The Law Handbook 2024

Chapter 7.6: Copyright 753 However, in Boomerang Investments Pty Ltd v Padgett (Liability) [2020] FCA 535, the judge held that ‘the sound of those words being sung’ (rather than their meaning) was part of the musical work. The basis of this decision was that the voice is a musical instrument and the words are instructions on the sounds to be made by it. Artistic works Unlike literary, dramatic and musical works, artistic works are defined by the Copyright Act. Section 10(1) states that ‘artistic work’ means: a a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not; b a building or a model of a building, whether the building or model is of artistic quality or not; or c a work of artistic craftsmanship. An artistic workmay be simple (e.g. a logo) or utilitarian (e.g. an engineering drawing). Section 10(1) states that a ‘ drawing ’ includes a diagram, map, chart or plan. ‘ Sculptures ’ have been defined by courts as three- dimensional objects that are intended to be enjoyed as visual things. A primarily utilitarian object, even if well designed or pleasing to the eye, is not a sculpture. If a three-dimensional object is created as a work of art or decoration, the fact that it objectively lacks ‘artistic quality’ does not prevent it being a sculpture. A ‘ building ’ includes a structure of any kind. ‘Structure’ has been given a broad meaning by the courts, and has included a swimming pool. ‘ Works of artistic craftsmanship ’ are included in the definition of ‘artistic works’ to give copyright protection to works of craftsmanship incorporating aesthetic elements. For example, jewellery, pottery, woodcarving and embroidery. Although the object may be useful, its appearance must have resulted primarily from aesthetic rather than functional considerations. For this reason, the High Court has held that a handmade model of a yacht was not a work of artistic craftsmanship (see Burge v Swarbrick [2007] HCA 17). Works of artistic craftsmanship must be made by a person with sufficient skill to be described as a craftsman, although they do not have to be made by hand. Sound recordings ‘ Sound recording ’ means the total of sounds in a ‘record’, which is defined in the Copyright Act (s 10(1)) so that it is not limited to any particular form of technology. ‘Record’ is wide enough to include vinyl records, cassettes, CDs and digital recordings stored on a computer or mobile phone. Sound tracks of films are specifically excluded from the definition of sound recordings (s 23), but are included in the definition of cinematograph films (s 10(1)). Films The definition of ‘ cinematograph film ’ in section 10(1) of the Copyright Act requires visual images to be embodied in an article so that the images can be shown as a moving picture by use of the article, or by embodying them in another article. This definition covers moving pictures recorded on film, videotape, DVD or computer, and inter­ active computer games (including their soundtracks). However, the definition does not include a live digital signal because it does not have a physical form. Sound and television broadcasts These are limited to communications delivered to the public by ‘broadcasting services’ as defined by the Broadcasting Services Act 1992 (Cth). This is the delivery of radio and television programs to the public, including by cable, optical fibre or satellite, and by use of the radio frequency spectrum. It does not include internet audio, video streaming or datacasting. Published editions of literary, dramatic, musical or artistic works This category protects the typographical arrange­ ments of published works (including the choice of font) and the way in which the work is set out on the page. Published editions include works published in machine-readable form (e.g. on CDs or as ebooks). Several types of copyright can exist together Several types of copyright can apply to the same material. For example, in a published song, copyright applies to the words (a literary work), the music (a musical work) and the typographical arrangement (edition copyright). If the song is recorded on CD, there is also copyright in the sound recording, and if it is broadcast on the radio, copyright in the sound broadcast.