White SW Computer Law
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nlnov97 [2012/06/15 12:55]
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nlnov97 [2017/07/30 18:03] (current)
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 ===== Innocent Infringement defence difficult to sustain ​ ===== ===== Innocent Infringement defence difficult to sustain ​ =====
 The Copyright Act 1968 makes some concessions when a copyright infringement has occurred and the infringing party had no reasonable grounds for suspecting that they were infringing copyright. If this defence is allowed, the copyright owner is entitled to an account of profits but may not be entitled to any other damages, other than legal costs. As seen in //​[[case_links#​Golden Editions Pty Ltd and Hughes v Polygram Pty Ltd and Ors|Golden Editions Pty Ltd and Hughes v Polygram Pty Ltd and Ors]]//, the Court will be quite thorough in its examination of whether the defendant should have been aware of the fact that their actions constituted an infringement of copyright. In this Federal Court Appeal, Hughes claimed that he did not know that music recordings which Golden Editions had licensed from New Breed Music International were unlicensed copies and that the true copyright owner was in fact Polygram. The Court examined Hughes'​ oral evidence as to his experience in the music industry and his knowledge of copyright laws. The Court concluded that a person of Hughes'​ experience should have made further investigations with respect to the copyright ownership because he knew that the artists had originally made the recordings with another company who still owned the copyright and that this company may have still been selling copies of the recording in Australia. The Court will expect that all reasonable inquiries will be made to ascertain to true copyright owner. When copyright materials are obtained from other parties, it is prudent to obtain an indemnity from them that will protect you against possible intellectual property infringement claims. However, if the indemnifying party cannot be located, or has no assets, the loss and damage of any such claim will have to be borne by your business. The Copyright Act 1968 makes some concessions when a copyright infringement has occurred and the infringing party had no reasonable grounds for suspecting that they were infringing copyright. If this defence is allowed, the copyright owner is entitled to an account of profits but may not be entitled to any other damages, other than legal costs. As seen in //​[[case_links#​Golden Editions Pty Ltd and Hughes v Polygram Pty Ltd and Ors|Golden Editions Pty Ltd and Hughes v Polygram Pty Ltd and Ors]]//, the Court will be quite thorough in its examination of whether the defendant should have been aware of the fact that their actions constituted an infringement of copyright. In this Federal Court Appeal, Hughes claimed that he did not know that music recordings which Golden Editions had licensed from New Breed Music International were unlicensed copies and that the true copyright owner was in fact Polygram. The Court examined Hughes'​ oral evidence as to his experience in the music industry and his knowledge of copyright laws. The Court concluded that a person of Hughes'​ experience should have made further investigations with respect to the copyright ownership because he knew that the artists had originally made the recordings with another company who still owned the copyright and that this company may have still been selling copies of the recording in Australia. The Court will expect that all reasonable inquiries will be made to ascertain to true copyright owner. When copyright materials are obtained from other parties, it is prudent to obtain an indemnity from them that will protect you against possible intellectual property infringement claims. However, if the indemnifying party cannot be located, or has no assets, the loss and damage of any such claim will have to be borne by your business.
-==== Is your software licence transferable?​ =====+===== Is your software licence transferable? ​======
 When a business entity is sold or broken down into different entities, the terms of the software licence will determine whether the software licensed to the original business entity will be able to be used by the new entities and/or owners. Software developers should consider the inclusion of a term which terminates the software licence upon the sale of the business assets to a new party. Such a clause will maintain the developer'​s control over the parties which possess a software licence and the obligations the developer will have in relation to software support. In //​[[case_links#​Australian Computer Evaluation Consultants Pty Ltd and Anor v Datbury Pty Ltd and Ors|Australian Computer Evaluation Consultants Pty Ltd and Anor v Datbury Pty Ltd and Ors]]//, ACEC and Copper Systems sued for an number of actions, including copyright infringement. ACEC claimed to be the exclusive licensee of a computer program designed to be used by businesses in the hospitality industry to monitor inventory and maintain other records. ACEC sub-licensed the software to be used by a group of hotels in Queensland. Upon the breaking up of the hotel group, it was found that the software was in use by a business which was previously a member of the hotel group. ACEC claimed that the sub-licence was non-transferable,​ however, in absence of evidence of such an agreement, the Court concluded that there had been no such restriction. When you are purchasing an interest in a business, it is important to consider what intellectual property is being proposed to be included in the sale. You should also investigate whether the ownership of this property is in fact transferable,​ to avoid the possibility of a copyright infringement claim being made against you. When a business entity is sold or broken down into different entities, the terms of the software licence will determine whether the software licensed to the original business entity will be able to be used by the new entities and/or owners. Software developers should consider the inclusion of a term which terminates the software licence upon the sale of the business assets to a new party. Such a clause will maintain the developer'​s control over the parties which possess a software licence and the obligations the developer will have in relation to software support. In //​[[case_links#​Australian Computer Evaluation Consultants Pty Ltd and Anor v Datbury Pty Ltd and Ors|Australian Computer Evaluation Consultants Pty Ltd and Anor v Datbury Pty Ltd and Ors]]//, ACEC and Copper Systems sued for an number of actions, including copyright infringement. ACEC claimed to be the exclusive licensee of a computer program designed to be used by businesses in the hospitality industry to monitor inventory and maintain other records. ACEC sub-licensed the software to be used by a group of hotels in Queensland. Upon the breaking up of the hotel group, it was found that the software was in use by a business which was previously a member of the hotel group. ACEC claimed that the sub-licence was non-transferable,​ however, in absence of evidence of such an agreement, the Court concluded that there had been no such restriction. When you are purchasing an interest in a business, it is important to consider what intellectual property is being proposed to be included in the sale. You should also investigate whether the ownership of this property is in fact transferable,​ to avoid the possibility of a copyright infringement claim being made against you.
 ===== Internet Copyright Infringement ​ ===== ===== Internet Copyright Infringement ​ =====

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