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MAREE SAINSBURY
The Copyright Amendment (Digital Agenda) Act was passed to deal with the inability of the Copyright Act to deal with the digital environment. The article examines the provisions of the Digital Agenda Act and the progress which they make towards ensuring that the Copyright Act is equipped to protect the copyright owner in an on-line environment. It also discusses the remaining gaps in protection and areas of uncertainty.
The growth of electronic commerce and digital technology has presented a challenge to our intellectual property laws. This challenge is evident across all types of intellectual property. Examples include:
• The application of patent law to on-line business methods. Applications to patent a way of doing business on the Internet are emerging. A well known example is the patent registered by online bookseller Amazon.com, titled 'Method and System for Placing a Purchase Order Via a Communications Network'.[1] The claim covers the method of placing an order in response to a single action being performed (ie, by means of a single mouse click). This registration of a seemingly simple concept has given Amazon the ability to prevent others using this business method within the jurisdiction in which it is registered, at least in the short term.[2]
• A domain name has become a valuable business asset. This has resulted in practices such as 'cyber squatting', and 'typo squatting'. 'Cyber squatting' is the registration by one individual of a domain name which contains a business name or trade mark belonging to another and is dealt with in a separate article in this special edition. 'Typo squatting is the registration of misspelling of a popular domain name (eg, 'Yahhoo.com'). In this way, a company can capitalise on common misspellings to direct traffic to its web site. The Trade Marks Act 1996, and related laws, have been tested to provide a mechanism for overcoming such practices.
• The ability of the Copyright Act 1968 (Cth) (the Copyright Act) to deal with the creation and distribution of copyright material on-line has been questioned. One component of the reform to deal with the perceived inadequacies of the Copyright Act in dealing with the digital environment is the recently enacted Copyright Amendment (Digital Agenda) Act (the Digital Agenda Act). This Act introduces a number of reforms designed to improve certainty and enhance the ability of copyright law to protect the rights owner in the digital environment.
This article will examine the provisions of the Digital Agenda Act and the progress which they make towards ensuring that the Copyright Act is equipped to protect the copyright owner in an on-line environment. The residual gaps in protection and uncertainty will also be discussed.
The impact of technology on the protection of copyright material is two fold. Technology such as MP3, MPEG and AVI makes it increasingly easier to infringe copyright. Digital reproductions can be identical to the original. Distribution of infringing copies can be done in a way which is widespread, instantaneous and difficult to trace. However, and importantly, digital technology also increases the options for a copyright owner in protecting his or her rights.
Protection methods such as encryption are becoming more widespread in limiting the persons who may access material. It is also possible to place work on the Internet, but limit the ability of the user to print or copy it. The protection and security of information on the Internet is also a fundamental principle of e-commerce in that most people will be hesitant to use the Internet to make payments unless they can be assured that information will not be intercepted and misused.
As the ability of technology to protect copyright material develops, just one step behind is the development of technological devices which enable a user to circumvent such protection measures. This is illustrated by the circumstance surrounding the initial distribution of movies via Digital Versatile Disks (DVD) to customers directly over the Internet. Movie studios developed a method of preventing unauthorised reproduction and distribution of the movies known as Content Scramble System.[3] It did not take long before a program known as DeCSS became widely available free of charge on the Internet. This program allowed users to attempt to unscramble the CSS code which, predictably, let to legal proceedings.[4] It is practices such as this which illustrate the need for protection against circumvention devices.
The Digital Agenda Act received Royal Assent on 4 September 2000. It is to commence six months after that date, unless proclaimed to commence earlier (which has not occurred). The objects of the Act, set out in s3, include:
a) to ensure the efficient operation of industries in the online environment by:
i) promoting the creation of copyright material and exploitation of online technologies by allowing financial rewards;
ii) providing a practical enforcement regime for copyright owners; and
iii) promoting access to copyright material online; and
b) promoting certainty for communication and information industries investing in and providing online access to copyright material; and
c) providing reasonable access and certainty for end users; and
d) ensuring access by cultural and educational institutions to copyright material on reasonable terms; and
e) ensuring the relevant global technical standards which form the basis of new communication and information technologies, such as the Internet, are not jeopardised.
