Software licensing
IP What’s Up (USA) reviews a book demystifying software licensing (from a US perspective).
OUP’s link.
Software licensing Read More »
Copyright
Practical DMCA problems
Plagiarism Today’s list of top 5 DMCA mistakes (and some things to do to avoid them).
Practical DMCA problems Read More »
Down the proverbial Technicon
Technicon has lost its appeal from trial findings that it infringed both Caroma’s registered design for a toilet pan and the copyright in drawings in technical specifications.
This was a case under the old (1906) Act rules. The trial judge found there were sufficient differences to avoid liability for obvious imitation. However, there was a strong finding of fraudulent imitation. The trial judge found that Technicon at least had reason to believe or strongly suspect that Caroma’s product was protected by a registered design:
- Caroma’s brochures for its product range included warnings that the products depicted in the brochure were protected by design registration
- As reported, there seems to have been fairly strong evidence that Technicon based its product on Caroma’s design
- Technicon was familiar with the design registration process and had used it itself
- Technicon’s product development appeared to have skipped the usual detailed design drawing/prototype process.
Technicon did not challenge these findings on appeal. Rather, it sought to persuade the Court that the differences in appearance were sufficiently substantial that the product was not an imitation. The Full Court gave this argument very short shrift.
The details on copyright infringement are a bit sketchy. It seems that section 77A would not have protected Technicon because its drawings were made before 17 June 2004 and so before s 77A took effect (see item 19). I will have to think about that further.
Given the finding of design infringement and the rejection of the claim to additional damages for copyright infringement, the point may well be rather academic.
Technicon Industries Pty Ltd v Caroma Industries Ltd [2009] FCAFC 76
and at first instance: Caroma Industries Ltd v Technicon Industries Pty Ltd [2008] FCA 1465
![Reblog this post [with Zemanta]](https://i0.wp.com/img.zemanta.com/reblog_e.png?w=1200)
Down the proverbial Technicon Read More »
AP charges for quotes
Another round in AP’s war on the internet:
Associated Press would like to charge you for any extracts you take from its website.
Starting price is US$12.50 for 5 – 25 words.
Apparently, it’s the (iCopy)right thing to do!
I guess that means “they” think that now you can pay for the “service” easily it won’t be fair use (USA only) or fair dealing.
Lid dip: priorsmart
AP charges for quotes Read More »
Procul Harum: paler shade of white afterall
In its last ever IP judgment, the House of Lords restored Matthew Fisher’s claim to a declaration that he owned 40% of the copyright in Whiter Shade of Pale, after the Court of Appeal found his claim barred by delay.
IPKat has an extensive post and explanation.
As summarised by IPKat, their Lordships focused on the fact that Mr Fisher was seeking a declaration and not an injunction. In doing so, they indicated that the remedy of injunction might well not follow as opposed to damages:
If the declarations set aside by the Court of Appeal are reinstated, then, were Mr Fisher subsequently to apply for injunctive relief to prevent unauthorised use of the work, such an application would be dealt with on its merits. If the court was satisfied that it would be oppressive to grant an injunction in the particular circumstances, for instance because of prejudicial delay, it would refuse an injunction to restrain the infringement, and leave Mr Fisher to his remedy in damages …
Their Lordships also pointed out that the Copyright legislation, unlike real property, does not recognise a concept of acquisition of property by adverse possession.
Fisher v Brooker [2009] UKHL 41
In October, their Lordships (?) return as members of the Supreme Court of the United Kingdom: Wikipedia here and Lord Bingham here (pdf).
Procul Harum: paler shade of white afterall Read More »
Kookaburra gets the Vegemite sandwich
Jacobson J has upheld Larrikin’s claim to be the owner of copyright in Kookaburra sits in the Old Gum Tree, which means, at least, that Larrikin has standing to sue Men at Work et al. for infringing copyright in that music.
Larrikin alleges that Men at Work’s Down Under (you know, unfurl the Boxing Kangaroo, declare a national holiday and have a beer with Bondy) infringes the copyright in “Kookaburra”.
The trial was supposed to start in June, but wasn’t ready so Jacobson J heard, as a preliminary question, Men at Work’s defence that Larrikin didn’t own the copyright.
How did this come about?
Margaret Sinclair wrote “Kookaburra” back in 1934 and submitted it into a competition being run by the Girl Guides for “A Singing Round with Music”. The published terms of the competition were:
RULES for ENTRY.
(a) The entrance fee for each entry in any of the Competitions to be 6d.
(b) A prize of 10/6 to be given to the winner of each section.
