Mr Bohdan Zograf has very kindly translated the IPwars post on Telstra v PDC into Belorussian for the benefit (one hopes) of everyone in Belorussia interested in IP!
Those of you with the appropriate linguistic skills can see it here.
IPwars in Belorussia Read More »
The Full Court has dismissed EMI’s appeal from the finding that versions of Men At Work’s DownUnder infringed Larrikin’s copyright in Kookaburra Sits in the Old Gum Tree.
Emmett, Jagot and Nicholas JJ brought this one down in 268 paragraphs.
EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47
Lid dip Peter Clarke
Kookaburra laughs louder Read More »
Purely in the interests of improving professional understanding (and not at all for the purposes of titillation) I should draw your attention to Mallesons’ report that Rihanna’s S&M pop video, or at least stills from it, are attracting allegations of copyright infringement.
Whatever you do, don’t go to the Mail online’s report.
It does seem that Ms Rihanna and Mr LaChapelle have prior history working together.
Just to prove this is really a blog about IP law, I should draw your attention to our fair dealing defence for, er, parody and satire in the perhaps unlikely events that (a) this is an infringement or (b) Mr LaChapelle were to sue down here.
Rihanna’s new twist to S&M Read More »
The film studios have announced they have sought special leave to appeal from the Full Federal Court’s 2-1 decision dismissing their claim that iiNet infringed their copyright by ‘authorising’ its subscribers’ infringing activities.
AFACT press release
iiNet press release.
Meanwhile, the iiA is still working on a workable solution for the future.
Last month, iiNet (by the skin of its teeth) avoided being found liable for authorising the P2P infringing activities of users of its internet access services.
Kim Weatherall and Ass. Pro. David Brennan provide their respective initial takes here and here.
Perhaps in recognition that iiNet (and pretty much any other ISP) will be in big trouble if they sit on their hands when the next letter of demand comes in from AFACT notice comes in, Meanwhile on 11 March, the Internet Industries Association has announced that it is “fastracking” development of an industry code to deal with copyright infringement.
Roadshow v iiNet 2 Read More »
A few weeks back now, IP Australia released a draft Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 (pdf) and draft Explanatory Memorandum (pdf).
You can probably guess its overall objective from the exposure draft bill’s longer short title. The range of matters covered extends across 6 schedules:
Of the many things that struck my eye, the proposals:
As IP Australia’s announcement says:
Bill does not deal with gene specific issues, rather it seeks to raise patentability standards across all technologies. Gene specific issues are being considered separately by the Senate Legal and Constitutional Affairs Legislation Committee, and by the Government in its response to the Senate Community Affairs Committee’s Gene Patents report.
Over at Patentology Dr Mark Summerfield gives very detailed consideration to the pros and shortcomings of the obviousness reform, the changes to the requirement that patents be useful, the attempt to fix the law of fair basis (at least insofar as provisional specs are concerned), the new enablement requirement. Dr Summerfield seems to be on a roll, so there may well be more to come.
Comments and submissions should be provided by 4 April 2011.
Draft Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 Read More »
Over at Lawfont, Sarah reports that the terms of the Convergence Review have been announced.
This is not just about ‘regulatory’ matters. From the preamble:
…. At the same time, the globalising effect of the internet is profound and rapid, and has challenged regulatory boundaries.
New content services channelled through internet service providers and across jurisdictional borders are challenging traditional media business models and forcing governments all over the world to reconsider the assumptions behind existing legislation and regulatory frameworks.
….
The government wants to make sure that the policy framework upon which Australia’s industry structures and regulation are built is adequately designed for the convergent age and does not impede continued technological change and innovation. At the same time, the framework must ensure the ongoing protection of Australian content and cultural values, the adequate reflection of community standards and expectations and the safeguarding of privacy and other citizens’ rights.
The government recognises that any discussion of the production and distribution of Australian content raises issues of copyright in the digital age. The Review Committee may offer views on copyright and the ongoing protection of content in a converged environment, noting that the Attorney-General will ultimately determine these matters.
(my emphasis)
and point 2 of the terms of reference:
the Committee shall have regard to all legislation and regulatory frameworks relevant to these terms of reference and, where necessary, advise the government on issues outside the purview of the Minister’s portfolio responsibilities.
(my emphasis again)
[remembering, as the preamble noted, that copyright is within the Attorney General’s portfolio, not the Minister for Communications etc.]
The review is specifically directed to take into account amongst other things by point 5(b), (c) and (d):
We also heard (or read) last week that the ALRC will be told to keep its hands off the issues covered by the Convergence Review.
The Review is to deliver their final report to Government by the first quarter of 2012.
The terms of reference.
The Minister’s speech (not to Parliament) announcing the release of the terms of reference.
A Mr Boreham, from IBM, will chair the review; a Mr Long, with a background from the regulatory agencies, will be the second member and a third member is to be announced.
An earlier time, when “convergence” seemed new (and iTunes and P2P) were not even twinkles in our computer monitors (pdf).
Convergence Review: Let the bun fight(s) begin Read More »
The Commonwealth Attorney General’s opening address to the Blue Skies conference is here.
