Following on from the earlier post, the Full Court did, however, dismiss ACER’s appeals against Besanko J’s rulings that:
Dr Hart owned the copyright in the SOQH, even though it was created while he was employed by the Department of Education; and
The assignment of the right to sue for past infringements was valid.[1]
The ruling on the right to sue for past infringements is particularly important as it is the first substantial appellate consideration of the question. It is all the stronger because it was executed some 2 years after the assignment of copyright but Besanko J and the Full Court found there was sufficient nexus with the copyright assignment to support its validity.
The Full Court has upheld Insight SRC’s appeal that it was entitled to compensatory damages under s 115(2) of the Copyright Act.
When ACER committed the infringements by reproducing the SOHQ, Dr Hart, the owner of the copyright, exploited it through his Insight company as an informal licensee or licensee at will.[1] As is probably not uncommon with “family” companies, the terms of the licence were so unclear Besanko J could not ascertain them. In these circumstances, Besanko J had ruled at [118]:
it is necessary to consider what action Dr Hart could have taken immediately prior to the execution of the Deed on 12 May 2011 by way of a damages claim for infringement of the copyright in the SOHQ. The possibilities are general damages under subs 115(2) and additional damages pursuant to subs 115(4) of the Act. As to the former, the difficulty for the applicants is that Dr Hart was not personally conducting a business involving the use of the SOHQ between the beginning of 2006 and 1 October 2009 and it has been no part of their case before me that Dr Hart personally would have exploited any commercial opportunities with ISV. Furthermore, Dr Hart did not claim that he could recover any such loss as the major shareholder of Insight SRC and that the Court could lift the corporate veil. On the other hand, what Dr Hart did have as the copyright owner was a right to nominal damages for infringement of copyright and a right to claim additional damages under subs 115(4). ….
ACER had used the copyright infringements to obtain contracts with ISV. It appears to have been accepted by both sides on the appeal that ISV would have had to award the contracts to Insight to be permitted to use the copyright. Bearing in mind that damages under s 115(2) are compensatory, the Full Court considered Dr Hart had suffered loss in the form of being prevented from procuring for his company the contracts ACER obtained by its copyright infringements. At [23]:
it is safe to infer that Dr Hart’s damage was the value of the loss of his ability to cause Insight to enter into a contract with ISV that would have generated the profit of $130,000 for Insight as found by the primary judge. Neither party at the trial asked his Honour to assess, as an alternative, the value of the loss of a chance to make such a contract.
From here, things get tricky. The Full Court went on to say at [24] that Dr Hart’s loss was not the royalty he would have received through the licence arrangement or the dividend he might have been paid from Insight’s profits:
An important component of this identification of what Insight’s damage would have been, is that Dr Hart wanted Insight to benefit by receipt of the profit. That is different to the characterisation urged by ACER that his damage was what might be received by him after Insight, Insight Holdings and the interposed trusts had received and made sequential distributions. Dr Hart used his efforts in exploiting the copyright to benefit Insight.
The reasoning seems to have been influenced by the proposition that a donor of a gift is entitled to recover the replacement value of the gift if it is wrongfully destroyed by another before receipt by the intended donee. (Perhaps, the real problem was that the licence arrangement was so amorphous[2] that it was not really possible to identify what fee was payable for the use of the copyright.)
In an attempt to kill off the case once and for all, the Full Court then went on to say that Dr Hart was entitled to at least $130,000 and, if the parties didn’t accept that, maybe more.
The $130,000 figure is interesting. It is the amount of profit Besanko J found ACER made on the ISV contracts it obtained by infringing the copyright. Presumably, that is the damages that Besanko J would have awarded on the basis that Insight would also have made that much profit.[3] I’m not sure why that follows but, perhaps, the Full Court had in mind that, possibly, Insight’s profit may have been higher than ACER’s as it may have had lower overheads?