(c) The Competitions to be open to all enrolled members of the Guide Association in Australia.
(d) All matter entered to become the property of the Guide Association.
(e) The decision of the Judges to be final.
(f) All entries to be accompanied by the entrance fee of 6d. also name and address of entrants.
(g) All entries to be in by July 31st.
(my emphasis)
Miss Sinclair’s entry was the winner!
Larrikin, however, didn’t claim title from the Girl Guides. Rather:
- in 1987, shortly before her death, Miss Smith donated some manuscripts, including an adaptation of Kookaburra for violin, to the State Library in South Australia and there was an accompanying form which said all copyright “owned by me” in the deposited documents shall vest in the Library on my death; and
- by her will Miss Sinclair left to the Public Trustee in South Australia all her estate and assets.
Larrikin obtained assignments from first the Public Trustee (for the princely sum of $6,100 through public auction) and, later, the Library.
Jacobson J held that Men at Work hadn’t proved that Miss Sinclair assigned the copyright in Kookaburra to the Girl Guides back in 1934, so (although Men at Work argued the terms of the assignments were defective for reasons which his Honour is not alone in having trouble following) one or other of the assignments from the Public Trustee or the Library did the job.
The first problem for Men at Work was that there was no assignment in writing to the Girl Guides with Miss Sinclair’s signature on it. There was a manuscript with her signature and initials, but that was equivocal; it might have just been to identify the manuscript as hers and not some other entrant in the competition.
Similarly, Jacobson J considered it was pure speculation to assume that there must have been a signed entry form. Miss Sinclair was closely involved in the Girl Guides movement and it could not simply be assumed that she had submitted a form – she was well-known to the Guides – or even that she was aware of the terms of the competition.
Further, Jacobson J considered that clause (d) set out above was insufficient to do the work of an assignment. It might have just referred to property in the manuscript. Afterall, when you buy a book from your local (or online) bookseller, you get ownership of the physical copy, not the copyright.
Finally, there was evidence of conduct after the competition which indicated to Jacobson J that Miss Sinclair had never intended to assign her copyright. For example, in 1934 and 1935 she had donated to the Guides royalty payments she received from sales of printed copies of Kookaburra. The Guides, in turn, had thanked her for her generous gifts. They also sought permission from her in later years to reprint the music.
Where does that leave the case?
Well, first, it is interesting that Men at Work had to prove the assignment to the Guides and not Larrikin having to disprove it. I suppose that is because Larrikin was relying on the assignments from the Public Trustee and the Library so Men at Work had the burden of showing those documents didn’t work.
Secondly, presumably, it is yet to be decided whether or not some part of Down Under does actually reproduce the whole or some substantial part of Kookaburra. That would have been part of the postponed trial.
Then, there will be the question – assuming infringement be established – of how damages or profits are payable and whether or not the “innocence” defences in 115(3) and 116(2) are available.
The terms of the assignments set out in the judgments don’t appear to include assignments of the right to sue for past infringements. However, the assignments themselves should be sufficient to cover the 6 years before the proceedings commenced.
Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2009] FCA 799
Lid dip: Peter Nicholas
A little bit of trivia: Men at Work, with Down Under, are one of 9 pop acts that have achieved simultaneous No. 1s in both the UK and USA, according to Wikipedia.
Wonder whether anyone from Men at Work will be appearing on Spicks and Specks now?
Kookaburra gets the Vegemite sandwich Read More »
How to find whom to send DMCA notices to
Plagiarism Today outlines 6 steps to try and identify the person you should be sending “notice and take down” notices under the DMCA to.
Apart from complaints under the DMCA there could be some useful hints (apart from the inquiry to the Copyright Register) under our scheme. Although, of course, under reg. 20C the carriage service provider is supposed to publish those details in a prominent place on their website.
Read the suggestions here.
How to find whom to send DMCA notices to Read More »
Google and facilitating or authorising
DesignTechnica operates bulletin boards. The plaintiff alleged that some postings on the bulletin boards defamed it. In addition to suing DesignTechnica, the plaintiff sued Google for libel by reproducing snippets of the (allegedly) defamatory material in search results.
Eady J, sitting in the Queen’s Bench Division, dismissed the plaintiff’s claims against Google on the grounds that Google did not publish the material.
The case obviously turns on the requirements for an action in defamation. Of potential interest in an intellectual property context, however, is that his Lordship noted that the generation of the snippets was automatic, not volitional. Thus, his Lordship analagised Google’s position to the position of someone who merely ‘facilitated’ infringing intellectual property conduct rather than ‘authorised’ it.
