Archive for February, 2009

Philip Noonan live interview

Wednesday, February 25th, 2009

From Peter Ollie at Managing IP:

Managing IP magazine’s Asia editor Peter Ollier will be conducting a live online interview with IP Australia director general Philip Noonan on Friday March 6 at 4pm Australian Eastern Standard Time.

The one-hour interview will cover topics such as the recommendations in Terry Cutler’s venturousaustralia report, innovative step and inventive step in Australia’s patent law, the controversial Anti Counterfeiting Trade Agreement and the impact of the credit crunch on patent and trade mark applications in Australia.

Registration for this event is free. To register please go to www.managingip.com/webseminars. Registered participants will also be able to submit questions.  

Irish ISP and 3 strikes

Tuesday, February 24th, 2009

IPKat reports that the case in Eire in which the record companies sued the ISP, Eirecom, has settled after 8 days of the scheduled 4 weeks of trial.

Amongst other details, the ISP adopted a 3 strikes policy and the record companies deployed a service to monitor (entrap?) file”sharers”.

Read more here.

Some other background and 3 other strikes here, here, here and here.

Resale royalty bill

Sunday, February 22nd, 2009

The House Committee report into this bill has now been published.

Background and potted summary here and here.

There are 9 principal recommendations including introduction of an “opt out” clause for artists,

  1. broadening of the scope of artwork covered to include “batik, weaving, or other forms of fine art textiles; installations; fine art jewellery; artist’s books; carvings; and multimedia artworks, digital and video art”;
  2. broadening of the scope of clause 8(3)(d) of the Bill be to reflect the full range of transactions involving the ‘commercial’ resale of artwork (eg the Internet);
  3. broadening of the scope of the definition of art market professional to include ‘art market dealer’, in lieu of ‘art dealer’ in order to capture other commercial operators whose primary business may not be artwork but nonetheless sell artwork from time to time
  4. to address concerns about acquisition of property on other than just terms, amendment of the bill to exclude from liability for payment the seller or alternatively exclude the bill’s operation from the first resale after the bill comes into force

and some rather novel recommendations in relation to the treatment of aboriginal or indigenous artists.

Lid dip, Copyright Council.

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IP Professionals Forum

Thursday, February 19th, 2009

IP Austraia is seeking applications from registered patent attorneys and/or trade mark attorneys for appointment to its IP Professionals Forum.

According to the blurb, the IP Professionals Forum:

The IP Professionals Forum is the principal forum for consultation, discussion and information exchange on IP matters that relate to IP professionals.

Meetings will allow for high-level discussion on IP policy, IP management, innovation and the broader IP environment, both in Australia and abroad. Participants will also be notified of IP Australia’s initiatives and consulted on future activities.

The forum meets biannually.  The appointment will be for a term of 2 to 3 years. You have to be prepared to fund your own travel – to Canberra, Melbourne or Sydney depending on where the meeting is.

Oh yes, you will be ineligible if you are already represented by an IP professional association including IPTA, LESANZ, LCA and FICPI.  Does that leave anyone left?

More details via here.

Patent and Trade Mark oppositions

Tuesday, February 17th, 2009

Tech IP is hosting 2 seminars in both Melbourne and Sydney: one on each of the above topics.

Speakers include:

Dr Stephen Barker (from IP Australia) and Ben Fitzpatrick on patents

Michael Arblaster and Siobhan Ryan on trade marks.

Dates: 10/12 March for patents and 17/19 March for trade marks.

Fee = $528 (although I’m not sure if that is per seminar).

Details here.

That Obama poster

Monday, February 16th, 2009

Hyperlinking off the reference to the new President, you’ve no doubt heard about the copyright infringement allegations Shepard Fairey‘s Obama poster apparently based on an Associated Press photograph has generated.

Nic Suzor thinks this is unfair and shows why we need a broadly based “fair use” defence or a transformative use defence.

