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The Australian Record Industry Association, 2005

‘On a general note, ARIA considers that any amendment to the reproduction right and its exemptions needs to support new business models and the successful roll out of digital formats and online services. The industry considers that the market requires music products that are tailored to consumer needs and expectations, including home copying. This can and needs to be achieved through product design and technology, not through legislative amendment which distorts the market response to consumer demands.’

And they go on to elaborate:

1. It is the goal of record companies, both internationally and in Australia, to support the introduction of new options and business models offering different services and options to consumers at different price points.
2. in the short term, technological developments will enable consumers to make a reasonable number of copies of recordings under licence from the copyright owner;
3. in the short term, technological developments will provide copyright owners with the means to limit uncontrolled copying of recordings;
4. in the short term, technological developments will provide to consumers the flexibility that they are seeking whilst ensuring that, at the same time, Australia continues to be able to meet its obligations under various copyright treaties;
5. an abrogation of the rights of copyright owners and creators cannot be justified on the basis that because technology allows private copying to occur (and has done so for
   some time), such copying has assumed the status of a “right”;
6. there is no problem, because no one has ever been prosecuted for private copying, and while ‘that does not mean that the copyright owners condone that private copying, it clearly demonstrates that copyright owners have not sought to utilise remedies available to them under the Copyright Act to address the problem.’

Notably, ARIA rejected a private copying levy as an idea.

United Kingdom, BPI, 2006:

‘The British music industry is to recommend to the Government that consumers be allowed to legally copy music without fear of prosecution.

The BPI, the body that represents British record companies, believes copyright on CDs and records should be changed to allow consumers to copy music if it is for personal use. Currently, it is technically illegal for anyone to copy a CD onto their computer for the purposes of downloading music onto their own portable music player.

In its submission to the Gowers Review – the independent review body set up by the Treasury to examine the UK’s intellectual property framework – the BPI has asked for the issue of this area of music copyright to be addressed.

Worth noting that it’s not clear from this story whether BPI are recommending a statutory levy of any kind. But still, it’s a notable contrast.

United States, RIAA, for a very long time:

If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that’s great. It’s your music and we want you to enjoy it at home, at work, in the car and on the jogging trail.

So here’s what I don’t get. Why is the Australian position so very different? Is it because here, unlike, say, Canada, where at least there’s been some action in the music industry recently, particularly in terms of the representativeness of CRIA etc, there is so little outcry against the ridiculous position under Australian law? What do people think about this?

And when I write “Apple”, whom do you think of? The computer maker? Thought so. Today, Mr Justice Mann found for Apple Computer, Inc. in the lawsuit between it and Apple Corps Ltd (the Beatles). My intro is possibly a little misleading, however, as the case was not directly about the classical trade mark concerns of confusion between two particular marks.

Rather, it concerned the interpretation of a settlement agreement between the two parties executed in 1991 in order to avoid some of the sporadic conflicts the two had previously had in exploiting their similar marks. However, notions of applications and use of trade marks do surface in construing just what that agreement meant. (more…)

You might recall some comments I made, a couple of weeks ago, on Justice Heerey’s evidentiary rulings in the passing off litigation between Cadburys and Darrell Lea. Justice Heerey limited the presentation of certain survey and expert evidence. The judge’s ruling was informed by a policy against allowing infinite expansion of evidence in a case dealing with straightforward consumer products. The judge considered that:

‘Such evidence shouldn’t be admitted because of the rules of law above, which are based on sound policy: avoiding overcomplicated, expensive trials with lots and lots of evidence and cross-examination and warring experts. The judge is clearly concerned that admitting the evidence in this case will lead to it being expected in all of these types of cases.’

My clever RA Aaron Newell has pointed me to a case that perhaps indicates that Justice Heerey had a good point here: a recent Canadian decision concerned with trade mark issues – amongst them, dilution style harm. (more…)

According to the Copyright Tribunal – 22.5c per subscriber per month is what it is worth. That is how much Pay TV channels will soon be ordered to pay copyright owners (through their collection vehicle, Screenrights) for the privilege of retransmitting free to air channels to their subscribers. The decision, handed down 3 May, has already been reported in the Sydney Morning Herald and in the Australian.

The flavour of the story in the media has been interesting – the Australian pitches it as ‘nothing comes free’ for Pay TV; the SMH is even more blunt. Under the headline ‘Pay TV hit with copyright fee’ it comments that:

”PAY TV operators, including Foxtel, Optus Vision and Austar, will now have to fork out $3.5 million a year for retransmitting the five free-to-air channels on their platforms’

But there’s a little more to it than that. As the SMH notes, Screenrights had initially asked for $10 per subscriber, per month. Screenrights in their final submissions argued that an amount of $2.50 per subscriber per month was ‘conservative’. And as the Australian also notes that ‘The pay-TV networks, including Foxtel, Optus and the regional network Austar, argued they should pay no more than 20c per subscriber per month.’

