Case Study Question:
Elephant Art Work, Monkey Selfies – is there copyright in Australia in animal generated works? What was the outcome of the Monkey Selfie case? Discuss the limitations of copyright law in Australia in relation to this situation.
If one reads any national or international newspaper around August and September 2014 (Washington Post, Telegraph, Guardian or Age) you will be aware of a dispute between Wikipedia and photographer David Slater concerning the ownership of copyright in a selfie taken by a monkey to whom the photographer had handed a mobile phone. In Australian, it isn’t necessary to look at the Copyright Act to work out if an animal can own copyright. An animal, not being a legal person can’t own anything, and unless it is a wild animal, it is itself property. So who does own the copyright?
Section 10 of the Copyright Act defines the author of a photograph as the person who took the photograph. No person took the monkey selfie, and as a result, like some compilations and computer generated data bases, it has no author, is not a “work” for the purposes of the Copyright Act, and copyright does not subsist in it.
However the Copyright Act does not define the author of other types of works, including paintings. So where does this leave the situation in Australia? Using relevant case law and legal principles answer the above question.
You may wish to consider the rapid development of technology, especially computer, mobile, digital data and how this may impact of traditional notions of copyright law in Australia.
Resources: students will need to research the above case scenario and any other related information see also 8 August 2014 Phillips Ormonde Fitzpatrick, Annette Rubenstein Lexology article; Hopgood Ganim, 12 August 2014 article on ‘What if a koala took the selfie?; Herbert Smith Freehills, Patrick Sands and Mark McLennan, August 11 2014, ‘Monkey Selfie Leaves Photographer with Peanuts, Lexology. This report is also available through numerous media newspaper outlets. Students are advised to search for appropriate information about this dilemma. Remember that while media reporting information is relevant to the case study question students are expected to provide a reasonable legal analysis of the issue not just a descriptive summary of the facts.
A Short Written Media Article Critique (Worth 10 marks)
You are required to search for a newspaper (magazine, etc.) article that deals with some aspect of Intellectual Property issue in Australia (e.g. something on copyright (but not the assignment topic area or related area), patents, design or trade mark law. There are lots of articles around especially about challenges to monopolies such as computer designs, trade mark and patents (Samsung/Apple) or patent issues concerning human DNA research and registration.
The article that you choose can be reasonably short or long but it must have some substance to it and be recent. A copy of the article (with appropriate reference – time, date, source and page number) must also be attached to your assignment as well as the answer. The article must have been published within the last 12 months. Also, please try and be a bit imaginative with your search so that we do not get the same articles repeated over and over again. Tutors will be communicating with each other and we will be aware of this problem.
You cannot use an article that deals with or is associated with the case study question.
A critique requires the student to reflect on the content, relevance and meaning of the article beyond just giving a descriptive summary of what the article has to say. We expect you to understand the deeper relevance of the article content, relate it to an Australian context and give an informed opinion of its importance in the area (must have some depth).
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