IPRIA and CMCL at Melbourne Uni. are holding a half-day forum on 18 March on:
- Larrikin (Down Under)
- Telstra v PDC
IPRIA and CMCL at Melbourne Uni. are holding a half-day forum on 18 March on:
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 :
It may be particularly interesting to see why copyright did not subsist in the Yellow Pages directories, which were classified directories.
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  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  FCAFC 112; 119 FCR 491 and that the High Court’s comments on copyright subsistence in IceTV  HCA 14; 254 ALR 386 should be regarded as obiter dicta. I reject that contention. Firstly, IceTV  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  HCA 14; 254 ALR 386 at , ,  and . Thirdly, Desktop Marketing  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  FCA 612; (2001) 51 IPR 257 at . 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  FCAFC 112; 119 FCR 491. (The Genesis Computer System is considered in detail at ff below).
Telstra Corporation Limited v Phone Directories Company Pty Ltd  FCA 44
The pilot project being run be QUT, with support from New York University Law School and IP Australia is nearing the end of its first phase: there are a number of applications open for review until 9 March 2010.
According to IP Australia
The pilot has made a successful start, following its launch in December 2009. The community of reviewers has identified 27 prior art references and contributed 57 comments in the first eight weeks of operation.
A second round of applications will be posted on the website at the conclusion of the first phase and IP Australia is now calling for nominations for potential candidates for review.
For more details and to register as a commenter, click here.
The Attorney-General has announced that Justice Pat Keane will become the new Chief Justice of the Federal Court on the statutory retirement on 21 March of Chief JusticeMichael Black.
Justice Keane is currently a Justice of Appeal in Queensland and will become the third Chief Justice.
Lid dip: Peter Clarke
The Federal Court, Middleton J, has rejected Bodum’s allegations that
Playcorp Group of Companies Pty Ltd v Peter Bodum A/S  FCA 23
The judgment includes depictions of the products and their packaging in the appendices.
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 :
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  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)  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:
ACIP has published its final report into the Enforcement of plant breeder’s rights in Australia.
The report is here (pdf) – be warned 138pp, Exec Summary is 10pp.
A new “purchase” right be added to s.11. This new right would only apply to those taxa that are specifically declared in the regulations. Industry sectors such as wheat breeders would apply to the PBR Office to have particular taxa so declared.
The PBR Act be amended to clarify that harvested material that is also propagating material is to be considered as propagating material for the purposes of s.11, even if it is not being used for that purpose.
There be no change to the operation of farmer’s privilege under s.17.
However, s.17 should be amended to state in easily understood terms that s.17 does not provide the farmer with the right to perform the acts listed in s.11(a) to (g). For example, the farmer will still require the PBR owner’s authorisation to sell the reproduced propagating material, the harvested material or the product of the harvested material.
As part of IP Australia’s education and awareness programs, raise industry awareness of the opportunity under s.17(2) to have specific taxa excluded from the farmer’s privilege exemption.
Encourage PBR owners to make clear to growers the conditions of sale of propagating material and their obligations in relation to future generations of it. This includes making clear that growers require the authorisation of the PBR owner to sell crops grown from farm-saved seed.
The jurisdiction of the second tier of the Federal Court of Australia to include PBR matters.
Appropriately qualified magistrates must be made available and there should be appropriate measures taken to ensure the processes of the second tier are faster and cheaper than in the first tier. Examples include simplifying and standardising procedures for expert evidence and DNA testing through the issuing practice notes, use of alternate dispute resolution where appropriate, and curtailing of the discovery phase.
An on-going Expert Panel be established to provide guidance and opinions on general issues or specific cases concerning the PBR Act and related law. The Panel should comprise appropriate people with expertise in relevant areas who provide their services as required.
Upon request from any person and for a moderate fee, the Panel may provide detailed guidance and opinions on general issues or specific cases concerning the PBR Act and related law. The Panel should focus on the enforcement of granted rights and not provide advice on the registrability of individual applications for PBR. The Panel’s opinions should be made publicly available in a manner that respects commercially sensitive material. The Panel may refer matters to the Government or ACIP as it sees fit.