Hmmm: so Screenrights thought $2.50 was conservative; the upper bound of the Pay TV people was 20c. The result was 22.5c – a smidgeon above what the Pay TV people had argued (admittedly, the Pay TV people were arguing that the ‘lower bound was zero’, based on past arrangements). While Screenrights has ‘welcomed‘ the decision, my guess would be that they would view this as a pretty low fee. (more…)

Those of us who have a tendency to place high importance on free speech, and fair dealing, and transformation of existing creative material sometimes discount the very real interests of authors to control the outputs of their own creative impulses. In some respects, the submission of the National Association for the Visual Arts in the Attorney-General’s Fair Use Review is a useful reminder of the other side.

If you need another useful reminder – or maybe just some food for thought – head on over to Mike Madison’s post on what sounds like an extremely interesting panel presenting the conflict in terms of real people. He describes a panel at a conference where an appropriative artist and a photographer, got up on the same stage to defend their views and approaches.

Well, well, well – haven’t we all been painting the town purple this last couple of weeks! We’ve had the decisions of Justice Heerey on evidence in passing off/s 52 a little while ago, then last week his Honour’s final decision holding that Darrell Lea had not passed off its goods as Cadburys, nor confused nor misled consumers through use of the colour purple.

Now, IP Australia have put online their decision (watch it – 59 page pdf) in Darrell Lea’s opposition to Cadbury’s application to register a trade mark for the colour purple for chocolate. And while Darrell Lea have succeeded in opposing the registration, IP Australia have ruled that Cadbury can get a narrower registration for their colour purple for block chocolate and boxed chocolates. (more…)

Perhaps a glass less than half full? Perhaps empty?

The decision in the passing off/s 52 case brought by Cadbury against Darrell Lea, for DL’s use of the colour purple, has ended with (as a friend put it) Cadburys’ in something of a screaming heap. Cadbury was claiming that DL’s use of purple was misleading to consumers, or involved DL ‘passing off’ their goods as having some connection with Cadbury. It’s part of Cadbury’s general campaign to claim rights in the use of purple in selling chocolate: they also have trade mark applications on foot.

This battle in the general war has been lost. Nope, says Heerey J. No passing off. And some rather interesting comments about Cadbury’s use of the colour with potential salience in Cadbury’s trade mark application.

UPDATE: according to one of my commentators on Weatherall’s Law, the decision in the Trade Mark Office, where Cadbury’s application for a colour mark has been opposed, was handed down last Friday (hmmm, the day after the Judge’s decision was handed down…). I don’t, however, know the result and the decision isn’t yet online… If anyone does know, you can comment anonymously….
(more…)

Next Friday will be the one year anniversary since the release of the Fair Use Issues Paper by the Attorney-General’s Department. Since that time, there have been a number of live question shanging over Australian copyright law: will many everyday acts continue to be copyright infringement? Will we end up with more of the same (narrow, specific exceptions) or will some flexibility be built into the Copyright Act? A story in the Age yesterday updates current developments. (more…)

Been wondering about the ‘Access to Knowledge’ (or A2K) movement? What it might be about? Well, Yale have been having a conference on the issue – and there’s quite a few papers linked from the site. But for a bit of an overview, check out Jack Balkin’s speaking notes, which he has posted on his blog.

Rothnie and Starkoff have both already noted that the Full Court has finally – 11 months after hearing the issue – granted leave to appeal in the Woolworths v BP case. Don’t get too excited – the appeal on the merits hasn’t been heard yet. Rothnie says it will likely be heard in August. As a decision on whether leave should have been granted, this case is an examplar of why you should get your procedure right and not just assume courts will fix any errors you make. But as a judgment which foreshadows what some of the issues in the appeal might be, this decision shows that some of the more fundamental issues currently in debate in trade mark law – in particular, just what rights you get as the owner of a ‘colour’ trade mark – could end up being canvassed. (more…)

Time for some Friday morning links, if you are in a reading mood today:

1. Michael Geist has a column this week on The Legal Limits of Government Tinkering with Technology. It discusses the French legislative proposals to mandate the interoperability of digital products: law which would require Apple to reveal technological specifications to its competitors so that they can design compatible devices, so that iTunes songs would play on anything. Australia makes a particular appearance in the column, with Geist commenting about the TPM Inquiry’s recommendation that the government establish the legal right to break region coding as part of Australia’s new anti-circumvention laws.
2. James Boyle has a column this week too, on documentary films and the clearance culture. A taste:

   This should be the Golden Age of documentary film, and in some senses it is. A profusion of television channels allows programs that cater to smaller and smaller markets. As viewers, we show an insatiable appetite for biographies of the famous – celebrity infomercials disguised as documentaries – but we also show a taste for quirkier material: … There are documentaries about mental illness and spelling bees and Star Trek fandom – though not all in the same film. And the drop in the price of cameras and editing software, together with the availability of internet distribution, potentially puts a million documentarians on the streets.

   But as Larry Lessig and others have pointed out, documentary film is rapidly becoming the latest victim of the explosion of intellectual property rights I have discussed in these pages. Ironically, the problem here is not a broadening of the rights themselves, but a “clearance culture” that demands licenses for the tiniest fragment of copyrighted material caught in the viewfinder or on the soundtrack of the documentary film.

