SMH has the story here.

more analysis later.
updated: judgment now available on AustLII.
Further update: commentary will have to wait until after my classes today. But please consider this an open thread for any discussion!
Further Further Update: Warwick Rothnie has some very interesting thoughts on the case here. He’s certainly right about one thing. There’s a heckuva lot of food for thought in these judgments.

“Senator Kim Carr, Minister for Innovation, Industry, Science and Research, today called for written submissions on proposed reforms to Australia’s intellectual property (IP) system.

A strong and efficient IP system is a cornerstone of successful innovation.

The proposed reforms are designed to help Australian innovators take their inventions to a global marketplace and encourage foreign investors to bring their new technology to Australia.

This means growth both for our economy and our skilled workforce.

The call for submissions provides a valuable opportunity for interested parties to contribute to the Government’s work in strengthening Australia’s innovation sector and boosting the nation’s economic prosperity.

The multifaceted reforms aim to reduce barriers in the innovation landscape for researchers and inventors, allow patent claims to be resolved faster and strengthen penalties for counterfeiting and other serious forms of trade mark infringement.

The Australian Government is committed to working with business and professionals to get the balance right so the IP system can better serve innovation in Australia.”

Media Release here.
Discussion/Reform Papers on IP Australia Website here.

Submissions due by 8 May 2009.

According to the Exec Summaries of the two papers, the proposed reforms aim to improve the balance in the patent system by:

  1. raising the thresholds set for grant of a patent in Australia and better aligning Australia’s key
    patentability standards with standards in countries which are our major trading partners; and
  2. improving the scope and stringency of examination to reduce inconsistencies and give
    greater certainty in the validity of granted patents.
  3. introducing a statutory exemption covering certain experimental activities

Let the fun begin!

IP Australia is reviewing the penalties (criminal offences) and additional damages in trade mark law. Actually, they’ve been reviewing this for a while: we had the ACIP Review, and then an Options Paper (pdf) published by IP Australia back in November; submissions on the Options Paper close this week.

Anyway, I was just reading through the options paper again, and I noticed that IP Australia is proposing to adopt something like the tiered system of liability that we now have in the Copyright Act: or at least, some of it. They are proposing to have indictable offences for intentional trade mark infringement, and summary offences for negligent trade mark infringement. This, of course, is based on the Copyright Act system. And so I thought it was raising the question again: what kind of a silly standard for criminal liability for IP infringement is negligence? (more…)

Artist Shepard Fairey, who created the “Hope” poster of now President Obama, has filed a pre-emptive law suit against the Associated Press. The suit, which has been filed in United States District Court in New York, seeks a declaratory judgement for Fairey ruling that the poster is protected by fair use and does not infringe AP’s copyright in the photograph. The suit also seeks an injunction preventing AP from asserting its copyright in the photograph against Fairey.

From left to right: the original AP photograph (taken by Mannie Garcia in April 2006) and Shepard Faireys poster

From left to right: the original AP photograph (taken by Mannie Garcia in April 2006) and Shepard Fairey's poster

So, how does Fairey’s claim measure up against the four factors considered in fair use arguments? (more…)

Wonderful post from Professor Mark Davison on the Australian Trade Marks Blog. ‘Nuff said.

Does this site strike anyone else as, well, just a bit dodgy? “International validity for a lifetime”???

I’m very sad to hear of the death of Sir Hugh Laddie. Tributes are pouring in, of course. I’ll remember him for the 1995 Stephen Stewart lecture, “Copyright, Over-Strength, Over-Regulated, Over-Rated,” 18 E.I.PR. 253 (1996) – I read it the same year I first studied copyright, and it’s influenced my thinking ever since. His Modern Law of Copyright and Designs, too, is a constant standby when I teach: wonderful for its teasing out of the implications of rules through hypotheticals, cases, and more cases. He was a bold thinker, never cowed by IP orthodoxy (or the ECJ for that matter), and never shying away from the need for a strong, sensible IP system. He has been respected by all sides in the IP world – no mean feat in itself. He will be very much missed.

The IPKat has its own tribute; as does the IAM Blog and Howard Knopf, but for a sense of the man, you might want to look at Patry’s older post on his conversation with Sir Hugh after his decision to retire from the bench.

Update: Bill Patry’s heartfelt tribute.

ZDNet has some interesting discussion of different ISPs’ policies.

As I noted yesterday, a legal action has been launched by some 34 applicants from the television and movie industry against Australian ISP iiNet, alleging that iiNet has authorised copyright infringement by failing to take (adequate) steps to prevent sharing and downloading of films and TV shows via protocols like BitTorrent. A kind little birdie has sent me a copy of the Statement of Claim, so I have a bit more info. It makes for some interesting reading.

There are a number of interesting questions at the heart of this potential case:

  1. What, exactly, are ISPs required to do when they become aware that users are potentially infringing copyright? Do they have to terminate people alleged by the movie industry to be ‘repeat infringers’?
  2. How much responsibility will Australian courts put on intermediaries for ‘doing something’ about copyright infringement? So far, Australian courts have been pretty ready to impose liability on people they thought were ‘profiting from copyright wrongdoing’ – Kazaa with its P2P network, or Cooper with his ‘mp3sforfree’ website and his ISP host. What about others whose nefarious or infringing purpose is not so obvious? What, in other words, of more ‘ordinary’ service providers?
  3. When the legislation requires that ISPs, in order to ‘gain absolution’ or immunity from damages, should ‘adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers’ – what does that really mean? Is it sufficient to terminate only those found liable for infringement? Is the court allowed to determine whether the policy is real or sufficient?

