2. Intarnational News
copyright in each and every image broad- Inquiry into Relationship
cast. He found that this would be inconsis-
tent with the requirement that a
between COpyright and
'substantial part' of copyright material must
C-ºnt['aá«La.w_ ... .>.~~,~~_w~_.
__ . ,_
Broadcast Copyright not be taken before infringement is made out. As reported in the previous issue of
Infringed; New Moral Therefore, the Court held that Channel Copyright Warld, (issue 111) the Federal
Ten had not infringed Channel Nine's Government has given its copyright ad'i1"
Rights LawTested; broadcast copyright as it had not copied a sory body, the Copyright Law Review
Inquiry into Relationship substantial part of any particular broadcast. Committee, a reference to inquire into the
between Copyright and Although not having to decide the issue, relationship between contract and copy-
Justice Conti dealt with Channel Ten's sub- right law. The inquiry is to focus particu-
CJ.lntrac:t.cLaw
mission that it was entitled to copy larly on online agreements that exclude or
Channel Nine's broadcasts beeause of ao modify the legislative exceptions to copy-
Broadcast Copyright implied licence to do so based on industry right infringement.
practice. Channel Ten argued that it is com- The Commlttee has now published its
not Infringed
mon praetice for ali broadcasters to Issues Paper entitled "Copyright and
As reported in the April issue of Capyright record each other's material. Justice Conti Contraet". The Issues Paper looks at
Warld, (issue 109) television broadcaster found that there was no evidence to sup- Australia's exceptions to infringement, in-
Channel Nine lost its bid to prevent rival port ChannelTen's assertion and that there c1uding the fair dealing provisions; the of
broadcaster Channel Ten from re-broad- does not exist in Australia, at least among use mass market agreements, such as
casting its footage in the Iight-hearted cur- the major television broadcasters, any es- 'shrinkwrap' and 'c1ickwrap' agreements; is-
rent affairs program ealled The Pane/o tablished trade practice or custom consti- sues relating to enforceabílity, including un-
Following judgement in the case, a further tuting a mutually implied licence to make fair contraets and consumer protection
hearing was held to determine whether copies of one another's broadcast material. legislation; jurisdietional issues; and interna-
Channel Ten had infringed copyright in tional approaches to the relationship 00-
Channel Nine's footage by making pre- New Moral tween copyright and contract.
broadcast copies. The Committee has asked for submis-
Channel Nine's c1aim in relation to the Rigbts.uw.IesteJt._ sions by August 10, 200 I. The Issues Paper
pre-broadcast copies was that each indi- In the first public test of Australia's moral is available from the Committee's web site
vidual visual image in a television broadcast rights legislation, an architeet has forced at http://www.law.gov.au/c1rc.
is proteeted within the scope of broadcast the National Gallery of Australia to consult
copyright. Section 25(4)(a) of the him over plans to modify the building he
Copyright Act provides: designed.
The building housing the National
... a reference to a dnematagraph film af Gallery was designed by architect Mr Col
a telev;s;on broadcast shall be read as ;0- Madigan in the late I960s. Last year, a firm
cluding a reference to a cinematograph of architects unconnected with Mr Moral Rights are not
film, or a photograph, of any of the visual Madigan was selected to redevelop the Violated by Unauthorized
images comprised in the broadcast ... building. Mr Madigan became concerned Publication of Copyrighted
about the proposed redevelopment and,
If this were the case, Channel Nine argued, with the support of the Royal Australian
WQJ:k.inWeMit~L ".,~ ..,,~,
..~~
then Channel Ten's making of pre-broad- Institute of Architects, challenged the The lawyer João Antônio César da Motta
cast excerpts reproduced substantial parts Gallery's plans for the building on the basis sued the website Jurinformática S/C Ltda.,
of visual images contained in its broadcasts that the proposed changes may infringe his Wide Soft Sistemas and Mário César Bucci
and therefore infringed copyright. moral right of integrity of authorship if he for the unauthorized publication of his
In dealing with this submission, Justice were not consulted in relation to the rede- copyrighted articles in www.jurinforma.
Conti referred back to his earlier judge- veloprnent. com.br . The plaintiff claimed for damages
ment in which he had found that the appro- As a result of Mr Madigan's assertion of estimated in $ 1.1 million Reais for infringe-
priate way to measure a broadcast, for the his moral rights, the Gallery has put the ment of his moral rights.
purposes of broadcast copyright, was gen- plans for redevelopment on hold while it Copyrights in Brazil are proteeted from
erally by reference to the program broad- consults Mr Madigan in accordance with a its creation and do not require any registra-
cast or an identifiable segment of the procedure laid down in the moral rights tion for the enforcement of the rights over
program (exclusive of advertising). He dis- legislation. Under this procedure, a building its creation. Copyrights may be registered
missed Channel Nine's argument regarding owner has a defence to infringement of the with specific authorities according to the
the individual images, finding (with refer- right of integrity by reason of alterations to type of the work. Registration is not a guar-
ence to extrinsic material) that it was not a building if it has consulted the archíteet antee of authorship a1though it will reverse
Parliament's intention to grant broadcast about the alterations iu good faith. the burden of proof.