Wouldn’t things have been easier if the majority in Aristocrataristocrat had agreed with Rares J’s view (and that of the English courts) that a reasonable royalty could be awarded as compensatory damages?
Insight did not become a formal, exclusive licensee until ACER’s infringements ceased. Bit more on the ownership, assignment and additional damages questions here. ?
The Full Court described it as “the informal, oral or bare licence that he granted it, or treated it as having had before the formal, exclusive licence [was] granted”. (emphasis supplied) ?
Damages under s 115(2) being an alternative to an account of profits must be the loss the copyright owner suffered, not the profits the infringer made which is the remedy obtained through an account. See e.g.Aristocrat and Rifai. ?
Well, a patents and designs case, but really it’s a case about entitlement: Kenny J has upheld the validity of patents and registered designs for “beer taps” which one company in the Fosters group – Foster’s Group Ltd – applied for “most likely [by] mistake”[1] as one of its subsidiaries, Fosters Australia, was the owner.
Fosters Australia commissioned another party to design some new beer taps for it, on terms that it would own the resulting IP.
When the applicatins for the patents and designs were filed, however, they were filed in the name of Fosters Group Ltd, Fosters Australia’s parent and the holding company of the group.
When the mistake was discovered, Fosters Group assigned everything to Fosters Australia. By then, however, the designs had been registered in Fosters Group’s name, although innovation patent applications were still pending.
Fosters Australia has sued Cash’s for infringing its patents and designs. Cash’s defences asserted invalidity on the basis, amongst other things, that Fosters Group was not an entitled person or the grant was obtained by fraud, false suggestion or misrepresentation.[2]
Kenny J rejected the attack on the patents on the basis that s 29 did not require an applicant for the patent to be the entitled person or someone claiming through him or her; it was necessary only that the patent was granted to someone who qualified under s 15. Kenny J further held that Fosters Group could assign the benefit of its applications to Fosters Australia.
Similar reasoning would apply to the designs s 21 and s 13, but the designs were already registered before Fosters Group assigned its rights to Fosters Australia. However, Kenny J found in circumstances that Fosters Group held the applications and registrations on constructive trust for Fosters Australia.
Patentology makes the point that, while all’s well that ends well, care needs to be taken in deciding who should make the application before it is filed.
Jacobson J has found that Bluescope’s “Smartascreen” metal fencing panel infringed Gram Engineering’s Registered Design No. AU 121344 for a fencing panel as an obvious imitation. Perhaps the most interesting finding, however, is why the Smartascreen was not a fraudulent imitation.
vs
Smartascreen
Gram’s design was registered in 1994, so this is an “old Act” case (invalidity here and infringement here). [1] At the time, it was the first fence panel to feature a symmetrical design: looking the same no matter which side of the fence it was viewed from and, as a result, it was a roaring success capturing some 40% of the market. One interesting aspect of the case is that Bluescope’s Smartascreen product was introduced in 2002. Although Gram Engineering knew about it from around its introduction, it did not commence infringement proceedings until 2011 – after the registered design had expired in 2010.
Bluescope’s attack on validity failed. [2] First, the prior art on which Bluescope relied were for roofing or siding panels, not fence panels, and so not relevant articles. Moreover, the prior art and the registered design had the same general “z-shape”, but were intended to be used horizontally (“weatherboarding) rather than vertically and none had the same combination of 6 panels with the same proportions and angles as the registered design. Hence, while some features may have been present in some of the prior art, none of the prior art included all the features and the registered design looked distinctively different.
Jacobson J then found that the Smartascreen was an obvious imitation: the dominant feature was the same sawtooth look with the (unique) 6 panel frame in the same proportions and with the same angle.
Fraudulent imitation
On this question, Jacobson J found that Bluescope:
knew that the design was registered;
knew that Gram had achieved runaway commercial success
was trying to design a “Gram lookalike”
had come up with a number of different symmetrical designs which were different to Gram’s design
and had adopted a standard panel size of 762mm (which matched Gram’s physical embodiement) instead of the more typical 820mm panel size.
