April 2006

Perhaps a glass less than half full? Perhaps empty?

The decision in the passing off/s 52 case brought by Cadbury against Darrell Lea, for DL’s use of the colour purple, has ended with (as a friend put it) Cadburys’ in something of a screaming heap. Cadbury was claiming that DL’s use of purple was misleading to consumers, or involved DL ‘passing off’ their goods as having some connection with Cadbury. It’s part of Cadbury’s general campaign to claim rights in the use of purple in selling chocolate: they also have trade mark applications on foot.

This battle in the general war has been lost. Nope, says Heerey J. No passing off. And some rather interesting comments about Cadbury’s use of the colour with potential salience in Cadbury’s trade mark application.

UPDATE: according to one of my commentators on Weatherall’s Law, the decision in the Trade Mark Office, where Cadbury’s application for a colour mark has been opposed, was handed down last Friday (hmmm, the day after the Judge’s decision was handed down…). I don’t, however, know the result and the decision isn’t yet online… If anyone does know, you can comment anonymously….

Next Friday will be the one year anniversary since the release of the Fair Use Issues Paper by the Attorney-General’s Department. Since that time, there have been a number of live question shanging over Australian copyright law: will many everyday acts continue to be copyright infringement? Will we end up with more of the same (narrow, specific exceptions) or will some flexibility be built into the Copyright Act? A story in the Age yesterday updates current developments. (more…)

But yes, this remarkable feat has indeed been achieved. From the Attorney-General’s Press Release for World IP Day:

“Every section of our community benefits from copyright,” Mr Ruddock said.

“For example, copyright ensures that ANZAC Day and the rich literature and artwork which record wartime experiences, are respectfully used and the creators properly rewarded.”

The recent release of the Australian film Kokoda, which tells the wartime story of an Australian platoon sent to patrol a village on the Kokoda track in New Guinea, demonstrates the vital role that creative industries play in our community.

“The film also reminds us of the many fine literary accounts by Australians of this pivotal moment in our history,” Mr Ruddock said.

“Whatever the medium, copyright plays a critical role in encouraging artists to inform, educate, entertain and inspire Australians.'”

Wow. In more important news, IP Australia have a new website, the IP Media Centre, which seeks to explain IP for journalists. It has some useful summaries of various IP laws.

Been wondering about the ‘Access to Knowledge’ (or A2K) movement? What it might be about? Well, Yale have been having a conference on the issue – and there’s quite a few papers linked from the site. But for a bit of an overview, check out Jack Balkin’s speaking notes, which he has posted on his blog.

Rothnie and Starkoff have both already noted that the Full Court has finally – 11 months after hearing the issue granted leave to appeal in the Woolworths v BP case. Don’t get too excited – the appeal on the merits hasn’t been heard yet. Rothnie says it will likely be heard in August. As a decision on whether leave should have been granted, this case is an examplar of why you should get your procedure right and not just assume courts will fix any errors you make. But as a judgment which foreshadows what some of the issues in the appeal might be, this decision shows that some of the more fundamental issues currently in debate in trade mark law – in particular, just what rights you get as the owner of a ‘colour’ trade mark – could end up being canvassed. (more…)

A quick break in transmission message.

Life trumps blogging, and right now, there are more important things going on. Ben and Sarah may still be blogging, but for me – well, check back in a week or so.

Further evidence of the music industry adage “where there’s a hit, there’s a writ”: the 2nd Circuit Court of Appeals in the United States has rejected an appeal by author Lewis Perdue in respect of his claims that Brown copied from two of Perdue’s works in writing The Da Vinci Code.

