From a contributor:

So I was walking down Martin Place at 5pm on Monday night. A group of about 10-15 pilgrims were having their photos taken. Most were standing or sitting on top of the military memorial, happily shouting out and whooping it up. Normally I would politely ask people doing this to step off the memorial out of respect for the people it commemorates (soldiers who died in their service to the country).

But I didn’t, because I was worried I might be accused of “annoying” them and getting arrested.

Is this a chilling effect or what?

The relevant rule is in the World Youth Day Regulation 2008, specifically reg 7(1)(b):

7 Control of conduct within World Youth Day declared areas

(1) An authorised person may direct a person within a World Youth Day declared area to cease engaging in conduct that:

  • (a) is a risk to the safety of the person or others, or
  • (b) causes annoyance or inconvenience to participants in a World Youth Day event, or
  • (c) obstructs a World Youth Day event.

(2) A person must not, without reasonable excuse, fail to comply with a direction given to the person under subclause (1).

Maximum penalty: 50 penalty units.

(3) A person is not guilty of an offence under this clause unless it is established that the authorised person warned the person that a failure to comply with the direction is an offence.

(4) In this clause, authorised person means:

  • (a) a police officer, or
  • (b) a member of an SES unit (within the meaning of the State Emergency Service Act 1989) or a member of the NSW Rural Fire Service, but only if the member is authorised by the Authority in writing for the purposes of this clause.

So even assuming that the conduct can be classed as “annoying”, it first looks like they need to be “participants in a World Youth Day event”. This is defined in the principal act (World Youth Day Act 2006) as follows: “World Youth Day event means any event determined by the Authority to be an event associated with World Youth Day 2008.” A private lark looks like it might not qualify.

Next, you need to be directed to “cease” engaging in the conduct, by a police officer or authorised member, and they must “warn[ ]” you “that a failure to comply with the direction is an offence”.

Finally, you have to “fail to comply with” that direction “without reasonable excuse”. If you’ve already said your piece and moved on, then this might not apply.

But, once the section bites, it can bite hard: the maximum penalty is 50 penalty units, which is $5,500. (Note that a lower penalty may be awarded.)

To give some context, this is the same maximum penalty as:

  • * impersonating, or falsely representing to be an authorised building inspector: sec 86 of the Building Professionals Act 2005
  • * a casino operating free liquor as an inducement to gamble in the casino: reg 23, Casino Control Regulation 2001
  • * advertising that you are a chiropractor when you are not registered: sec 7, Chiropractors Act 2001
  • * failing to notify the Commissioner of Police in writing within 14 days if your genuine or legitimate reason for owning a firearm is no longer valid: reg 14, Firearms Regulation 2006


The Full Federal Court has just declared reg 7(1)(b) “invalid to the extent that it seeks to prevent merely annoying conduct”: see Evans v State of New South Wales.

The key passages are:

83 In our opinion the conduct regulated by cl 7(1)(b) so far as it relates to “annoyance” may extend to expressions of opinion which neither disrupt nor interfere with the freedoms of others, nor are objectively offensive in the sense traditionally used in State criminal statutes. Breach of this provision as drafted affects freedom of speech in a way that, in our opinion, is not supported by the statutory power conferred by s 58 properly construed. Moreover there is no intelligible boundary within which the “causes annoyance” limb of s 7 can be read down to save it as a valid expression of the regulating power.


88 For the preceding reasons, the Court will make a declaration that cl 7(1)(b) is invalid to the extent to which it is applied to conduct which causes annoyance to participants in World Youth Day events. There is otherwise in cl 7 a substantial measure of protection against disruptive behaviour, behaviour which causes inconvenience to participants and behaviour which may give rise to a risk to public safety. Over and above these provisions the general criminal laws of the State relating to disorderly and offensive conduct and the like are able to be invoked should that be necessary.

