White SW Computer Law Intellectual Property, Information Technology & Telecommunications newsletter - April 2004

When determining if a copyright infringement has occurred, one of the issues that needs to be determined is whether a substantial part of a copyright work has been copied.

Whether the copied portion is a substantial part does not just depend on the proportion of the original work that has been copied, rather you must also consider issues such as the quality of the copied portion.

In an appeal from the Full Federal Court, the High Court was asked to consider whether the Ten Network's use of excerpts from programmes previously broadcast by the Nine Network in one of their own programmes, “the Panel”, constituted copyright infringement.

The excerpts used ranged from 8 to 42 seconds long.

In the Appeal, Nine sought to uphold the Full Court's decision that each visual image capable of being observed as a separate image and the accompanying sounds is a television broadcast in which copyright subsists.

Ten maintained that this interpretation meant that broadcasters would be afforded stronger copyright protection than the owners on the literary, dramatic, musical and artistic works which together made up the images and sounds of the broadcast.

The High Court agreed with Ten's interpretation and sent the matter back to the Federal Court for consideration of whether or not a substantial part had been copied.

When using any part of a copyright work, you need to carefully consider your exposure to a claim of copyright infringement.

Defending a copyright infringement claim can be a costly way of achieving clarification of the law in this area.

In Australia, there are different intellectual property protection regimes for both copyright works and designs.

Copyright laws protect expression and design laws protect the way that something looks. Where a design has been put to commercial use, there is a legal argument that the design legislation is more appropriate.

In Muscat v Le, a fashion designer commenced legal action against a competitor who copied one of her designs for a pair of pants.

The steps in designing a garment include drawing the design, creating sample garments, creating a dressmaking pattern and creating a range of graded patterns and scanned patterns from the original pattern.

Muscat claimed each of these items were entitled to copyright protection and that Le had infringed that copyright.

The Court held that Le's dressmaking patterns and the pants infringed the copyright in Muscat's design drawing and dressmaking pattern.

However, the Court held that Le was entitled to rely upon the defence that Muscat's design drawings had been applied industrially and therefore Le had a defence to the allegation of infringement with respect to the design drawings.

That defence did not apply with respect to the copying of the dressmaking patterns which is known as plan to plan copying.

The law has recently been updated to remove this anomaly so that if an item is applied industrially then its copyright protection is reduced.

Accordingly there is no longer this ambiguity with respect to plan to plan copying in the law to assist copyright owners.

To ensure maximum intellectual property protection appropriate advice should be obtained before goods are made available to the public.