Politically, there are some equally interesting questions. Will the Internet industry respond to the lawsuit by looking for a settlement deal that goes some way towards creating the kind of ‘notice and terminate’ system that copyright owners have been pressing for? Will the government’s past approach of protecting ISPs from liability in order to further the digital economy hold? Or, has the tide turned: are we now in a climate where the courts, like the government, decide to hold ISPs to a higher standard, just as the government is trying to get ISPs to engage more actively in filtering adult content? And is this all just an attempt to promote a certain filter that purports to filter both porn and copyright infringement…?

More thoughts on the law side of things over the fold. (more…)

and all hell breaks loose, it seems. Sorry for the long radio silence: I’ve been on a research trip and not following things as closely as perhaps I should. A couple of general catch up notes:

  1. I would blog about the Internet Censorship material – I simply can’t believe that the Australian government is seriously wanting internet content filtering active in Australia – but to blog it would really be something of a waste – after all, there’s at least two other perfectly good sites for information about developments here: the wonderful Somebody Think of the Children, and of course, Dale Clapperton of the EFA and his Defending Scoundrels site and Irene Graham’s Libertus site. The EFA and others are doing good work on these issues. Want more? Go there!
  2. I would also blog about the IceTV case – it is, after all, one of the more significant ones lately to hit the High Court of Australia in copyright. However, it would probably be inappropriate to do so, since I’m a board member of one of the amicae that appeared in the case (the Australian Digital Alliance). I refer you to the AustLII transcripts of the hearing (Day 1, Day 2). I’ll comment once there is a judgment.
  3. ACTA developments continue. I was at a trade law conference in Washington last week and was surprised to hear a Deputy of the USTR endorse ACTA as one of the few “trade” agreements that could continue to move forward in this lame duck/pre-Obama time. I’ll have more to say on this in due course.

    And of course there’s the new case against an ISP for copyright infringement, noted in my last post. Can’t turn my back on you people, can I?

We’ve been expecting this might happen for a while. Now it has. From the Australian Federation Against Copyright Theft media release:

“Today, seven leading film companies and their affiliates and licensees filed a legal action against iiNet, a major Australian internet service provider. The action was filed by Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, Inc. and the Seven Network, the Australian licensee of some of the infringed works. The companies seek a ruling that iiNet infringed copyright by failing to take reasonable steps, including enforcing its own terms and conditions, to prevent known unauthorised use of copies of the companies’ films and TV programs by iiNet’s customers via its network.”

In other words, it’s the argument that an ISP is authorising infringement of copyright. Without seeing the statement of claim, can’t say much more, except this: this is the next ‘upping of the ante’: designed, no doubt, to increase the pressure on ISPs and the Internet Industry Association to negotiate on the so-called ‘three strikes’ proposal for a system for terminating internet access of alleged copyright infringers.

Interesting times. (and yes, I’d love more information if anyone has any…).

On 3 October, Australian Arts Minister Peter Garrett announced that the Australian Federal Government plans to introduce a resale royalty right for works of visual art by 1 July 2009. This right will ensure that visual artists receive a portion of the proceeds from resales of their works. The legislation establishing the resale royalty right scheme has not yet been introduced in Parliament, but is expected bythe end of 2008.

The Government has issued a fact sheet on how the right would be structured. In short, the resale royalty scheme would involve a mandatory five per cent artist’s royalty on resales of artworks, when works are sold for $1,000 or more. The right will apply to works by living artists and for a period of 70 years after the artist’s death. (more…)

You heard it first … everywhere else. I know. House of Commons has reported it, as have assiduous commenters on this blog.

But for those who didn’t know: IceTV has been granted special leave. More commentary from House of Commons here. My previous commentary here and here; Bill Patry here. For my money, read David Lindsay’s slides from a presentation he gave on the case for the Copyright Society (click on ‘Download Powerpoints’ – immediately below the heading on that page): no one has done the work like he has. Oh, and don’t forget Peter Vogel – one of the men at the centre of the storm.

Fun, fun, fun.

Update: the High Court transcript from the special leave hearing is available here. It makes for some very interesting reading.

So CAL has had a win in the High Court. In Copyright Agency Limited vs The State of NSW [2008] HCA 35, a unanimous High Court overturned the Full Federal Court’s ruling that Lands and Property Information (formerly the Land Titles Office), part of the NSW Department of Lands, does not have an implied license extending to allow the LPI to scan copies of survey plans, lodged with the office as a necessary element in registering title to land, and pass copies on to LPI staff, government agencies, councils, relevant authorities, information brokers and members of the public. One thing we don’t yet know is how much the NSW government will have to pay. The use will still fall within the government’s statutory license (Div ) – which means the government can make the copies but must pay equitable remuneration, to be determined by the Copyright Tribunal. This judgment presumably means the matter goes back to the Tribunal for determination.

[UPDATE: Catherine Bond has two long and interesting posts at House of Commons: Part 1 (Can’t the government just legislate to allow them to do it free?), Part 2 (but the Constitution!). Inchoate responds here.Nick Gruen has an AFR op-ed, which is re-produced on Club Troppo here – referring to Fitzgerald’s and Anderson’s (pre-High Court decision) article here.]

On one view, this is copyright run a little mad. (more…)

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