Comments on: IceTV Second Look

By: ipwars.com | Substantial part of a video game

ipwars.com | Substantial part of a video game — Fri, 13 Nov 2009 08:59:31 +0000

[...] least 3 of the judges in the IceTV case resoundingly declared that it is not appropriate to test substantiality by reference to the [...]

By: Help Help I don’t have a copyright | ipwars.com

Help Help I don’t have a copyright | ipwars.com — Sun, 12 Jul 2009 23:05:39 +0000

[...] is entirely consistent with the approach for infringement recently declared by the High Court in IceTV but, perhaps because the State’s submissions the decision is made one were prepared and filed [...]

By: war

war — Thu, 23 Apr 2009 03:40:14 +0000

Good point!

Nonetheless, I can’t help thinking that French CJ, Crennan and Kiefel JJ have not gone as far, or necessarily down the same path, as Gummow, Hayne and Heydon JJ – perhaps, because they didn’t need to in this particular decision.

[24] certainly has some resonances with [95]ff, but the sections on the EU directive and the absence of a deeming provision for computer generated works?

By: Kathy Bowrey

Kathy Bowrey — Thu, 23 Apr 2009 02:43:48 +0000

I think French CJ, Crennan and Kiefel JJ also endorse an authorship line albeit more abstractly at [22- 28] esp [26]:
” Whilst judicial and academic writers may differ on the precise nature of the balance struck in copyright legislation in different places, there can be no doubt that copyright is given in respect of “the particular form of expression in which an author convey[s] ideas or information to the world”.
That grounds their idea/expression dichotomy.

By: war

war — Thu, 23 Apr 2009 01:51:10 +0000

Thanks, Kathy.

It is very interesting that French CJ, Crennan and Kiefel JJ did not pursue the “authorship” line.

Maybe Desktop falls into the same category as Time Out about which, rather confusingly (for those of us who aren’t High Court judges), Gummow, Hayne and Heydon JJ appear both to endorse and distinguish at [172], albeit in a section of their reasons that doesn’t appear to relate directly to “substantiality” if we can take at face value the attempts to slap down the “what is worth copying is worth protecting” rubric.

By: Kathy Bowrey

Kathy Bowrey — Thu, 23 Apr 2009 01:29:31 +0000

The focus on the question of authorship and linking it to material form is really welcome as a way of trying to provide some definition to the rights being claimed by owners. Although once you go into this it tends to expose the dodgy way this has been dealt with in other cases. eg. Sega v Galaxy [1996] FCA 761 (graphic designers visualising a “film” programmed later by others in the production); the Spandau Ballet case- Hadley v Kemp (1999) EMLR 589 (hearing music in your head first means you own the musical work when later expressed by the band). It is really messy.
In terms of infringement French CJ, Crennan and Kiefel JJ’s focus on originality echoes the way the copyright attacked this issue in the UK 19th century when we had fair use (which was referred to in part of the amicus brief). I think this development is necessary to enable any discussion of balance in infringement, and it is what we have lost over the 20th century. But they all carefully avoided opening up much debate about precedents.
The suggestion that Desktop is “misunderstood”. Come on !!!….

By: LawFont.com » IceTV - appeal allowed - open thread!

LawFont.com » IceTV - appeal allowed - open thread! — Wed, 22 Apr 2009 22:26:30 +0000

[...] consider this an open thread for any discussion! Further Further Update: Warwick Rothnie has some very interesting thoughts on the case here. He’s certainly right about one thing. There’s a heckuva lot of food for thought in [...]