IPwars.com

Mainly intellectual property (IP) issues Down Under

IceTV transcript is up

and it certainly looks like House of Commons was right to warn database owners to be very afraid.

Gummow J opened with a bouncer to Counsel for Nine Network, the respondent, pointing out that the House of Lords in Ladbroke v William Hill overruled Lord Diplock who was then sitting as Diplock LJ in the Court of Appeal.  Followed up with:

GUMMOW J: What I am putting to you is that do not think that in this Court William Hill is the end of a rainbow.

Then:

GUMMOW J: There is real question of what this notion of originality means in this “electronic age”, is there not?

Gummow J went on to describe Cramp v Smythson from the 1940s as the “elephant in the room” and then

GUMMOW J: I suppose what I am putting to you is, maybe some of the considerations that underpin the approach in Feist conceivably could underpin an approach to the notion of substantiality at the later stage in our law.

although his Honour did indicate that Counsel’s rejection of the relevance of Feist under our Act “may well be right”.  Nonetheless:

GUMMOW J: There will be a grant of a special leave in this matter. The Court will allow one and a half to two days, I think, and we expect to have the assistance of counsel to deal with this matter thoroughly without any reticence in starting at the bottom, so to speak, and we expect counsel to be familiar with the academic writing in this field. They have already been referred, I think, to an article by Dr Deazley in [2004] Intellectual Property Quarterly 121. There is also what may be a useful article by Professor Sterk in Michigan Law Review for 1996, Volume 94, pp 1197 called Rhetoric and Reality in Copyright Law. There is a lot of other material out there as well. I hope the arguments will be informed with all of that, at least in a suitable background.

We’ll have to wait a bit longer to see what the actual questions are.

IceTV in the High Court

The High Court has apparently granted special leave to appeal.  

Lid dip, Kim (who also has a link to David Lindsay‘s slides).

It can’t just be the “what is worth copying is worth protecting” rubric that requires reconsideration so maybe House of Commons is on to something with the injunction (presumably to database owners) to be afraid?  The transcripts seem to be running about 2 weeks behind. 

IPwars on the Full Court decision.  IPKat reviews Estelle Derclaye’s new text on sui generis database protection.

The sky is falling

with apologies to Chief Vitalstatistix:

ARIA’s half year figures for 2008 show that sales of recorded music are still falling – down 4% on the corresponding period last year.

But guess what, the decline in sales of physical copies is almost all set off by the rise in digital sales: 12 million digital tracks up from 8 million for the 6 month period last year.  

According to ARIA:

“… figures which demonstrate the beginning of a remarkable transition to a whole new economy that is still only in its infancy.”

Perhaps in a sign of gloom for music industry executives, a lot of these downloads were single tracks rather than albums, but digital albums still increased by 55%.

ARIA press release here; full stats here.

Parody

Nicholas Suzor tries to work out where parody fits into Australian copyright law …

here.

A parody, or is it a satire ?, here.

Copyright owners versus ISPs

Reports today that the UK Government has ‘brokered’ a deal between copyright owners and ISPs forcing ISPs to take a more pro-active role in cutting off illegal downloaders …

According to the IPKat things may be a little more complicated: at least one of the ISPs claims all it has agreed to do is write to the downloader and tell them that someone alleges they infringe copyright.

IPKat here.

Kim has links to the UK Government’s announcement here and expands on the details.

All this is directed at downloaders. Here, of course, ISPs (I really mean ‘carriage service provider’, start here), engaging in Category A conduct get some protection; but nonetheless can have court orders inflicted on them to cut off accounts – who is going to bear the legal costs of a successful court action to achieve this? And there is more limited protection for other types of conducrt depending on whether the activity is Category B, Category C or Category D activity – I kid you not!

Of course, if you’re not a ‘carriage service provider’, you should be shaking in your boots; especially once you get a letter from someone claiming to be a copyright owner (or acting for one) see Metro on George and Cooper v Universal, although depending on your degree of involvement you may be able to argue the latter case in particular is a bit unusual.

Even if you are a ‘carriage service provider’, it may well be that you can’t afford to sit back and wait for letters of demand (I mean, notifications) to come in:

first, you may still be liable for infringement if you become aware of infringing material or of facts or circumstances that make it apparent that material is likely to be infringing …;

secondly, Viacom and the English Premier League (no, there is no copyright in a sporting spectacle, but there is in the broadcasts) contend under the US templates of these provisions that Google must be aware because there is too much infringing ‘stuff’ out there ….

Dollars v sense

The latest plans to extend copyright term in the EU seem to have fired up a collected who’s who of copyright academics …

A band of intrepid professors have taken to the pages of the Times to point out why it’s a bad idea, via IPKat also having a go at performer’s rights

Another group calling themselves “Sound Copyright” have also reacted strongly (and negatively), via IPKat again

And, soon to visit these shores (here and here), Bill Patry http://ipkitten.blogspot.com/2008/07/sound-copyright-time-to-take-action.htmlweighs in from across the water

and, not to be outdone, some academics have decided to counter-attack against the copyright owners’ rather restrictive interpretation of the ‘3 step test’: IPKat and Patry both joining in.

Jib Jab did it again!

The folks who brought us This Land have now found

Time for some campaignin’ …

here.

Now, why does that tune sound so familiar?* Why does the scenery behind Barack Obama seem familiar?

According to Excess Copyright, it wouldn’t be legal in Canada.

But is it parody or satire?

Fortunately, in a country where a clip of the Prime Minister singing happy birthday to “a” cricketer was neither news nor criticism/review (see here [34] and [39] then here), we now have fair dealing for both parody and satire.

Do you think they took too much? Surely, they added enough original contribution?
* here – I’m not going to suggest you click on the number 56

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