Note that, to the extent the regulation prohibits causing “inconvenience”, it remains valid:

84 … While the term is broad it does not depend upon the subjective reactions of participants in World Youth Day events to the conduct in question. It requires a judgment by the authorised person of objective inconvenience. Such inconvenience may arise, for example, where protestors by their locations or actions hinder or obstruct the movement of participants or are so loud in their protest as to impair communications between groups of participants and officials. The term “inconvenience” may be criticised as conferring wide powers of uncertain ambit upon authorised persons but it is, in our opinion, a term which can reasonably be construed as limited to matters susceptible of objective judgment. The term does not reach so far as to impair expression of opinions with which people might disagree or which they might find troubling. In our opinion that aspect of cl 7(1)(b) does not spell invalidity.

As IPRoo notes, on 18 June 2008 the Federal Court (Weinberg J) handed down yet another decision in the recent spate of Australian copyright cases regarding copyright in the plans for project homes: Inform Designs and Construction Pty Ltd v Boutique Homes Melbourne Pty Ltd [2008] FCA 912. One can’t help but wonder whether there isn’t some kind of guerrilla war going on in the project homes industry at the moment, that war is being waged not only through prices, but through the indirect means of copyright litigation.

Anyway. The interesting thing about this case is that, unlike other recent cases, in this case the alleged infringer actually won – they were held not to have infringed.

The secret, it seems, is keeping drafts. Lots of them. In fact, if there is a ‘moral’ to the Inform v Boutique case, it is that: keep your drafts. This is because the secret to winning, if this case is any guide, seems to be convincing the court that despite whatever similarities might appear between your houses and your competitor’s houses, you did in fact come up with the designs independently. That may sound obvious, but actually, in these cases, it is not. (more…)

Simon Rumble expresses concern that the ruling in IceTV may be far-reaching indeed:

To my non-lawyerly eyes, this judgement seems rather far-ranging. It seems that basically any collection of data can now be covered by copyright, no matter how you recreate it. …

For example, let’s say I wanted to set up a web site that allows people to compare phone plans. I use publicly-available information about the various suppliers’ pricing to build a database that is looked up to recommend a specific plan from a specific provider. This would now seem to be a breach of copyright. I work with people who design phone plans, and I can tell you it’s a very creative process — though perhaps not for the right reasons.

My response to that would be – not necessarily. Actually, the cases where people have tried to use copyright to prevent this kind of ‘comparison’ site go way back to the early days of the Internet. In the US, they tend to fail on ‘fair use’. In Australia, we don’t have fair use, but I think there are at least two safety valves that mean this isn’t going to be infringement:

  1. First, you may not end up copying enough to be infringing copyright. Let’s say there’s a whole mobile phone plan. Let’s say you extract a few key items: price of phone, price per minute, connection fees, timing. That’s a whole lot less than the whole plan. Whichever way you look at it, you always have to copy a substantial part of the copyright work to infringe. In the IceTV case, the copyright work was the whole weekly schedule. I think the court’s assessment of whether a substantial part was taken is open to question in IceTV, but the phone case is another case, that would be assessed on its own facts. There’d be serious doubts whether you copy enough;
  2. Second, even if you did copy enough, there’s a fair dealing defence for ‘criticism and review’. If you are specifically reviewing the various phone plans, with a view to making a recommendation on which are the best – I think you’re criticising and reviewing. Sure, you’re not reviewing the literary merits, but that’s not necessary, as a long line of copyright cases establishes.

So don’t start panicking yet.

House of Commons reports that one of the items in the budget was money to be spent establishing an artist resale royalty scheme. This should make organisations like the National Association for the Visual Arts happy (oh look it did), and the Australian Copyright Council, but the idea does have plenty of critics, and a recent report on the newly-introduced UK scheme was hardly enthusiastic. Here’s hoping they can do it in a way that doesn’t just increase bureaucracy without benefit to actual artists.

Following up from my long post on the case, some more comments and things on IceTV that are interesting:

  1. This thread discussing the decision in the Digital TV Forum
  2. This post on the case, with a reference to a really interesting paper by Kathy Bowrey on digital television and copyright;
  3. The responding press release from IceTV (foreshadowing a special leave application if necessary).