In these circumstances and given his Honour’s finding of striking similarity, Gram Engineering argued it was inconceivable Bluescope had not copied Gram’s design and so a finding of fraudulent imitation should follow.
However, Jacobson J considered that fraudulent imitation required a finding that Bluescope’s design had been deliberately copied from the registered design. This may prove to be a considerable narrowing of the requirement in Polyaire that the accused product (at [17]) be based on or derived from the registered design or (at [19]) make use of the registered design.[3] It was, however, decisive. His Honour was not prepared to find that either of the key designers who came forward did deliberately copy. It was here that Gram Engineering’s delay in bringing proceedings came back to haunt it. As his Honour explained at [382]:
It is a conclusion which I have reached with some reservation because the striking similarities to which I referred above were not satisfactorily explained in Bluescope’s evidence. I have no doubt that the drawing of 17 November 2000 was designed to look something like the Gram product. It was, as Gram submitted, designed with an eye to the GramLine sheet. However, it is plain that Mr Field was involved in the process. This appears from the concluding remarks of his memo of 15 November 2000. Ultimately, it is his absence from the witness box which precludes me from reaching the view that the process of designing a Gram lookalike was one which entailed copying the Gram design.
The Mr Field in question was unable to give evidence at this stage in view of his advanced age (being retired) and illness.
If his Honour had been prepared otherwise to find fraudulent imitation, however, the fact that it had obtained advice that its product did not infringe the registered design would not have saved it.
“…. The kind of fraud that the Act seeks to remedy is closer in kind to, but is still not entirely analogous with, equitable fraud, which, for its establishment, does not require that an actual intention to cheat must always be proved; proof of misconception of the extent of a person’s obligation, to act or to refrain from acting in a particular way, may suffice”. ?
The Full Court has partially allowed an appeal from Foster J’s decision to order Knott Investments to stop using the Winnebago trade marks for “campers” or RVs not made by Winnebago. As a result, Knott can continue to use “Winnebago” if it can make it clear it is not associated with the Winnebago company.
Some facts
From about 1959, Winnebago had been making and selling its RVs under that brand name in the USA and eventually other countries including the UK and Canada, but not Australia.
Winnebago logo
In the early 1960s, Binns became aware of the Winnebago name and logo while travelling around the USA. In 1978, Binns and his wife started manufacturing and selling their own RVs in Australia under the name “Winnebago” and using the Winnebago logo. In 1982, they incorporated Knott which then took over running their business.
The Winnebago company discovered what Knott was up to by 1985. However, the Winnebago company did nothing about this until 1992 when the parties entered into a “settlement” agreement. Following this, Knott kept making and selling its own Winnebago brand RVs and registered the Winnebago logo as trade marks. Winnebago itself did nothing further until 2010, when it wished to enter the market in Australia and started proceedings alleging misleading or deceptive conduct, passing off and seeking revocation of Knott’s trade mark registration for Winnebago and the logo.
When do you test whether conduct is misleading or deceptive
The Full Court allowed Knott’s appeal insofar as it related to when Knott’s conduct had to be tested as misleading or deceptive. Foster J held this was in 1982 when Knott was recorded in the Register of Business Names as having commenced running the business, there being no formal documentation of a transfer of the business. The Full Court, however, considered that Knott was plainly the successor in title to the Binns’ business and so the relevant time was 1978, when the Binns started up.
This is important because the Full Court unanimously considered the relevant time to assess whether conduct is misleading or deceptive under s 52 of the TPA (as it was) and s 18 of the ACL (as it now is) is the date when the “infringer’s” conduct started, not some later date.
As it turned out, however, this did not help Knott much as the Full Court considered the evidence clearly established Winnebago had a “spillover” reputation in Australia in 1978 even though it had not traded in Australia at that point.[1] Therefore, Knott (and the Binns’) conduct was likely to mislead or deceive.
