Copyright

Software royalties and income tax

The Australian Taxation Office (ATO) recently released a draft Taxation Ruling (TR) 2021/D4 (Draft Ruling) which considers whether certain software related royalties may be taxable.  In short, the Draft Ruling provides a much needed, and quite broad, scope for when consideration of computer software will be a royalty for income tax purposes.  This article discusses this broadened scope. [Read more…]

Non-fungible tokens – the new way to own IP?

Non-fungible tokens (NFTs) have been making headlines recently for being sold at auction for enormous sums of money.  Business school drop-out turned American DJ, 3LAU, apparently sold his NFT collection just over a month ago for $11.6 million USD ($15 million AUD).[1]  Grimes, otherwise known as Claire Boucher, a prominent musician and partner to Tesla CEO, Elon Musk, sold multiple digital artworks amounting to a total of $6 million USD ($7.79 million AUD).[2]

So what are NFTs and how can they help you protect your intellectual property (IP)? [Read more…]

What are moral rights?

Moral rights are given to authors of copyright works which were introduced subsequent to the passing of the Copyright Amendment (Moral Rights) Act 2000 (Cth) (Amendment).  This amended the Copyright Act 1968 (Cth) (Act) by inserting sections 189 through to 195AZO.

The Revised Explanatory Memorandum, Copyright Amendment (Moral Rights) Bill 1999 (Cth), which explains Parliaments intention under the Amendment, and section 189 of the Act provide for the addition of three (3) moral rights in respect of authors and performers: [Read more…]

How much copying results in copyright infringement?

Copyright can subsist in many types of works.[1]  Often, the written word will give rise to copyright.  This is known as Literary Works.[2]  However, this also means that infringement of Literary Works is quite common.  This article outlines what may constitute Literary Work and how the Court will assess an alleged infringement. [Read more…]

Palmer breaches copyright – liable for $1.5m AUD in damages

On 30 April 2021 Katzmann J delivered the Federal Court’s judgment in the matter of Universal Music Publishing Pty Ltd v Palmer (No 2) [2021] FCA 434 (UMB).  The case of UMB concerns the infringement of musical and literary works (Works) of Daniel “Dee” Snider (Dee) by Clive Palmer’s United Australia Party’s (UAP/Respondent) multi-media advertising campaign.  UMB considered a complex and detailed fact matrix.   Simply put, the Respondent made use of a short jingle with the lyrics ‘Aussies Not Gonna Cop It’ to the tune of Dee’s ‘We’re Not Gonna Take It’, alongside other similarly reproduced advertisements (Impugned Works), to promote the Respondent’s political objectives. [Read more…]

Proposed amendments to use of orphan works

On 13 August 2020, Paul Fletcher MP, Minister for Communications, Cyber Safety and the Arts, announced amendments to the Copyright Act 1968 (Cth) (Act).  The amendments follow two (2) years of stakeholder consultation, and finalise the Government’s response to the Productivity Commission’s 2016 Intellectual Property Arrangements Report.  The reforms focus on the use of “orphan works”, with an aim to provide a framework for copyright that is fit for the digital age. [Read more…]

What is a software licence agreement?

A software  licence agreement (Software Licence Agreement) is a contract where one party (Licensor) grants to another party (Licensee) the right to use the defined software.  It is often used by software developers (Developers) so that they can build and own a core application, customise it for particular clients and provide them with a licence to use the core.  In many cases this licence has been the start of a substantial business enterprise.  The term Software Licence Agreement can apply to both installed software as well as cloud based applications.  That said cloud based Apps are commonly referred to as “Software as a service contracts” or SaaS Contracts because they involve the right to access and use a software application as opposed to a right to reproduce the code. [Read more…]

s115A Copyright Act – infringement outside Australia

Section 115A of the Copyright Act 1968 (Cth) came into effect on 27 June 2015 and was amended on 11 December 2018 pursuant to the Copyright Amendment (Online Infringement) Act 2018 (no. 157, 2018) (Online Infringement Act).  The effect of the amendments as described in the Explanatory Memorandum to the Bill were to amend the threshold test from ‘primary purpose’ to ‘primary effect’, add a rebuttable presumption that an alleged ‘online location’ is located outside Australia, to extend the scope to online search engines (Deindexing Orders) and allow the Court to make “more responsive” orders in terms of injunctive relief. [Read more…]

Intellectual property assignments and the right to sue

The process of identifying and protecting intellectual property (IP) rights often involves entering into IP assignment deed to transfer rights to another entity.  There are various reasons why parties will want to do such an assignment including asset protection and for the purposes of commercialisation.  The question that often arises after an assignment has occurred is whether or not the recipient (or assignee) of the IP has a right to sue for past infringement of the rights obtained. [Read more…]

Adaptions, computer code and copyright

An adaption in copyright is the exclusive right of the owner of the work in question.  Section 10 of the Copyright Act 1968 (Cth) (Act) defines adaption as it relates to literary works in dramatic and non-dramatic forms, in a computer program and in relation to a musical work.   The rights that apply to adaptions in different separate classes of literary works differ according to the respective category in question. [Read more…]

Send this to a friend