Copyright infringement is defined by the jurisdiction — the United States of America has different copyright laws than the United Kingdom, or Australia, or Russia, or even China. Because of this fact, you should first, before anything else, check the laws in your jurisdiction (country, city and province) before using something that isn’t in the public domain.

For our definition of copyright infringement, works in the public domain aren’t copyrightable. Works that aren’t copyrightable include ideas, works that aren’t eligible (150 years-old documents, or older — think Beethoven and Frankenstein), data that isn’t categorized in a creative way (this could be a database, such as a phone book or other publicly-accessible data), or items that the owners have specified creative commons copyrights.

As you can see, copyright law is rather complicated. Wikipedia.org gives us the definition of copyright infringement as: “Copyright infringement (or copyright violation) is the unauthorized use of material that is protected by intellectual property rights law particularly the copyright in a manner that violates one of the original copyright owner’s exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works that build upon it. The slang term bootleg (derived from the use of the shank of a boot for the purposes of smuggling) is often used to describe illicitly copied material.”

Our definition of copyright infringement includes the works of creative commons. Creative commons is an organization that allows for the copyright author to determine the uses available for people who want to use their works — for such items as for audio, images, video, text, educational materials, and software. It allows for the copyright owner to allow people to use their works for non-commercial, commercial, no derivatives, share alike, or just by giving attribution. Creative Commons is a license granted by the copyright holder, and can be used in both online (electronic Internet) works and offline works.

The real definition of copyright infringement comes from your jurisdictions statutes. In the United States of America, our jurisdiction’s copyright laws are contained in Title 17 of the United States Code, §501 – §513. You can also find a definition of copyright infringement through such organizations such as the European Union or World Trade Organizations.

Copyright Infringement Statistics

Copyright infringement statistics, by most standards, are inflated. Most recent copyright infringement statistics cite that almost 30 percent of software is pirated in the United States of America. This means they think 30 percent of the software on your computer is illegal.

However, copyright holders have good reason to worry that we’re violating their rules: the number of suspects referred to the United States attorneys with an intellectual property lead increased twenty six percent in the period between 2002 and 2004 — and this number is rising. Copyright infringement statistics are difficult to come by, but it’s plain to see it’s affecting every aspect of intellectual copy.

Copyright infringement statistics show a lot of violations in pirating software and music. Many unsuspecting people, from college students to thirty-something professionals, download music on a consistent basis, and often it’s not downloaded legally. Often times, someone will download a song off a MySpace or YouTube page, without giving thought to who owns the copyright and if it’s legal for them to have it.

Copyright infringement statistics, brought to us by the music recording industry, would have us believe that online infringement is seriously hurting the recording industry. Statistics also show that many people are downloading games off the Internet. With the litany of games available to us — from complete alternate worlds such as World of Warcraft to the more mainstream “The Sims” series — people are clamoring for PC games. They’re fun, intelligent games that play on a system everyone has — a computer. Because of this, people are always looking for new games to play and download, and they may download a game without knowing that it’s not “freeware” (as many Internet games are).

In addition to computer games, copyright infringement statistics also show that movies are downloaded in abundance on the Internet. Many peer to peer file distribution sites and programs (such as Kazaa) allow transferring of large files; plus they’re easy to find online. Using a tool provided by one of many suppliers, users can search for any item they like — and, of course, the system is abused and people download copyrighted movies and entire DVDs instead of publicly available works.

Copyright infringement also branches into written works, such as articles, books, poems, etc. Many times, a student will copy a paragraph or two without realizing the implications of such copying. While they may think of it as “borrowing,” if it’s used on a grander scale, the person could be opening themselves up to a large court fight, especially if it’s used commercially.

As you can see, copyright infringement statistics show us that many people use copyrighted works illegally. Do your best diligence when using another’s work — and ask for permission every time you want to use something that you haven’t created. Chances are, if you just ask the question up front you’ll save yourself from becoming a copyright infringement statistic and save yourself from a major lawsuit.

This copyright law was created to ensure that the heirs of the songwriter would also benefit from the royalties after the music’s writer or composer was no longer living. It is important to remember that these laws are the current laws; music written at different points in time are most likely subject to different copyright laws. When searching for free copyright music it is always a good idea to search through music that is very old rather than focusing your search on more recent musical selections, as they will most likely still be protected under copyright.

When using free copyright music or public domain music, you must be certain the copy you are using is within the copyright period. Any music published before 1922 is public domain music. This does not, however, include derivatives or new versions of that music which may still be under copyright protection. Finding a copy of the music with the copyright date included, if that date is prior to 1922, is the best route to ensure you are complying with current copyright laws and you not infringing on someone else’s copyright.