Now, this is a very important problem and I personally don’t have a problem with a broadly based “fair use” defence, but I wonder where Nic’s idea fits in in a world where authors have moral rights – which just happens to be the world Australians live in?

Now, I guess if you were more or less leftish (bit hard to know where on the spectrum Democrats in the US might fall anywhere outside the USA), you might well think favourably of both the poster and the photographer – who doesn’t seem to get acknowledged in the poster, but I may be wrong about that.

What would happen, however, if the photographer was strongly left leaning in principles or smitten with the President and the transformer used the photograph to make some sort of criticism of the President by putting him in that Bansky or the Rudd “homage“.

At the moment, the photographer might well be outraged and concerned that fellow Obama-ites might think less, very much less of him/her.

That seems like the very sort of thing that moral rights might well be designed to protect the author against.  Shostakovich famously successfully stopped the use of his music in some paen to Nazidom, at least in part because of the damage it would do to his reputation in his USSR homeland. And that is even without the droit de divulgation and the right to withdraw a work from publication.

Which policy would win out?  Which should win? The “reasonableness” defence (here and here) might be open, but how does one apply it in this context?

Reading aloud (talking book) infringes?

Sunday, February 15th, 2009

Amazon’s new e-book reader, the Kindle 2, is sending the internet’s electrons into a tizz: apparently, once you load an electronic book into it, you can select a text to speech function which reads the book out loud to you.

The Authors’ Guild claims this is an exercise of the “derivative right” or something under US law; not covered by the publishing agreement and so an infringement. Better analysis here and here.

Now, I don’t think the Kindle 2 is available here (the Kindle “1″ never made it either), but my computer can do this text to speech thing too.  Should I be worried?

(Of course, we’ll ignore how I got the @#$! e-book into my computer – I mean, for the purposes of this exercise we’ll assume I could get it on my computer on the same terms as Amazon sends it out to Kindlers.)

So, presumably, the file constituting the e-book has to be run through some sort of converter to get those little “1″s and “0″s into sounds. Is that making a translation (see the adaptationright conferred by s 31(1)(a)(vi) (and see para. (c) of “adaptation“) or may be just a straight reproduction (see s 21(1A))?

Hmm, but wouldn’t getting the digital file on my computer displayed on the screen also involve a sort of translation or reproduction? So, maybe there’s an implied licence to do something like this. That could of course be “bad” as the copyright owner might then include something in the terms and conditions I downloaded (or will in the future download) that excludes this.

A-ha! I hear you say, there’s that nice defence provided by s 47B for the normal use of a computer program and, even better, it can’t be excluded by contract (see s 47H).

This is looking good so far.  But what’s that you say, it only covers “reproduction”.  Would that cover “adaptation” too?

Look at the extended definition of computer program for the purposes of  Part III Div 4A provided by s 47AB. I wonder if the “book” part of the product (the thing I read or am trying to listen to) is essential to the operation of a function of the program; it’s certainly essential to the reason why I bought (or no doubt the EULA will say “licensed”) the e-book in the first place.

The EULA probably says all disputes about the EULA are governed by the laws (excluding the conflicts of laws laws) of the State of {some place in Obamaland}. I wonder if the courts over there will accept s 47H can override the written terms of the EULA? That’s OK, may be I just won’t travel there anymore.  Or maybe I can hope their courts will interpret their “fair use” provision like they did in the Connectix case.

Good thing we’ve got these nice defences isn’t it?  May be we should head over to Nic.Suzor and find out what the EFA told the (definitely not Orwellian sounding) DBCDE  here.

May be I could fall back on the problems Sony had proving that the small part of the file streamed through the buffer (or is that buffered through something?) is a “substantial part”.

