Wednesday, December 15, 2010
Sunday, November 7, 2010
which will inevitably bring with it all of the old misunderstandings about what fair use law can actually do....
It is not a panacea for all the 'bad consequences' of copyright law. Sure it may be a little more flexible than the fair dealing provisions that we inherited from the UK (to which we have at least added parody and satire) but a universal solution it is not.
Anyway it will be a discussion that needs to be had and may pave the way for real improvements. Bram will be watching.
These may come in handy:
de Zwart, Melissa, Fair Use? Fair Dealing?. Copyright Reporter, Vol. 24, Nos. 1 & 2, pp. 20-37, 2006; Monash University Faculty of Law Legal Studies Research Paper No. 2006/09. Available at SSRN: http://ssrn.com/abstract=1069183
de Zwart, M.'An Historical Analysis of the Birth of Fair Dealing and Fair Use: Lessons for the Digital Age'(2007)INTELLECTUAL PROPERTY QUARTERLY, 60-91
Friday, August 27, 2010
Thursday, August 26, 2010
Thursday, July 15, 2010
Tuesday, March 30, 2010
The judge dismissed the claim on the basis that the relevant provisions of the ADA apply only to physical places or goods or services connected to physical places. The claim based on the fact that inability to fully participate in the games limited the plaintiff's ability to participate in gaming conventions organised by Sony was also dismissed.
As Greg L points out, the case again generates the question of cyberspace (or virtual environment) as a space, something that is becoming increasingly an issue as regulators are turning the eye of Sauron upon the question of whether and how such spaces need regulation. He states: 'If online spaces and social software, like Facebook and Second Life, are becoming new hubs of interaction and commerce, we would think the goals of the ADA should resonate in cyberspace as well.' However, he concedes that regulation may not be the best way to achieve this end.
One thing that struck me upon reading the complaint, was the claim that Sony had 'no process in place to address the removal of barriers for persons with disabilities.' Rather:
'The sole generic user communication process provided by Sony through which anyone, disabled or non-disabled, could attempt to request or suggest any kind of modification or otherwise address any type of user issues concerning the Products requires the individual(s) to accept a contract waiving his or her rights to a trial by jury and requiring mandatory binding arbitration, a change in venue as well as other similarly onerous provisions and which otherwise constitutes a contract of adhesion. Plaintiff has not undertaken to use this generic process because he does not wish to forgo his constitutional right to a trial by jury for the sole purpose of helping Sony come into compliance with applicable law.'
This seems to be the type of clause which fell foul of the Court in Bragg v Linden Research,and clearly the purpose of this argument is to put this at the forefront of the Court's mind (and although I am not convinced this is actually an accurate interpretation of the application and effect of the clause). VW providers may need to have a look at this mandatory arbitration clause to ensure it will not be struck out on the grounds of (US style) unconscionability.
Yet again we confront an issue of contract versus general law.
The Judge concluded:
'The problem with Plaintiff’s assertion is that he does not seek an auxiliary aid or service to foster effective communication at a place of public accommodation such as Sony’s conventions, or to take full advantage of the goods, services, and privileges available at the conventions, but to fully enjoy the video games, which as the Court has already concluded, are not sufficiently connected to a place of public accommodation. To hold otherwise would create potential liability under the ADA for manufacturers of all manner of products if those manufacturers failed to make available auxiliary aids allowing the entire panoply of individuals with disabilities the full enjoyment of their products. '
There are some issues here that need further exploration but legislation may not be the best first option.
Sunday, February 21, 2010
The third report, dated December 2009, but released to the public in early February 2010, makes interesting reading for its change of focus. Even the title of the document Online Risk and Safety in the Digital Economy reflects this change.
The Report identifies two key trends resulting from an overall increase in participation in the online environment:
1. increased used of mobile devices to access the Internet; and
2. increased use of social media and online transactions across all age groups.
The increased uptake of 3G phones and the consequent increase in the use of such devices to access social media platforms, is noted by the Report as giving rise to new issues. The personal and private nature of mobile devices as distinct from computers, reduces the ability of parents to supervise the use of social media on these devices (and the ability to supervise use was observed by the Byron Review to be a key risk mitigation factor). This means that further work needs to be done on identifying and reducing risks created by such access.
Chapter 3 addresses online risk behaviours, particularly bullying. However, it draws attention to the fact that children may be both the perpetrators and the objects of cyberbullying, with a particular focus upon the impact upon teachers. Indeed, the Report also observes: 'problems such as sexual solicitation and cyberbullying are more often perpetrated by friends or peers' (as distinct from the anonymous kinky adult pervert we are used to being blamed for all of the bad conduct and bad behaviour that occurs upon the Internet!)
The Report also outlines the privacy issues being raised regarding Facebook and how these have been dealt with.
