Introduction to Business Law
Mary operates an information service known as “Mary’s PR Notes “ which she emails to clients who subscribe to her service. Mary’s PR Notes provides subscribers with abstracts of articles on public relations. The articles come from a variety of newspapers and magazines. The abstract includes the headline of the article (unaltered) and a short summary of the article’s content written by one of Mary’s employees.
Recently the editor of “Puffery 4U” contacted Mary complaining that Mary’s service is using his material. The editor was particularly concerned about how Mary uses the headlines from his articles.
Advise Mary
- Describe and discuss the nature of the issue and the legal implications
- Identify the relevant area of the law referring to cases and statutes
- Apply legal principles to the problem or issue using the relevant law to argue the case
- Include a literature review of the problem including relevant legal citations
Throughout this essay the topic of Mary’s Discount Public Relations Company and Mary’s PR Notes will be discussed and analyzed as to why Mary’s company may have breached some levels of copyright. Mary needs to be advised on what she may be doing wrong and how she can overcome these issues in her current situation regarding “Puffery 4U” and their complaints of how Mary is using their material and also other complications she may face in the future.
Mary’s public relations company offers an information service titled “Mary’s PR Notes” which she emails to clients who subscribe to her service. The emails provide subscribers with abstracts if articles on public relations which come from a variety of newspapers and magazines. The abstracts include the headline of the article, which is unaltered in any way, and a short summary of the article’s content, which is then written by one of Mary’s employees.
Recently the editor of “Puffery 4U” contacted Mary and is complaining that Mary’s service is using his material and breaching copyright. The editor is particularly concerned about how Mary uses the headlines from his articles.
Copyright is a type of property that is founded on a person’s creative skill and labour. It is designed to prevent the unauthorised use by others of a work, that is, the original form in which an idea or information has been expressed by the creator.
Copyright is not a tangible thing. It is made up of a bundle of exclusive economic rights to do certain acts with an original work or other copyright subject-matter. These rights include the right to copy, publish, communicate and publicly perform the copyright material.
Mary’s situation with “Puffery 4U” may come under the subject of copyright infringement (Copyright Act 1968 Sect 36) where someone reproduces in material form the whole or part of a work without the consent of the owner. Examples include when a work is published, reproduced or performed in public without the copyright owner’s permission. This general rule is subject to a number of specific exceptions in the Copyright Act. Although Mary or Mary’s employees haven’t changed the title of Puffery 4U’s articles or other articles referred to, they have however made their own summary of the articles which may twist the viewer’s perception on what the subject of the articles may be about. Even though the summaries may still be completely relevant to the articles and no bad intentions are being made, Mary’s company is still reproducing the articles or parts of them without the consent of the owners of the original material.
It is possible however that in Mary’s case her business may be able to be let off with fair dealing. This is where the material is an article in a periodical then reproducing the whole or part of the article may be fair dealing for research, study, criticism or review by an individual. The Copyright Act provides that copying a reasonable portion of a work for the purposes of research or study, criticism or review, news reporting or parody and satire will be a fair dealing. As only a small part of the articles are being reproduced, Mary’s case may be an exception to the copyright law and no legal action will be taken but this is still not a guaranteed outcome so other measures should to taken into account.
If Mary wishes to avoid legal action being taken out on her company then she can take several different measures. First she must seek permission from the owner of whom she wishes to take abstracts and articles from before using and altering them to make sure they won’t have an issue with Mary using documents. Secondly, if she clearly states in her emails she sends out where the original text is from and that the summary written in fact by Mary’s company and not the original publisher then the owner of that text will possibly have less of an issue with the company breaching copyright infringement. Thirdly, if Mary made connections with the sources she pulls the articles from she could send her summaries to them for them to approve first and then once she has the approval she can be free to send out her emails with their articles in them.
If a copyright has been infringed, the owner may sue the infringer in federal court, seeking an injunction against future violations of the copyrights. The owner may recover actual damages, which are losses plus the infringer’s profits from use of the copyrighted work. Or, any time before a court issues a final judgment, the owner can elect to receive a set amount in damages as defined in the copyright statute, in lieu of actual damages. The amount of statutory damages can range from $200 to $150,000, based on a court’s determination of several factors, including whether the infringement was intentional.
On 1 January 2007, a range of copyright enforcement measures started as a result of the Copyright Amendment Act 2006. These include the creation of a tiered system of copyright criminal offences incorporating indictable, summary and strict liability offences.
The strict liability offences do not contain fault elements and attract maximum penalties of 60 penalty units ($6,600). These offences are supported by a copyright infringement notice scheme provided for under the Copyright Regulations 1969. An infringement notice penalty is 12 penalty units ($1,320). The introduction to this scheme was created and designed to deal specifically with lower-level copyright crime such as first time offenders, street stall or market operators.
Under this scheme, an offender issued with an infringement notice by a law enforcement officer will have the option of paying a fine or risking the possibility of prosecution in court. In addition to paying a fine, some offences will also require the offender to forfeit copyright material and/or related devices in order to avoid prosecution.
In 2001, the TCN Channel Nine Pty Ltd v Network Ten Ltd (‘Panel Case’) was a case with claims that commercial broadcaster Network Ten infringed copyright in Channel Nine broadcasts when re-broadcasting extracts of Nine’s program ‘The Panel’ over the period from 10 August 1999 to 28 June 2000. ‘The Panel’ is a talk show comprised of a regular panel and guest panelists who discuss recent events and current issues, using television footage from a variety of sources as a basis for humorous comment and critical discussion. The claim of copyright infringement related to 20 excerpts of Nine footage, ranging in length from eight seconds to 42 seconds. The excerpts were from a variety of programs including The Today Show, Who Wants to be a Millionaire, Days of Our Lives and Sale of the New Century.
Nine claimed that Ten’s re-broadcasting of excerpts of its programs constituted an infringement of its copyright in the television broadcast as provided for in s 87(c) of the Copyright Act 1968 (Cth) (the Act). Nine also claimed that Ten had breached s 87(a) of the Act by making a cinematograph film of the programs or a copy of such films, but this latter claim has not yet been determined. This judgment relates only to Nine’s claim in relation to s 87(c) of the Act.
On 11 April 2003 the High Court granted Network Ten leave to appeal against the decision of the Full Court of the Federal Court and in September 2003 heard arguments on the operation of ss 14, 25(4) and s 87 of the Copyright Act 1968 regarding the claimed infringement. The ruling from the Federal Court was announced as fair dealing in broadcast television.
This case is similar to Mary’s situation as Network 10 was only re-broadcasting small extracts of ‘The Panel’ and did not have the intention of bad mouthing Channel Nine or putting them in a negative spotlight. It is possible to argue and win Mary’s case depending on the extent to whether how relevant her summaries are to the original text of the articles she is using in her emails and if she is trying to persuade people to not read them. The case may end up being ruled as fair dealing if the following situation were to occur.
It would be wise for Mary to act on this current situation as soon as possible as “Puffery 4U” may not be the only people concerned with the way Mary is using their articles. She may see herself facing multiple lawsuits, which could create a bad reputation for not only her company but for herself as well. Although Mary and her employees may think they aren’t doing any harm and are actually advertising other peoples work to a wider audience, authors of the articles may perceive this situation different and just want to claim work as their own.
If “Puffery 4U” were to take legal action upon Mary this would cause implications for her not only in the short term but long term as well. She may face multiple fines from the magazine and newspaper companies she has been collecting articles from which would affect her financially and it would also give Mary a bad name and affect her future business dealings.
Bibliography
- http://www.rcfp.org/handbook/index.php?pg=10-1
- http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/