The case was not a simple copyright suit brought by Perdue; it was actually brought by Brown and his publisher, Random House, seeking a declaration of non-infringement. Perdue then counter-claimed for infringement. Brown succeeded at first instance, and the court of appeals just upheld that decision. The appeal decision is not available online, but most of the trial documents are, at a website maintained by the plaintiff Perdue. (more…)

Time for some Friday morning links, if you are in a reading mood today:

  1. Michael Geist has a column this week on The Legal Limits of Government Tinkering with Technology. It discusses the French legislative proposals to mandate the interoperability of digital products: law which would require Apple to reveal technological specifications to its competitors so that they can design compatible devices, so that iTunes songs would play on anything. Australia makes a particular appearance in the column, with Geist commenting about the TPM Inquiry’s recommendation that the government establish the legal right to break region coding as part of Australia’s new anti-circumvention laws.
  2. James Boyle has a column this week too, on documentary films and the clearance culture. A taste:

    This should be the Golden Age of documentary film, and in some senses it is. A profusion of television channels allows programs that cater to smaller and smaller markets. As viewers, we show an insatiable appetite for biographies of the famous – celebrity infomercials disguised as documentaries – but we also show a taste for quirkier material: … There are documentaries about mental illness and spelling bees and Star Trek fandom – though not all in the same film. And the drop in the price of cameras and editing software, together with the availability of internet distribution, potentially puts a million documentarians on the streets.

    But as Larry Lessig and others have pointed out, documentary film is rapidly becoming the latest victim of the explosion of intellectual property rights I have discussed in these pages. Ironically, the problem here is not a broadening of the rights themselves, but a “clearance culture” that demands licenses for the tiniest fragment of copyrighted material caught in the viewfinder or on the soundtrack of the documentary film.

    Boyle is writing from a US/international perspective. But similar issues were noted in Australia in a recent report for SADC, the Council for Documentary Makers (click here for the BIG pdf). The report, released in November 2005, noted that investors such as the FFC and AFC require a legal opinion that all material used in the documentary has been examined for violation of third party copyright and all necessary clearances obtained. Insurance premiums have also increased. It’s a shame that that same report didn’t look at doing what has been done in the US though – producing a ‘Best Practices’ Model for the Industry that reflects a consensus on what uses are and aren’t acceptable without a clearance. For the most part, the Best Practice Model produced by the Centre for Social Media is a very reasonable set of guidelines on when clearance should be obtained. Something similar could be created for Australia.

  3. The other story doing the rounds of the blogosphere and media at the moment is the Philips Electronics patent application on technology that could let broadcasters freeze a channel during a commercial, so viewers wouldn’t be able to avoid it. See eg Techdirt. 4 brief comments on this:
    (a) oops bad publicity,
    (b) this is proof of one fundamental truth about intellectual property: that having a right doesn’t mean you have a marketable product. What, people are going to buy this? What, if people don’t want to buy it, governments are going to back the right of content owners to impose this technology on people? Even as they try (as our government is at the moment) to ensure that legitimate uses of legitimately accessed materials are preserved?
    (c) There is a move to parse out all the ‘consumer value’ in content and make it something that can be charged for. You can imagine paying ‘extra’ for the ‘right’ to channel surf. There are rights owners who think that is a legitimate method of doing business. Although see point (b) above.
    (d) Philips have apparently commented that they had no intention of using the technology in their products, but ‘Philips wanted to provide the technology and seek the patent only as part of the broader developments within the industry’. How many ways are there to say ‘patent arsenal’?
  4. Remember that story about the chef from Interlude from a couple of weeks ago (you know – chef copies other chefs’ dishes). One of the issues I mentioned there was whether a dish at a top class restaurant could be a ‘work of artistic craftsmanship’. Well, have a look at this opinion piece in the Sydney Morning Herald today on the cake decorators of the Royal Easter Show. Does it change your mind on whether food creations can be works of artistic craftsmanship?

Oh yes, little flurry in the blogosphere over a story about Telstra buying Ads on Google so that Telstra’s ads would appear when someone searched for their broadband rival AAPT. As usual, the story attracted attention (see the IPKat, the Trademark Blog, Warwick Rothnie, Search Engine Watch Blog, Young PR, and Joshua Gans).

