IPRIA and CMCL at Melbourne Uni. are holding a half-day forum on 18 March on:
Speakers are:
Gordon J, sitting at first instance, has ruled that copyright does not subsist in Telstra’s White Pages directories or Yellow Pages directories confirming the revolution wrought by IceTV.
There are 347 paragraphs and time does not permit careful analysis at this stage. According to the summary in [5]:
It may be particularly interesting to see why copyright did not subsist in the Yellow Pages directories, which were classified directories.
At [46], her Honour explained why Desktop Marketing no longer represented the law in Australia following IceTV (here and here):
Before turning to the facts, mention must be made of the decision of the Full Court of the Federal Court in Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd [2002] FCAFC 112; (2002) 119 FCR 491 (Desktop Marketing). In that decision, copyright was found to subsist in certain editions of WPDs and YPDs. The Applicants submitted that the resolution of the present case remains governed by the outcome in Desktop Marketing [2002] FCAFC 112; 119 FCR 491 and that the High Court’s comments on copyright subsistence in IceTV [2009] HCA 14; 254 ALR 386 should be regarded as obiter dicta. I reject that contention. Firstly, IceTV [2009] HCA 14; 254 ALR 386 is binding authority on the proper interpretation of the Copyright Act. The reasoning of both plurality judgments establishes principles of law beyond copyright infringement. Secondly, the High Court directly warned of the need to treat Desktop Marketing 119 FCR 491 with particular care: see IceTV [2009] HCA 14; 254 ALR 386 at [52], [134], [157] and [188]. Thirdly, Desktop Marketing [2002] FCAFC 112; 119 FCR 491 did not deal directly with the issue of authorship. Rather, all issues in respect of copyright had been conceded other than that of originality. In fact, Finkelstein J (at first instance) questioned the assumptions the parties had made about authorship: Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd [2001] FCA 612; (2001) 51 IPR 257 at [4]. Finally, the facts of this case are significantly different. The WPDs and YPDs in question are different. Moreover, the Genesis Computer System which stored the relational database and which was used in the production of some of the WPDs and YPDs in issue in these proceedings (after September 2001 in the case of YPDs and late 2003 in the case of WPDs) was not in use in Desktop Marketing [2002] FCAFC 112; 119 FCR 491. (The Genesis Computer System is considered in detail at [60]ff below).
Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44
While on the subject of Mars and darkened conference rooms, Men at Work have been found to infringe Larrikin’s copyright in Kookaburra Sits on the Old Gum Tree.
It would seem (from newspaper reports) that 2 bars were a substantial part – shades of the old Colonel Bogey newsreel case.
The video on the Age’s website has the clips of every kid’s favourite folk song and that flute riff.
Richard Acland highlights the crucial comparison in a vacuum:
Even though there was evidence that the pitch, key, rhythm, melodic shape, harmony, musical sentences and context are different, Justice Jacobson found that there was nonetheless a reproduction of a substantial part of Kookaburra in Down Under. This is not to say that Kookaburra amounted to a substantial part of the pop song.
but it all seems rather academic when Jacobson J found at [111]:
Mr Hay also accepted that for a period of about two or three years from around 2002, when he performed Down Under at concerts, he sometimes sang the words of Kookaburra at about the middle of Down Under, at the point at which he reached the flute line.
Looks rather like the crucial battle was last year’s fight over whether or not the Girl Guides or Larrikin owned the copyright in the first place.
Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29
In case you have been on Mars, or locked in a conference room writing submissions, you have probably heard that the Federal Court has rejected the music industry’s attempt to impose liability on iiNet, and ISP, for copyright infringement by authorising the infringing activities of users of its network.
Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24 (636 para judgment) here.
Since I will find myself still locked in aforesaid conference room, I’ll simply quote (at this stage) from the 21 para summary:
Howard Knopf and Michael Geist look at the decision from Canadian perspectives.
The UK Court of Criminal Appeal has dismissed an appeal against a criminal conviction for selling modchips to enable Sony Playstations, Nintendo and Microsoft to play counterfeit games.
The 1709 [delete mouthfull of title] blog has a detailed report.
Those of us living in the autochthonous realm hidden away in the summer sun may find some interest in the reasons why the playing of the (counterfeit) games would result in a reproduction of a substantial part of the copyright – a point doubted or left open in Stevens v Sony [2005] HCA 58 at [80] – [99].
However, a considerable degree of caution will be required:
First, (what I guess constitutes a plurality of) the High Court has already ruled that a single image (or “frame”) from a film is not (or is not necessarily) a substantial part – at least of a television broadcast (Network Ten v Nine Network):
Secondly, as Stevens v Sony shows, Australia has very definitely embarked on its own course in relation to technological protection measures and this whole area of “meta” copyright.
Thirdly, at least 3 of the judges in the IceTV case resoundingly declared that it is not appropriate to test substantiality by reference to the taking of the skill and effort of the author. Well, that is what they said; whether or not it is what they did is another matter. The 3 judges in the other judgment, of course, appear very much to have applied that misappropriation of the skill and effort (in expression) approach.
Those of you who are political philosophers or constitutional scholars may also look with some bemusement, or perhaps appreciation, on the Court of Criminal Appeal’s thundering against the idea of leaving to that engine of democracy, otherwise known as the jury, such recondite questions as copyright infringement, when perfectly well-trained Chancery judges were ready and waiting to serve. Of course, those of us who practise in the civil jurisdiction where IP cases are usually heard might well be horrified by the prospect of trying to present such a case to 12 men and women good and true!
Michael Geist has a link to the leaked EU comments on the chapter for third party liability on the internet – being drafted by the USA.
The Guardian has weighed into the debate.
Kim Weatherall has emerged from her self-imposed seclusion to comment here, here and here.
DFAT’s must recent summary and overview of key elements. Anondyne USTR statement.
The Australian Government has announced today that it will not be changing the limitations in the Copyright Act on the parallel importation of books.
According to the Press Release:
Australian book printing and publishing is under strong competitive pressure from international online booksellers such as Amazon and The Book Depository and the Government has formed the view that that this pressure is likely to intensify.
In addition, the technology of electronic books (e-books) like Kindle Books will continue to improve with further innovations and price reductions expected.
The Government has not accepted the Productivity Commission’s recommendation to remove the parallel importation restrictions on books.
You could write a book on the rules governing parallel importation of books so I won’t attempt to summarise them here.
The Productivity Commission’s report. I still don’t think there has been any answer to the question whether the prices of music CDs or computer software fell after open markets were introduced for those products.
Selected microblog posts from the past week:
IPRIA has organised a seminar in Melbourne on 15 September and Sydney on 16 September to discuss whether freeing parallel imports will make books cheaper.
Speakers include both Prof. Fels, who started it all, and Dr Rhonda Smith.
Details from here.
Has anyone established how far the prices of CDs and computer software fell once the markets for those products became open?
Selected microblog posts from the past week:
