AIPPI Sydney 2017 – Day 3: patents, copyright and …

Some more reports from the AIPPI Congress 2017 in Sydney – Day 3:

  1. My post on the panel discussing the issues patenting medical devices (apparatus or apparatus + drug) including significant changes in the EU next year;
  2. Clare Cunliffe reporting on the panel discussing issues arising when an innovator is seeking a final injunction against another innovator (rather than a generic); and
  3. James Elmore’s report on the Business of IP – IP venturing.
  4. Clare also reports on intermediary liability for copyright infringement.
  5. Finally, James reports on the panel on whether not identification of the technical problem solved by the patent is required in the USA, the EPO, China and Japan.

AIPPI Sydney 2 – music and the digital revolution

i was lucky enough to attend a panel on the impact of the digital revolution on the music industry featuring discussants with real world experience.

You can see my report over on the IPKat.

My barristerial colleague, Clare Cunliffe, also has a report on inventor remuneration.

i understand more reports of other sessions are in the pipeline.

AIPPI Sydney

Over the weekend, I shall be attending the annual Congress of AIPPI in Sydney.

Lots of interesting sessions and practitioners from all round the world

If you are attending or in the vicinity, say “hello”.

More consultations – copyright edition

The Copyright Regulations 1969 and the Copyright (Tribunal Procedure) Regulations 1969 are due to “sunset” – by which they mean “expire” – on 1 April 2018.

The Department of Communications and the Arts, therefore, has released exposure draft regulations for the Copyright Regulations 20171 (pdf) and the Copyright Legislation Amendment (Technological Protection Measures) Regulations 2017 (pdf) for consideration and comment. Fortunately, there is also a 47 page consultation paper (pdf) which identifies various ways in which the new regulations are proposed to differ from the old Regulation through 13 questions.2

Submissions are required by 6 October 2017.

Some of the new matters addressed include

  • prescribed requirements for industry codes under the carriage service provider safe harbours;
  • a number of new prescribed acts where it will be permissible to circumvent technological protection measures:
    • for use of copyright material by a student enrolled in a course of study in an educational institution solely for the purpose of and in circumstances set out in sections 40, 41, 41A, 103A, 103AA or 103C of the Act provided that the use was solely for the purposes of a student complying with the requirements of the course of instruction
    • for use of copyright material by a person who carries out research for an educational institution solely for the purpose of and in circumstances set out in sections 40, 41, 41A, 103A, 103AA or 103C of the Act provided that the use was solely for the purposes of a person carrying out his or her research duties for an educational institution
    • for use of copyright material for educational purposes by or on behalf of a body administering an educational institution, acting under section 200AB of the Act
    • use of copyright material by or on behalf of a person with a disability under Division 2, Part IVA of the Act
    • use by libraries, archives and Key Cultural Institutions (as prescribed in the Copyright Regulations), under Division 3 of Part IVA of the Act
    • use in relation to access by or for persons with a disability (under Division 2 of Part IVA of the Act)
    • for use of copyright material for educational purposes undertaken under the statutory licence under Division 4 of Part IVA of the Act
  • as is the case now, there are provisions for all sorts of notices and even new questions about how they should be published.

At the grumpy old man level:

Why does reg. 12 dealing with “industrially applied” refer to 50 “articles” when section 77 refers to “products”?

Also, in a move designed to cause confusion or which fails to appreciate the difference between a section in an Act and a provision3 in a regulation, we apparently now must refer to provisions in regulations as “sections”. That should make it much easier for everyone!

There is also a Review of the Code of Conduct for Copyright Collecting Societies. If that one keeps you awake at night, you need to get you submissions in by 29 September 2017

  1. The Tribunal Procedure regulations will be rolled into the general Copyright Regulations. ??
  2. At 96 pages in length, I am certainly not to be taken to be guaranteeing those matters are the only new matters or changes. ??
  3. Formerly known as a “regulation”. ??

 

Government response to Productivity Commission IP report

The Government has published its response to the Productivity Commission’s Intellectual Property Arrangements – Final Report.

Further comment will have to await. In the meantime, the media release notes:

A key priority will be to align Australian inventive step law with international best practice to ensure that the necessary protections are available to deserving inventions. The Government has also accepted the Productivity Commission’s recommendation to phase out the Innovation Patent System.

and, in not accepting the proposal to adopt a general “fair use” defence to copyright:

It is important copyright reform is considered in a holistic context rather than focused on individual issues. We will continue to work closely with stakeholders over the next 12 months to develop effective options for copyright reform.

The Australia Copyright Council is very pleased.

There will also be a new IP Policy Group (within government) to, er, monitor IP policy!

According to the Government’s Media Release, the Government is still considering the merits of a number of other proposals and “will work on these further”.

Australian Government Response to the Productivity Commission Inquiry into Intellectual Property Arrangements (pdf)

Media release 25 August 2017

More third party website blocking injunctions

Nicholas J has granted another round of injunctions ordering ISPs to block access to offshore copyright infringing sites.

Having established the ground rules in the earlier applications (here and here), the ISPs didn’t turn up; essentially just filing submitting appearances and agreeing to be bound by the orders.

According to this News report, once these orders are implemented a total of “65 piracy sites and 340 domains” will be blocked in Australia. That is claimed to be “95 per cent of the criminal trade blocked”.

Apparently, the film companies:

plan, later this year, to sue any individual that continues to download pirated content.

Roadshow Films Pty Ltd v Telstra Corporation Limited [2017] FCA 965

100 blogs about IP

Not quite 100 flowers, but Feedspot has posted a listing of 100 IP blogs from around the world.

Some of them, I subscribe to myself.

You may find some interesting too!

Copyright amendments passed

The Copyright Amendments (Disability Access and Other Measures) Bill 2017 has now been passed by both Houses of Parliament.

The bulk of the amendments introduce reforms to improve access to copyright works by people with a disability to give effect to Australia’s obligations under the Marrakesh Treaty – and simplify the statutory licences for collecting societies and educational institutions.

Schedule 2 amends the term of copyright in unpublished works so that they will not remain in copyright indefinitely. The precise term will depend on when the work is first made public, what type of work it is and whether the identity of the author is generally known.

In broad terms, the term will be reduced to 70 years after the author’s death if the work is never made public. If the work was first made public before 1 January 2019, the term can still run for 70 years after the work is finally made public. If the work is first made public on or after 1 January 2019, anonymous works can still get 70 years after publication if they are first published within 50 years of being made.

Minister’s press release

Read the bill as passed and the explanatory memorandum via Parliament’s bills page.

Lid dip: Australian Copyright Council’s update service.

In which the lawyers don’t lose themselves

Eminem is suing a New Zealand political party for infringing his copyright in New Zealand in Lose Yourself.

A bit of background here.

Part of the barrister’s opening for Eminem plays the two songs and is attracting social media commentary on what is said to be the surrealist way lawyers in court behave.

Meanwhile, we all get to express an opinion (however well informed) on whether there’s an infringement or not.

Lid dip: Therese Catanzariti

More safe harbour consultations

You may recall that, when the Copyright Amendment (Disability Access and Other Measures) Bill 2017 was introduced into Parliament, it was missing the schedule in the exposure draft that extended the “safe harbour” provisions from “carriage service providers” to “service providers”.[1]

This is apparently a complicated issue and so the Government has announced it is engaging in a round of consultations led by no less a personage than the Secretary of the Department of Communications and the Arts.

The Secretary is required to report to the Minister on the outcome of the consultations by early June 2017.

Press announcement here and, if you want to try to be invited to the consultations, some contact details here.

Anybody wonder what President Trump would do if he found out we were in breach of the Australia – United States Free Trade Agreement?[2]


  1. The safe harbour provisions protect “carriage service providers” from liability to damages where they merely provide the facilities used by an infringer: see ss 116AC, 116AD, 116AE and 116AF.  ?
  2. Check out article 29(b) of Chapter 17.  ?