By SHAIWAL SATYARTHI
With the development of digital technology, there has been some uncertainty emerged regarding application of copyright protection to Digital Multimedia Works this new form of technology. The Australian Copyright Act 1968 was drafted in the 1960s and is technology specific in that it refers to the kinds of technologies which were already known or being developed at that time. As could be expected, it makes no reference to 'Multimedia', of particular concern has been whether the existing categories under the Act provide adequate protection or whether digital multimedia works are so distinctive in character that consideration needs to be given to the introduction of a special new category subject matter to encompass them.
The question of the protection of multimedia works was briefly considered by the Australian Copyright Law Review Committee ("CLRC") in its final report on computer software protection which was released in 1995. The CLRC concluded that multimedia works fall within the scope of the protection offered to cinematograph films under the Copyright Act, 1968 and that the interactive and composite nature of multimedia works did not require the introduction of a new category designed specifically to include these works. Nor was the committee's conclusion affected by the fact that the various elements, which make up a multimedia works are assembled by the use of a computer, a process which the CLRC likened to the use of a computer to write a novel. However, the CLRC thought that, as it required some stretching of a generally accepted meaning of cinematograph film to use this category to protect multimedia works, that heading should be replaced with a more appropriate and inclusive one such as 'audiovisual work'.
While the CLRCs recommendations on the protection of multimedia works received widespread support, the Act has not yet been amended to give effect to them. In the meantime, notwithstanding the CLRCs views on protection for multimedia works, doubts were expressed about the availability of protection under the cinematograph film heading for works in which the images and sounds were generated by the multimedia software and varied with the user's responses. In particular, problems were seen to stem from the reference to an aggregate of visual images and embodiment in another article in the definition of cinematograph film and from the effects of user interactivity on the material protected.
The question of the protection of multimedia works was briefly considered by the Australian Copyright Law Review Committee ("CLRC") in its final report on computer software protection which was released in 1995. The CLRC concluded that multimedia works fall within the scope of the protection offered to cinematograph films under the Copyright Act, 1968 and that the interactive and composite nature of multimedia works did not require the introduction of a new category designed specifically to include these works. Nor was the committee's conclusion affected by the fact that the various elements, which make up a multimedia works are assembled by the use of a computer, a process which the CLRC likened to the use of a computer to write a novel. However, the CLRC thought that, as it required some stretching of a generally accepted meaning of cinematograph film to use this category to protect multimedia works, that heading should be replaced with a more appropriate and inclusive one such as 'audiovisual work'.
While the CLRCs recommendations on the protection of multimedia works received widespread support, the Act has not yet been amended to give effect to them. In the meantime, notwithstanding the CLRCs views on protection for multimedia works, doubts were expressed about the availability of protection under the cinematograph film heading for works in which the images and sounds were generated by the multimedia software and varied with the user's responses. In particular, problems were seen to stem from the reference to an aggregate of visual images and embodiment in another article in the definition of cinematograph film and from the effects of user interactivity on the material protected.
However the authoritative decision of the full Federal court in Galaxy Electronics Pvt. Ltd. Vs Sega Enterprises Ltd. (Glaxy v. Sega) has done much to throw light on the operation of copyright protection for multimedia works.
The first instance and appeal decisions of the Federal Court in Glaxy v. Sega litigation have clearly established that the computer generated images and sounds produced by multimedia software will be protected as cinematograph films under the Copyright Act. An issue in the case was whether copyright protection subsisted in an interactive video game stored in an integrated circuit, in which the moving images appearing on the screen were generated by the multimedia software and varied according to user input.
The first instance and appeal decisions of the Federal Court in Glaxy v. Sega litigation have clearly established that the computer generated images and sounds produced by multimedia software will be protected as cinematograph films under the Copyright Act. An issue in the case was whether copyright protection subsisted in an interactive video game stored in an integrated circuit, in which the moving images appearing on the screen were generated by the multimedia software and varied according to user input.
The issue for determination by the Court was whether the computer generated moving images produced by the video games fell within the definition of cinematograph film and were protected by copyright under part IV of the Australian Copyright Act 1968. If the video games were not protected under Part IV they would not be subject to copyright protection at all by virtue of sec. 24(2) of the Circuit Layouts Act 1989, the effect of which is to exclude protection for part III works stored on integrated circuits. Since the other possible headings of protection for multimedia works, compilation and computer program both falls within the part III category of literary works, the only option available to the respondents was to claim protection under Part IV cinematograph films heading.
