-- JonathanMo - 14 Sep 2015

Literary, dramatic, musical and artistic works (CA Part III protected)

The CA Part III works include the following:

• literary works (for example, books, film scripts, and even private correspondence)
• dramatic and musical works (for example, plays and music compositions recorded in the form of musical notation)
• artistic works and works of applied art (for example, paintings, ceramics, carvings)
• maps and technical drawings
• photographic works
• motion pictures and sound recordings (for example, movies, documentaries, and interviews)
• computer programs and databases.

The CA definition of literary works is non-exclusive, and can include a table, or compilation expressed in words, figures or symbols, as well as a computer program or compilation of computer programs [CA s.10(1)]. This clearly protects computer programs and tables, but says nothing about what in a more traditional context might be considered 'literary'. Business documents, catalogues, advertisements, lists, newspaper reports and so forth are considered to be 'literary works': almost any kind of writing can qualify, but not single words or titles which are considered in themselves too trivial or inherently unoriginal to have copyright protection. See Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479. Latham CJ said that: 'the law of copyright does not operate to give any person an exclusive right to state or to describe particular facts. A person cannot by first announcing that a man fell off a bus or that a particular horse won a race, prevent other people from stating those facts.'

Problems arise where all a person has done is present a mass of factual data, such as the results of a horse race. In such cases it is only the author's particular presentation of the factual material that will be protected and this must display the application of some element of skill or labour. There must be more than bare recital of facts and figures: there must be some selection, compilation or abridgement to achieve an 'original result'. See Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 119 FCR 491: 55 IPR 1.

Dramatic works have an inclusive definition under section 10(1) of the CA as a choreographic show or other dumb show; and a scenario or script for a cinematograph film. However, the latter does not include a cinematograph film as distinct from the scenario or script for a cinematograph film.

Musical works are not defined in the CA. As with literary work, there is probably no requirement that the music be of a particular quality. Thus the score of a song is a musical work, whether it is an advertising jingle or an operatic aria. The words would be a literary work: thus the copyright in the words and music may be owned by two separate people. If the song is recorded then another copyright exists in the sound recording (see Part IV of the CA). The requirement of 'material form' means that improvised or traditional music will not attract copyright protection unless or until written down or otherwise recorded. See Schott Musik International GMBH & Co v Colossal Records (1996) 71 FCR 37; 36 IPR 267.

A dramatic or musical work must be reduced to a 'material form' in order to be protected. Hence it is not the performance, but the script or score which receives copyright protection. See Zeccola v Universal City Studios (the Jaws case), and Green v Broadcasting Corporation of New Zealand (1988) 16 IPR 1.

Artistic work is exhaustively defined in section 10(1) of the CA as:

Painting is not defined in the CA, which has generated some interesting case material in respect of the Archibald Prize, for example, on whether a caricature is a painting or a cartoon or whether a charcoal drawing can be a painting. See Attorney-General v Trustees of the National Art Gallery (NSW) (1945) 62 WN (NSW) 212.

While photographs are protected, the act of taking another photograph of the same subject matter as an earlier photograph does not infringe copyright, even where an identical photograph is produced - only the copying of the first photograph itself will do this.

It should be noted that the above forms of copyright do not carry a requirement for the establishment of artistic quality or craftsmanship, and the threshold of originality is set low. See Lincoln Industries Ltd v Wham-O Manufacturing Co (1984) 3 IPR 115; Interlego AG v Croner Trading Pty Ltd [1992] FCA 624; (1992) 39 FCR 348; 25 IPR 65; Greenfield Products Pty Ltd v Rover-Scott Bonnar Ltd (1990) 95 ALR 275; 17 IPR 417.

However, some aesthetic considerations are relevant to the existence of copyright in this category. The test may be whether the main object of the creator was to create an article which, even if it be utilitarian, nevertheless would have a substantial appeal to the aesthetic tastes of those who observed it. However, in Coogi Australia Pty Ltd v Hysport International Pty Ltd [1998] FCA 10; (1998) 86 FCR 154, the court held that a mass-produced and machine made article can still be a work of artistic craftsmanship.