Archive for March, 2011

Kookaburra laughs louder

Thursday, March 31st, 2011

The Full Court has dismissed EMI’s appeal from the finding that versions of Men At Work’s DownUnder infringed Larrikin’s copyright in Kookaburra Sits in the Old Gum Tree.

Emmett, Jagot and Nicholas JJ brought this one down in 268 paragraphs.

EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47

Lid dip Peter Clarke

Rihanna’s new twist to S&M

Wednesday, March 30th, 2011

Purely in the interests of improving professional understanding (and not at all for the purposes of titillation) I should draw your attention to Mallesons’ report that Rihanna’s S&M pop video, or at least stills from it, are attracting allegations of copyright infringement.

Whatever you do, don’t go to the Mail online’s report.

It does seem that Ms Rihanna and Mr LaChapelle have prior history working together.

Just to prove this is really a blog about IP law, I should draw your attention to our fair dealing defence for, er, parody and satire in the perhaps unlikely events that (a) this is an infringement or (b) Mr LaChapelle were to sue down here.

Civil Dispute Resolution [Bill] Act

Sunday, March 27th, 2011

Just as the Victorian government has announced its intention to repeal the corresponding obligations for litigation in State courts, the Commonwealth Attorney General has announced that the Civil Dispute Resolution Bill has now been passed by both Houses of Parliament.

The Bill originally lapsed on the dissolution of Parliament last year, but was reintroduced in September.

A key feature of the legislation is the introduction of the new genuine steps statement. According to the General Outline in the EM:

This Bill encourages the resolution of civil disputes outside of the courts and seeks to improve access to justice by focusing parties and their lawyers on the early resolution of disputes.

This Bill seeks to ensure that, as far as possible, parties take ‘genuine steps’ to resolve a civil dispute before proceedings are commenced in the Federal Court or the Federal Magistrates Court.  When commencing proceedings in a court, parties are required to file a statement saying what steps they have taken to resolve their dispute or, if they have not taken any steps, the reasons why.  The Bill gives examples of reasons why steps might not be taken, including urgency, or where the safety of a person or security of property is compromised.  The court can take into account the failure to take steps when exercising its existing case management directions and costs powers.

The Bill does not require parties to take any particular specific step – the most appropriate steps to take depend on the circumstances of the particular dispute.  The Bill is deliberately flexible in allowing parties to tailor the genuine steps they take to the circumstances of the dispute.

The substantive obligations (on litigants and practitioners) under the legislation come into force on the earlier of (a) the date set in a Proclamation or (b) 6 months after Royal Assent.

Some notes on the bill that lapsed.

The Senate Legal and Constitutional Affairs Committee’s report.

The NADRAC report.

Lid dip, Jane.

 

Roadshow v iiNet

Friday, March 25th, 2011

The film studios have announced they have sought special leave to appeal from the Full Federal Court’s 2-1 decision dismissing their claim that iiNet infringed their copyright by ‘authorising’ its subscribers’ infringing activities.

AFACT press release

iiNet press release.

Meanwhile, the iiA is still working on a workable solution for the future.

Compulsory licences for patented medicines

Thursday, March 24th, 2011

The Australian government has announced its intention to amend the Patents Act by the end of 2011 to empower the Federal Court to grant “to manufacture and export patented pharmaceuticals to countries trying to deal with epidemics and other types of health crises.”

This announcement appears to implement the DOHA declaration (in 2001) on the compatability of TRIPS and public health issues particularly in developing countries.

Press announcement here. WHO on DOHA here and here (pdf). DOHA itself, Chairman’s statement and notifications (only Canada has made it on to the list as an exporting country, so far) and the 2005 amendment Protocol (of which, so far, only 34 members have notified acceptance (68 to go)).

Roadshow v iiNet 2

Monday, March 21st, 2011

Last month, iiNet (by the skin of its teeth) avoided being found liable for authorising the P2P infringing activities of users of its internet access services.

Kim Weatherall and Ass. Pro. David Brennan provide their respective initial takes here and here.

Perhaps in recognition that iiNet (and pretty much any other ISP) will be in big trouble if they sit on their hands when the next letter of demand comes in from AFACT notice comes in, Meanwhile on 11 March, the Internet Industries Association has announced that it is “fastracking” development of an industry code to deal with copyright infringement.