On appeal, the court upheld the first instance decision that the visual images generated by each of the video games constituted a 'cinematograph film' and was protected by copyright under Part IV of the Act. Since this is the first time the Australian Court has considered the application of the provisions of the Copyright Act in relation to this form of technology, the reasoning of the court in reaching this conclusion is particularly informative.
In reaching its conclusions, the Court held that the definition of 'cinematograph film; should be given a liberal interpretation as it was clearly intended to apply to new technologies. The emphasis is on the end product - motion pictures - rather than the means adopted to create those pictures. The court agreed with Burchett J. at first instance that the Copyright Act should not be given a narrow literal interpretation, but should be construed literally so that it covers works produced using newly developed technologies which achieve the same result.
In the UK Laws, a multimedia work on CD-ROM could convey a dramatic audiovisual work, the existence of which would be determined in accordance with the criteria used in relation to, say, documentaries. However, this implies that the multimedia work is not only a mere compilation, such as an encyclopedia, but carries a scenario or a story (even if this scenario can be modified to a certain extent by the input of the user). The audiovisual dramatic work would be distinct from the underlying script (itself a Dramatic work), since new elements have been added (sound effects, images, animation etc.).
Under French Law, screen displays of videogames can enjoy separate protection as audiovisual works. However in Vincent v. CUC Software, the court of appeal of Versailles held that a videogame on CD-ROM could not be considered as an audiovisual work because of its interactive nature, as opposed to the sequential and linear presentation of images in audiovisual works, and the accessory nature of audiovisual parts. This emphasis on 'interactivity' appears to add to the definition in the French Act and contradicts the solutions adopted by the French Court in relation to screen displays of videogames. The criterion of the accessory nature of the audiovisual work is more convincing.
But this exclusion does not mean that no videogames or multimedia works could be considered as audiovisual works. They could meet the definition if, for example, their 'audiovisual part' is not considered accessory to the rest of the works. Also in any case their audiovisual component will attract protection as pre-existing audiovisual work.
By analyzing the way copyright protection applies to the components of digital multimedia works and in particular, drawing a distinction between the protection for the computer program and its visual effects, the court in Glaxy v. Sega has provided valuable guidance for those in the industry. The court's interpretation of the scope of the cinematograph film category in Glaxy v. Sega is consistent with the CLRCs recommendations and indicates that a broad range of multimedia works are likely to be protected under the cinematograph film heading, even if in its present form.
In the UK Laws, a multimedia work on CD-ROM could convey a dramatic audiovisual work, the existence of which would be determined in accordance with the criteria used in relation to, say, documentaries. However, this implies that the multimedia work is not only a mere compilation, such as an encyclopedia, but carries a scenario or a story (even if this scenario can be modified to a certain extent by the input of the user). The audiovisual dramatic work would be distinct from the underlying script (itself a Dramatic work), since new elements have been added (sound effects, images, animation etc.).
Under French Law, screen displays of videogames can enjoy separate protection as audiovisual works. However in Vincent v. CUC Software, the court of appeal of Versailles held that a videogame on CD-ROM could not be considered as an audiovisual work because of its interactive nature, as opposed to the sequential and linear presentation of images in audiovisual works, and the accessory nature of audiovisual parts. This emphasis on 'interactivity' appears to add to the definition in the French Act and contradicts the solutions adopted by the French Court in relation to screen displays of videogames. The criterion of the accessory nature of the audiovisual work is more convincing.
But this exclusion does not mean that no videogames or multimedia works could be considered as audiovisual works. They could meet the definition if, for example, their 'audiovisual part' is not considered accessory to the rest of the works. Also in any case their audiovisual component will attract protection as pre-existing audiovisual work.
By analyzing the way copyright protection applies to the components of digital multimedia works and in particular, drawing a distinction between the protection for the computer program and its visual effects, the court in Glaxy v. Sega has provided valuable guidance for those in the industry. The court's interpretation of the scope of the cinematograph film category in Glaxy v. Sega is consistent with the CLRCs recommendations and indicates that a broad range of multimedia works are likely to be protected under the cinematograph film heading, even if in its present form.
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