All jurisdictions

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.

Knowledge Ecology International has published a list of proposals which they say are “the substantive suggestions for provisions of the ACTA that the RIAA [Recording Industry Association of America] sent to the USTR [US Trade Representative] on March 17, 2008″.

The wish list makes for very interesting/scary reading for those interested in what the next generation of bi- or multi-lateral treaties in IP might look like. Of particular interest are the following suggestions relating to secondary liability (liability of intermediaries for copyright infringement): (more…)

ACTA is a proposal for an ‘anti-counterfeiting’ agreement, being negotiated by a small number of mostly developed countries, outside any of the established institutions (WIPO, World Customs Organisation, WTO). While ostensibly dealing with counterfeiting (you know, of the evil exploding mobile phones and airplane parts kind), because it deals with IP enforcement it has the potential to balloon in scope and its implications for ordinary people (you know, those of us who are not evil-organised-crime-counterfeiters). Mission creep: ever the bane of IP treaty negotiations.

Anyway, there is some potential for concern about the negotiations, particularly if it starts (a) upping the enforcement for patents, (b) dealing with online enforcement beyond existing standards that we already have in Australia. If you are interested, some more sources have become available for further information on the Anti-Counterfeiting Trade Agreement negotiations:

  1. Susan Sell, US academic, has a paper which contextualises the ACTA negotiations available here (note: pdf file);
  2. I’ve put together a paper outlining what I could about what was known of the ACTA negotiations, and also highlighting some legal issues that might arise for countries like Australia; it’s available from my bepress site, here.

More info as it comes to hand.

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…)

I’ve been following, in the blogs, the various comments, concerns, and (in some cases) downright scare-mongering about the proposed Anti-Counterfeiting Trade Agreement. I’ve been spurred to finally write something by this misleading, scare-mongering comment in the Sydney Morning Herald. For people wanting a more balanced view of what might be some of the problems, I recommend Bill Patry (Pt I, Pt II, Pt III); Michael Geist (particularly here) and this Ars Technica article. There’s an interesting article on IP Watch too.

I’m inclined to agree with Geist and Patry that the way these negotiations are being conducted is a long way from desirable. They are confined to a small number of ‘like-minded’ countries: initially including Canada, the European Union (with its 27 Member States), Japan, Korea, Mexico, New Zealand, and Switzerland; also including Australia after we decided to join in. Actually, that, in itself, would not be a problem really. There’s nothing to stop small groups of countries negotiating whatever standards and cooperation mechanisms they like as between themselves. No, the problem lies in two other aspects: the apparent secrecy of the negotiations (last time Australia negotiated an IP agreement in secret we ended up with all kinds of problems), and the use that no doubt will be made of the treaty once agreed. No doubt it will be offered on a ‘take it or leave it’ basis to other (less like-minded) countries – as a precondition of other things those countries want.

Funnily enough, it’s not just bad from a ‘we believe in democracy and transparent government’ perspective either. I’ve said it before, and I’m not the only one: it is this kind of thing that brings IP law generally into disrepute. It is such easy fodder for those who preach that copyright, or patent, or trade mark, deserve no respect. Media coverage of ‘secret negotiations’ in the mainstream news cement an increasing impression in consumers that such rights really have nothing to do with them. How can we tell people to respect intellectual property rights when the form those rights take cannot, on any view, be considered a ‘social compact’, democratically determined, or even a matter of national economic policy? Not to put too fine a point on it – why should we – as Australian consumers, or ordinary people worldwide – obey the IP dictates of countries like the US negotiated without our input or even knowledge? Seriously, no one could say that IP law doesn’t have an image problem. You would think, then, that those pushing for such rights would take some account of their PR problems.

The negotiations, and the documents, may be secret, but I have a feeling that we can piece together much of what the US, at least, would be putting on the table based on the ‘Discussion Paper’ published on Wikileaks and recent US bilateral trade agreements. So if I were, say, an Australian, or a Canadian trade negotiator, what would I be worried about? (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.

gurryIP Watch is reporting today that Australian Francis Gurry has been voted the new Director of WIPO. Francis has been at WIPO for some time now, most recently as deputy director general in charge of patents, Internet domain names, and other matters. He previously served as WIPO general counsel. His bio is here. It was close though – a 41/42 margin…

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.

Today we had the pleasure of a staff seminar up here at the University of Queensland Law School – by David Lindsay, an old colleague of mine from my melbourne days. David these days is at Monash University Law School.

David’s recently published a book with Hart called International Domain Name Law.

Now, I remember back when I first started teaching ‘cyberlaw’ type subjects at Sydney University back in around 2001-2002, domain names was one of those standard things you did. But people seemed to move on, lose interest; stopped talking about domain names much. But today’s talk was something of a revelation to me: David outlined something of the strange, quasi-common-lawish nature of the domain name decisions, with the gradual development of views on issues of interpretation, the areas of controversy, the splits, the absence of clear principles upfront leading to a gradual ‘feeling around’ – all at internet speed due to the number of decisions being issued. He also revealed some of the more outlandish aspects of this rough-and-ready systems: the application of random bits of national law; the lottery that is panellist appointment. And he elucidated how many of the areas of controversy could be fixed with some clear understanding of the objectives of the system.

It was very clear that david’s really done the hard yards in this book: he really has read the decisions – lots and lots and lots of them – and he’s done the heavy intellectual lifting of trying to make sense of it all. I couldn’t be more enthusiastic in recommending it should you ever need to worry about domain name disputes.

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.

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