which the author was seen to be a
qualified person.
As per section 33 of the Act3 copyright of an original work regarding any literary,
dramatic, musical or artistic work would subsist until 70 years after the death of the author of the
work.
Section 35 of the Act4 provides for the ownership of the copyright in respect to original
works. As per subsection 1 of this section the author of any literary, dramatic, musical or artistic
work is considered as the owner of the copyright that subsists in the work.
1 Copyright Act 1968, s.31
2 Ibibd, s.32
3 Ibid, s.33
4 Ibid, s.35(1)

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As per section 35(6) of the Act5 the ownership of any literary, dramatic, artistic or
musical work is made by any author in the term of his employment by another person under a
contract of service then the owner of the work would be the person under whose employment the
work was made.
According to section 85 of the Act unless there is a contrary intention appearing in
relation to a sound recording, copyright in sound recording can be defined as the exclusive right
to make a copy of sound recording, cause the recording to be heard in public, communicating the
recording to the public and entering into commercial rental arrangements in respect of the
recording.
The owner of a copyright can bring an action for infringement of the copyright under the
provision of section 115 (1) of the Act6 as seen in the case Roadshow Films Pty Ltd & others v
iiNet Ltd7.
Under the provision of section 115 (4) of the Copyrights Act8 if an infringement is
established in relation to the copyright of a work and for the infringement the court is satisfied of
the factors contributing to the infringement, it might award additional damages that would be
considered appropriate in the circumstance as seen in the case EMI Songs Australia Pty Limited v
Larrikin Music Publishing Pty Limited9.
5 Ibid, s.35(6)
6 Ibid, s.115 (1)
7 Roadshow Films Pty Ltd & others v iiNet Ltd [2010] FCA 24
8 Ibid, s.115 (4)
9 EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47

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Any person making any article for the intention of selling, letting for hire or for obtaining
any commercial advantage that is an infringement of a copyrighted work is committing an
offence under section 132AD of the Act10.
Section 190 of the Act11 states that only individuals have moral rights.
According to section 208(1) of the Act12 the ownership of any photograph lies with the
owner of the material on which the photograph was taken.
Application
Applying the provisions of section 31 of the Copyright Act 196813 it can be said that Matt
has copyright on all his musical works. Section 31 of the Act defines copyright as the exclusive
right in case of a literary, dramatic or musical work for the reproduction in a material form,
publication, performance, communication, adaptation of the particular work.
Applying the provision of section 32 of the Act14 the works of Matt in relation to his
music can be considered to have copyright.
Applying the provisions of section 33 of the Act15 it can be seen that his music would be
copyrighted for his entire life and then his music would further be protected for 70 years from his
death. As per the provisions of section copyright of an original work in regard to any literary,
10 Ibid, s.132AD
11 Ibid, s. 190
12 Ibid,s. 208(1)
13 Ibid, s.31
14 Ibid, s.32
15 Ibid, s.33

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dramatic, musical or artistic work would subsist until 70 years after the death of the author of the
work.
Applying section 35of the Act16 in this case it can be seen that Matt has the ownership
towards the lyrics and music of all the songs he has written.
Applying section 35(6) of the Act17 the ownership of the copyright of the guitar lies with
Matt, as Jimmy was under the employment of Matt at the time of playing guitar for the album.
Applying section 85 of the Act18 it can be seen that Matt has the exclusive right to make
a copy of sound recording, cause the recording to be heard in public, communicating the
recording to the public and entering into commercial rental arrangements in respect of the
recording.
If there is an infringement of the copyright of his music, Matt can bring an action against
the infringement under section 115 (1) of the Act19. Section 115 (1) mentions that in case of an
infringement of the copyright of a work the author can bring an action against that infringement
as seen in the case Roadshow Films Pty Ltd & others v iiNet Ltd.
Further Matt would be eligible for claiming damage as per the provisions section 115 (4)
of the Act if an infringement of the copyright of his music is found. Under the provision of
section 115 (4) of the Copyrights Act20 if an infringement is established in relation to the
copyright of a work and for the infringement the court is satisfied of the factors contributing to
the infringement, it might award additional damages that would be considered appropriate in the
16 Ibid, s.35
17 Ibid, s.35(6)
18 Ibid, s.85
19 Ibid, s. 115 (1)
20 Ibid, s.115 (4)

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circumstance as seen in the case EMI Songs Australia Pty Limited v Larrikin Music Publishing
Pty Limited21.
Under the provisions of section 132AD of the Act Matt can held anyone guilty of an
offence if any of his works is used for the purpose of selling, letting for hire or for obtaining any
commercial advantage. Any person making any article for the intention of selling, letting for hire
or for obtaining any commercial advantage that is an infringement of a copyrighted work is
committing an offence under section 132AD of the Act22.
Applying Section 190 of the Act23 Matt has moral rights towards his rights only as an
individual.
Applying section 208(1) of the Act24 it can be said that Matt has the right to the
photographs for the album cover.
Conclusion
Thus it can be concluded that the music created by Matt is protected under the provisions
of the Copyright Act 1968.
Part B
Issue
The issue in this case is whether there are any legal issues that could be raised by the
facts mentioned.
21 EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47
22 Ibid, s.132AD
23 Ibid, s. 190
24 Ibid, s. 208(1)

