Legal requirements for copyright under the Copyright Act (Cth) of 1968
Issue
The key issue in relation to the situation that has been given is whether Ortega would have the entitlement to sub-license the photographs of Standley to RP Fashion Pty Ltd.
Section 32, as provided in the Copyright Act (Cth) of 1968, states that for attracting and encompassing copyright, a particular work should be an original and exclusive dramatic, literary, dramatic, artistic or musical work.
Sub section 1 of section 36, as provided in the Copyright Act (Cth) of 1968, states that copyright shall be considered to have been infringed if a particular individual (who certainly does not have the ownership of the copyright) does or sanctions the doing, in the nation of Australia, of any specific action that actually falls within the copyright, in the absence of the permission of the owner of the copyright.
Sub section 1A of section 36, as provided in the Copyright Act (Cth) of 1968, states that in order to determine that whether or not an individual has actually sanctioned to do any specific act that is encompassed in the particular copyright, in the absence of the licence of the copyright’s owner, certain specific matters should be taken into consideration, which includes (i) the degree (if any) of the power of the individual to stop the performing of the concerned act, (ii) the nature of any relation that may exist amidst the individual and the individual who actually performed the concerned act, and (iii) whether the particular individual took any sensible or reasonable steps for preventing or evading the performance of the action, which includes that whether the individual adhered to any pertinent codes of practice of the industry.
In relation to the circumstance that has been provided, the case cited to be Hardingham v RP Data Pty Ltd [2019] FCA 2075 can be considered to be an important case. In this case, photographs of REMA were uploaded by the real estate agents onto the website of REA. REMA started proceedings against REA (after REA rejected any copyright violation). It was said that an implied sublicense was actually present and there was not any kind of copyright violation or infringement because (i) the website of REA was heavily utilized by basically all the real estate agents, and certainly, REMA had knowledge of such utilization, (ii) REMA did not make any kind of efforts to levy any condition, or performed any action for preventing its customers (that is, the real estate agents) from giving sub-license in respect of REA (that is, preventing the utilization of the images on the website of REA), (iii) without any kind of express act, it was commercially impractical to imply or infer that such a restriction was actually present (mostly because of the hands-on realism that if the customers are not able to utilize the website of REA, then, they perhaps will never utilize the services of REMA), and (iv) the burden is on the owner of the copyright to demonstrate that no implied or express license actually existed. This ascends from the instance that the owner of the copyright actually bears the onus of proving any infringement or violation that might have transpired.
Case law analysis: Hardingham v RP Data Pty Ltd
In the given scenario, the photographs of Mr. Standley were purchased by Ortega Pty Ltd, which were afterwards sublicensed by Ortega to RP Fashion Pty Ltd.
Applying section 32 of Copyright Act (Cth) of 1968, it can be stated that the work of Mr. Standley shall be able to attract and encompass copyright because it is certainly an original and exclusive artistic work relating to photographs of the fashion products.
Making application of sub section 1 of section 36, as provided in the Copyright Act (Cth), it can be said that the copyright work of Mr. Standley shall be considered to have been infringed because Ortega Pty Ltd sanctioned the uploading of the photographs of Mr. Standley by RP Fashion that actually falls within the copyright of Mr. Standley, in the absence of the permission of Mr. Standley. However, in relation to the circumstance that has been provided, the case cited to be Hardingham v RP Data Pty Ltd [2019] FCA 2075 can be considered to be an applicable case. Applying this case, it can be said that in the given circumstance, the photographs of Mr. Standley were uploaded onto the website of RP Fashion. Applying the case, it can be said that an implied sublicense would actually be present and there would not be any kind of copyright violation or infringement because (i) the website of RP Fashion was heavily utilized by basically all the fashion buyers, and certainly, Mr. Standley had knowledge of such utilization, (ii) Mr. Standley did not make any kind of efforts to levy any condition, or performed any action for preventing its customer (that is, Ortega Pty Ltd) from giving sub-license in respect of RP Fashion (that is, preventing the utilization of the photographs on the website of RP Fashion), (iii) without any kind of express act, it was commercially impractical to imply or infer that such a restriction was actually present (mostly because of the hands-on realism that if the customers are not able to utilize the website of RP Fashion, then, they perhaps will never utilize the services of Mr. Standley), and (iv) the burden was on Mr. Standley to demonstrate that no implied or express license actually existed. This ascends from the instance that the owner of the copyright actually bears the onus of proving any infringement or violation that might have transpired. Hence, Mr. Standley failed to prove such point.
