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.
Patent and Trade Mark oppositions Read More »
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?
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”.
Reading aloud (talking book) infringes? Read More »
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:
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).
Ambush Marketing DownUnder Read More »
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.
ALAI and the Tercentenary of Copyright Read More »
An Austrian company, Maselli, sells clothing under its brand WELLNESS. It has the trade mark registered for clothing in class 25 and also in classes 16 (for printed matter) and class 32 (for alcohol free drinks). It gave away bottles of a non-alcoholic drink bearing the WELLNESS brand, but never sold the drinks independently of the clothing.
On application by Silberquelle, a producer of alcohol free drinks, the ECJ has ruled that affixing the mark to goods, which are given away free of charge to purchasers of other goods, is not genuine use of the trade mark for the free goods in the EU.
That is, it should follow that Maselli’s mark will be revoked.
Here, of course, there has to be use as a trade mark and the use (as a trade mark) has to be in good faith see s. 92 and Gallo v Lion Nathan
As the IPKat asks, what happens to a newspaper’s trade mark where the newspaper is given away free?
Ever since the old Irish case about “Golden Pages” TM, where a classified directory was given away for free, but contained paid advertising, we have thought the trade mark was being used in the course of trade (or in more modern parlance, in good faith as a trade mark). Wonder if that’s still the case?
C-495/07 Silberquelle GmbH v Maselli-Strickmode GmbH
Not using a trade mark Read More »
IPRIA is hosting a free seminar on ISPs liability for authorising copyright infringement.
Impressive range of panellists. Possibly the only hotter topic in copyright is what is a reproduction of a substantial part. Score a CPD point!
5 February 2009 at 5.30 for 6.00pm.
Details via here.
IPRIA, ISPs and (Copryight) authorisation Read More »
The dispute resolution panel’s decision in the USA’s complaint against China’s rules on enforcement, “Measures affecting the protection and enforcement of intellectual property rights” (DS362) (background here) has been published.
There’s a range of commentary around the web. The IPKat reproduces the conclusions and, applying sophistaKatted Euro reading between the lines, scores it at 3-all.
Intellectual Property Watch’s summary here. According to the USTR, the US won.
Not sure what has happened to the “market access” dispute?
The USA, China and the WTO dispute Read More »
Optus has been fined AUD$110,000 under the Spam Act 2003 for sending out 20,000 electronic messages without adequate sender identification.
Peter Black carries the report.
On a different note: why doesn’t Australia have laws against junk faxes?
