[LINK] We?re all copyright criminals now

Brendan Scott brendansweb at optusnet.com.au
Thu Nov 23 12:35:06 AEDT 2006


Stewart Fist wrote:
> Brendan wrote
> 
>> I think the case I was referring to was: Hawkes & Son (London) Ltd
>> v Paramount Film Service Ltd [1934] Ch 593.
> 
> Good God Brendan, that was even before my time!  They had laws
> against anything done in public, back then.  I think one-piece
> bathing suits showing the knees were held to be obscene.

The case is still taught at law school.
 
> I looked into this copyright question seriously many years ago when I
> was with the Australian Film, Radio and TV School.
> 
> The rule that we taught, for reality film makers (as distinct from
> those who are making fictional films ... and I can see the wisecracks
> already !!!) is that:
> 
> 1. If I am standing in a public place (and that can include private
> property opened to the public), and I can see or hear something, then
> I can switch on my film or movie camera and capture what I see.
> 
> 2. The caveat, is that I can not replay that purely for the purpose
> of using any copyright material -- other than legitimate sections for
> criticism (and in USA, for education).

1. Good luck!
2. I think those course materials will need to be revised.  

> 3. I must obey lawful (and that is the keyword!) directions from a
> police office, not to obstruct activities, traffic, etc.
> 
> 
> So if there is a public sculpture on display, or a piece of music on
> a loudspeaker, of someone performing, or whatever, it is OK provided
> that this represents the background atmosphere of the event -- not
> the substance.

The going rate for these snippets in the US is about $10K (for eg a 4 second snippet). 

Reference: 
Bound by Law
http://www.law.duke.edu/cspd/comics/
page 13ff

Google for references to the film "Tarnation", $218. 


> You will always find cases of magistrates or judges who get it wrong
> when copyright holders try to stop TV recordings, etc. -- but these
> will usually (perhaps always) be overturned by higher courts.

Well my mileage here differs.  
The higher courts - eg up to the full court of the Federal Court (and the High Court had a period between the Apple Case and the Stevens v Sony case) are coming out with plenty of copyright related decisions which do not accord all that well with common sense. 

Eg: 
Sony v Stevens full court of Federal Court - a mechanism which prevents playback of infringing films is itself inhibiting the making of that infringing film (overturned on appeal) 
Galaxy Entertainment - the game chip of an interactive video game has instantiated in it a cinematograph film being the display of pictures when the game is played (despite the fact that the gameplay and the pictures is different depending upon the player's actions)   
Powerflex - reimplementing a programming language is an infringement of the copyright in the language (overturned on appeal)
PPCA v FACTS - a licence to broadcast a film doesn't cover the sound recordings included in the film. 
Telstra v APRA - when a Telstra subscriber plays music on hold to another person Telstra is infringing copyright (despite Telstra eg being unaware of this playback and having no part in arranging the playback)
Autodesk v Dyason (High Court) - reproduction of 128 bytes from dongle was a reproduction of a substantial part of a 30Kb program stored on the computer. 

Courts in interpreting copyright are required to stick to the wording of the Act.  There is little scope for them to correct poor policy.  Indeed, whenever they do, the decision comes under concerted public attack from lobbyists.  


Brendan 






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