LawFont.com

With all the current terror talk, perhaps it’s time that IP got in on the act. According to the IPKat, and from the New York Sun, the Metropolitan Transportation Authority in New York has filed a trademark application for the phrase ‘If you see, something, say something’, in order to police the phrase and those who use it. This is just wilful misunderstanding of trade mark law. (more…)

While I’m on the subject of copyright and the constitution, Simon Evans, a colleague here at Melbourne, the other day pointed me to his submission in the fair use/fair dealing inquiry. It’s an interesting read on some of the constitutional, rule of law and free speech issues raised by copyright exceptions – highly recommended. I’ve also added it to the list of submissions.

One of the passages in the recent High Court case on anti-circumvention laws (or the Oz-DMCA), Stevens v Sony which attracted a little bit of attention, even excitement from people I know the following part, from Justice Kirby’s judgment:

[216] The provisions of the Australian Constitution affording the power to make laws with respect to copyright operate in a constitutional and legal setting that normally upholds the rights of the individual to deal with his or her property as that individual thinks fit. In that setting, absent the provision of just terms, the individual is specifically entitled not to have such rights infringed by federal legislation in a way that amounts to an impermissible inhibition upon those rights constituting an acquisition. This is not the case in which to explore the limits that exist in the powers of the Australian Parliament, by legislation purporting to deal with the subject matter of copyright, to encumber the enjoyment of lawfully acquired chattel property in the supposed furtherance of the rights of copyright owners. However, limits there are.
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[218] To the extent that attempts are made to push the provisions of Australian copyright legislation beyond the legitimate purposes traditional to copyright protection at law, the Parliament risks losing its nexus to the constitutional source of power. That source postulates a balance of interests such as have traditionally been observed by copyright statutes, including the Copyright Act.’

But what do these passages really mean? (more…)

I don’t have time to say much at this stage on the TPM submissions, made to the Legal and Constitutional Affairs Committee in the context of its current review. I’m reading through them, in the hope of producing a kind of concentrated summary as I did for the fair dealing review. I suspect there are many more yet to come onto the website. I’ve already commented on the CAL submission, of course.

However, I commend to interested people the ABC submission. In its discussion, the ABC makes it clear just why some exceptions are necessary, if we are to have an effective free media. The submission highlights the practicalities that sometimes intrude and that academics like me sometimes forget. In particular, the submission makes the explicit argument that:

Australian law must comply with the implied right to governmental and political discussion. Any law which protects TPMs but which does not permit an exception to allow free government and political discussion will not be appropriate and adapted to its purpose and will be unconstitutional.

This implied constitutional right plays a critical role in the media and is fundamental to the ABC meeting its charter.’

Interesting reading.

Well, it’s true. iTunes have apparently launched in Australia.

Ah, the government submission process. Having finally completed my submission on the inquiry into TPM exceptions being run by the Legal and Constitutional Affairs Committee, now I can’t publish it until they decide to publish it. Shame really. I’ll put up a link as soon as it happens…

Oh well, in the meantime, if you’re starved for my views (as if!) there is the submission I made on the Attorney-General’s review of the availability of Safe Harbours under Part V Div 2AA of the Copyright Act. (more…)

iTunes? In Australia? I just can’t get my hopes up again…I couldn’t stand the disappointment…

Interested in why/how the High Court refused special leave in The Panel case? Read Starkoff’s post.

UPDATE: Warwick Rothnie has also commented at some length on the issue. (true confessions: not sure I agree with Rothnie’s basic point here, which is that, in the end, substantial part is just a matter of fact/judgment. But while I think our law on ‘substantial part’ is now problematic for Part IV works, that’s not the Full Federal Court’s fault. That’s the High Court’s fault, for saying that ‘quality’ is relevant for Part IV subject matters. How do you judge ‘quality’ of non-original works, if not by the ‘highlights’ method used by the Full Court?).

According to the Sydney Morning Herald, this past year the High Court of Australia has upheld a record number of appeals from the New South Wales Court of Appeals:

Herald research shows that of 52 cases, 40 decisions of lower courts have been reversed – a success rate of almost 80 per cent.

Last year it upheld only 34 of 55, and in 2003 it was 33 of 56. Last year only 12 of 20 appeals against NSW decisions succeeded.

This means, of course, that in many cases the High Court has found that the trial judge decided the case correctly in the first instance — as was the case in Sony v Stephens, where the High Court agreed with Justice Sackville’s original finding that Eddy Stephens was not liable for having circumvented a technological protection measure.

Alan Fels and Fred Brenchley have an opinion piece on anti-circumvention laws, mod chips, the Stevens v Sony case, and the current moves to reform Australian TPM law in the Australian Financial Review today (sorry, subscribers only). A taste: (more…)

At a time when there’s a little flurry about the application for a trade mark for ‘MADE IN AUSTRALIA’, it’s interesting to see this little Parliamentary Library Research Note on the significance of Country of Origin labelling. As you might expect, it shows there is little research, but what there is suggests that country of origin does matter to Australians: (more…)

Submissions are starting to find their way onto the website of the Legal and Constitutional Affairs Committee website. That committee is doing an inquiry into the exceptions that should be provided to the new anti-circumvention laws which must be enacted in Australia as a result of the Australia-United States Free Trade Agreement.

In its submission in the fair use/fair dealing inquiry, The Copyright Agency Limited (CAL) found history, harking back to the invention of the wheel, which it appears CAL did not realise was a recent Australian invention, which received an Innovation Patent.

Now it’s serious. CAL have found religion: (more…)

You might recall that on 5 September of this year, Justice Wilcox handed down judgment in Universal Music Australia Pty Ltd v Sharman License Holdings Ltd, colloquially known as the Kazaa case. It’s all about whether Sharman and others authorised infringement of copyright occurring over the Kazaa network. Wilcox J held that they did. I commented on the case at the time.

Were you wondering what had happened in the case? Whether it was on appeal? What was being done about the orders, at the time, requiring Sharman to make adjustments to their technology with a view to reducing the level of infringement occurring via the Kazaa network?

Well, thanks to the wonders of the Federal Court’s eCourt facilities, we can find out. (more…)

So they launch a video iPod. And The Australian headline notes, ‘Nothing on new iPod’. Warwick Rothnie talks about it here.

Rather, the headline should probably be, ‘Nothing new on iPod’. According to news reports, the device will play video you create yourself. So, my guess would be, it plays unprotected formats.

And we all know what happens when a device plays unprotected formats. Like, say, the iPod does with, say, mp3s. Right? Or am I wrong about this? Is there anything on this iPod which will prevent people playing, say, tv episodes downloaded from P2P networks or elsewhere?

When I commented on Stevens v Sony (here, and then here), I focused on the issue of the meaning of the anti-circumvention provisions. As others have pointed out (here, and Warwick Rothnie here), other matters were raised in the case – in particular, the meaning of reproduction in material form, or ‘copy’. William Patry has some interesting views on the issue today.
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