Who owns the camera footage
taken by Todd Russell and Brant Webb while they were trapped
underground? Applying first principles of copyright law, the miners who
shot the film own it, says a leading intellectual property lawyer.

In
the same way that “I would own the copyright in a poem that I wrote on
someone else’s computer, whoever films the movie, owns the copyright in
it”, says the lawyer. This principle applies “unless there’s a signed
agreement to the contrary”. And it’s hard to imagine Channel Nine
achieving – or daring – this feat at so precarious a time.

However,
while a transfer of copyright requires a written contract, an agreement
for a licence – for one-off or specific uses for example – can be made
orally. If Channel Nine had given the camera to the miners asking
“could you film this for A Current Affair” that could put in
place an implied licence. Or if the Channel Nine logo appeared
prominently on the camera, or the miners were aware that the camera was
owned by Channel Nine, an implied licence could flow from this. That’s
“not beyond the scope of comprehension”.

But importantly, even
if Channel Nine doesn’t have any specific IP rights, if the tape is
theirs, they could effectively withhold the footage from the miners
because they own the physical item on which it is stored. Possession is
nine-tenths of the law after all.

What are the rights of the
mine management? The copyright could be owned by the miners’ employer
if it was deemed to have been filmed “in the course of employment”. Of
course, being stuck down the mine was hardly an ordinary day’s work for
the miners, but it all depends on the understanding reached between the
miners and other parties when the camera was lowered down. If any.

Peter Fray

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Editor-in-chief of Crikey

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