In the course of his judgment, his Lordship explained:
54. The next question is whether the legal position is, or should be, any different once the Third Defendant has been informed of the defamatory content of a “snippet” thrown up by the search engine. In the circumstances before Morland J, in Godfrey v Demon Internet, the acquisition of knowledge was clearly regarded as critical. That is largely because the law recognises that a person can become liable for the publication of a libel by acquiescence; that is to say, by permitting publication to continue when he or she has the power to prevent it. As I have said, someone hosting a website will generally be able to remove material that is legally objectionable. If this is not done, then there may be liability on the basis of authorisation or acquiescence.
55. A search engine, however, is a different kind of Internet intermediary. It is not possible to draw a complete analogy with a website host. One cannot merely press a button to ensure that the offending words will never reappear on a Google search snippet: there is no control over the search terms typed in by future users. If the words are thrown up in response to a future search, it would by no means follow that the Third Defendant has authorised or acquiesced in that process.
In addition, Eady J noted that Google had promptly blocked access to specific URLs, but could not reasonably be expected to block all search results which could include the (allegedly) infringing snippets.
Metropolitan International Schools Ltd v DesignTechnica [2009] EWHC 1765 (QB).
Lid dip: Prof Goldman
Google and facilitating or authorising Read More »
The Digital Economy Down Under
Minister Conroy released on 14 July a report Australia’s Digital Economy: Future Directions, which he has described as a road map for Australia’s digital economy future.
Amongst other things, in (sort of, kinda, a bit) similar vein to the EU’s Commissioner Neely, the report notes:
The digitisation trend is changing customer habits and expectations. Increasingly, they expect an on demand experience, that is, the ability to enjoy what they want, when they want, on the device they want. This has been facilitated by digital video recorders and music and video sites that offer on–demand content for streaming or downloading.
The digitisation trend is changing customer habits and expectations. Increasingly, they expect an on demand experience, that is, the ability to enjoy what they want, when they want, on the device they want. This has been facilitated by digital video recorders and music and video sites that offer on–demand content for streaming or downloading.
but has attracted attention in the press for foreshadowing a crack down on file sharing.
Certainly, at p 19 (of the Snapshot), the report states:
Several rightsholder groups in Australia argued that a role for Government exists in addressing the apparent popularity of peer–to–peer file sharing of music and movies, without the necessary permissions of the relevant copyright owners. File–sharing is cited by the content industry as a barrier to further investment in sustainable and innovative content initiatives in Australia. However, some of the solutions proposed by rightsholders to address file-sharing have been criticised as raising issues of due process and consumer rights.
The Australian Government recognises a public policy interest in the resolution of this issue. The Government is currently working with representatives of both copyright owners and the internet industry in an effort to reach an industry–led consensus agreement on an effective solution to this issue.
Earlier, a pp 12-3, the Snapshot foreshadows further consideration of the scope and availability of the ‘safe harbours’ from copyright infringement:
At present it is unclear whether the present scheme works effectively for some types of online service providers that have subsequently grown in popularity since the scheme’s introduction. The platforms provided by newer online service providers allow social engagement, content distribution and political communications, through features frequently referred to as user–generated content and Web 2.0. This includes social networking sites such as MySpace, Bebo and Facebook (which launched in 2003–05), the online photo sharing site Flickr (which launched in November 2004), and video sharing sites like YouTube and Vimeo (which launched in 2004–05). ….
The limited availability of the safe harbours to those who qualify under that legislative triumph of drafting encompassed in the definition of “carriage service provider” has been under review now almost since before it was enacted. One wonders what there can be left to consider!
Also, with reference to Gov 2.0, the report does encourage Government to open access to appropriate categories of public sector information. I guess the devil lie in the detail of what is “appropriate”. For example. (Trying very hard not to mention that Senator Conroy is also the Minister responsible for the Government’s plans to censor the internet.)
In a positive move, consistent with the Gov 2.0 approach, the report has been released under a creative commons licence.
You can find the Snapshot (a 35 page synopsis) and the full report here in various formats.
The Digital Economy Down Under Read More »
IceTV talk
Trying out a new experiment:
For such use as they may be, here are the slides for Monday’s talk to the VSCL on IceTV
I’m afraid there’s no audio.
IceTV The New Law of Copyright in Australia
View more presentations from Warwick Rothnie.
Here too is the link to RailCorp’s complaints about the Sydney Transit iPhone app.
Another way of trying to deal with (part of) the problem.