   Boyle is writing from a US/international perspective. But similar issues were noted in Australia in a recent report for SADC, the Council for Documentary Makers (click here for the BIG pdf). The report, released in November 2005, noted that investors such as the FFC and AFC require a legal opinion that all material used in the documentary has been examined for violation of third party copyright and all necessary clearances obtained. Insurance premiums have also increased. It’s a shame that that same report didn’t look at doing what has been done in the US though – producing a ‘Best Practices’ Model for the Industry that reflects a consensus on what uses are and aren’t acceptable without a clearance. For the most part, the Best Practice Model produced by the Centre for Social Media is a very reasonable set of guidelines on when clearance should be obtained. Something similar could be created for Australia.

3. The other story doing the rounds of the blogosphere and media at the moment is the Philips Electronics patent application on technology that could let broadcasters freeze a channel during a commercial, so viewers wouldn’t be able to avoid it. See eg Techdirt. 4 brief comments on this:
   (a) oops bad publicity,
   (b) this is proof of one fundamental truth about intellectual property: that having a right doesn’t mean you have a marketable product. What, people are going to buy this? What, if people don’t want to buy it, governments are going to back the right of content owners to impose this technology on people? Even as they try (as our government is at the moment) to ensure that legitimate uses of legitimately accessed materials are preserved?
   (c) There is a move to parse out all the ‘consumer value’ in content and make it something that can be charged for. You can imagine paying ‘extra’ for the ‘right’ to channel surf. There are rights owners who think that is a legitimate method of doing business. Although see point (b) above.
   (d) Philips have apparently commented that they had no intention of using the technology in their products, but ‘Philips wanted to provide the technology and seek the patent only as part of the broader developments within the industry’. How many ways are there to say ‘patent arsenal’?
4. Remember that story about the chef from Interlude from a couple of weeks ago (you know – chef copies other chefs’ dishes). One of the issues I mentioned there was whether a dish at a top class restaurant could be a ‘work of artistic craftsmanship’. Well, have a look at this opinion piece in the Sydney Morning Herald today on the cake decorators of the Royal Easter Show. Does it change your mind on whether food creations can be works of artistic craftsmanship?

Oh yes, little flurry in the blogosphere over a story about Telstra buying Ads on Google so that Telstra’s ads would appear when someone searched for their broadband rival AAPT. As usual, the story attracted attention (see the IPKat, the Trademark Blog, Warwick Rothnie, Search Engine Watch Blog, Young PR, and Joshua Gans).

Only Gans points out that this is common practice (with examples! Go have a look). But is it legal? (more…)

The great thing about being an IP professor is that you get to comment on the pressing information technology and information freedom issues of the day.

Like, oh, chefs copying other chefs’ creations. (blogpost here)

And, oh, the BIG issue: will elvis impersonators still have a livelihood in the future? Last night, if you watched closely, you might have seen me spouting forth on ABC news on the issue of whether transactions recently occurring over the Elvis Estate in the US would lead to Elvis impersonators losing their jobs (short version of the story here). Apparently, a new majority holder in Elvis Enterprises is threatening to crack down on ‘unauthorised’ Elvis impersonators. ABC News called me to comment (on my day off!!! Nothing like taking time out from a heavy shopping expedition to do a quick media interview. And nothing like taking a quick stop by the Myer make-up counters to get ready…).

Frankly, I can’t see that there will be a legal issue for the impersonators here. Far more important issues were being ventilated by Cory Doctorow last night in Melbourne (and tonight in Sydney – go if you can!) (more…)

I’ve blogged here, and more extensively here, about a case before the Copyright Tribunal, in which CAL and the Schools are seeking a determination on how much schools should pay for ‘electronic uses’ of copyright material. I’ve been concerned (amazed, appalled) by one of the arguments being made in the case: that where a teacher tells a student to view a website (yes, a freely available, open access website) there should be a payment to copyright owners. I’ve pointed out at length why I think this is a simply unsustainable argument. Now we have a Tribunal decision on what should be done pending determination of that argument. (more…)

….drug company pressure on developing country officials and governments. Grrrr.

Just came across this story (on SecondView) via Jamie Love on the Huffington Post: Big Pharma company Pfizer (and there aren’t many bigger) are suing a Philippine government-owned company (PITC, Philippine International Trading Corporation), the Philippines equivalent of the TGA (BFAD, Bureau of Food and Drugs) and two Philippine government regulators personally (the BFAD director and one other staff person). What Pfizer object to is the importation, from India of samples of a drug that Pfizer sells in both the Philippines and India, and for submitting the samples to the government drug regulatory agency. It’s a fine example of inappropriate pressure being applied to government (particularly through the personal law suits), which indicates two things:

1. Developing countries should be supported, and encouraged to use the flexibility available in international treaties – the Phillippines needs springboarding provisions and may need support to enact them; and
2. Drug companies can be utterly unscrupulous in their use of the law. Not sure what we can do about that, but examples like this should be highlighted and publicised.

More detail over the fold. (more…)