One thing that I mentioned in my previous post was that I had a vague recollection something was already happening on electronic program guides and their provision. I’ve looked into that, and it appears that:

  1. FreeTV Australia (ndustry body which represents all of Australia’s commercial free-to-air television licencees) made two announcements last year. First in July they announced they would be providing the electronic program guide (EPG) to ‘ manufacturers of set top boxes, personal video recorders (PVRs) and other service providers’ – BUT with conditions ‘designed to protect copyright, protect the integrity of the program information and facilitate collection of ratings information’ (which probably means ‘no ad skipping allowed’, but the press release doesn’t specify);
  2. Then in November 2007, they announced that they would be ‘openly broadcasting program listing information by 1 January 2008, creating Australia’s first free electronic program guide (EPG)’. To be honest, I don’t know what the impact of that is.

It’s also worth noting that the Australian Communications and Media Authority has the power under the Broadcasting Services Act, s130K, to register Industry Codes, including (as an example) codes of practice relating to EPGs. ACMA also has the power to request that a code be established by an Industry, and ‘a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient’ (s130C). As far as I know, ACMA has not in any way exercised this power, and while there’s a negotiated ‘deal’ on EPGs, as in the announcements above, I couldn’t see any reference to it being an industry code in any way.

Update: Bill Patry has commented on the case from a US perspective – here.

As I flagged yesterday, yesterday morning the appeal judgment in the IceTV case was handed down by the Full Federal Court. This truly was an all-stars copyright case: interesting issues, an all-star IP bench (including the CJ himself, plus two senior IP heavies – Justices Lindgren and Sackville) (note too – the same bench that sat on the Desktop Marketing case), no less than 4 senior counsel (all of them IP heavies in their own right) plus juniors.

I’d give you background on the case but I don’t really need to – Peter Black has already done that albeit a while ago now, and so have I. In summary, the case raises the question whether Channel Nine could use its copyright in its television program guides to prevent a rival publishing an electronic program guide compiled from a combination of recording what was shown on TV, ‘prediction’ and updating from published guides. Nine lost the original case but have won on appeal: that means they have regained their rights of complete control over programming guides. From a competition perspective, this raises some interesting questions which Joshua Gans has discussed before. Over the fold, my preliminary thoughts on the copyright ruling. (more…)

Just a quick note: the Full Federal Court judgment in IceTV is now up on AustLII. The case concerns the electronic program guide for television: Channel Nine sued a company which was providing the EPG for people wanting to make fully functional use of digital television recorders. Background on the case here.

At first instance, IceTV won – Bennett J found that there was no copyright infringement. It was a ruling that surprised a lot of people – so perhaps the fact that the appeal has been allowed – that IceTV has lost its case in the Full Federal Court – is less surprising. Although quite possibly pretty inconvenient for the makers of digital video recorders of the TiVo type.

In any event, more comments once I’ve digested what the judgment actually says!

The 2020 Submissions are online – over 8,000 of them. And I’m impressed: the Australian Federation Against Copyright Theft have put a submission in, and there are no prizes for guessing their favourite big picture ideas for making Australia a great place:

We encourage the 2020 Summit to commit to the following measures: – acknowledge the threat posed to creative works in the digital age; – provide for effective, adequately resourced enforcement of copyright laws against copyright crimes; – educate the public about the consequences of copyright theft and inappropriate consumer behaviour – to respect copyright no matter what the ‘capacity’ of the digital device; – regulate ISPs to ensure they respect both the copyright content on, and the terms and conditions of their networks; ensure ISPs work with copyright owners to educate consumers, respond to illegal activities and prevent illegal distribution of copyright content on their networks.

And here’s me thinking the summit was supposed to be a place for generating new and interesting ideas…

Update: oh, look, MIPI too (hat tip: Matthew Rimmer). And look – same ‘idea’:

To address these issues, the Australian music industry, supported by a range of other content owners are proposing a “notice and disconnection” or 3 strikes and out system for persistent illegal file sharers. In short, the proposal seeks to deter IP theft by establishing a streamlined industry mechanism where the IP addresses of users involved in significant copyright infringements form the basis of a graduated process of warning notices, suspension and ultimately disconnection by Australian ISPs. Of course, disconnection will only occur as a last resort.