The provisions of the Act can be divided into the following central categories:
a) provisions which amend the rights granted to the copyright owner;
b) provisions introducing new sanctions to prevent tampering with digital information attached to copyright material which identifies the subject matter, author, or the terms on which the material may be used. There are also provisions prohibiting dealings with devices or products designed to circumvent copyright protection measures; and
c) provisions designed to relieve some of the uncertainty as to when an act will constitute the authorisation of copyright infringement, making the authoriser liable for contributory infringement.
The rights of the copyright owner vary depending on the type of copyright material. Under the Copyright Act 1968 (Cth), for the owner of the copyright in a literary, musical or dramatic work, these rights are:
a) to reproduce the work;
b) to publish the work;
c) to perform the work in public;
d) to broadcast the work;
e) to cause the work to be transmitted to subscribers to a diffusion service;
f) to make an adaptation of the work; and
g) to do any of a) to e) above in relation to an adaptation of the work.
The problem as identified by the Copyright Law Review Committee (CLRC) in its public hearings and subsequent report to the Government, and which the Digital Agenda Act seeks to address is the fact that rights d) and e) were technology specific. 'Broadcast' was further defined to mean 'transmit by wireless telegraphy to the public', with 'wireless telegraphy' meaning 'the emitting or receiving, otherwise than over a path that is provided by a material substance, of electromagnetic energy' (s 10(1)). The Digital Agenda Act repeals the broadcast and transmission rights, replacing them with a single right to 'communicate the work to the public'. Communicate is defined to mean 'make available online, or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matter'. This right applies to the author of a work, and to the maker of a sound recording cinematograph film. The right is slightly different in its application to television and sound broadcasts, being the right to 'communicate to the public otherwise than by broadcasting'.
The aim of this amendment is to ensure that the rights granted to the copyright owner are flexible enough to apply in changing circumstances.
It is of ultimate importance that rights granted by law are backed up with effective mechanisms for enforcement. Just as digital technology increases the ease with which copyright can be infringed, it also provides increased mechanisms for preventing or minimising that infringement, and for tracking unauthorised uses.
The Digital Agenda Act provides legislative support for the use of such technological mechanisms. It does so in the following ways:
a) by introducing remedies against dealings with devices designed to circumvent technological protection measures; and
b) by introducing sanctions against tampering with electronic rights management information.
Section 116A of the Copyright Act, introduced by the Digital Agenda Act allows the owner or an exclusive licensee to bring an action against a person who, without the permission of the owner or exclusive licensee of a work or other subject matter which is protected by a technological protection measure:
a) makes a circumvention device capable of circumventing, or facilitating the circumvention of, a technological protection measure;
b) sells, lets for hire, or by way of trade offers or exposes for sale or hire or otherwise promotes, advertises or markets, such a circumvention device;
c) distributes such a circumvention device for the purpose of trade, or for any other purpose that will affect prejudicially the owner of the copyright;
d) imports such a circumvention device into Australia for the purpose of
i) selling, letting for hire, or by way of trade offering or exposing for sale or hire or otherwise promoting, advertising or marketing the device; or
ii) distributing the device for the purpose of trade, or any other purpose that will affect prejudicially the owner of the copyright; or
iii) exhibiting the device in public by way of trade;
e) makes such a circumvention device available online to an extent that will affect prejudicially the owner of the copyright; and
f) provides, or by way of trade promotes, advertises or markets, a circumvention service capable of circumventing, or facilitating the circumvention of, the technological protection measure.
There is a further requirement that the person knew, or ought to have known, that the device or service would be used to circumvent, or facilitate the circumvention of, the technological protection measure. Importantly, under the legislation, the actual use of these devices is not prohibited, reflecting the reality that it will be more commercially viable to seek compensation from the manufacturer and those who make commercial dealings with circumvention devices. Obviously, a person who uses such a device successfully is potentially liable for copyright infringement.[5]
A technological protection measure is defined as a device or product, or a component incorporated into a process, that is designed, in the ordinary course of its operation, to prevent or inhibit the infringement of copyright in a work or other subject matter by either or both of the following means:
a) by ensuring that access to the work or other subject matter is available solely by use of an access code or process (including decryption, unscrambling or other transformation of the work or other subject matter) with the authority of the owner or licensee;
b) through a copy control mechanism.
A circumvention device is a device (including a computer program) having only a limited commercially significant purpose or use, or no such purpose or use, other than the circumvention, or facilitating the circumvention of, an effective technological protection measure.
