Tuesday, February 16, 2010

Copyright is the new black...everyone wants some of the action!

Unless like Angel you have been kidnapped and locked in a box at the bottom of the ocean, you would have noticed the 'torrent' (pun intended) of copyright decisions issuing from the Federal Court in the last week. These are:
Roadshow Films Pty Ltd v iiNet Limited (No 3) [2010] 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 [2010] 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 [2010] 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 [2009] 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.

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