Copyright

Ramifications of IceTV

Last February, Gordon J ruled that there was no copyright in White Pages subscriber listings and (perhaps more surprisingly) Yellow Pages listings. Now, Stone J has applied IceTV (here and here) to find that copyright did not subsist in medical records held by a range of general practitioners.

Primary Health Care (PHC) is a publicly listed company that has been buying up medical practices. As part of the purchase, the medical practitioner contracted to work at the new practice for a period. The vendor practice’s patient records consisting of (1) consultation notes, (2) prescriptions and (3) referral letters were transferred to the new PHC practice. PHC claimed deductions from its income tax for depreciation of the value of the copyright said to subsist in the patient records and the Commissioner disallowed the claim.

Stone J accepted that copyright subsisted in the sample patient referral letters written by the medical practitioners and one sample consultation note (the so called di Michiel patient 6), but rejected the claim to copyright in all the other sample patient records. Her Honour did note that her ruling was not a finding that copyright could never subsist in any patient records, only that it did not subsist in the particular samples addressed in the case.

The case could easily become a ready instructional tool for students and “new” intellectual property lawyers.

The consultation notes

Each practice maintained a file for each patient. The file usually consisted of a summary sheet which contained information such as the patient’s name, address, age, medicare number and, sometimes, important medical issues. This information was usually taken down by the receptionist or other clerical staff. In addition, there were cards, or sheets of paper, or in some cases electronic records containing a series of notes entered sequentially about each consultation with the patient.

All the notes recorded for di Michiel patient 6 were in fact made by Dr di Michiel himself. In the case of all the other samples tendered in evidence, however, the individual notes were made by different practitioners: sometimes the principal, sometimes an employee, sometimes a locum and sometimes another partner in the practice.

This led to PHC’s first problem.

Stone J held that the consultation notes where the entries were made at different times by different practitioners were not works of joint authorship. Her Honour did accept that that, at least in some cases, the consultation notes for each patient could be seen as a continuous narrative. They were not, however, the fruits of a collaborative effort in which the contributions of each author could not be distinguished. To the contrary, each individual contribution could be simply identified by looking at the different handwriting for each entry. (Hmm. I wonder what would happen if all the entries were made electronically and it was not possible to identify who made them?)

A first consequence of this conclusion was that large swathes of many of the consultation notes fell out of consideration as, following IceTV, (1) the person who had actually written them – the author – had not been identified and (2) nor was it established that those unidentified individual authors were “qualified persons” as defined in s 10(1).

The principals of the sample practices (well, some of them) were able to identify various individual entries in particular consultation notes that they had written. That, however, led to the second problem.

Some entries were simply listings of medical conditions. Three examples particularly relied on by PHC by 3 different doctors for 3 different patients were given in [127]:

(a) Triferne 28 Microgynon 20 C&N
(b) H/T, NIDDM, Asthma
(c) Hypertension, Uterine Fibroids, Pagets D, Lumbar Disc Deg

While these entries conveyed information, her Honour held that such clinical data and the names of particular medications did not originate with the doctor who recorded them.

Some were more developed – 3 further entries for 3 different patients:

7kg – growing well. On fresh milk and vitamins

Now c/o diarrhoea – possibly antibiotic induced …

Last 2/12 notices wheezy breathing if lies flat – associated with dry irritant cough – Says doesn’t feel SOB

These too “were not sufficiently substantial to qualify as works the product of independent intellectual effort directed at expression.” Stone J explained at [133]:

None of this denies the intellectual effort and professional skill needed to form the diagnoses, to select methods of treatment or to understand the significance of clinical data that is recorded, however, copyright protects a form of expression not this underlying expertise.

On the other hand, Dr di Michiel patient 6 record, which did constitute a continuous and single work as a whole, was an original work.

Sample prescriptions

The sample prescriptions [113]-[114] and summary notes were at [135] similarly too insubstantial to qualify “as original literary works embodying independent intellectual effort directed towards expression.”

A problem of assignment

A further problem for PHC was that only one of the sale  agreements included an express assignment of copyright. Stone J refused to infer an intention to assign the copyright, as distinct from the property in the physical record, from the sale of the medical practice as a going concern. It simply wasn’t necessary to infer such a term. The lack of such necessity was supported both by the fact that PHC did not claim copyright in third party documents forming part of the patients’ medical records, such as x-rays and letters from specialist consultants, and a consideration of how the records were in fact used after the sale.

No use of copyright

As to the second point, while PHC claimed that the copyright was used after the sale, most of the evidence was not consistent with this. In one case, her Honour accepted that the records had been transferred into a computerised database (and so the copyright was used) but, in the other cases, the most that could be said was that some information only had been used.

Primary Health Care Limited v Commissioner of Taxation [2010] FCA 419

Ramifications of IceTV Read More »

How much to pay for a music download?

The Canadian Federal Court of Appeal has ruled that no royalty is payable for downloads (should that be “streaming”?) of those 30 second previews of music. Apparently, it falls with the fair dealing provisions for “research”. The “1709” blog has the story.

Meanwhile, last year, the Australian Copyright Tribunal accepted that music download services such as iTunes, Bigpond Music, Sony and Universal should pay composers a royalty of:

  • the higher of 9% of retail price or 9 cents per track, for music downloads; and
  • the higher of 8% of retail price or 8 cents per track,

for single track downloads. There is a sliding scale for the track rates where an album, rather than a single track, is downloaded.

As the price on iTunes is typically $1.69 per “song”, I guess the % rate will usually apply for single track downloads.

(This is just what the composers get paid for the transmission and reproduction on the ‘buyer’s’ computer; not what the record companies or performers (will) get.