Only Gans points out that this is common practice (with examples! Go have a look). But is it legal? (more…)

I just caught a replay of Glenn Reynolds being interviewed on C-Span. For those who don’t know, Reynolds blogs as Instapundit, and was one of the pioneers of blogging. The interview ranged widely, and although primarily focussed on politics (unsurprising, given the nature of his blog), did cover some IP territory. (more…)

The great thing about being an IP professor is that you get to comment on the pressing information technology and information freedom issues of the day.

Like, oh, chefs copying other chefs’ creations. (blogpost here)

And, oh, the BIG issue: will elvis impersonators still have a livelihood in the future? Last night, if you watched closely, you might have seen me spouting forth on ABC news on the issue of whether transactions recently occurring over the Elvis Estate in the US would lead to Elvis impersonators losing their jobs (short version of the story here). Apparently, a new majority holder in Elvis Enterprises is threatening to crack down on ‘unauthorised’ Elvis impersonators. ABC News called me to comment (on my day off!!! Nothing like taking time out from a heavy shopping expedition to do a quick media interview. And nothing like taking a quick stop by the Myer make-up counters to get ready…).

Frankly, I can’t see that there will be a legal issue for the impersonators here. Far more important issues were being ventilated by Cory Doctorow last night in Melbourne (and tonight in Sydney – go if you can!) (more…)

I’ve blogged here, and more extensively here, about a case before the Copyright Tribunal, in which CAL and the Schools are seeking a determination on how much schools should pay for ‘electronic uses’ of copyright material. I’ve been concerned (amazed, appalled) by one of the arguments being made in the case: that where a teacher tells a student to view a website (yes, a freely available, open access website) there should be a payment to copyright owners. I’ve pointed out at length why I think this is a simply unsustainable argument. Now we have a Tribunal decision on what should be done pending determination of that argument. (more…)

….drug company pressure on developing country officials and governments. Grrrr.

Just came across this story (on SecondView) via Jamie Love on the Huffington Post: Big Pharma company Pfizer (and there aren’t many bigger) are suing a Philippine government-owned company (PITC, Philippine International Trading Corporation), the Philippines equivalent of the TGA (BFAD, Bureau of Food and Drugs) and two Philippine government regulators personally (the BFAD director and one other staff person). What Pfizer object to is the importation, from India of samples of a drug that Pfizer sells in both the Philippines and India, and for submitting the samples to the government drug regulatory agency. It’s a fine example of inappropriate pressure being applied to government (particularly through the personal law suits), which indicates two things:

  1. Developing countries should be supported, and encouraged to use the flexibility available in international treaties – the Phillippines needs springboarding provisions and may need support to enact them; and
  2. Drug companies can be utterly unscrupulous in their use of the law. Not sure what we can do about that, but examples like this should be highlighted and publicised.

More detail over the fold. (more…)


Yochai Benkler has followed a trend set by such people as Larry Lessig and Michael Geist, and made his new book, The Wealth of Networks, available under a Creative Commons License. He’s gone further than Lessig or Geist, I think, and has put the ideas in the book – which are all about commons-based and cooperative production – to the test in the real world. It will be of interest to anyone who thinks the whole concept of the Commons, Creative Commons, and ‘social production’ are interesting. Comments on this method of publication, and the book itself, over the fold. (more…)

A colleague asked me the other day: if a US company decides to offer its TV shows for free online, but limits the downloads to US internet users only (blocking out us poor sucker Aussies), are they doing anything illegal?

The question stemmed from Wall Street Journal reports that Disney plans to offer popular tv shows like Lost and Desperate Housewives for free online (see also Michael Geist on this)

I couldn’t think of anything that would make this illegal. Possibly stupid, given the reported levels of TV-show downloading in Australia, but not illegal. But then I thought, well, in recent times, people commenting on this blog, and more particularly on Weatherall’s Law have proven the old blog adage that the comments generated by a post are often more interesting than the post itself – and that commenters collectively are smarter than the blogger.

So help me out here guys. Is there anything illegal going on in that scenario?

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