Estoppel, laches, acquiescance or delay
The issue that loomed large in the Full Court’s eyes was Winnebago’s delay in bringing proceedings to enforce its rights – 25 years after it first learned of Knott’s activities and 18 years after the “settlement” agreement. Over that period of time, Knott had built up its own substantial reputation in “Winnebago” in vehicles of its own manufacture.[2]
First, the Full Court agreed with Foster J that the “settelment” agreement did not authorise or concede any rights to use “Winnebago” to Knott. Clause 6 provided:
This Agreement does not address, impact upon, or relate in any way, manner or form to the use or ownership of the [Winnebago marks] in Australia or to any rights relating to the [Winnebago marks] based on reputation or use under any statute or at common law in Australia. By entering into this Agreement, Winnebago does not expressly or impliedly acknowledge that Australian Company has any rights of any nature whatsoever to the [Winnebago marks] in Australia. To the extent not expressed in this Agreement, this Agreement shall be without prejudice to the rights of Winnebago and Winnebago expressly reserves all of its legal rights.
Knott argued, however, that the 18 year delay in bringing proceedings meant it was unjust to permit Winnebago to bring proceedings now. Allsop J despatched this argument for six:
First, there was no clear representation, arising either out of the Settlement Agreement or from the conduct. The terms of the agreement, in their context, contained a degree of commercial ambiguity. The terms, however, of cl 6 could leave no doubt in Mr Binns’ mind that any practical confidence in him that Winnebago was not going to sue him was not based on any right conceded by Winnebago. He proceeded at his own risk. The finding by the primary judge at [155] of the reasons (not specifically challenged) that Mr Binns knew there was a risk of having to rebrand his product if Winnebago entered the market is also fatal to the submission. (emphasis supplied)
Allsop CJ and Jagot J rejected Knott’s arguments based on laches, acquiescance and delay both for similar reasons and because Knott had expressly disclaimed them at trial.
Notwithstanding this, the Full Court considered that Foster J’s order that Knott be restrained from using the Winnebago trade marks was unjust. Even though Knott (or, really, Binns) had adopted the Winnebago trade marks to take advantage of the Winnebago company’s reputation and there was evidence that some members of the public had been misled, nonetheless, Knott had over decades built up its own substantial, independent reputation. Instead, therefore, the injunction should only prohibit use which did not appropriately disclaim any trade association with the Winnebago company. At [67], Allsop CJ explained:
This limitation of relief can be seen to reflect not only the balancing of the respective interests of Knott and Winnebago in the reputation developed by Knott’s expenditure, in the context of Winnebago’s extraordinary (and informed) delay, but also the erosion of the reputation of Winnebago ….
and
The evidence reveals sufficient to conclude that at least some of Knott’s reputation in the use of the name and marks was the development of its goodwill and reputation; that not all of the development of its business involved the taking advantage of Winnebago’s reputation in Australia. In normal circumstances, this would not matter; it would be something that the party passing off would have to accept as a consequence of its wrongdoing. Here, however, Winnebago has contributed to this by standing by, informed of the position, for 25 years while Knott expended money and built a business, part at least of which was its own reputation. (emphasis supplied)
The disclaimer or dissassociation had to be clear on the vehicles Knott made in future as well as in its advertising and promotional material.
The third member of the Court, Cowdroy J, did not explicitly reject the laches or acquiescance defence, but agreed in the approach of Allsop CJ saying at [106]:
the Court considers that the granting of relief to completely restrain the appellants from the use of the Winnebago marks to be unreasonable in light of the substantial delay by Winnebago.
Finally, the Full Court upheld Foster J’s order to cancel Knott’s registration of the Winnebago trade marks. Knott had registered these in direct contravention of the terms of the “settlement” agreement.