Written music is protected differently than recorded music. Almost every sound recording copyrighted in the United States is protected until 2067. If you need a sound recording you should either purchase one or make one of your own. You can find many free copyright music by searching on Google; which allows free use of the music and free of any royalty payments.

Copyright laws in the United States are different than they are in other countries. If you wish to use music that is or was under copyright in another country, then you must follow the laws that apply to the particular piece of music. Free copyright music is available in almost every country and many genres; the trick is finding great sources where you can easily find this music.

There is a project called Mutopia, which operates like project Gutenberg. Mutopia provides free copyright music. The Gutenberg project also has a section devoted to free sheet music, in addition to its wonderful resources for books. Each of these projects provides excellent resources to find free copyright music for whatever reason.

Whether you are a musician seeking inspiration from the music of old or hoping to find a composition — which you can rearrange and make your own — there are many ways you can achieve your goals that will not violate current copyright laws. The key is learning the copyright laws both where you live and countries in which the music you seek to modify.

entirely on a hypothetical case study.Author: Kingsley OkaforIgwe

Intellectual property – Copyright- possible infringement –

 whether script was reproduced Copyright Act 1968(Cth)

Obligation of confidence –

whether received information was imparted in confidence

Breach of Contract –

in the event of copyright infringement, whether it constitutes breach of contract.

You have requested that I find out whether you are liable to a lawsuit in relation to a possible breach of the contract that you entered into with Wolf Network.

You informed me that you met with one scriptwriter, Harrison Cruise, on a number of occasions in 2007, and discussed an idea that he had for a Television drama, provincially titled ‘Melbourne at Law’. You liked the general ideas that he proposed but did not enter into contract with him.

A broadcasting company known as Wolf Network who was developing a new show based on the lives of lawyers and police in New South Wales subsequently invited you to join them, the invitation of which you accepted. Upon joining the Network, you suggested that the show be titled  ‘Sydney at Law’.  A number of the scenarios and details that Cruise had suggested ended up being incorporated into “Sydney at Law”, but was adapted to the New South Wales context.

You signed a contract with Wolf Network which specified that all copyright in work developed under the contract would be passed to Wolf Network, and agreed that any material that you brought, or developed for the Network was free of any obligation or liability to any other party.

You are now concerned that Wolf Network may sue you for possible breach of contract. You therefore sought my advice as to what, if any, legal liability you may owe to Wolf Network.

The answers to your concerns are that you have no legal liability to Wolf Network. The reasons are as follow:

      Copyright:

Pursuant to s. 32(1) (a) of the Copyright Act 1968 (Cth) copyright subsists in the work that you have produced for the Wolf Network. Even though copyright may also subsist in Cruise’s work, he could not claim that your creation was a reproduction of his work. Although similarities may exist in terms of idea, or the theme, there is no copyright in an 1 idea or central concept, therefore any possible claim of copyright infringement based on idea or concept by Cruise may not sustain vigorous examination in court should he elect to pursue a case of copyright infringement for the following reasons:

1.     when Cruise approached you, his script was not complete and the provincial title –Melbourne at law had not been produced or broadcasted by any Television Network, or any producer

2.     the characteristics-that is the location, the characters (and so forth ) portrayed in Sydney at Law,  were dissimilar  to the  expression made by Cruise,

3.       intended to be titled Melbourne at Law

4.     there is no sufficient resemblance between the structure and the events portrayed in  Sydney at Law  that would support  any claim  that  there was a substantial reproduction of Cruise’s expression in  Melbourne at Law

5.     although you recommended that the program be called Sydney at Law, Wolf Network had commenced the process of producing the program before you were consulted

6.     despite having similar themes and titles substantial differences exist between Cruise’s 20 page summary treatment and Wolf Network’s near final television series.

2 In Zeccola v Universal Studios Inc (1982) 67 FLR 225, 228, see also Peters v Coulter (1995) 33 IPR 50; Telmak products Pty Ltd v Bond International (1986) 65 ALR 319 the court held that  adopting the idea behind a work and then creating a work based on the copied idea is not an infringement of copyright. 3 In Nine Films & Television Pty Ltd v Ninox Television Ltd (2005) FCA 1404 the court dismissed the cross-claim of copyright infringement by Ninox who produced the prior show, “The Block”. The court found that there was no substantial copying of “The Block” by Nine Films who produced the  “Australian Dream Home” in the sense that the two shows were very different in many features such as theme, style, mood and the varied characters involved.

