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 from the past week:
Selected microblog posts w/e 30/8/09 Read More »
Selected microblog posts for week ending 21/8/09 Read More »
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
Recent microblog (twitter) posts Read More »
IP What’s Up (USA) reviews a book demystifying software licensing (from a US perspective).
OUP’s link.
Software licensing Read More »
Plagiarism Today’s list of top 5 DMCA mistakes (and some things to do to avoid them).
Practical DMCA problems Read More »
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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Down the proverbial Technicon Read More »
Another round in AP’s war on the internet:
Associated Press would like to charge you for any extracts you take from its website.
Starting price is US$12.50 for 5 – 25 words.
Apparently, it’s the (iCopy)right thing to do!
I guess that means “they” think that now you can pay for the “service” easily it won’t be fair use (USA only) or fair dealing.
Lid dip: priorsmart
AP charges for quotes Read More »
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).
Procul Harum: paler shade of white afterall Read More »
Jacobson J has upheld Larrikin’s claim to be the owner of copyright in Kookaburra sits in the Old Gum Tree, which means, at least, that Larrikin has standing to sue Men at Work et al. for infringing copyright in that music.
Larrikin alleges that Men at Work’s Down Under (you know, unfurl the Boxing Kangaroo, declare a national holiday and have a beer with Bondy) infringes the copyright in “Kookaburra”.
The trial was supposed to start in June, but wasn’t ready so Jacobson J heard, as a preliminary question, Men at Work’s defence that Larrikin didn’t own the copyright.
How did this come about?
Margaret Sinclair wrote “Kookaburra” back in 1934 and submitted it into a competition being run by the Girl Guides for “A Singing Round with Music”. The published terms of the competition were:
RULES for ENTRY.
(a) The entrance fee for each entry in any of the Competitions to be 6d.
(b) A prize of 10/6 to be given to the winner of each section.
(c) The Competitions to be open to all enrolled members of the Guide Association in Australia.
(d) All matter entered to become the property of the Guide Association.
(e) The decision of the Judges to be final.
(f) All entries to be accompanied by the entrance fee of 6d. also name and address of entrants.
(g) All entries to be in by July 31st.
(my emphasis)
Miss Sinclair’s entry was the winner!
Larrikin, however, didn’t claim title from the Girl Guides. Rather:
Larrikin obtained assignments from first the Public Trustee (for the princely sum of $6,100 through public auction) and, later, the Library.
Jacobson J held that Men at Work hadn’t proved that Miss Sinclair assigned the copyright in Kookaburra to the Girl Guides back in 1934, so (although Men at Work argued the terms of the assignments were defective for reasons which his Honour is not alone in having trouble following) one or other of the assignments from the Public Trustee or the Library did the job.
The first problem for Men at Work was that there was no assignment in writing to the Girl Guides with Miss Sinclair’s signature on it. There was a manuscript with her signature and initials, but that was equivocal; it might have just been to identify the manuscript as hers and not some other entrant in the competition.
Similarly, Jacobson J considered it was pure speculation to assume that there must have been a signed entry form. Miss Sinclair was closely involved in the Girl Guides movement and it could not simply be assumed that she had submitted a form – she was well-known to the Guides – or even that she was aware of the terms of the competition.
Further, Jacobson J considered that clause (d) set out above was insufficient to do the work of an assignment. It might have just referred to property in the manuscript. Afterall, when you buy a book from your local (or online) bookseller, you get ownership of the physical copy, not the copyright.
Finally, there was evidence of conduct after the competition which indicated to Jacobson J that Miss Sinclair had never intended to assign her copyright. For example, in 1934 and 1935 she had donated to the Guides royalty payments she received from sales of printed copies of Kookaburra. The Guides, in turn, had thanked her for her generous gifts. They also sought permission from her in later years to reprint the music.
Where does that leave the case?
Well, first, it is interesting that Men at Work had to prove the assignment to the Guides and not Larrikin having to disprove it. I suppose that is because Larrikin was relying on the assignments from the Public Trustee and the Library so Men at Work had the burden of showing those documents didn’t work.
Secondly, presumably, it is yet to be decided whether or not some part of Down Under does actually reproduce the whole or some substantial part of Kookaburra. That would have been part of the postponed trial.
Then, there will be the question – assuming infringement be established – of how damages or profits are payable and whether or not the “innocence” defences in 115(3) and 116(2) are available.
The terms of the assignments set out in the judgments don’t appear to include assignments of the right to sue for past infringements. However, the assignments themselves should be sufficient to cover the 6 years before the proceedings commenced.
Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2009] FCA 799
Lid dip: Peter Nicholas
A little bit of trivia: Men at Work, with Down Under, are one of 9 pop acts that have achieved simultaneous No. 1s in both the UK and USA, according to Wikipedia.
Wonder whether anyone from Men at Work will be appearing on Spicks and Specks now?
Kookaburra gets the Vegemite sandwich Read More »
