Legality of the e-Book (Research Paper Sample)

Institution
Legality of the e-book
Name
Instructor
Course
Date
Legality of the e-book
Cause of action
The information that lady Kabuki has a mentally disabled twin sister who lives in an institution and whom the singer supports financially was communicated to Alvin giving rise to an obligation of confidence. When Alvin makes known the details in the biography it amounted to a breach of confidential information which is sanctionable. In such circumstances what the court will look at is whether a reasonable person in Alvin shoes being the recipient of such kind of information would have discovered that the information imparted by the pop star was communicated on the basis of confidence.
On the surface, the biography also infringes some provisions of the Copyright Act under section 13 by using the lyrics of the singer at the beginning of the first chapter. The similarity of the of the e-book title with that of the singer’s most successful album is in violation of the trade mark rules under the Trade Marks Act amounts to deceptive similarity and cannot be considered as an act of coincidence, it was an act that was done deliberately considering the context of the relationship between him and the pop star. In addition, he had no moral right to use the pop star photographs in the biography, since there was no express or implied consent of the singer, since ownership of trade mark, imputes proprietary rights to the owner. It is only Patrick De Salvatore who had been given authorization to produce the pictures. Lady Kabuki can institute a cause of action based on those grounds as will be illustrated below.
Details of Lady Kabuki’s relationship with her disabled twin sister Carrie
Alvin was one the few trusted confidants of the pop star Lady Kabuki, due to this fact the detail information concerning her mentally disabled twin sister whom she supported financially and resided in an institution were made available to him by the pop star. Alvin had orally promised Lady Kabuki that he would not disclose the information to anybody and by doing this he had expressly agreed to keep the information secret. The details of the singer’s twin sister can be termed as confidential information and thus the very act of Alvin publishing the content amounts to a breach of confidence.
Lady kabuki can bring a cause of action against Alvin in regards to publishing the confidential information in the eBook. In Coco v A N Clark (Engineers) Ltd the test for breach of confidence was succinctly outlined. The first element of the test requires that the information imparted should fulfill the ‘required confidence quality’. The second element is that the information should be communicated in situations giving rise to an obligation’. Lastly, an actual or threatened application of the confidential information to the injury of the person who imparted the information must suffice.[Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47.]
Ideally, for the first element of the test to be established, it is requisite that the information is not of public knowledge or of trivial nature both in form and substance. Lady Kabuki has a mentally disabled twin sister, she supports her financially; all this information is available to the very few confidant’s she has including Alvin. However, in Franchi v Franchi it was stated that even if the information is known by a few people it does not necessarily mean that the knowledge is ‘public’. Since the pop star was much concerned that her mentally incapacitated twin sister stays out the public eye, the essence of the concern cannot be considered trivial. Moreover, the information is not known to the public, thereby satisfying the first element of the test in entirety.[Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215]
The second element, pertaining to how the information was communicated, imputes an obligation the side of the plaintiff to proof that the defendant, indirectly or even directly got the information from him without the implied or express consent, once the court is satisfied, the defendant would be liable for the infringement of the plaintiff’s right. In Lady Kabuki’s scenario, Alvin being privy to the information of the singer’s mentally handicapped sister went on to publish the details in the e-book, without her consent; well knowing that the information was supposed to be kept secret. The above acts, satisfies the element of the second test.[Andrew Stewart, Phillip Griffith and Judith Bannister, Intellectual Property in Australia (4th ed, 2010) 107.]
With regards to the third element, it is mandatory that there be actual or threatened use of the confidential information to the detriment of the plaintiff. The disclosure of the information to the public concerning her sister mentally ill status would subject her to criticisms, rebuke and risk of public embarrassment due to her standing in society as a public figure.[Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, 52.]
Though, the test for breach of confidential information has been satisfied. There are two defenses normally used for the breach of confidence. The first defense is disclosure of confidential information under legal compulsion. This is where a person may be required to make known available confidential information for purposes of litigating. This defense cannot be invoked by Alvin since there was no legal compulsion to disclose the confidential information communicated to him by the singer. The second defense is that of public interest; it would also fail since it is not in the greater interest of the public to know about lady Kabuki’s details of the mentally disabled twin sister.
Though, the book has been published it would be an exercise in futility for the court to issue an injunction to restrain the publishing company from publishing the book. In this circumstance, it would be prudent for the court to issue an injunction to prevent copies from being made or copied further. A successful litigant may also seek compensation in form of damages. Damages may be awarded to compensate the personal injury, anger and distress suffered because of the violation of the confidential information.
The first verse of Lady Kabuki’s most famous songs
Alvin used the first verse of Lady Kabuki’s most famous songs, which appear at the beginning of the first chapter of the pop star biography called "Angel Voice”. Premised on this notion the Copyright Act makes her the copyright owner of her musical works including the lyrics. In law the copyright owner Lady Kabuki is the only person exclusively entitled to reproduce her work, communicate it to the general public, translate, transcribe or perform it.
Under section 13 of the Copyright Act Alvin was in breach of copyrights by using the lyrics of singer at the beginning of the first chapter of the biography. The section states that an infringement of copyright is deemed to occur, when a person uses entirely or a substantial part of a material without the express or implied consent of the owner subject to the defenses contemplated. For the singer to succeed in a cause of action involving the infringement of copyright she has to satisfy the ‘substantial test’.[Copyright Act 1968 (Cth) s 13]
The Copyright Act is silent on the definition of substantial part. However, reproducing a substantial part of a copyrighted work is treated similar as that of taking the entire work. In S.W. Hart & Co Proprietary Limited v Edwards Hot Water Systems it was stated that for one satisfy the legal test of ‘substantiality’ the plaintiff must establish the objective similarity and a causal connection between both works. On the first part of objective similarity involves an analysis of comparing both works and to determine whether there is any nexus or any closer resemblance so as to remove the possibilities of any coincidence. In regards to causal link the issue is whether the infringed work had emanated from the copyright work; it is all clear that the source of the verse that was used in the biography had been scooped from the pop star famous song.[Copyright Act 1968 (Cth) s 14] [S.W. Hart & Co Proprieatry Limited v Edwards Hot Water Systems CLR 466 at 472]
Although Alvin had scooped just a verse from the song that does not mean an action for infringement of music copyright would lie. This is because the test for ‘substantiality’ is qualitative and not quantitative; and the question that the court normally asks is whether the substantial part that has been copied if it is of quality. In essence, substantial part does not connote the numerical portion but a distinctive portion of the original work. It is quite clear that Alvin had exercised exclusive rights that were solely the preserve of Lady Kabuki. However, there are some numerous defenses to the infringement of copyright work. There is the defense of fair dealing for purposes of criticism, review or research; this means that any musical or literary work used by a student or any person conducting research or affiliated with an education institution can invoke the defense of fair dealing under such purposes.[Copyright Act 1968 (Cth) s 40]
The defense of fair dealing for purposes of research can be invoked or be available to Alvin. He may argue that being a student, the biography was meant for the research purposes as contemplated in section 40 of the Copyright Act. Under section 115(2) of the Copyright Act the remedies available for a successful litigant who has suffered infringement of a copyright includes damages, account of profits and injunctions. Under section 115(3) of the same Act damages will not be awarded if the defendant was not aware t...