But, wait, there’s more. It’s (hypothetically) speaking the thing aloud.  Is that a performance in public? Unless you’re all peering over my should, perhaps we can argue that it’s not. Afterall, no-one has seriously argued that reading a book aloud to yourself is a performance in public. cases do have that troubling bit about “public” means “part of the copyright owner’s public”, but would that be distinguishable on the basis that there is no employment or business context? As Dawson and Gaudron JJ said in Telstra v APRA:
The distinction between what is “in public” and what is “in private” is of little assistance in determining what is meant by transmission “to the public”. The transmission may be to individuals in private circumstances but nevertheless be to the public. Moreover, the fact that at any one time the number of persons to whom the transmission is made may be small does not mean that the transmission is not to the public. Nor does it matter that those persons in a position to receive the transmission form only a part of the public, though it is no doubt necessary that the facility be available to those members of the public who choose to avail themselves of it. In Rank Film Production Ltd v Colin S Dodds the number of guests playing films in their rooms may not have been large, but the motel was open to the paying public. Similarly, those members of the public who choose to call a relevant number on their mobile telephone may be relatively small, but the facility is available to members of the public generally.
What is important is the nature of the audience constituted by those who receive music on hold. Lying behind the concept of the copyright owner’s public is recognition of the fact that where a work is performed in a commercial setting, the occasion is unlikely to be private or domestic and the audience is more appropriately to be seen as a section of the public. It is in a commercial setting that an unauthorised performance will ordinarily be to the financial disadvantage of the owner’s copyright in a work because it is in such a setting that the owner is entitled to expect payment for the work’s authorised performance. In this case it is not so much the preparedness of the audience of music on hold to pay to hear the works were it not for their unauthorised performance that is significant. That simple analysis belongs to an age where communications were less technologically advanced and business and marketing techniques were less developed. Rather, it is the preparedness of those who wish the music on hold to be played to bear the cost of the arrangement which provides the key, for it reveals the commercial character of the broadcast and the commercial deprivation suffered by the copyright owner. Callers on hold constitute the copyright owner’s public, not because they themselves would be prepared to pay to hear the music, but because others are prepared to bear the cost of them having that facility. For the performance of the music to that audience the copyright owner would expect to receive payment, even if not from the members of the audience. ….
Good thing we cleared that up, then!

Ambush Marketing DownUnder

Wednesday, February 11th, 2009

The Government has published Frontier Economics’ review of the ambush marketing legislation provided by the Olympic Insignia Protection Act 1987 (Cth) and the Melbourne 2006 Commonwealth Games (Indicia and Images) Protection Act 2005 (Cth) (the AML).

According to the Executive Summary, key points include:

  • The Review is of the opinion that the AML has provided tangible benefits to the organisers, and that these have a direct (although difficult to quantify) bearing on their ability to raise revenue from licensing. 
  • The AML appears to have provided greater clarity regarding the existence and scope of the organisers’ entitlements.
  • There doesn’t appear to have been many, if any, ‘blatant’ examples of ambush marketing  for some time.
  • Concerns were identified, particularly in the Olympic Insignia Protection Act, with the definition of ‘commercial purposes’ and the requirement to show that an accused use would be seen by a reasonable person as suggesting sponsorship like support.

While the review found the legislation largely working as intended, it did not some qualifications:

(1) whether apparent reductions in ambush marketing are due to factors outside the AML;

(2) whether NSOs and other peak bodies have been unduly hampered in their ability to attract their own sponsorships; and

(3) whether sufficient income generated from the rights granted under the AML has been returned to sport. 

Read the report here (pdf).

ALAI and the Tercentenary of Copyright

Sunday, February 8th, 2009

ALAI’s 2009 (biennial) congress takes place in London in June this year, to commemorate the 300th anniversary of the Statute of Anne (that shouldn’t stop you also letting off fireworks on 10 April 2010).

Details here.

Unfortunately, we in Australia no longer have a national group; but it is still possible to be an individual member or just go to the conferences etc.

Apologies

Sunday, February 8th, 2009

Sorry about the break in transmission – some glitch in a database somewhere meant that only files up to 13 August were showing up.

Thanks to Jacques, everything seems to be back on an even keel now.