Draft Intellectual Property Laws Amendment (Raising the Bar) Bill 2011

Sunday, March 20th, 2011

A few weeks back now, IP Australia released a draft Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 (pdf) and draft Explanatory Memorandum (pdf).

You can probably guess its overall objective from the exposure draft bill’s longer short title. The range of matters covered extends across 6 schedules:

  • Schedule 1- Raising the quality of granted patents
  • Schedule 2– Free access to patented inventions for research and regulatory activities
  • Schedule 3– Reducing delays in resolving patent and trade mark applications
  • Schedule 4- Assisting the operations of the IP profession
  • Schedule 5- Improving mechanisms for trade mark and copyright enforcement
  • Schedule 6 – Simplifying the IP system

Of the many things that struck my eye, the proposals:

  • seek to introduce the diligent searcher standard for testing the obviousness of patents;
  • seek to have patent applications and oppositions (but not, so far, trade mark oppositions) tested on the balance of probabilities instead of being practically certain not to be valid
  • introduce the new statutory experimental use defence;
  • seek to introduce a presumption of registrability for trade mark applications;
  • introduce the patent opposition “pleading” system to trade mark oppositions; and
  • confer original jurisdiction in trade mark and registered design mattters on the Federal Magistrates Court.

As IP Australia’s announcement says:

Bill does not deal with gene specific issues, rather it seeks to raise patentability standards across all technologies. Gene specific issues are being considered separately by the Senate Legal and Constitutional Affairs Legislation Committee, and by the Government in its response to the Senate Community Affairs Committee’s Gene Patents report.

Over at Patentology Dr Mark Summerfield gives very detailed consideration to the pros and shortcomings of the obviousness reform, the changes to the requirement that patents be useful,  the attempt to fix the law of fair basis (at least insofar as provisional specs are concerned), the new enablement requirement. Dr Summerfield seems to be on a roll, so there may well be more to come.

Comments and submissions should be provided by 4 April 2011.

Convergence Review: Let the bun fight(s) begin

Wednesday, March 2nd, 2011

Over at Lawfont, Sarah reports that the terms of the Convergence Review have been announced.

This is not just about ‘regulatory’ matters. From the preamble:

…. At the same time, the globalising effect of the internet is profound and rapid, and has challenged regulatory boundaries.

New content services channelled through internet service providers and across jurisdictional borders are challenging traditional media business models and forcing governments all over the world to reconsider the assumptions behind existing legislation and regulatory frameworks.

….

The government wants to make sure that the policy framework upon which Australia’s industry structures and regulation are built is adequately designed for the convergent age and does not impede continued technological change and innovation. At the same time, the framework must ensure the ongoing protection of Australian content and cultural values, the adequate reflection of community standards and expectations and the safeguarding of privacy and other citizens’ rights.

The government recognises that any discussion of the production and distribution of Australian content raises issues of copyright in the digital age. The Review Committee may offer views on copyright and the ongoing protection of content in a converged environment, noting that the Attorney-General will ultimately determine these matters.

(my emphasis)

and point 2 of the terms of reference:

the Committee shall have regard to all legislation and regulatory frameworks relevant to these terms of reference and, where necessary, advise the government on issues outside the purview of the Minister’s portfolio responsibilities.

(my emphasis again)

[remembering, as the preamble noted, that copyright is within the Attorney General’s portfolio, not the Minister for Communications etc.]

The review is specifically directed to  take into account amongst other things by point 5(b), (c) and (d):

  • b) ensuring the ongoing production and distribution of local and Australian content that reflects and contributes to the development of national and cultural identity;
  • c) the impact of policy settings on industry and government revenue;
  • d) appropriate ways to treat content, and the services and applications used to deliver content, which are cross-border in nature;

We also heard (or read) last week that the ALRC will be told to keep its hands off the issues covered by the Convergence Review.

The Review is to deliver their final report to Government by the first quarter of 2012.

The terms of reference.

The Minister’s speech (not to Parliament) announcing the release of the terms of reference.

A Mr Boreham, from IBM, will chair the review; a Mr Long, with a background from the regulatory agencies, will be the second member and a third member is to be announced.

An earlier time, when “convergence” seemed new (and iTunes and P2P) were not even twinkles in our computer monitors (pdf).