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The US Supreme Court has unanimously allowed eBay’s appeal regarding the award of injunctive relief for patent infringement, and returned the case to the District Court for further consideration. Justice Thomas wrote the opinion of the court, which was characteristically short and to the point. The Chief Justice issued a concurring opinion joined by Scalia and Ginsberg, J.J., and Justice Kennedy issued a concurring opinion joined by Stevens, Souter and Breyer, J.J.

The procedural background was as follows: MercExchange held a number of patents which it attempted unsuccessfully to license to eBay and half.com. MercExchange then sued the two for patent infringement, and succeeded. (more…)

The Attorney-General has now put up the press release on the outcomes of the Australian Copyright Law Fair Use Review. The full press release, along with a ‘FAQs for Consumers’, is available here.

My comments/analysis, posted yesterday, are here.

Update: Another document promised in the press release, the official Government response to the Digital Agenda Review Report (a report published 2 years ago, in early 2004) is now available online, from this page.

Note that according to the media release, ‘a draft exposure Bill including these and other reforms will be released in the near future to enable further consultation with stakeholders.’

The Government, in the budget, has quietly shelved proposals for a resale royalties scheme – despite recent introduction in the UK and a recent private members’ bill. The idea has gone because ‘It would bring little advantage to the majority of Australian artists whose work rarely reaches the secondary art market and would also adversely affect commercial galleries, art dealers, auction houses and investors.’ Hat tip: Warwick Rothnie.

(subtitled: Outcomes of the Fair Use Review Announced).

For the past 12 months, Australia has been going through a major review of its copyright law, and in particular, its exceptions to copyright infringement, with a view to ‘updating’ this material for the digital environment. I note that we are not the only ones: Canada are having an ongoing debate (see Michael Geist on all this), and the UK are having their Gower Review (see here).

Today, the Attorney-General has issued a press release, announcing the results of the review. As yet, the press release does not appear to be online, so I’ll summarise. In essence, the government has decided not to adopt the US ‘fair use’ system – where a broadly worded defence must be assessed on a case-by-case basis. Instead, the government will expand, and amend, existing specific exceptions in Australian law. That makes the amendments complicated, but potentially more certain.

The Attorney-General, Philip Ruddock, is characterising the reforms as:

‘…significant copyright reforms which make our laws fairer for consumers and tougher on copyright pirates.’

According to the AG:

‘These are commonsense amendments which will maintain Australia’s copyright laws as the best in the world for the benefit of our creators and other copyright owners and for hte many Australians who enjoy their creative works.’

I wonder, though. The government does appear to have caved on the issue of the ‘flexible exception’ – the ‘catch all’ provision to except uses not foreseen at the time of this legislation. In my submission, I supported such flexibility, and I’m very sorry to see it apparently not there. I wonder whether in a few years time we will be saying what Bill Cornish (not an IP radical or copyleftist, by any stretch of the imagination) said in his Clarendon Lecture:

‘With rapid technical shifts on the scale of the Internet, there must be a case for giving judges some more general power to excuse at the edges, along US lines. After all, at the centre, legislation is rapidly providing the mainstays of control. As one who tried in 1988 to persuade Parliament to introduce a concept of fair use, I feel now even mroe acutely that our failure was a major rebuff. ‘ (Bill Cornish, Intellectual Property: Omnipresent, Distracting, Irrelevant? (OUP 2004) at page 65)

The press release maintains principles which Ruddock has stated a number of times:

• 1. That copyright must keep pace with technology and rapidly changing consumer behaviour;
• 2. that ‘reasonable consumer use of technology to enjoy copyright material’ should be recognised – ‘Australian consumers should not be in a significantly worse position than consumers in similar countries’
• 3. reforms should not ‘unreasonably harm or discourage the development of new digital markets by copyright owners’
• 4. The unique Australian system should be maintained – we are not moving to US-style fair use;
• 5. the law should be updated to tackle rising copyright piracy, and to support the copyright industries.

In summary, the AG has announced:

1. 2 new private use exceptions – time-shifting and format-shifting;
2. new exceptions allowing schools, universities, libraries, and other cultural institutions to use copyright material for non-commercial purposes;
3. new exceptions for people with disabilities;
4. a new exception to allow use of copyright material for parody or satire;
5. new enforcement measures

Over the fold, I summarise the announcements, and offer some commentary. (more…)

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…)

Napster is apparently changing its business model in an attempt to turn a profit. They will now allow a user to play songs five times before they are required to buy it or become a Napster subscriber.

It’s not a bad idea, but it does not address the fundamental problems with subscription models, that I have previously commented on. (more…)

A recent New York Times article alerted me to the existence of PodcastAlley.com, an excellent source of free podcasts.

The Times article focused on podcasts as travel guides, typically more personal than the typical travel book. PodcastAlley is definitely worth a good look by anyone interested in podcasting.

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…)

But yes, this remarkable feat has indeed been achieved. From the Attorney-General’s Press Release for World IP Day:

“Every section of our community benefits from copyright,” Mr Ruddock said.

“For example, copyright ensures that ANZAC Day and the rich literature and artwork which record wartime experiences, are respectfully used and the creators properly rewarded.”

The recent release of the Australian film Kokoda, which tells the wartime story of an Australian platoon sent to patrol a village on the Kokoda track in New Guinea, demonstrates the vital role that creative industries play in our community.

“The film also reminds us of the many fine literary accounts by Australians of this pivotal moment in our history,” Mr Ruddock said.

“Whatever the medium, copyright plays a critical role in encouraging artists to inform, educate, entertain and inspire Australians.'”

Wow. In more important news, IP Australia have a new website, the IP Media Centre, which seeks to explain IP for journalists. It has some useful summaries of various IP laws.