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.
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?
Following in the footsteps of Marty Schwimmer and Dennis Kennedy, I shall try a weekly post aggregating selected IP “tweets”. If you’re keen on greater currency, my tweets also show up as they’re made in a side bar on the website.
Let me know if you think this is a worthwhile exercise or not.
If you’re a twitterer, you can find me at @wrothnie
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:
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
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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).