This Report makes for interesting and useful reading and displays a pragmatic and balanced approach to some key issues, without the usual hype and scare mongering that goes on in this area. It provides a good overview of some of the initiatives udertaken by overseas governments, particularly UK and Japan. It also contains some nice stats about online usage and most popular Internet activities by age group.
Tuesday, February 16, 2010
Roadshow Films Pty Ltd v iiNet Limited (No 3)  FCA 24, in which the Federal Court held that iiNet (the third largest ISP in Australia) was not liable under the principle of authorisation for infringement of copyright in the films and tv shows owned by the Applicants by end users of the BitTorrent system. I will post my comments of this one in a later blog.
Telstra Corporation Limited v Phone Directories Company Pty Ltd  FCA 44, in which the Federal Court held that there was no copyright in the White Pages and Yellow Pages telephone directories. (okaaay, I'll see if I can find the energy to cover this one, but no promises)
Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited  FCA 29.
It is this last decision, which in some ways seems the simplest one of the three, which has been occupying my attention. Perhaps this is in part due to a sub-conscious affiliation and affection for the song 'Down Under'. Nevertheless, I do believe that more lies below the surface with this case, making it worthy of further exploration.
'Kookaburra' is described by the Court as 'an iconic Australian round'. Written in 1934 by Marion Sinclair, a Melbourne music teacher, the four bar work went on to achieve worldwide success as a camp fire and school yard favourite. It won a competition run by the Girl Guides of Victoria as a fundraiser and was published by Miss Sinclair (at her expense) in a booklet of three rounds, which was sold with the proceeds going to the Girl Guides. This gave rise to questions about the ownership of copyright which were dealt with in Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited  FCA 799 (30 July 2009) which held that as between the parties, copyright in 'Kookaburra' had been held by Larrikin since 1990, having purchased it from the Public Trustee after the death of Miss Sinclair. (These arrangements were also subject to a 2000 deed confirming assignment to Larrikin following a dispute between the Public Trustee and the State Library of South Australia). And, how much did Larrikin pay for the "little ditty"? $6,100. According to an interview published in The Age, Mr Norman Lurie, the managing director of Larrikin/Music Sales, the song has since earned "hundreds of thousands' for Larrikin.
The Court held that two of the four bars of Kookaburra were reproduced in the 1981 recording of 'Down Under' (which incidentally was also described by the Court as an 'iconic Australian composition'). The Court went on to hold that the two bars represented a substantial part of 'Kookaburra'.
The Court concluded that there was a sufficient degree of objective similarity between the flute riff and the two bars of Kookaburra. In reaching this decision the Court relied upon expert evidence. The Court noted that in the case of musical works objective similarity is not to be determined by a note by note comparison but rather should be done by the eye as well as the ear. The judge appeared to place significant weight upon the fact that Colin Hay admitted a causal connection between the songs (ie that 'the flute riff played by Mr Ham while sitting in the tree was a direct musical reference to Kookaburra' although he was not aware of it at the time) and the fact that he sang the relevant bars of Kookaburra when he performed Down Under live at some time after 2002. The Court noted the failure to call Greg Ham (who added the flute riff to Down Under at some time after the song had been written by Mr Hay and Mr Stryker) and concluded that it was appopriate to draw an inference that Mr Ham had deliberately included the lines from Kookaburra to inject some 'Australian flavour' into the song.
The Court did not determine the percentage of the interest in the copyright which ought to be awarded to Larrikin (which was seeking 40-60% of the copyright, although Mr Lurie has since stated on ABC Radio that he believes the interest is closer to 25%). Further, the judge observed that the findings do not amount to a finding that the flute riff is a substantial part of 'Down Under' nor that it is the hook of that song.
A reading of the case leads me to the conclusion that the case is correct in identification of the law, I am just left wondering whether the case could have been argued differently. Does the fact that Colin Hay sang Kookaburra in a live concert necessarily lead inevitably to the conclusion that Down Under itself incorporates part of Kookaburra, could it not be argued that this was merely the performance of another (separate) song. Isn't this improvisation a part of the musician showing off his musical skill and knowledge of tunes that may fit well with (and not necessarily infringe) their song? and don't get me started about jazz.
It also raises some questions about the impartial listener and the role of expert witnesses.
The matter resumes on 25 February.
Monday, January 4, 2010
So, here's the thing, you know that collection of Star Wars memorabilia you have hidden in the cupboard, it may not in fact be as artistic as we have come to believe (who says Angel figurines aren't art?)
In 1976 Andrew Ainsworth was approached by the makers of Star Wars (Episode IV, A New Hope) to produce stormtrooper helmets on the basis of original concept drawings produced by Ralph McQuarrie, and a clay model, which had been produced by Nick Pemberton. Ainsworth made some modifications to the design in the production process. Ainsworth kept the orignal moulds and in 2004 began using those moulds to produce helmets which he offered for sale via a website. Ainsworth had made sales of approximately US$14,500 via the website to customers in the US.