A circumvention service is a service, the performance of which has only a limited commercially significant purpose other than the circumvention, or facilitating the circumvention of any effective technological protection measures.
The Digital Agenda Act inserts Section 116B into the Copyright Act, prohibiting a person from removing or altering any electronic rights management information which is attached to a work or other copyright subject matter. This applies where it is done without the permission of the copyright owner or licensee and the person “knew, or ought reasonably to have known, that the removal or alteration would induce, enable, facilitate or conceal an infringement of the copyright in the work or subject matter”. The owner or licensee of the copyright may bring an action against the person removing or altering the information. The onus of proof is placed on the defendant to prove that he or she did not know, or could not have reasonably known that the removal or alteration would have the effect referred to (s 116B(3)). The Act now imposes remedies for commercial dealings with works or subject matter where there has been removal or alteration of electronic rights management information. Once again, the person must, on the balance of probabilities, know or have reasonable grounds to believe that, an act has been done which would induce, enable, facilitate or conceal an infringement of the copyright in the work or other subject matter.
Electronic rights management information means:
a) information attached to, or embodied in, a copy of a work or other subject-matter that:
i) identifies the work or subject matter, and it’s author or copyright owner, or
ii) identifies or indicates some or all of the terms and conditions on which the work or subject-matter may be used, or indicates that the work or subject-matter is subject to terms and conditions; or
b) any numbers of codes that represent such information in electronic form.
Electronic rights management information (also known as ‘digital watermarking’) is an increasingly helpful tool as the administration of rights becomes more complex, in the escalating battle of competing technology.
Section 36 of the Copyright Act imposes liability for copyright infringement on anyone who does or authorises the doing of an act comprised in the copyright without the permission of the copyright owner. The Digital Agenda Act introduces some guidelines to assist the court in determining what will amount to authorisation for the purposes of this provision, essentially codifying the guidelines set down in case law such as University of New South Wales v Moorhouse[6] (which dealt with photocopying). The guidelines now set out in section 36(1A) determine the extent of the persons’ power to prevent the doing of the act concerned, the nature of the relationship between the person and the person who did the act concerned and whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.
The Copyright Act excludes liability for someone providing a machine for the making, by reprographic reproduction, of copies of a document where that person has placed a notice in the terms provided by the Copyright Regulations, which provides some detail of the copying which is likely to infringe copyright. The Digital Agenda Act, by virtue of its technological neutrality, clarifies the fact that this provision also applies to computers, where used to make copies.
Further, the Digital Agenda Act introduces section 39B which states a person providing facilities for making or facilitating the making of, a communication is not taken to have authorised any infringement simply because another person uses the facilities to do something which infringes copyright. This will prevent the application of case law such as the United States case of Playboy Enterprises Inc v Frena[7] where Internet Service Providers (ISP's) have been found liable for the transmission of infringing material using their facilities even where they have not known, and could not have known, of the infringement.
Such a provision is important protection for the ISP. The risk of liability for the transmission of potentially infringing material, where the ISP has no knowledge of the contents of transmitted material, is a risk which the ISP is not well placed to counter without being put to considerable expense. Such expense would be likely to prove fatal to many smaller ISPs.
The Digital Agenda Act makes the following amendments to ensure the Copyright Act is better able to operate in a digital environment:
• Reproduction of a work is deemed to occur where the work is converted into or from a digital or other electronic machine readable form. Any article embodying the work in such a form is taken to be a reproduction (section 21, Copyright Act).
• It is clarified that a reproduction of a computer program will occur when object code is derived from the source code by any process, or vice versa.
• The duration of copyright in an unpublished computer program is altered. Whereas copyright previously subsisted for 50 years from the date of publication (and thus indefinitely if never published), it now subsists for the life of the author plus 50 years. This is a recognition of the fact that, given the limited useful life of a computer program, copyright protection should be of limited duration to enable it to be in the public domain for use for the public good.
• The fair dealing provisions are amended to make it clear that they apply to electronic copying.
• A new fair dealing provision is introduced. Section 43A provides that copyright is not infringed by the making of a temporary reproduction as part of the technical process of making or receiving a communication. The purpose of this provision was to make it clear that processes such as caching, whereby a copy of the material is made in a computer during transmission or copying and displayed on the monitor, are not categorised as infringements.
