February 2006

US copyright expert William Patry (Former copyright counsel to the U.S. House of Representatives, Committee on the Judiciary; Policy Planning Advisor to the Register of Copyrights) has commented on the US Copyright Office’s orphan works proposal, which I commented on briefly last week. Prof. Patry has also written, with Justice Posner, on orphan works (get the article here). Worth noting this paragraph from Patry’s commentary:

‘As with all such recommendations, there will be those who are disappointed that their recommendations were not adopted and some who are relieved more sweeping changes were not suggested. The report is, however, principally a discussion document, one for Congress to evaluate to determine first if it believes a legislative inititative is warranted, and if so, what its initial form should take. If legislation is proposed, there will be plenty of opportunity for all to have their say and attempt to shape the final product. The proper way to view the report, therefore, is as an excellent vehicle with which to advance the debate.’

The New York Times has a story on the use of data held by internet companies in court. I don’t think it’s actually all that new a story; it’s more of a ‘lawyers are finally starting to catch up with the net’ story, in the same way you would have had a story about lawyers coming to terms with fax technology 20 years ago. (more…)

The question in Conor Medsystems Inc v The University of British Columbia (No.2) [2006] FCA 32 (Finkelstein J) was this:

  1. if you have two joint patentees
  2. one of those joint patentees is a University which claims title through two people claiming to be inventors,
  3. but it turns out that those people were not in fact inventors,
  4. is the patent liable to revocation, on the grounds that it was not granted to the actual inventors or those claiming under them even though the other patentee is not affected by the problem?


A new voice in Australian blogs: Joshua Gans, a colleague of mine in Melbourne, has started a blog, apparently due to Andrew Leigh’s inspiring influence. Gans’ research focuses on areas of applied game theory: specifically in the nature of technological competition and also in various aspects of the regulation of market power. He writes/comments/consults on competition, innovation – that kind of thing. Definitely worth watching.

There’s a story in the Australian Financial Review today (sorry, not available online) which notes some comments by the Attorney-General appearing to favour harmony on copyright exceptions, and noting that it seems ‘intrinsically unfair’ if material that would be able to be used under fair use in the US is not so freely useable here in Australia.

Has anyone noticed the recent anti-smoking advertisements showing on television – you know, the ones that talk about how no matter what colour the pack, and no matter whether called ‘mild’, or ‘light’, or ‘low tar’, cigarettes are still toxic? Probably you have – they’ve been around quite a lot lately.

So here’s the question: how many people, do you think, realise that this is corrective advertising, required as a result of some undertakings given to the ACCC by some of the leading cigarette manufacturers in Australia? And why isn’t that part of the advertisement? (more…)

I commented the other day about the Blackberry patent dispute between RIM, makers of the Blackberry device, and NTP. My comments were basically on the court processes, but there are ongoing issues happening in the Patent Office. The new development? I’ll just quote TechDirt:

The US Patent Office today issued yet another non-final rejection of an NTP patent, meaning all five at the center of its legal battle with Research In Motion have been given non-final rejections. … It’s been said before, but bears repeating: to rule in the case before the Patent Office acts seems awfully premature.

…the OECD has just held a major conference on the Future of the Digital Economy. Michael Geist, who attended, has a summary of the ‘big themes: the battle over DRM, and network neutrality.

(via Joe Gratz) The US Copyright Office has recently conducted an inquiry into the impact of copyright on use of, and access to orphan works – in essence, works where the owner of copyright cannot be identified. The very long time copyright lasts tends to lead to lots of these orphan works – where copyright owners die, or go out of business. It has often been noted that copyright term extension gave protection that might be useful for a very small proportion of works, but also closed off the possibilities for using, or making available the massive body of these little orphans.

The US Copyright Office has now completed its inquiry, and has recommended a statutory defence, which would limit the availability of injunctions, and limit monetary awards to ‘reasonable compensation’, provided that a person first carried out a good faith, reasonably diligent search to locate the owner before going ahead with use of an apparently orphan work. (more…)

Next week, the Arts Law Centre is providing a week of FREE seminars, workshops and advice clinics on legal issues relevant to the multicultural communities in Melbourne. They’re running in Fitzroy. The event is a partnership between the Arts Law Centre of Australia, Multicultural Arts Victoria, the Victorian Multicultural Commission and the City of Yarra. (more…)

The Attorney-General announced yesterday that the Australian Law Reform Commission will review the Privacy Act 1988 (Cth). The ALRC press release is here. The reference to the ALRC follows the recommendations of two other, briefer reviews which reported in mid-2005. While you might ask why we need another review after those two, the advantages I think are twofold: (1) it is the ALRC, which does ‘active’ review (it doesn’t just wait for submissions), and (2) the terms of reference are pretty broad. (more…)

Yesterday I asked whether anyone knew what was going on in the Kazaa case (you know, the one where the Music Industry is suing Sharman (Kazaa) for providing P2P software and authorising infringement of copyright. In particular, I was asking whether the contempt hearing previously scheduled for Monday 30 Jan went ahead.

My query has been answered! David tells me that the question of contempt has been reserved for the Full Court hearing in the case: an order has been made (available in the ESearch facility of the Federal Court’s database, CaseTrack), to this effect:

‘Pursuant to s 25(6) of the Federal Court of Australia Act (Cth) 1976, reserves, for the consideration of the Full Court constituted to hear pending appeals in this matter, the question whether, having regard to the nature and terms of order 4 made on 5 September 2005, a determination of contempt of court may be made in respect of the contraventions of that order alleged in the statement of charge.’

So this adds to the long list of things that Branson, Lindgren, and Finkelstein JJ will be pondering in the week commencing 20 February 2006 (soon!).

Ta David!

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