Crítica de la razón teórica
LA ANTROPOLOGÌA IMAGINARIA DEL SUBJETIVISMO 7
Bert owns and operates a music shop. Bert has contracted with “CleanCleaners” to have the shop cleaned each night. CleanCleaners employ Carl among others to clean
B.5 Question Five 65
the shops for which they having cleaning contracts. The shifts are randomly allocated so the one cleaner does not always clean the same building.
After cleaning Bert’s music shop a few times, Carl thinks up a plan to start copying the music and then selling the copies. When Carl knows when he will be cleaning Bert’s music shop, he gives his friend Danny a call to inform him. Danny then meets Carl and picks up a bunch of CDs that he then takes home and copies whilst Carl continues to clean the shop. By the time Carl has finished the cleaning, Danny returns and they put the CDs back exactly where they found them. The cleaning always takes place in the early hours of the morning, a time during which Bert always prefers to sleep instead of checking-up on the cleaners.
Using some sophisticated software, the local Sony-Time-Warner-Disney (“STWD”) representative, Anna, discovers the counterfeit CDs that she found Danny was selling had originated from shipments they had made to Bert’s store. STWD has already suc- cessfully sued Danny for a breach of copyright, and now Anna asks you to determine if Bert authorised the infringement.
Appendix C
The Testing Pack —
Copyright Act
1968
The Act that the rules for SHYSTER MYCIN came from, and that the test group were given, was a cut-down version of the Copyright Act 19681. The text of some of the
sections was also changed to remove references to other provisions in the original Act which were not included in the cut-down version.
The cut-down version of the Act contained the following sections only: Sections 1–9
Selected definitions from s10 Section 13(2)
Section 31 — subsections (1) and (2) Section 35(2) Section 36(1) Section 85(1) Sections 86–88 Section 97(2) Section 98(2) Sections 99 and 100 Section 101(1)
1Available online at http://www.austlii.edu.au/au/legis/cth/consol act/ca1968133/
Appendix D
The Testing Pack — Case
Summaries
D.1
Performing Right Society Ltd v. Ciryl Theatrical Syndicate
Ltd
[1924] 1 KB 1
Facts:
1. The infringer was not an employee of the accused.
2. The infringer was an independent contractor to the accused.
3. The accused did not sell or hire the infringer the means of infringing. 4. The accused had the power to prevent the infringement.
5. The accused did not take reasonable steps to avoid the infringement.
6. The accused did not know, and had no reason to anticipate or suspect, that the infringing act was to be, or was likely to be, done.
7. The specific infringement was not causally related to an incitement to infringe on the part of the accused.
Commentary:
The syndicate was the lessee of a theatre. The managing-director of the syndicate produced a play at that theatre, and engaged a band to per- form at the theatre under the direction of a bandmaster. In the absence of the managing-director, and without his knowledge, the band performed works the copyright in which was owned by the Performing Right Society. Bankes, Scrutton and Atkin LJJ held that the managing-director had not authorized the infringing performances, within the meaning of s. 1(2) of the Copyright Act 1911 (UK), because the infringement occurred without his knowledge and he had no reason to anticipate or suspect that the band was likely to give performances which would breach copyright.
70 The Testing Pack — Case Summaries
Result:
The accused did not authorize the infringement.
D.2
Falcon v. Famous Players Film Co.
[1926] 2 KB 474
Facts:
1. The infringer was not an employee of the accused.
2. The infringer was not an independent contractor to the accused. 3. The accused sold or hired the infringer the means of infringing. 4. The accused did not have the power to prevent the infringement. 5. The accused did not take reasonable steps to avoid the infringement.
6. The accused knew, or had reason to anticipate or suspect, that the infringing act was to be, or was likely to be, done.
7. The specific infringement was causally related to an incitement to infringe on the part of the accused.
Commentary:
the author of a play assigned to Falcon the sole right to perform the play in the United Kingdom and, twenty-one years later, sold to Famous Players the film rights to the play throughout the world. Famous Players made a film of the play in America, imported it to England, and purported to let the right to exhibit it to the proprietor of a cinema. Falcon brought an action to restrain Famous Players from infringing his performing right. Fa- mous Players denied that Falcon had such an exclusive right and claimed that, even if he had, they had not infringed it.
The Court of Appeal held that Falcon did have an exclusive right to per- form the play in the UK, and that Famous Players had infringed it.
Scrutton LJ referred to the hiring agreement that impliedly stipulated that the cinema proprietor should exhibit. “They have imposed an obligation upon him that he shall perform, and in my view persons who do that per- form themselves.”1Hence Scrutton LJ found no need to consider whether
Famous Players had authorized the cinema proprietor to infringe.
Bankes and Atkin LJJ held that Famous Players had authorized the in- fringement within the meaning of s. 1(2) of the Copyright Act 1911 (UK).