Lucasfilm brought an infringement action against Ainsworth in the US (US District Court of California) which granted a default judgment in favour of the plaintiffs and awarded Lucasfilm US$20 million in damages (consisting of $5 million for copyright infringement, $5 million for trade mark infringement and $10 million in compensatory damages). Ainsworth did not participate in the proceedings. The plaintiffs then brought an action in the UK courts seeking enforcement of the US judgment and claiming infringement under UK law.
The matter was decided at first instance by Mann J in Lucasfilm Ltd, Star Wars Productions Ltd amd Lucasfilm Entertainment Company Limited v Andrew Ainsworth & Shepparton Design Studios Limited  EWHC 1878 (Ch). Mann J held that:
- the helmets (and other elements of the uniform) were not sculptures nor were they works of artistic craftsmanship;
- Even if the design drawings/prototypes were the subject matter of copyright, section 51 of the Copyright Designs and Patents Act 1988 provided Ainsworth with a defence, providing that: 'It is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design.' Further, section 52 provided a defence to Ainsworth;
- Ainsworth had not manifested sufficient presence in the US to be amenable to US jurisdiction;
- Lucasfilm could enforce its US copyright in the UK, granting an injunction restraining Ainsworth from advertising in or sending to the US any of the stormtrooper helmets.
The Court of Appeal, whose judgment Lucasfilm Limited, Star Wars Productions Limited, Lucasfilm Entertainment Company Limited v Andrew Ainsworth & Shepparton Design Studios Limited  EWCA Civ 1328 was delivered by Lord Justice Jacob, agreed with all of these points, except that the US copyright infringement could be enforced in the UK.
On the issue of whether the helmets were sculptures, the Court of Appeal concluded, after an extensive review of authority, that 'a precise definition of that term is not possible which is why the judge has outlined a number of considerations which should act as signposts to the right answer.' Applying the various factors identified by the primary judge, the court concluded that: 'Although invented, the helmet and armour are still recognisable as such and have a function within the confines of the film as the equipment of the stormtrooper. They are, to that extent, no different from and serve the same purpose as any real helmet or armour used in a film.' Being utilitarian in purpose, neither the armour nor the helmets were sculptures. The toy stormtroopers were found to be 'mass produced plastic toys' and therefore did not qualify as sculptures either.
As the helmets were not a sculpture, the defence under s51 was therefore available to Ainsworth ie 'It is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design.' Further, s 52 was also available to Ainsworth,meaning that the industrial application by Lucasfilm of design drawings meant that the underlying artistic works attracted only a 15 year period of protection.
The Court refused to enforce the US copyright, concluding that infringement of copyright 'is a local matter involving local policies and local public interests', and that it may involve a clash of the IP policies of different countries. Further, the Court said to do do may invite forum shopping. Such a matter would need to be dealt with by international treaty.
Finally, the judgment makes some interesting observations about jurisdiction. The Court of Appeal asks the question; 'whether the operation of an internet website by a person (or company) based in the UK amounts to presence in the US because sales have been effected through such a website to US customers.' The website quoted prices in US dollars and pounds sterling. It also provided shipping charges to the US and Canada. The trial judge had declined to find that this was sufficient to establish US presence. (Interestingly the Court does not mention Ward Group Pty Ltd v Brodie & Stone Plc  FCA 471). The Court of Appeal concludes: 'it is not possible to say that advertising into a foreign country can render the advertiser present there, as the judge himself remarked. Indeed, no case has been cited to us where the targeting of sales in a foreign country by outside sales material has been held to be presence for these purposes.'
The Court concludes (at paras 193-194):
'It is true that the internet and its uses take us into a new world, and that its existence as it were in the ether (but based on servers physically located in the real world) has in general presented novel difficulties to the law and to regulators. It is also true that a website can be both wonderfully expressive and can also, subject to change and removal, be found repeatedly at its web address. The question, however, is whether for current purposes the internet or a website are fundamentally different from other matters which have enabled business persons to present themselves and their products where they are not themselves present: such as advertisements, salesmen, the post, telephone, telex and the like. We do not believe so, and Mr Bloch has been unable to show us any material from other jurisdictions, although he has searched for it, to suggest that a different answer is necessary. (Our own researches have led us to Dow Jones v. Gutnick  HCA 56, 210 CLR 575, where the internet is discussed by the High Court of Australia in the different context of defamation. However, that Court was not there driven by the revolutionary omnipresence of the internet to a view of jurisdiction which was other than answerable to well-established principles.)
On the contrary, it might be said that the sheer omnipresence of the internet would suggest that it does not easily create, outside the jurisdiction or jurisdictions in which its website owners are on established principle already to be found, that presence, partaking in some sense of allegiance, which has been recognised by our jurisprudence and rules of private international law as a necessary ingredient in the enforceability of foreign judgments.'
There are also some interesting reflections upon implied obligations to assign and equitable interests in copyright.
An interesting case, and we may not have heard the last of it, May the Force be with you!