Ah yes. The three-strikes policy. Just what Australia needs to power into the next few decades. What a wonderful ‘big idea’. Won’t that just empower us all, and make that broad technology work for us.

Bill Patry has another must-read, where he’s analysed a submission of the ‘Music Business Group’ in the UK opposing the introduction of a personal format-shifting exception not unlike the one we introduced in Australia in 2006.

You really must go and read Bill’s post, but one thing that really struck me was the summarised argument by the MBG: (more…)

Cadbury purpleI was going to write about the latest decision of the Federal Court on Cadbury’s long, drawn-out battle to prevent Darrell Lea use the colour purple to market its goodies, including chocolate (I’ve written about earlier decisions; see here, here, here).

But then I found this masterful post by TM expert, Mark Davison. Nuff said.

Waugh Partners have released the Australian Open Source Industry and Community Report, 2008. It’s both beautiful, and interesting – and doesn’t support all the myths we generally have about the open source community. Congrats, Jeff & Pia.

Go read it!

One project homes company in Australia now has a 70+ year monopoly on putting a kitchen, family room, meals area, and rumpus room around a covered alfresco area at the back of the house. What is more, companies in the project homes area are doing to have to be really careful about how they approach their research on competitors’ houses – bearing in mind that visiting other designers’ houses, particularly if you do it more than once, will be held against them in a court of law.

Got your attention? Good.

Now I should qualify that slightly overstated introduction.

Perhaps more accurately, following the Full Federal Court decision in Metricon Homes Pty Ltd v Barrett Property Group Pty Ltd, it is going to be more difficult for project home companies to do open plan living around a covered alfresco space. So far, Barrett Property Group Pty Ltd (t/as Porter Davis Homes) have succeeded in two lawsuits against two other project home companies for copying their arrangement of rooms (refs at bottom of this post). I find the judgments – particularly the latest appeal judgments – interesting, and in some respects, a little disturbing. More over the fold. (more…)

Some Australian jurisdictions are experimenting with human rights charters. A very smart colleague of mine from Melbourne Uni, Jeremy Gans, has started a blog, Charterblog, to follow what’s happening. A valuable (and very attractively presented) resource, particularly now that there’s some discussion of a possible Federal version. Welcome to the blogosphere, Charterblog.

Here’s a report Peter Garrett might be interested in: the UK IP Office has released a Report it commissioned into the UK Resale Royalty Scheme.

The UK introduced such a scheme (which provides a percentage of sale prices of original artworks to the artist) in 2006 – as a result of a European Directive. Peter Garrett has in the past indicated some support for a scheme (for a potted history of developments in Australia, see here).

Some findings:

  1. About £2.5 million of Artist Resale Rights is being collected annually, of which around £1.5 million accrues to British artists. (NOTE: at the moment, the British scheme does not apply to dead artists – but it will in the future).
  2. Most of these payments are quite small, and the median payment to artists based on auction house data is £256. Auction house data indicate that during the period since its introduction, 80% of all ARR payments should have gone to the top 100 artists.
  3. The cost of administering ARR entailed a set-up cost in the region of £1 million and recurrent administration costs of £50,000 per year.
  4. While the administrative burden of ARR does not seem to have been excessive for most businesses, there have been a problems associated with difficulties in establishing the nationality of artists among other things. A significant minority of art market professionals, including the major auction houses, deem the administration of ARR to be intrusive and burdensome.

Doesn’t sound like the kind of thing that is going to change the world for artists to me.

I’ve mentioned before (here, here, here) the idea, currently floating around in just about all the Western countries, that ISPs should adopt a ‘three strikes and you’re out’ policy, disconnecting copyright-infringing internet users. The push for such a policy by certain copyright owner organisations at the moment is nothing if not vigorous: and appears to be making some headway: the UK seems to be considering it; France too.

Anyway, I’ve outlined in the past all kinds of things we would want to know before such a policy was adopted: not least of which would be consumer representation in any negotiations (Choice, or the Communications Law Centre, would both be candidates here). Now I’ve found a description of a (characteristically critical) presentation given by Lilian Edwards last week at an LSE conference. Worth a read if you’re interested in these issues, and so is Lilian’s follow-up comment.

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