At the time of your initial contact with Cruise, his work had not been published and it would appear that the title that he proposed for his work may not have had a trade mark at that time. Even if the work had been published, or broadcasted, or that trade mark did subsist on the title, Melbourne at Law, Sydney at Law was produced in a different environment, with different characters, and under different circumstances in the sense that it was produced in many locations in New South Wales and depicted the lives, and subcultures of lawyers and police officers in New South Wales.

It would appear that your work may have been informed by Cruise’s ideas. On the other hand, there is no evidence that the work you created did copy or reproduce substantially any parts of Cruise’s work. For this reason, the only avenue that Cruise may exploit to challenge the genuineness of your work is that of obligation of confidence and fiduciary.

Obligation of confidence and fiduciary:

4 Obligation of confidence arises when two parties have contractual relationship as in employment or in contract to provide services. Courts have described this as a special relationship in the sense that an employer and employee have a form of special relationship through which the employer put trust in the employee that the information made available to him or her in the course of employment or to aid the employee to perform his or her duties effectively may be imparted in confidence, therefore, in any event, the person is bound by the dictates of the employment contract not to use the information in a way that may be detrimental to the confider, or exploit, or expropriate  such information for personal gain.  5 In Arklow Investments Ltd. and Another v Maclean  and Others (1999) UKPC 51 the plaintiff who was a customer of the respondent (a merchant bank) appealed to the Privy Council seeking to overturn the decision of the Court of Appeal of New Zealand which held that the respondent did not owe fiduciary obligation to the customer that it had offered to assist and that it had not misused any confidential information. The Privy Council concurred with the decision of the Court of Appeal and therefore dismissed the appeal.

On the other hand, in Bristol and West Building Society v Matthew (1998) CH 1, 18 the court states that fiduciary obligation arises 6 “when someone has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence”.  In any event, there must be an expression to act on behalf of another for obligation of confidence or fiduciary to arise, in which case, if there is a dispute or misunderstanding that one owes obligation of confidence to another, the confider must adduce evidence tending to show that confidential information was misused.

 In your dealings with Cruise, you did not sign a contract to act on his behalf, to produce, or aid him in dealing with a production company for the purpose of publishing or broadcasting his ideas. Therefore it could be argued strongly that Cruise did not impart such information in a circumstance that would give rise to obligation of confidence. To determine whether or not any information was imparted in confidence, the confider would have to demonstrate that he or she made every possible attempt to keep the information secret, and that such information is confidential.  8 In Bluescope Steel Ltd v Kelly (2007) 72 IPR 289, the court found that the first respondent breached obligation of confidence on the basis of his special relationship, that is employment. The first respondent was an employee of the applicant therefore obligation of confidence arose from his special relationship with the employer and contract which specifically expressed that any information disclosed in the course of the respondent’s employment was confidential.

To successfully execute a breach of confidence case, the plaintiff must demonstrate to the court that the recipient of confidential information owed the plaintiff an obligation to keep the information confidential. Cruise would have to do just that if he elects to allege that you owed obligation of confidence or fiduciary to him.I am therefore satisfied that you do not owe either obligation of confidence or fiduciary to Cruise for the following reasons:

1.     you did not sign any contract with Cruise

2.     you therefore do not have a special relationship with him

3.     Cruise did not expressly inform you that the information he disclosed to you was confidential.

4.     even if he informed you that the information was confidential, there is no evidence to suggest that you misused such information to his detriment.

Having considered that you did not infringe on Cruise’s copyright pursuant to 10 s. 32(1) (a) of the Copyright Act 1968 (Cth), and that you do not owe either fiduciary or obligation of confidence to Cruise, there exists one other avenue through which Wolf Network may take legal action against you, and that is breach of contract.

Liability to Wolf Network; Breach of Contract:

When you signed the contract with Wolf Network, you made an undertaking that you were free of obligation to any third party. Your liability to Wolf Network therefore depends on whether or not you owed a prior obligation to another party. Having considered the Copyright Act 1968(Cth) and the basis of your contact with Cruise, there is no evidence that suggests that your contributions to Sydney at Law  were not free of obligation to anyone, or any third party because of the fact that you authored your contributions to the Wolf Network.