The composers’ collecting societies, APRA and AMCOS, had started out trying to get 12% but, in the end, the monopolies and the monopsonistic buyer(s) wound up reaching agreement. Even the ACCC, after some twisting and turning seems to have gone along with the deal, perhaps in recognition of the fact that the Copyright Act specifically gives the Copyright Tribunal power to fix these rates.

By way of comparison, the Copyright Tribunal reported that the corresponding rates were:

• United Kingdom – 8%.
• Canada – 11%.
• United States – 9.1 cents.
The rate in the United States is a fixed monetary rate. The vast majority of single track downloads in the United States at present are supplied at a price of 99 cents per download. Thus the monetary rate is equivalent to 9.1% of the sale price.

Australasian Performing Right Association Limited and Australasian Mechanical Copyright Owners Society Limited [2009] ACopyT 2

How much to pay for a music download? Read More »

Recorded music royalties at the gym

The Copyright Tribunal has ordered a very significant increase in the licence fees payable by fitness clubs for the use of recorded music.

At this stage, there seems to be press reports only:

The old fee was 96.8c per person attending the class, capped at $2654 per year. The new fee will be $15 per class or $1 per attendee.

This is just the fee payable to the record company, not the fee for the composition payable to APRA.

Presumably it follows on the striking recalibration effected in the Hotels case.

Recorded music royalties at the gym Read More »

Copyright fest in Melbourne

IPRIA and CMCL at Melbourne Uni. are holding a half-day forum on 18 March on:

  • iiNet
  • Larrikin (Down Under)
  • Telstra v PDC

Speakers are:

 

David Brennan, Melbourne Law School
Melissa de Zwart, University of South Australia
David Lindsay, Monash University
Beth Webster, Intellectual Property Research Institute of Australia
Philip Williams, Frontier Economics
Details and registration here.

Copyright fest in Melbourne Read More »

No copyright in telephone directories DownUnder

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]:

For the reasons that follow, copyright does not subsist in any Work. None is an original literary work. By way of summary:
  1. among the many contributors to each Work, the Applicants have not and cannot identify who provided the necessary authorial contribution to each Work. The Applicants concede there are numerous non-identified persons who “contributed” to each Work (including third party sources);
  2. even if the human or humans who “contributed” to each Work were capable of being identified (and they are not), much of the contribution to each Work:
2.1 was not “independent intellectual effort” (IceTV [2009] HCA 14; 254 ALR 386 at [33]) and further or alternatively, “sufficient effort of a literary nature” (IceTV [2009] HCA 14; 254 ALR 386 at [99]) for those who made a contribution to be considered an author of the Work within the meaning of the Copyright Act;
2.2 further or alternatively, was anterior to the Work first taking its “material form” (IceTV [2009] HCA 14; 254 ALR 386 at [102]);
2.3 was not the result of human authorship but was computer generated;
the Works cannot be considered as “original works” because the creation of each Work did not involve “independent intellectual effort” (IceTV [2009] HCA 14; 254 ALR 386 at [33]) and / or the exercise of “sufficient effort of a literary nature”: IceTV [2009] HCA 14; 254 ALR 386 at [99]; see also IceTV [2009] HCA 14; 254 ALR 386 at [187]- [188].

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

No copyright in telephone directories DownUnder Read More »

Larrikin Merry As It Can Be

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

Larrikin Merry As It Can Be Read More »

ISPs, authorisation and copyright DownUnder

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:

 

The first step in making a finding of authorisation was to determine whether certain iiNet users infringed copyright. I have found that they have. However, in reaching that finding, I have found that the number of infringements that have occurred are significantly fewer than the number alleged by the applicants. This follows from my finding that, on the evidence and on a proper interpretation of the law, a person makes each film available online only once through the BitTorrent system and electronically transmits each film only once through that system. This excludes the possible case of a person who might repeatedly download the same file, but no evidence was presented of such unusual and unlikely circumstance. Further, I have found, on the evidence before me, that the iiNet users have made one copy of each film and have not made further copies onto physical media such as DVDs.
The next question was whether iiNet authorised those infringements. While I find that iiNet had knowledge of infringements occurring, and did not act to stop them, such findings do not necessitate a finding of authorisation. I find that iiNet did not authorise the infringements of copyright of the iiNet users. I have reached that conclusion for three primary reasons.
Looks like there will also be interesting obvservations on the operation of the Telecommunications Act and the role of iiNet’s policy vis a vis repeat offenders.

Howard Knopf and Michael Geist look at the decision from Canadian perspectives.

ISPs, authorisation and copyright DownUnder Read More »

Selected microblog posts (w/e 11/09/09)

Selected microblog posts from the past week:

  • RT @VogeleLaw: Found: Mary Beth Peter’s testimony (via @cathygellis – thanks!) http://bit.ly/Cijau #gbs_hearing [US Copyright Register opposes Google Book Settlement]
  • Google Book in the EU? http://ff.im/-7OYfA
  • RT @MegLG: A Billion Dollar Test of the DMCA Safe Harbors in Viacom v YouTube http://ow.ly/om66 via Cyberlaw Cases
  • RT @michaelgeist: Microsoft wins stay of injunction on Word. Case arises from patent claim by Toronto’s i4i.http://bit.ly/oDmLU
  • IP Think Tank Blog looks at i4i v Microsofthttp://ff.im/-7zfKp
  • AAR on UWA v Gray – Universities and their employees: who owns developed IP? http://ff.im/-7RmgI
  • Hannahland: Ph D candidate on UWA v Gray http://ff.im/-7WcoR

Selected microblog posts (w/e 11/09/09) Read More »

IPRIA, parallel imports

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?

IPRIA, parallel imports Read More »

Selected microblog posts for week ending 21/8/09


Selected microblog posts for week ending 21/8/09 Read More »