Friday, 15 June 2007
Well, well, well: those of us who, in the fine tradition of lawyers everywhere thinking their own area is sexy, had decided that the High Court would take any old IP case that sounded vaguely interesting, will have to revise their views.
Not only did the High Court refuse special leave in the BP colour trade mark case, but now they’ve refused special leave in the Cooper case on authorisation liability (transcript not yet available).
This one, I have to admit, surprised me. I was very critical of the Full Court judgment when it came out late last year. Now we are stuck with it. Despite the fact that it is arguable that Australian authorisation liability for copyright infringement is now more restrictive (ie, more copyright-owner protective) than elsewhere. Certainly Canada is less restrictive – there, our caselaw was explicitly rejected. Arguably things are less restrictive in the UK, too. Interestingly, our law is more copyright owner protective even than the US: and it’s not just me who thinks so: see this paper by acknowledged experts Sam Ricketson and Jane Ginsburg).
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2 Responses to “Authorisation Liability doesn’t go to the High Court”
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June 18th, 2007 at 11:17 am
The application for leave was unrelated to the criticisms that have been made of the Full Court decision, particularly Branson J’s judgment. The application focussed almost solely on the operation of s 112E and did not address any of the more general questions about authorisation that the Full Court judgment raises.
June 19th, 2007 at 10:15 am
Ah, thanks Rohan. That makes a lot more sense then. Strikes me as a rather strange point to take to the High Court though – why focus on just s 112E, when the High Court hasn’t thought about authorisation liability generally since Moorhouse back in 1975, and certainly hasn’t looked at the statutory codification of that general law interpretation?