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Rule
Under section 75 of the Copyright Act25 a design registered under the Designs Act 2003
where the copyright is seen to be subsisting in an artistic work, it would not be considered as an
infringement to be reproducing the work by embodying the design in a product.
The Berne Convention requires the parties to be treating the copyrights of the authors of
the other parties of the convention similar to those of the authors of the own nations. According
to the decision in the case Moberg v Leygues26 it was decided by the court that no registration can
be imposed on a work from different Berne member country.
Under section 5 of the Designs Act27 a design in relation of a product can be defined as
the overall appearance of the product that has been a result of one or more visual features of the
product.
Under section 7 of the Act28 a visual feature of a product can be defined as including
shape, pattern, configuration and ornamentation of a product which may or may not serve a
functional purpose.
Section 10 of the Act29 lays down the provisions for the exclusive rights of the registered
owners in relation to the design of a product. As per the provisions of this section the owner of a
registered design of a product has the exclusive right for making or offering to make any product
in relation to the registered design; importing the product for sale or using for the purpose of
25 Copyright Act 1968, s.74
26 Moberg v Leygues 666 F. Supp. 2d 415
27 Designs Act 2003, s.5
28 Ibid, s.7
29 Ibid, s.10

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trade or business; for selling, hiring or otherwise disposing of or offering to sell, hire or
disposing of any product.
According to section 14 of the Act30 an owner of a registered design can be described as
the person or persons who were entered in the register as the registered owner of the design.
As per section 71 of the Act31 infringement of a registered design happens if during the
term of the registration of the design any person without any license or authority of the registered
owner makes or offers to make any product in relation to the registered design; imports the
product for sale or uses for the purpose of trade or business; sells, hires or otherwise disposes of
or offers to sell, hire or dispose of any product as seen in the case Multisteps Pty Limited v
Source and Sell Pty Limited32.
Section 75 of the Act provides for the remedies available to the plaintiffs for any
infringement of the registered design. As per this section a court in an infringement proceeding
can grant relief that might include an injunction containing terms as the court may deem fit or at
the option of the plaintiff an award of damage or an account of profit as seen in Keller v LED
Technologies Pty Ltd33.
Application
Applying section 75 of the Copyright Act34 as the design of the external casing of a
soundbar can be considered as artistic design so Orange Ltd would not be considered to be
infringing the copyright of Lemons Inc by embodying their designs in a product.
30 Ibid, s.14
31 Ibid, s.71
32 Multisteps Pty Limited v Source and Sell Pty Limited [2013] FCA 743
33 Keller v LED Technologies Pty Ltd [2010] FCAFC 55
34 Copyright Act 1968, s.74

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As per the decision of Moberg v Leygues35 Orange Ltd cannot impose its copyright on the
soundbar of Aldi Ltd as those had been imported from Korea.
The drawings made by the draftsperson for an external casing of a wireless soundbar for
Orange (Australia) Ltd can be described as designs under sections 5 and 7 of the Designs Act36.
Under section 5 is defined as the overall appearance of the product that has been a result of one
or more visual features of the product. Under section 7 a visual feature of a product includes
shape, pattern, configuration and ornamentation which may or may not serve a functional
purpose.
Applying the provisions of section 10 Orange (Australia) Ltd has exclusive rights for the
registered designs. As per the provisions of this section the owner of a registered design has the
exclusive right for making or offering to make any product in relation to the registered design;
importing the product for sale or using for the purpose of trade or business; for selling, hiring or
otherwise disposing of or offering to sell, hire or disposing of any product.
Applying section 14 of the Act Orange (Australia) Ltd can be considered as the registered
owners of the design. According to section 14 of the Act an owner of a registered design can be
described as the person or persons who were entered in the register as the registered owner of the
design.
Orange Ltd can claim for award of damages under section 75 for any infringement of the
designs as mentioned in section 71 of the Act. As per section infringement of a registered design
happens if during the term of the registration of the design any person without any license or
authority of the registered owner makes or offers to make any product in relation to the
35 Moberg v Leygues 666 F. Supp. 2d 415
36 Designs Act 2003, s.5

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registered design; imports the product for sale or uses for the purpose of trade or business; sells,
hires or otherwise disposes of or offers to sell, hire or dispose of any product as was seen in the
case Multisteps Pty Limited v Source and Sell Pty Limited. As per Section 75 a court in an
infringement proceeding can grant relief that might include an injunction containing terms as the
court may deem fit or at the option of the plaintiff an award of damage or an account of profit as
seen in the case Keller v LED Technologies Pty Ltd.
As per sections 71 and 75 Orange Ltd can file for an infringement suit against the key-
ring manufacturer for manufacturing and selling novelty key rings similar to Orange Ltd and also
against Aldi Ltd for importing the soundbar that is similar to the design registered by Orange
Ltd.
Conclusion
Thus it can be concluded that there are legal issues that could be raised by the facts
mentioned.

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Reference
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

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