• The Digital Agenda provisions apply to any act done after the commencement of the amendments.
The Digital Agenda Act goes some way to simplifying and clarifying the operation of the Copyright Act in a digital environment. It does not, however, remove all of the uncertainties and inconsistencies which have arisen as a result of the inability of the Copyright Act to deal with the creation and exploitation of subject matter in a digital environment. Examples of some uncertainties which remain are:
a) The circumstances in which the practice of hyperlinking will infringe copyright.
b) The application of the Copyright Act to multimedia products.
Hyperlinking is the practice of linking one web page to another by including a reference (usually a description in a different font or colour) which can be clicked on by the user to activate it and gain direct access to the linked-to website.[8] In its simplest form, the practice does not raise copyright implications. There are good arguments that there is no reproduction of any copyright material and therefore no infringement of the copyright owners rights and, even if there were, the practice is so widespread and inherent in ‘good’ web page design, that copyright owners placing material on the Internet are impliedly consenting to the possibility that their site will be the subject of a hyperlink. However, there are some variants of the practice of hyperlinking which have raised legal issues. For example:
This is the process whereby activating the hyperlink takes the user past the entry point of the linked-to web site and directly to a specific page within the web site. The owner of the web site is likely to be less impressed with this practice than with a simple hyperlink. There is the possibility of the contents of the web-site being distorted and any copyright notices, disclaimers, advertising or other information which a person accessing the web-site in the normal way would be exposed to, can be avoided.
There has been some litigation in the United States concerning the practice of deep linking. In Ticketmaster Corp., et al v Tickets.Com Inc.[9] the plaintiff was the owner of a web site which enabled customers to purchase tickets to various events using the Internet (see http://www.ticketmaster.com/). There was a home page which included instructions on how to use the site and a directory of the ‘event pages’. The home page also contained a link to the terms and conditions of use of the information which the user could either view, or choose not to view and proceed straight to the ‘event page’ which interested him or her. The home page stated that, by proceeding past that page, the user was deemed to have agreed to the terms and conditions.
The defendant operated its own web site which also performed a ticketing service for the user, although in a different form (see http://tickets.com/). Where it did not provide a service to purchase the tickets itself, it gave a reference which the user could click on to take them to such a service. Clicking on this reference activated a hyperlink which, in many cases, was in fact a deep link straight to the relevant ‘event page’ on the Ticketmaster site.
Ticketmaster sued Tickets.com for, amongst other things, copyright infringement.[10] A motion to dismiss this claim was denied. The court, however, stated that hyperlinking does not itself involve a violation of copyright since no copying is involved. The customer is simply transferred to the site of the original author.[11]
There is presently no relevant Australian case law. Interestingly, early drafts of the Digital Agenda Bill suggested that one of the objects of the legislation was to relieve uncertainty as to whether practices such as Internet browsing and hyperlinks violated the Copyright Act. The Act does not address the issue of hyperlinks, leaving it to the courts to deal with. US cases, such as the one outlined, will offer valuable guidance should litigation ever arise in an Australian context.
Framing occurs where the content of one web site is displayed within the same Internet browser window as another, or other, web sites.[12] The difference from a simple hyperlink is that the user may not be aware that he or she is viewing the content of more than one web site. This is because the content of the framed site may be incorporated so that it looks as though it is the content of the original site.
An action for infringement of copyright by framing was brought in the case of Futuredontics v Applied Anagramic, Inc[13] A motion to dismiss was denied, the court finding, although the actual framing was not an unlawful reproduction, the presentation of the framed work on the defendants Internet site could be considered a derivative work.[14]
This occurs where a site which itself does not contain infringing material is connected to a site which allegedly contains material which infringes copyright. There have been several examples of legal action being taken against someone who is not infringing copyright himself or herself, but instead providing a link to infringing material. MP3Board.com recently filed a lawsuit for a declaration that it should not be held liable for copyright infringement if it provided results of an automated search which contained a link to works placed on the Internet in infringement of copyright. This was in response to a cease and desist letter sent to MP3Board.com by the Recording Industry Association of America, the copyright owner of many songs allegedly placed on the Internet without permission.[15] The MP3Board application sought a ruling on whether providing hyperlinks could constitute copyright infringement. In Australia, it has been reported that record label BMG Australia Ltd had threatened to sue the owners of an Australian web site (the youth action group S11) over a link to an unauthorised version of John Farnham's 'You’re the Voice'.[16]
It is possible that providing a link to infringing material could be classified as authorising infringement of copyright for the purposes of section 36 of the Copyright Act. However, linking is a practice which is fundamental to the Internet. Placing too high an onus on a web page owner to ensure that linked material is legitimate would be unfortunate.