Some excerpts:
International reforms:
While recognising that the challenges of the digital era are a global, not just national, issue, the Attorney General identified access to cultural works by the visually impaired as an area for early action:
An example of one area in which I am particularly keen to see a result this year in the international arena is overcoming copyright barriers for visually impaired people in accessing copyright works in suitable formats. I understand that internationally, only five per cent of all works are available in accessible formats for the visually impaired. This is an unacceptable statistic and an acute problem for developing countries.
If there were hisses and boos from the audience, let’s hope it was for the right reasons!
On the domestic front:
For example, the definition excludes entities that do not provide network access but provide online services – Google and Yahoo are obvious examples of this category.
(That is the Attorney General’s example, not mine.)
The Copyright Advisory Group has approached me for an additional exception to allow circumvention of technological protection measures for certain education purposes.
In particular they have sought an exception that would allow schools to change the format of films from DVD to MP4 for teaching purposes.
It would seem that what is to be referred still involves considerable clarification. One area flagged:
I believe there would be merit in examining some exceptions under our law in the context of the online environment and whether the correct balance exists.
Another which the ALRC will not be allowed to cut across:
It will be important to not duplicate work undertaken by Government on various policy issues, or in the course of related reviews -for example the Government’s Convergence Review.
So, it seems the Convergence Review will not just be “regulatory”.
Lid dip: Jane Treleaven
Copyright reform agenda Read More »
Appeal dismissed:
Roadshow Films Pty Limited v iiNet Limited [2011] FCAFC 23
SMH report
However, Jagot J dissented and Emmett J warned:
Even though the Copyright Owners are not entitled to the relief claimed in this proceeding, it does not follow that that is an end of the matter. It is clear that the questions raised in the proceeding are ongoing. It does not necessarily follow that there would never be authorisation within the meaning of s 101 of the Copyright Act by a carriage service provider, where a user of the services provided by the carriage service provider engages in acts of infringement such as those about which complaint is made in this proceeding. It does not necessarily follow from the failure of the present proceeding that circumstances could not exist whereby iiNet might in the future be held to have authorised primary acts of infringement on the part of users of the services provided to its customers under its customer service agreements.
Lid dip: Sarah Matheson
It’s never too late to discover a government inquiry (at least before the legislation comes through)!
Back in December, the Minister for Broadband, Communications and the Digital Economy announced a Convergence Review.
Media Release, draft Terms of Reference and “home page“.
Given its departmental provenance and some of the discussion in the Background Paper, it might be thought the Review is mainly targeted at the Telco Act, the Radiocommunications Act and the Communications/Media regulator. There are some interesting straws in the wind for IP however:
First, the first draft term of reference:
(my emphasis).
In the Background Paper, there are also some interesting IP-related aspects:
So, at pp. 14-15:
Another trend affecting business models is the trend towards the ‘granular’ nature of media consumption; for example consumers can now download songs, not albums; watch specific TV shows on demand and not the linear programming of a channel, and read a single news article through an online search engine, rather than purchase and read the day’s newspaper edition. In the online world the consumer is in the driving seat of their own media and entertainment consumption patterns with more choice and control than ever before. In addition to the rise of competing online platforms and fragmentation of the consumer market, another challenge to established business models is that digital revenues are not yet matching analog ones. In 2008, NBC Universal CEO Jeff Zucker famously stated that media companies should not ‘trade analog dollars for digital pennies’24. By 2009, he quipped that this may have increased to ’digital dimes’25. While online revenues are growing and the gap is reportedly closing26, ensuring ongoing investment while balancing the difference between analog dollars and digital cents presents challenges to established media companies.
On p. 16 under the heading ‘Policy settings that encourage Australian, local, and children’s content’, the discussion about Australian content quotas imposed on tv and radio, ends:
The rise of these alternative audiovisual services and the growing fragmentation of the media market raises questions as to appropriate policy settings to ensure the ongoing production and distribution of Australian media content which reflects and contributes to the development of national and cultural identity.
(Their emphasis)
And, of course, the paranoid among you out there in cyberspace, will no doubt recall the rather cavalier treatment (e.g. here and here) meted out to iiNet before it won the (first round of) the Roadshow case.
Now, you could have fun (and spend lots longer than a year) on this: e.g. Prof Gans lambasts the authors (and, I guess, indirectly the other copyright owners who have similar ideas), but (for balance) also the App Store and, of course, until the Floods came, we were all twisted up with Gerry Harvey wondering if putting a GST on online purchases (overseas) will change the fact that you can often buy things online from overseas for prices 30-40% less than in stores here. Assuming of course you can “buy”: compare the tv shows or movies or books in the iTunes store or on Kindle or audible from Australia to what you can get with a US address, maybe. Somehow, I have avoided mentioning Google so far. Wonder how many examples the Review will come up with which lead to peeling back regulation?
Now, the time for commenting on the draft Terms of Reference closed on 28 January, so the scope of the review may become clearer. Then, there will be an independent committee to conduct the review, with their report scheduled for 1st quarter 2012.
One to watch!
Lid dip: Mary Wyburn
Convergence review Read More »