Some thoughts
In 1992, a representative of the Winnebago company had written to its then Australian lawyers explaining:
… While we are obviously interested in persuading or compelling Mr Binns to cease using the subject marks in Australia, I really do not think that we can justify any additional expense. We are not selling our products there nor do we have any plans to do so. There has in the past been some indication that Mr Binns was experiencing some financial duress and perhaps with any luck he will go broke. In any event, at least for the time being, I think we will just continue to monitor this situation … [3]
No doubt, the sentiments will resonate with everyone advising a foreign brand owner in Australia. The Full Court’s approach may provide a warning. The terms of the “settlement” agreement were sufficiently limited to preserve the Winnebago company’s right to enter the market and object to misrepresentation of association, but failure to enforce its rights promptly has left it encumbered with a competing, independent user of its brand. On the other hand, Knott did not bring matters to a head in negotiating the “settlement” agreement and finds itself constrained. As Allsop CJ said, it ran the risk. How the disclaimer should be effected is unclear, but there are indications in Allsop CJ’s reasons that Knott has been able effectively to dissociate its business from the Winnebago company, while still using the Winnebago trade marks, since 2003.
Some 5 years after it went hunting, Tamawood[1] has successfully sued Habitare (now with administrators and receivers and managers appointed) for infringing copyright in house plans.
Copyright in some plans was infringed (Torrington v Duplex 1 & Duplex B); but not in others (Conondale / Dunkeld v Duplex 2 & Duplex A).
One point of interest: Habitare commissioned Tamawood to develop plans for 2 new houses for it. These plans were submitted to the Brisbane City Council to obtain development approvals. The relationship with Tamawood broke down, however, and Habitare continued to use the plans. Collier J found that the “usual” (i.e. Beck v Montana)[2] implied licence did not apply here. It did not apply because Tamawood did not get paid the “usual” fee for doing the job: rather, it agreed to prepare the drawings at no cost on the basis that it would build the houses once development approval had been obtained. Once the deal fell through and Habitare decided not to proceed with Tamawood as the builder, therefore, its rights to use the plans terminated.
Continuing with the licensing theme, Mondo (which Habitare eventually used to design the houses in dispute) did infringe copyright by creating the infringing plans Duplex 1 and Duplex B plans. It did not infringe Tamawood’s copyright, however, when it downloaded the Torrington plans from Tamawood’s website. Tamawood made the plans available on its website for the whole world to see and download so Collier J considered Mondo’s purpose in using the downloaded plans to design competing houses was not relevant.[3]
(Mondo did succeed in its cross-claim against Habitare and 2 of its principals for misleading or deceptive conduct: they told Mondo that the copyright issues with Tamawood had been sorted out or resolved.)
A second point of interest is that the builder of Habitare’s infringing houses, Bloomer Constructions, successfully made out the “innocent infringer” defence provided by s 115(3). Cases where this defence has been relied on successfully are as rare as the proverbial hen’s teeth. It seems to have been because the builder became involved very late in the day: it had no knowledge of Tamawood’s involvement in the earlier stages and the plans it was provided with had Mondo’s name or title block.
Finally, a curiosity: the reasoning on authorisation liability manages not to refer to Roadshow v iiNet at all, but refers extensively to University of NSW v Moorhouse. In the event, Habitare apparently conceded it would be liable for authorising the infringements of the others. Two of its principal officers, Mr Peter O’Mara and a David Johnson, managed to escape liability, however. While they were heavily involved in the business, their involvement was mainly on the finance side rather than sales and marketing. Collier J seems to have found that, within Habitare, responsibility for the conduct that infringed had devolved on to 2 other officers, Shane O’Mara – Peter O’Mara’s son – and a Mr Speer. Her Honour also considered that, by engaging Mondo as architects, Peter O’Mara and Johnson took “reasonable steps to prevent or avoid the doing of the infringing act”.[4]
There is no discussion in the judgment of whether Tamawood’s website included a notice purporting to limit the use of the site, for example, to “personal use” or “private and non-commercial use” (whatever either of those may mean) or in any other way. ?
