The importance of copyright in marketing – with examples of failure to get adequate intellectual property protection. 1,000 – 3,000 words
Intellectual property including copyright issues has been a widely debated topic. In this article, I will first try to define and examine copyright issues in the marketing context. I will further explore the reasons why it has failed to get adequate intellectual property protection citing some examples.
Copyright is a legal term used to describe the ownership or rights of the creator to protect their intellectual property. This could consists of written works, arts, paintings as well as works which has a creative aspect. Copyrights laws are basically created to ensure that creative works, are not used without the permission of the author or creator to copy. This protects and allows the copyright holder to be credited for his or her work, the right to determine who may adapt, perform, copy, modify their works, or publicly perform their work and/or financially benefit from it.1
3. Ownership of Copyright
Under the Australian Copyright Act (CA), there is no requirement for registration of copyright. Protection under this act does not depend on publication, a copyright notice, or any other procedure. The protection is free and automatic. However, to be covered under this aspect, works have to be original, showing the owner's skill and effort and not copied from another author. 2
4. Failure to get adequate Copyright Protection
A compilation of commonplace literary works are not considered original works as in the case of Kirk v Fleming Ltd. Lens cleaner. The owner has exclusive rights to the copyright material and is able to do certain things such as reproduction, publishing, performances and so on. However, the ownership of these rights may be transferred or assigned to another by written agreement. Under special circumstances, these ownership rights may be enforced by the Courts to be transferred to the assignee as in the case of Griggs Group Ltd v Evans & Raben Footwear  Copyright does not protect an idea or an expression, but protects any permanent or semi-permanent material form of a creator’s work, such as writings, arts, paintings or any other work which has creative aspect. The case of Donoghue v Allied Newspapers 3 is a good example of such rights being safe guarded under the Copyright Act
5. Duration of copyright
The rights for works such as literary, dramatic, musical, photographic and sound recordings, are usually valid for a period of 70 years. However, based on different material types, the duration of the copyright protection rules may differ. After expiry of copyright, the work enters what is known as the ‘public domain’ where it can be used without permission.4
6. Infringement of Copyright
Infringement of copyright occurs when a person uses the copyright owner's material without their permission as a whole or a substantial part of the copyrighted material: Sect. 101. One consideration of copyright infringement is to see if the copied work was done to save labour and time. If proven so, the work can be considered an infringement as in the case of Milpurrurru v Indofurn Pty Ltd.
In the case of Hawkes v Paramount Films, a substantial yet significant part of the original work was replicated. This constitutes an infringement of copyright law as well, as the final product was made to resemble the original work. In the case of TCN Channel Nine Pty Ltd v Network Ten Pty Ltd , the violation lies in the exact copy and reproduction of the film snippet without the consent of the creator.5
The brand name of Exxon was the issue of contention in the case of Exxon Corp v Exxon Insurance Consultants 6. They failed in getting judgement under the Copyright Act because this is not a case of copyright infringement but a case of a violation under the Passing Off Law.
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