The protection of multimedia products under the Copyright Act is another area of remaining uncertainty. This is due to the fact that multimedia works do not fit neatly into any existing category of protected subject matter.
A multimedia product is, as the name suggests, a combination of material from two or more mediums, for example text, animation, film, music, graphics and data, which is compiled in a software program.[17] The material itself may qualify for copyright protection. For example, the software program will be protected as a literary work,[18] as will any original text which forms a part of the product. Any original music will also be protected, as would any original artistic work.[19] Similarly, any music or sounds recorded as part of the multimedia product would constitute a sound recording, receiving protection under s 89 of the Copyright Act.
Moving pictures are likely to be protected as a cinematograph film.[20] This category probably comes the closest to providing protection for a multimedia work as a single subject matter. It has been held that the moving pictures in a computer game can be protected as a cinematograph film.[21] It is submitted that the logical extension of this is that moving pictures contained in any form of computer software can be classified as a cinematograph film for the purposes of copyright protection.
However, the difficulty which arises is that the categories of literary, dramatic, musical or artistic work offer protection only for the author of that particular component of the multimedia product. For example, classification as a literary work provides protection only for the author of the computer program that forms the basis of the multimedia work. Though literary works also include ‘a table, or compilation, expressed in works, figures or symbols (whether or not in a visible form)’,[22] thus covering text,[23] a multimedia product often also incorporates sounds, artistic works and animation. These components may be protected as a sound recording, artistic work or cinematograph film respectively. Where the majority of the product consists of moving pictures and sound, the whole product may be classified as a cinematograph film. All multimedia products have some form of visual content, and most contain moving pictures. Use of this category is dependent on the existence of moving pictures. It may be inappropriate where the product consists primarily of text and sound recordings, with no accompanying moving pictures. It is stretching the definition of ‘moving picture’ to say that a product consisting mainly of a series of fixed pictures is covered under this heading. Therefore, the protection extended by the existing definitions in the Copyright Act to the maker of a multimedia product is uncertain.
The practical effect of the foregoing is that the producer of a multimedia work may be unable to successfully sue for infringement of his or her copyright. Only the authors of the component parts – such as the author of the computer program or text – have standing unless they have assigned these rights to the multimedia producer.
The Copyright Law Review Committee made recommendations aimed at addressing this problem. It recommended that the existing categories of protected subject matter be abolished and that two broad categories be introduced.[24] The first category the Committee termed ‘creations’. This aimed to provide protection for material produced as a result of significant intellectual effort. The second category was termed ‘productions’ which were described as material resulting from ‘the application of time, effort and resources by the person who undertakes the production’. This is intended to alleviate the problem, which is illustrated by the multimedia work, or new categories of subject matter arising which were not contemplated when the Copyright Act was drafted. The classification of material would depend not upon what it is, but on the way it was created.
The world of digital technology and e-commerce is moving at such a rapid pace that it is hardly surprising that the legislature and the courts are struggling to keep up. This is a fact which is clearly illustrated by intellectual property laws which are facing challenges which were unforeseeable, even in recent times. The Digital Agenda Act is a reaction to the need to face these challenges in a way which is flexible enough to deal with future challenges which remain undefined at present. It also strengthens the ability of the copyright owner to protect his or her material, an important ability in the face of an increasing ease of distribution and access to copyright material provided by the new technology.
However, as emerging case law in the United States indicates, there is still a large amount of uncertainty as to how copyright laws will apply in the digital age, in particular in the context the publication and use of material on the Internet. The challenges arising should make this an exciting and dynamic area of law for some time to come.
[1] Fry, J, Assessing and Minimising the Risks of Business-Method Patents, <http://www.gigalaw.com/articles/fry-2000-09-p1.html>
[2] The validity of the patent is currently being tested by the courts, as Amazon attempts to prevent Barnes and Noble, another bookseller, from using the patented business method.
