Wills v Australian Broadcasting Corporation (No 3) [2010] FCA 1227 (11 November 2010)

A recent decision of the Federal Court emphasises two key factors that copyright litigants should keep in mind: they must be able to establish they performed the acts that qualify them as owners of the copyright they claim has been infringed, and they must bring their claim within six years of the infringement.

Background and preliminary findings

Mr Andrew Wills, a self-represented applicant involved in the Perth music scene, claimed that the Australian Broadcasting Corporation had infringed copyright in five music videos that he had filmed, by broadcasting them on its music video program rage between 1998 and 2001.

As a preliminary matter, Justice Gilmour found that Mr Wills was barred by statute for claiming infringement resulting from three of five broadcasts, since the limitation period of six years from the date of infringement1 had expired at the time the action was initiated in December 2006.

The next key question was therefore whether Mr Wills was the owner of the cinematograph films embodied within the two other music videos.

Complexities of copyright ownership under the Copyright Act 1968

The Australian Copyright Act dictates who will first own copyright in newly created subject matter: to see the table please click here.

However these starting assumptions are qualified by a number of complex rules affected by matters such as:

  •  when the subject matter was created;
  •  the type of subject matter;
  •  whether the subject matter was created during the course of employment;
  •  whether the subject matter was commissioned by another person; and
  •  whether there is an agreement to assign ownership to somebody other than the author, maker or publisher.

In addition, the Courts continue to evolve and refine the meaning of who constitutes an ‘author’, ‘publisher’ or ‘maker’ for the purposes of copyright ownership. Consequently, determining the ownership of newly created subject matter can be a complex process that is not always clear to litigants prior to obtaining detailed legal advice.

Did Mr Wills own the cinematograph films?

In reaching his findings, Justice Gilmour reviewed the established principles that the owner of copyright in a cinematograph film is generally the producer who makes the financial or administrative arrangements for the production of its first copy.

In the present circumstance, His Honour noted that:

  • Mr Wills’ involvement in the production of the music videos was limited to camera work; and that
  • Mr Wills did not contribute in a significant financial or administrative way to the production of the video clips.

For these reasons, Mr Wills was found to have no claim to ownership of copyright in the music videos and his infringement claims were dismissed with costs.

Lessons for copyright owners

  • Involvement in the creation of copyright works or other subject matter does not automatically mean that you will be regarded as the ‘author’ or ‘maker’ for the purposes of first ownership rights.
  •  Rules concerning ownership of copyright can be complex.
  •  It is crucial to bring infringement proceedings within the six year limitation period.