3

3. The copyright is divided in moral and pat- Govemment will support a Private Members
rimonial rights. Moral rights are not transfer- Billto make it easier to bring the people re-
abIe or assignable since it is considere<! a sponsible for such fakes to justice.
personal right under Brazilian laws. 10 particular, the govemment recognises
Patrimonial rights may be licensed or as-
Govemment to Motion that there are currently particular difficulties
signed and require a formal agreement based WTOReviewofTRIPs in enforcing the criminal sanctions for coun-
00 an authorization of the author. terfeiting and piracy. For example, as the cur-
10 the present case, the court denied in- The World Trade Organisation (WTO) is rem law stands, it is up to the rights owner to
friogement of moral rights granting only drawing up a detailed report 00 the prove that he did not Iicence the defendam to
damages to infringement of patrimonial Agreement on Trade Related Aspeets of produce the goods.lt is proposed that the Iaw
rights. The JudgeAlexandreAlves lazzarini of Intellectual Property Rights (TRIPs) in order will be changed to place me burden on the
the State of São Paulo has issued a decision to take account of e-commerce. The report, defendant to prove that he was in faet Ii-
based 00 the best interpretation of me pre- motioned by the Swiss Govemmeot, will as- censed Robert lands, Head of Anti-
sent Brazilian copyright laws. certain how the Agreement should be Couoterfeiting at law firm Finers Stephens
The law 9610/98 lists in Section 24 what ameoded to take account of recent intema- Innocem, said "Proving a negative can cause
are the moral rights of the author. The de- tional copyright conventions, which have enormous and uonecessary problems for
fendants published the artides io its integrity, been written with the intemet in mind rights-holders. The burden must be reversed:'
mentioned the author's name and the arti- Amendments will consider me 1996 World Tracking down aod apprehending crimi-
des were already being published in other Intellectual Property Organisation (WIPO) nais will be made easier with new powers
website. Copyright Treaty as well as the 1996 WlPO for law enforcement officers including new
10 view of these faets, the court has deter- Performance and Phooograms Treaty. The search warrants and powers of forfeiture.
mioed mat 00 moral rights described io latter hands the control of"me making avail- Furthermore, it is envisaged mat the maxi-
Sectioo 24 of the law 9610/98 was violated. able to me public of the work in such a Wirf mum sentence for copyright offeoces will
The court however recognized that ai- that members of me public may access the be raised from two years imprisonment to
though 00 violation of moral rights was work from a place and at a time individually 10 years imprisonment, in line with Trade
fouod, the unauthorized publicatioo violates chosen by them" to the authors of the work. MarkLaw;
author's patrimooial rights. The TRIPs Agreement, instead, is currently The DTl has identified Intemet related
The damages of patrimonial rights were baseei on the 1971 Beme convention. This counterfeiting and piracy as being a top pri-
calculated by the oumber of hits the website grants authors few rights. The contrai over ority. Melanie johnson. MP,said that whilst the
received for the page containing the articIes public access to their work is not 000 of implementation of me European direetives
in questioo as defendants have presented ev- them, as this was not a requirement in the on E-Commerce and copyright will be of as-
idence.ln cases where it is not possible to de- pre-internet worId. lt is oow considered to sistance, we "need to make sure there are no
termine the number of unauthorized copies be a 'minimum', however. as the Swiss loopholes in the IP Crime provisions".
of a copyrighted word, the Sole Paragraph of Govemment stated, "me TRIPs Agreemeot The government is also keen to dispel the
Section 103 of the law 9610/98 determines might have to be amended to include mese myth that counterfeiters and pirates are 00
that it will be deemed as being 3000 copies. two Treaties._to provide for a sufficient min- more than lovable rogues. lodeed, lavinia
ima! levei of copyright protection_.in me Carey, Chair of me Alliance Against
&ica Aoki. Partner, Moreira Uma. context of the internet." Counterfeiting and Piracy points out that the
Royster & Ohno. Brazil proceeds of counterfeit and pirate goods
Associated with Steel. Hector & Davis "feed directly into a criminal underworld of
drug smuggling, mooey laundering, pomogra-
phy and racketeering". NCIS (the National
Criminal Intelligence Service) has identified
British Govemment Set intellectual property crime as having a "high
impaet" and is expected to make the tackling
toSinkPirates of IP crime a priority when its report is pub-
Ardsts RQyaltyRights. lished in August 200 I.
The European Parliament has voted to intro- The British Govemment is set to introduce a Such a move would be welcomed by rights
duceroyalties for artists as early as 2006 but range of measures to help brand owners in owners. Nick Kounoupias, Head of ütigation
no later than 2012 The measure was sup- the fight agaiost the ever increasing proIifera- at me Mechanical Copyright Protection
ported by 405 MEPs,with 101 against and 32 tion of counterfeit and pirate goods. The Society, saro "There is a pressing need for
abstentions. The European law awards resaIe AllianceAgainst Counterfeiting and Piracy es- changes to the law in this area, as iIlustrated
royalties to artists and their heirs which are timates that counterfeiting and piracy cost by the demands of the Alliance Against
similar to rights to writers and composers. British industry around €.9 billion Iast year - a Counterfeiting".
Britain had lobbied omer EU member figure which equates to around ll.5 billion in It seems the UK govemment has taken
states to delay me plans by up to 15 years lost ta){ revenue. note of me very serious implications of
and increase minimum sale price under Speaking at me Alliance Against counterfeiting and piracy and it is likely that
which royalties would oot be paid to Counterfeiting and Piracy AGM in london on we will see major legislative changes, com-
Eur4,OOO.But pressure from me European July 11, 200 I, MeIanie johnson Mp,the newIy bined with a campaign to raise public aware-
Parliament reduced me transistion period appointed Department ofTrade and Industry ness, within the oext year.
and lowered the mreshold to Eur3,OOO. (DTI) Minister for Consumer Afl"airs,pIedged
Under me new law, the total royalty paid me govemment's support for a number of MarkStephens. Head aflntemational.
may not exceed EurJ 2,000. legisIative reforms. The Minister said that the Mediaond IP,Finers Stephens Innocent. tJl(
4