[3] See Kass, H D, 'Problems in Copyright Law: Can Congress' Latest Addition to the Digital Millennium Copyright Act Circumvent the First Amendment' in University of Iowa Cyberspace Law Seminar, April 2000, <http://www.uiowa.edu/-cyberlaw/cls00/kassh.html>
[4] In January 2000, eight motion picture studios won a preliminary injunction to prohibit the posting of software that decodes CSS technology (Universal City Studios v Reimerdes, US District Court for the Southern District of New York, 00-0277). The defendants withdrew the technology from their web site, but posted links to other web sites offering similar technology.
[5] In the absence of any defence such as fair dealing (sections 41-4???)
[6] [1975] HCA 26; (1975) 133 CLR 1
[7] 839 F.Supp. 1552 (M.D. Fla. 1993)
[8] See Ishman, M W and Cromer, J D, 'Trends in US Copyright Law: adapting to the cyber-revolution' in IP World Online, <http://216.3.116.71/IPW/articles/IPWA03.htm>
[9] US District Court, Central District of California, March 27, 2000.
[10] It also brought actions for breach of contract, misappropriation, trespass, unjust enrichment, unfair competition, false advertising, unfair business practices and interference with business advantage.
[11] Similar litigation arose in the case of eBay v Bidders Edge, D Calif., No. 0-99 21200. Bidders Edge is a website which gathers information from many auction web-sites such as eBay, collating information from those sites for the users of its web site. The US District Court issued a preliminary injunction on the 24 May 2000 on the basis that Bidders Edge, through it’s automated query program and web crawler, was using the personal property of eBay for its own purposes. An injunction based on breach of copyright was denied and the court made it clear that use of eBay's information by any other means was not precluded by the injunction. See also Kelly v Arriba Soft Corporation (77 F.Supp 2d 1116 (C.D. Cal.1999) and Intellectual Reserve, Inc v Utah Lighthouse Ministry, Inc No2:99-CV-808C (C.D Utah Oct. 15, 1999).
[12] See Smith Kubiszyn, M, 'Web Site Framing: Trademark and Copyright Issues', GigaLaw.com, <http://www.gigalaw.com/articles/kubiszyn-2000-04-p1.html>
[13] Central District Court of California,
[14] Which if the equivalent of an adaptation under Australian law. See Kubisxzyn, M S, 'Web Site Framing: Trademark and Copyright Issues',
<http://www.gigalaw.com/articles/kubiszyn-2000-04-p1.html>
[15] See Richtel, M, 'Warned by the Music Industry, Web Site Files Suit' in The New York Times, June 6, 2000,
<http://www10.nytimes.com/library/tech/00/06/biztech/articles/06music.htm>
[16] See Newsbytes, 'Record Label Threatens Australian Web Site Over Song Link', 25 August 2000,
<http://www.newsbytes.com/pubNews/00/154197.html>
[17] Collie, I, ‘Multimedia and Moral Rights’ in Arts and Entertainment Law Review, December 1994, p 96.
[18] A ‘literary work’ is defined to include a computer program or compilation of computer programs (section 10(1) of the Copyright Act).
[19] The definition of ‘artistic work’ is: (a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality of not; (b) a building or a model of a building, whether the building or model is of artistic quality or not; or (c) a work of artistic craftsmanship to which neither of the last two preceding paragraphs applies (section 10(1) of the Copyright Act). ‘Drawing’ is further defined to include a ‘diagram, map, chart or plan’. Photographs are also covered as ‘a product of photography or of a process similar to photography, other than an article or thing in which visual images forming part of a cinematograph film have been embodied and includes a product of xerography, and ‘photographic’ has a corresponding meaning.
[20] A cinematograph film is defined as ‘the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing: (a) of being shown as a moving picture; or (b) of being embodied in another article or thing by the use of which it can be shown and includes the aggregate of the sounds embodied in the sound track associated with such visual images.’ (section 10(1) of the Copyright Act).
[21] See Sega Enterprises Ltd v Galaxy Electronics Pty Ltd (1996) 35 IPR 161.
[22] Copyright Act 1968 (Cth), s 10(1)(b).
[23] See Kalamazoo (Australia) Pty Ltd v Compact Business Systems Pty Ltd (1985) 5 IPR 213 at 231-234.
[24] See Copyright Law Review Committee, Simplification of the Copyright Act 1968, Part 2, Categorisation of Subject Matter and Exclusive Rights, and Other Issues, February 1999.
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