The Test for Breach of Confidence Is Set out in Coco V Clark. Ö

IP exam Q 1 2003

Mark 80

Lecturer comments in[.]

Barry

Barry – may seek to protect his plan for a television series through confidential information (CI) and © and his book through ©.

TV series

CI

The test for breach of confidence is set out in Coco v Clark. [Ö]

There are 3 elements

1)  info must have a necessary quality of confidence, ie not be public property or knowledge

2)  the info was disclosed in circs purporting obligations of confidence

3)  there was unauthorised use of the info causing detriment.

Barry against Josie

Confidential Nature

To be CI the proposed TV series must be more than a common idea (Marcon Corp v Campbell)

The idea must be special, ie have commercial value (Talbot) [Ö]

In this case the idea for the TV series is original – given there has never been a series of its kind before and has commercial value.

A basic level of labour and effort has gone into the making of the proposed series, ie writing a book and planning for the series.

These factors indicate the info is confidential in nature satisfying the 1st test.

However, B did not disclose the info at the dinner party. [Ö] This may be disclosure to the relevant public [ÖÖ] which would cause the info to lose its confidential nature. [Ö]

Although these people were close friends, they were in the music industry, the music industry would be relevant public as the idea is based in the music industry.

Unless there was secrecy in the disclosure at the dinner party, the info would lose its confidentiality in nature. This would depend on how, it was disclosed – more facts would be needed here. The information may also have a quality of secrecy without being a secret. [Ö]

Confidential disclosure

If the information is confidential in nature the second stage of coco requires disclosure in confidential circumstances.

B’s disclosure to J was disclosed in confidential circumstances – he asked Jodie not to discuss the idea with anyone else.

Unauthorised use causing damage

J mentioned the idea wanting to have her own TV series and that she has ideas about it.

-There are 2 main issues with this interview which indicate against this factor being satisfied

1st) the disclosure may not be of the CI [Ö]

The disclosure did not go into details, however, it did mention the idea about the band and the TV series therefore it probably would be a disclosure of the info

2nd However, [ok G v Day] there is no detriment suffered as a result (unless it can be shown that BBL got the idea from that statement.

Damages – as there is no damage (unless BBL got the idea) damages would not be available – if BBL did use J’s statement – damages would be most appropriate – CI is equitable in nature and discretionary.

B would also have standing

B v G and BBL

Nature - the info is C in nature (see above) however J’s disclosure may lose the confidential nature [yes and also B’s disclosure as discussed]

- this would depend on whether the interview was to the relevant public (G v Day) [Ö]

If it was an interview with a business program or other such program it wouldn’t be to the relevant public.

If it was on a music TV station it would be relevant public. The fact that people mightn’t of picked up the information is irrelevant – (Franchi) as long as it was available to them.

Disclosure

The disclosure in the meeting had a quality of confidence about it. Business discussions for a new series. A reasonable person would have realized confidentiality even if it was not directly mentioned.

Breach – if the info was CI in nature

Assuming it can be shown that G told BBL about the idea G has disclosed the info causing detriment to B [Ö] – loss of job and not getting to run series. Therefore G would be liable for damages.

BBL being a third party can have CI extended to them if they have notice of the breach (Wheatly v Bell) [Ö]

Damages

B has standing

B could seek an injunction to stop BBL’s series or an account of profit from the series or damages form G.

Barry’s © in the TV series

There is no © in an idea, it must be reduced to the material form. [Ö]

The idea about the TV series has been made into a book. This would be a literary work under part # and possible a dramatic work [Ö] if it was scripted for a TV series.

The rights include perform work, communicate work to public and make an adaptation of the work s 31(1)

The book is not published. This is only relevant if B is not an Aus Citizen and didn’t write the book in Aus. If this is the case the book would not meet the formalities for ©.

The book would be original [Ö] – even if B Copied quotes and events from J’s Band – as he put a minimum effort into it. [Ö]

Otherwise the book would meet the formalities, it has a minimum level of originality and is an expression of an idea in material form.

TV series breaching the idea

The TV series could be an adaptation of the work or a performance of the work. Although BBL and G have not seen the book they know about it and received a description (Plix)

The TV series would be a breach if it was substantially similar to the book. [Ö] This would depend on the facts (Universal) if the scenes – general themes and plot were substantially similar it would be a breach.

Damages – can be damages or an injunction to stop the series. [Ö]

BBL would have no defense. [Ö]

Barrys’ book and J

The book is a literary work – it is also now published in Aus. This would satisfy jurisdictional criteria if B was not as Aus citz or did not write the book in Aus.

J directly copied passages of the book into her book. This would be an infringement unless if was a fair dealing under s 60.

Fair dealing includes criticism and review. As long as J’s work was bona fide criticism of B’s book it would be a fair dealing (9 v 10) [what about length of excepts? ‘fair’]

The title of the book ‘the band’

This would not be protected under © as a literary work as it is merely a title and does not convey information (Exxon)

It is also unoriginal being every day words [ÖÖ]

It is possible that B could have © in an artistic work being a drawing if the band is made into a specialized font or drawing – however the facts do not indicate this [ok – so not relevant]

If it was © J would be infringing by taking a substantial amount.

This probably would not be criticism or fair dealing.

J also would probably not be able to claim joint authorship – even though she may have contributed a few ideas – on the facts she put no real input into the book (Milwell) [Ö]

Josies rights

Josie may have © in the photo she has taken. The photo is an artistic work under s 10 – she took the photo therefore is the author. [Ö]

B would be infringing if he was found to be reproducing the work or publishing. Rights for artistic works do not include adaptation.

Whether B was infringing could depend on whether Barry adding himself to the picture substantially alters it. This is a question of fact [Ö] and would depend on the alteration.

However, it probably would be a breach. B’s motivation could be argued to be saving time and labour (Telstra v Desktop).

J would also have moral rights as the author of the photo these include the right of attribution, [Ö] not to be falsely attributed [Ö] and right of integrity [Ö].

As barry has altered the photo he might argue he is the author (the fact it is digitally altered raises an issue of whether digital photos can be a photo). It probably would be given the nature of changing technology. B can have © in an infringing article (A1 Accessories) if it is original.

However, J could argue the photo is substantially hers and B would be infringing by not attributing her as the author and falsely claiming to be the author.

B could also be infringing J’s right to integrity not to deface the work [moral right] by putting his image in it. [Ö] [does J have relevant reputation?]

B would be infringing by putting it on his book and website (Shepard) – J may seek damages.

BBL

Series title

‘the band’ probably would not have © as it doesn’t convey info [Ö] (Exxon)

Broadcast

BBL has © in the broadcast of the band.

B would be infringing by displaying it on his website.

It is a substantial amount (9 v 10) 5 seconds and it is a direct copy. [Ö]

BBL may also have © in the script as a literary or dramatic work. [Ö]

B would be in fringing by putting the 3 lines on his website. [arguable. Is it substantial]

B is criticizing BBL and ‘the band’ it would depend on the criticism whether this was a fair dealing [Ö]. If it was genuine criticism it would be covered.

If it was an attack without genuine criticism it wouldn’t

If it is a breach BBL may seek damages or an injunction [Ö].

[well done. – good structure]