Under s.35(2) of the Copyright  Act 1968 (Cth) the author is the first owner of copyright if the work is a text work, music, a dramatic work, a computer program or an artistic work, and therefore entitled  under s. 31(1) to enter into contractual relationship to produce or reproduce the work in material form.  For the purpose of Copyright Act, 10 an author is a person who expressed an idea or information in a material form. 11 A person who has ideas or suggestions, but does not contribute in the creation of a particular work in issue is not the author of that work, and therefore, would not claim copyright infringement so long as there are substantial differences between the first expression in material form and any other subsequent production. For example, 12 in Donoghue v Allied Newspapers Ltd (1938) Ch 106 the plaintiff claimed to have authored articles titled “ghost written” because the articles were based on his account of his racing career. The plaintiff was contracted by the owners of the newspaper to produce information about his racing career, and was interviewed by an employee of the newspaper, Felstead. The information that the plaintiff revealed to Felstead was subsequently published as though the plaintiff had written it. A few years later, Felstead updated the articles without the consent of the plaintiff and titled it “my Racing Secrets. By Steve Donoghue”. The plaintiff therefore sued for copyright infringement. The court held that Felstead was the author of the articles and therefore has copyright to the articles. Farwell J., who adjudicated in the case noted that:

 A person may have a brilliant idea for a story, or for a picture, or for a play, and one which appears to him to be original; but if he communicates that idea to the author or an artist or a playright, the production which is the result of the communication of the idea to the author or the artist or the playright is the copyright of the person who has clothed the idea in form, whether by means of picture, a play, or a book, and the owner of the idea has no rights in the product.

This goes to show that Cruise may not be successful in any claim of copyright in work that you produced independently. Such copyright in any event is vested in you. However, s. 35(6)Act 1968 (Cth) states that with regards to 15 an author who produced work as part of his or her employment, copyright subsists on the employer. In this case, Wolf Network may have such title. From this proposition; if any legal action is to be taken by Cruise, such action would be directed to Wolf Network. However, since you were contracted as a consultant, not as an employee, your relationship with Wolf Network is that of a contract of service not of services.  16 A person who is providing service on contract of service terms is assumed to be an independent contractor rather than an employee. You would not be bound by terms of employment for the fact that your relationship with Wolf Network is not one of an employer and employee relationship but is instead, one of contract of service. In University of London Press Ltd v University Tutorial Pres Ltd (1916) 2 Ch 601 the court found that 17 the examiners who were appointed by the University of London were engaged under contract of service and therefore were not bound by employment contract.

Your work may have been informed by Cruise’s ideas, but that is not to say that there is striking similarity between your work and that of Cruise, due to the fact that your work has different characteristics and adaptation. Since your work is free of any obligation, and you have not infringed on any copyright that subsists in someone else’s work, I am therefore satisfied that you did not breach the contract that you entered into with Wolf Network. If Wolf Network were to go to the expense of pursuing you for breach of contract, they would have to wait until there is a successful outcome of any litigation that Cruise may institute.

 In summary, Wolf Network would not have any concern about your contribution to Sydney atLaw if Cruise did not bring any legal action tending to show that you have infringed on his copyright, or that you owe him obligation of confidence and that you abused such confidence.  The decision of the Court in all the cases that I have referred to, more especially, 18 Nine Films & Television Pty Ltd v Ninox Television Ltd (2005) FCA 1404 goes to show that courts understand that although there may be similarities in themes, or ideas, those themes or ideas are not protected by the Copyright Act.

The decision of the Court in Donoghue v Allied Newspapers Ltd (1938) Ch 106 is a strong authority in this respect, in the sense that the Court held that although 19 the articles in issue were an account of the plaintiff’s racing career which the plaintiff provided to Felstead, an employee of the respondent, the Court held that Felstead was the author and therefore had copyright of the articles.It is unlikely that Cruise would institute any legal challenge tending to claim copyright infringement, or obligation of confidence, given that any copyright infringement that he may claim would not stand, due to the fact that the work that you had produced for Wolf Network differs substantially to the work that he has produced.If Wolf Network elects to take any action against you for beach of contract, the onus would be on them to prove that you have breached the contract in the absence of any copyright infringement or obligation of confidence. In addition, they would have to adduce evidence to show that you are actually an employee rather than a consultant in order to prove that you breached such terms.

 Bibliography:

Arklow InvestimentsLtd.and Another v Maclean and Others(1999)UKPC 51

Bluescope Steel Ltd v Kelly(2007) 72 IPR 289

Bristol and West Building Society v Mathew(1998) Ch 1, 18

Copyright Act 1968 (Cth)

Donoghue v Allied Newspapers Ltd(1938) Ch 106

IP Commentary ‘ Copyright’ retrived 28 Febuary 2008:

LexisNexis: ‘Obligation of Confidence and Special Relationship’ retrieved 23 February 2008 :