See s 36(1A)(c). No claim for authorisation or procurement appears to have been pursued against Shane O’Mara or Speer. ?
Most of the substantive Raising the Bar amendments came into force today.
Amongst other things, schedule 1 of the Raising the Bar Act introduced a raft of changes designed to raise the threshold of patentability – i.e., make it harder to get a patent.
These include:
introducing the really diligent searcher of prior art for obviousness via changes to s 7(3)[1] so that it will be permissible to combine any piece of prior art with common general knowledge (if the skilled addressee could reasonably be expected to combine the two), not just those elements of the prior art that the skilled addressee could be reasonably expected to have found;
a new concept of utility based on the US approach; and
doing away with the ’old’[2] fair basis requirement in s 40 as interpreted by the High Court in that Lockwood ruling.
Instead of fair basing, a patent will be required by s 40(2) to disclose:
(a) the invention in a manner which is clear enough and complete enough for the invention to be performed by a person skilled in the relevant art; and
(aa) the best method known to the applicant of performing the invention; and …
“The claim or claims must be clear and succinct and [fairly based on the matter described] supported by matter disclosed in the specification.”
Provisional specifications will have to meet the requirements set out above in s 40(2)(a) also.
This is intended to introduce into Australian law the requirements under the UK’s 1977 Act: s 72(1)(c).
The Court of Appeal[4] provides an interesting example of how these new rules should work in it Merial ruling. Merial had (at least) 2 patents relating to its Frontline brand of flea-treatment products. One of these, the 881 patent survived the attack on sufficiency of description, but the other, the 564 patent did not.
Kitchin LJ identified the crucial difference between the 2 patents at [85] – [86]:
…. This was a matter to which the judge expressly referred at [77]:
”77. In contrast to the examples in 881, the examples of 564 simply specify different concentrations of the active ingredients. The examples do not contain any formulation details beyond saying that there should be present a crystallisation inhibitor, an organic solvent and an organic co-solvent.”
This then was the critical difference between the disclosures of the two patents. Omnipharm failed to establish that the practical guidance given by the examples of the 881 patent was not sufficient to enable the skilled team to work across the breadth of the claims. But the 564 patent claimed a combination of actives and did so without any worked examples at all. It provided no real practical assistance over and above the common general knowledge.
Kitchin LJ accepted Merial’s argument that the UK Act did not impose an obligation to include examples of the way the claimed invention worked. However, his Lordship considered that was not why the trial judge, Floyd J, upheld the attack. Rather, the description was insufficient because it did not give sufficient guidance about which ingredients to choose and in what proportions. So, Kitchin LJ explained at [89]:
I reject these submissions. I think it is clear from [151] – [152] that the judge did not find that the absence of any detailed examples was, in itself, fatal to the sufficiency of the 564 patent. What rendered it insufficient, in his view, was the absence of proper exemplification of a formulation of the invention in the context of a specification which was generally inadequate to guide the skilled person to success and provided no real practical assistance beyond the teaching of the prior art and the common general knowledge. The specification contains no more than a very broad indication of the components of the formulation and, as the judge found, it is not a sufficient description to enable the skilled person to arrive at formulations across the breadth of the claims without undue effort.
One illustration of the problem with the 564 patent was set out earlier at [83]:
The disclosure in relation to solvents and co-solvents is something the judge also had well in mind, as is clear from [66]-[67]. Here he referred to the dielectric constant ranges which the solvent and co-solvent must meet, and that the co-solvent must have a boiling point below 100°C. He also referred to the lists of suitable solvents and co-solvents. This information would not, however, be of any practical use to the formulator who, as Dr Walters explained, would have to fall back on his general knowledge of solvents and techniques for enhancing spreading and skin penetration in order to decide on the appropriate solvent system to use.
Neither the Court of Appeal nor Floyd J at first instance set out at length the legal principles underlying insufficiency for these purposes. However, Floyd J had earlier set out his understanding of ‘classical insufficiency’, Biogen insufficiency and ‘insufficiency through ambiguity’ at [361] – [454] in Zipher.