Conclusion
To conclude, Ortega would have the entitlement to sub-license the photographs of Standley to RP Fashion Pty Ltd.
The main issues are the following: –
Whether the registered design is actually valid.
Whether the registered design has actually been infringed or violated by MFX.
Sub section 1 of section 15, as provided in the Designs Act (Cth) of 2003, mentions that a particular design can be considered to be a ‘registrable’ design if that particular design is distinctive and new in comparison to the ‘prior art base’ in connection to the design as it was present prior to the ‘priority date’ of the particular design. Sub section 2 of section 15 states that the ‘prior art base’ in relation to any design (that is, the designated design) encompasses (a) designs that are publicly utilized in the nation of Australia, (b) designs that are published in any particular document inside or outside the nation of Australia, and (c) the designs that are disclosed in any design application, or have any earlier priority date in comparison to the designated design, or the initial documents relating to any design that may have been disclosed for public inspection as per section 60.
Design registration under the Designs Act (Cth) of 2003
Section 71, as provided in the Designs Act (Cth) of 2003, states that an infringement or a violation of a design shall transpire in relation to the products that exemplify or symbolize any specific design, which is identical and alike to, or considerably similar in general impression to, the particular registered design.
Section 19, as provided in the Designs Act (Cth) of 2003, deliberates that while making the decision and determining as to whether a specific design is considerably similar in the general and all-inclusive impression to any other specific design, more weight and consideration should be provided in respect of the similarities amidst the designs than in respect of the differences amidst them. In connection to the scenario, which has been given, the case quoted as Hunter Pacific International Pty Ltd v Martec Pty Ltd [2016] FCA 796 can be considered as a relevant case. In this case, the judge was certainty aware regarding the requirement and obligation to give effect to a comparison amid the differences and the similarities, and the judge wished to place more significance upon the similarities than upon the differences. Therefore, while making application of the standard relating to ‘informed user’, the judge attached specific significance to similarities that had been apparent and seeming when the specific design had been installed in ceiling.
In the provided situation, it has been claimed by HPI that MFX actually infringed or violated their registered design. However, MFX counterclaimed that the specific design was not new and common in Australia and existed from before HPI registering the design in its name. Later, it was found that the design of HPI was different based upon 4 features from the prior art base.
Making application of Section 71, as provided in the Designs Act (Cth) of 2003, it can be stated that an infringement or a violation of the design of HPI shall transpire in relation to the face shields, if the face shields by MFX exemplify or symbolize the specific design, which is identical and alike to, or considerably similar in general impression to, the particular registered design (HPI’s design).
Making application of sub section 1 of section 15 of Designs Act (Cth), it can be mentioned that HPI’s design can be considered to be a ‘registrable’ design if that particular design is distinctive and new in comparison to the ‘prior art base’ as the design had been publicly present in the nation of Australia and had an earlier priority date in comparison to the designated design. However, applying section 19, as provided in the Designs Act (Cth) of 2003, it should be said that while making the decision and determining as to whether the specific design of HPI is considerably similar in the general and all-inclusive impression to the already used design, more weight and consideration should be provided in respect of the similarities amidst the designs than in respect of the differences amidst them. Therefore, in connection to the scenario, which has been given, the case quoted as Hunter Pacific International Pty Ltd v Martec Pty Ltd [2016] FCA 796 can be considered as an applicable case. Making application of this case, one should be aware regarding the requirement and obligation to give effect to a comparison amid the differences and the similarities, thereby placing more significance upon the similarities than upon the differences. Therefore, while making application of the standard relating to ‘informed user’, it can be said that specific significance has to be given to the similarities that had been apparent and seeming when the specific design of HPI had been forwarded. Hence, the differences in 4 aspects shall not matter in this regard, as there might be other strong similarities.
Conclusion
To conclude: –
The registered design is not valid.
The registered design has not been infringed or violated by MFX.
Copyright Act, 1968 (Cth).
Designs Act, 2003 (Cth).
Hardingham v RP Data Pty Ltd [2019] FCA 2075.
Hunter Pacific International Pty Ltd v Martec Pty Ltd [2016]FCA 796.
Order an Essay Now & Get These Features For Free:
Turnitin Report
Formatting
Title Page
Citation
Outline