Nine Films & Television Pty Ltd v Ninox Television Ltd (2005) FCA 1404

Peters v Coulter (1995) 33 IPR 50

Telmak Products pty Ltd v Bond International (1986) 65 ALR 319

University of London Press Ltd v University Tutorial Press Ltd (1916) 2 Ch 601

1. Donoghue v Allied Newspapers Ltd (1938) Ch 106

2. Zeccola v Universal Studios Inc (1982)

3. Nine Films & Television Pty Ltd v Ninox Television Ltd (2005) FCA 1404

4. LexisNexis: ‘Obligation of Confidence and Special Relationship’

5. Arklow Investments Ltd. and Another v Maclean  and Others (1999) UKPC 51

6. Bristol and West Building Society v Matthew (1998) CH 1, 18

7. LexisNexis: ‘Obligation of Confidence and Special Relationship’ p.1

8. Bluescope Steel Ltd v Kelly (2007) 72 IPR 289

9. LexisNexis: ‘Obligation of Confidence and Special Relationship’ p. 1 &2

10. Section 32(1) (a) of the Copyright Act 1968 (Cth),

11. Section 35(2) of the Copyright  Act 1968 (Cth)

12. IP Commentary ‘ Copyright’, p. 2; see also section 35(2) Copyright Act 1968 (Cth)

 13. Donoghue v Allied Newspapers Ltd (1938) Ch 106

  14. ibid. p. 106

15. Section 35(6)Act 1968 (Cth)

16. IP Commentary ‘ Copyright- Works produced in the course of employment- contract of service’, P. 11

17. University of London Press Ltd v University Tutorial Pres Ltd (1916) 2 Ch 601

18. Nine Films & Television Pty Ltd v Ninox Television Ltd (2005) FCA 1404

19 .Donoghue v Allied Newspapers Ltd (1938) Ch 106

Sometimes copyright laws are inadvertently broken. At other times, though, someone might try to intentionally steal an artist’s work. Hiring a copyright law firm that has years of experience will help you protect your intellectual property from both types of infringement.

Protecting your intellectual property, however, is about more than just hiring a copyright law firm that can take other people and organizations to court. You also want to choose a copyright law firm that will give you good client services that will protect you more in the long run.

For instance, a copyright law firm that helps you file paperwork for your copyright has already started a strong legal defense for any infringement that might occur in the future.

Most copyright law firms help protect their clients from intellectual property infringement. This is very useful for writers, musicians, and artists, but you will also want to look for a copyright law firm that can offer you defense services if you are ever accused of infringing someone else’s intellectual property rights.

A copyright infringement case might go to court where a judge can decide whether any laws were broken, or mediation services be used to settle out of court. Regardless, you will need a copyright law firm on your side that has plenty of experience with defense, prosecution, and mediation.

Ask your colleagues which copyright law firms they use so you can get some information from clients who have experience with the firms. You should also talk to representatives of the firm to make sure they can offer you all of the services that you need at a price that you can afford. You might even want to ask them for written price quotes so you will know which ones fit your budget.

The agency in charge of patent laws is a Federal Agency known as the Patent and Trademark Office. Anyone who applies for a patent will have their application reviewed by an examiner. The examiner will decide if a patent should be granted to the inventor. Individuals who have their patent application turned down can appeal it to the Patents Office Board of Appeals.

Just because someone has a patent does not mean they have the right to use, make or sell the invention. For instance, if a drug company comes up with a new drug, they can get a patent on it. However, it would not be available to be sold to the general public until the drug becomes approved by other regulatory bodies. Likewise, someone may invent an improvement to an existing product, yet they will not be allowed to produce or sell the item until they obtain a license to do so from the owner of the original patent holder.

For someone to receive a patent, as stated, they must fill out an application on their invention. The application will entail the details of the invention and how it is made. In addition, the person applying for a patent must make claims that point to what the applicant deems or regards as his or her invention. A patent may have many claims with it. The claims protect the patent owner and notify the public exactly what the individual has patented or owns.

If someone infringes upon patent and copyright law, it is usually enforced in a civil court setting. The owner of the patent will generally bring a civil lawsuit against the person who has infringed upon their patent and ask for monetary compensation. In addition, the patent owner can seek an injunction which would prohibit the violator from continuing to engage in any acts that would infringe upon their patent in the future.

Many patent owners will make licensing agreements (or contracts) with others. These agreements allow another person or company to use someone’s patented invention in return for royalties. In addition, some patent holders who are competitors may agree to license their patents to each other to expand both of their profits.

Most everything we use in our day to day life was invented by someone. That person had to seek out a patent for their invention. Patent and copyright laws protect inventors from having their ideas and inventions stolen out from under them. This makes the playing field more level for individuals. Without these laws, the marketplace would be out of control and the small guy would probably be eaten alive by big business.