Omnipharm Ltd v Merial [2013] EWCA Civ 2 via IPKat
ps.: those who attended David Brennan’s talk last year will find his ‘Monash paper’ in 38(1) Monash University Law Review 78.
Austlii doesn’t seem to have caught up with all the minutiae yet. ?
The ‘old’ rules will continue to apply for all standard patents granted before 15 April and any pending applications for which a request for examination had been made before 15 April. (This the pre–15 April 2013 version of s 40 will break when the new rules come in.) ?
where the words in between [ and ] are deleted by the new Act ?
The Commonwealth Government’s Pharmaceutical Patents Review has published a draft report.
The draft Report is some 200 or so pages long; contains 4 draft findings and 15 draft recommendations (although recommendation 5 relating to the extension of term regime proposes 2 different alternatives).
There appears to be considerable, fascinating data reported. The scope and detail of the draft report will plainly require much further consideration.
At the policy level, the draft report considers there has been a significant failure of co-ordination between the various regulatory bodies that deal with issues relating to pharmaceuticals and patent protections:
Draft recommendation 10.1: The Government should establish a non-statutory Pharmaceutical System Coordinating Committee (PSCC) that reports to Parliament on an annual basis on the success and effectiveness of the patent, marketing approval and PBS systems, particularly where these interface. The PSCC should ensure there is sufficient engagement and coordination between the relevant agencies and take account of costs to government, efficiency of registration and approval processes and respond to issues raised by industry. The PSCC should comprise senior officials from at least DIICCSRTE, IP Australia, DoHA (Pharmaceutical Benefits Division and TGA), DFAT, Finance and Treasury (as chair).
This appears to reflect a general concern with the need for greater policy and practical concern throughout the report. See e.g. draft recommendation 7.2 (calling for an external (to IP Australia) patent oversight committee) and draft recommendation 3.2.
Recommendation 6.1 proposes retaining extension of term just for pharmaceutical products and not extending it to methods of use or manufacture. The bipolar recommendations 5.1 and 5.2, however, explore different ways of prescribing the term of the extension.
Other topics addressed in the draft report include: the impact of international agreements on Australia’s welfare, evergreening and follow-on patents, data protection
Comments on the draft report are required to be submitted by 30 April 2013.
(1) the US Supreme Court declared US law applies a doctrine of international exhaustion for copyright material
(2) Adobe, Apple and Microsoft fronted the Australian Parliament to explain why digital “things” cost so much more in Australia than elsewhere (i.e., the USA).
Apple’s defence said, amongst other things, it was the price it had to pay to the owners of Australian copyright – lovely chart here. Other reports (with more analysis) here and here (which may be challenges Apple’s explanation a bit for its own products).
That didn’t really work as an explanation for Adobe, which gets lambasted here.
Perhaps, just maybe, treating digital downloads as a single global market might lead to some lowering of prices, but the beauty of digital delivery (from the content owner’s perspective) is that you can set your price and the customer can buy or not.
Is there a link between (1) and (2)?
In his analysis, Prof. Goldman sets out a number of reasons why he thinks Kirtsaeng, while it may provide some good news in terms of lower prices, will have only a short term effect.
(I suppose we can trumpet the fact that our technological protection measure protections don’t extend to protecting region coding (here and here), although I do wonder how one would prove that was the purpose of the (ac)tpm.)
The 1709 Blog has a report about the operation of the resale royalty right scheme (here or here) given by the (then) Minister for the Arts to the Senate.
Some highlights:
since the scheme started in 2011, CAL (the official collecting agency) has paid out just over $805,000
150 “rights holders” (I guess that would be painters or their heirs) have received the top 600 payments which totalled just under $300,000
59% of the payments went to indigenous artists; of which there were 301 payments of the top 600 payments going to 91 “right holders”
