9.       Intellectual Property

·         iiNet case

o   Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24: Summary

<http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html> at 9 November 2010

o   Held: ISPs, by providing internet access to their clients, do not authorise copyright infringements performed by its clients through BitTorrent (or similar P2P file sharing services). This case was distinguished from Kazaa, Jain, Metro, Cooper and Moorehouse because those cases were ones in which the authorisers provided the ‘means’ of infringement – that is, means that were designed to infringe copyright. Mere internet access is not such a means.

·         iiNet summary by Minter Ellison

o   See Minter Ellison Lawyers, ‘Liability of ISPs for authorisation of copyright infringement: the iiNet case’ (November 2010), Minter Ellison Higher Education Focus <http://www.lexology.com/library/detail.aspx?g=6514f657-b414-4ef3-ac0c-5204809c0192> at 9 November 2010.

·         Commentary on the iiNet case and implications for all internet users of a successful appeal by the movie industry:

o   Brendan Scott, ‘iiNet and the Sinking of the NBN?’ (2010) Brendan Scott’s Weblog <http://brendanscott.wordpress.com/2010/06/01/iinet-and-the-sinking-of-the-nbn/> at 9 November 2010.

o   See a summary of this article in chapter 1: Media Regulation.

·         ‘Safe Harbour’ provisions protecting carriage service providers from copyright liability

o   Chris Govey, ‘Google’s Youtube Wins First Engagement in Copyright War with Viacom’(2010) Internet Law Bulletin September 2010, 78 (online at LexisNexisAU):

§  The United States case of Viacom v Google considered how much knowledge a service provider can have about its users’ infringements before it is no longer protected by the US Safe Harbour provisions.

§  It was held that if the service provider has specific knowledge of its users’ infringements, and does not act on that knowledge, it is no longer protected. If the service provider merely has general knowledge of the prevalence of infringing activity, it is protected.

§  The requisite level of knowledge, when construing the relevant statutory phrases “actual knowledge that the material or an activity using the material on the system or network is infringing” and “facts or circumstances from which infringing activity is apparent” was interpreted to mean:

·         “a general awareness that there are infringements (here, claimed to be widespread and common)”; or

·         “actual or constructive knowledge of specific and identifiable infringements of individual items”

-- Chris Govey, 80, citing Viacom v Google, 7.

§  Because the Australian ‘safe harbour’ provisions (in Division 2AA of Part V of the Copyright Act 1988 (Cth) (Australian Safe Harbour Provisions)) are quite similar to the US ones, this case is good news to Australian service providers.

 

·         Employee use of social media

o   Wendy Mee, ‘Privacy and Social Media: Challenges to Business’; Kate Macartney, ‘Employee Use of Social Media – Addressing the Risks’ (October 2010) Blakes Bulletin: Intellectual Property – Social Media Series <http://www.blakes.com/english/legal_updates/intellectual_property/oct_2010/SM2.pdf> at 4 November 2010.

o   This bulletin first discusses the privacy and data collection issues that have plagued social networking sites, or sites with an interactive component. It suggests that businesses use an interactive component on their own website to reach consumers, to retain control over the information that is posted there. On the other hand, relying on Facebook, Twitter or another website is risky because the business has no control over what is posted there (other than removing some comments in a moderator capacity). The bulletin then warns of the risks to businesses of their employees using social media, where the employees are not aware of the public nature and reputation-damaging potential that some user-generated content can have. While the bulletin discourages banning social networking in the workplace, it suggests policies that businesses can implement to regulate their employees’ use of social networking.

·         Creative Commons licence enforced in Belgian court

o   Email from Philippe Laurent – MVVP to 'European Legal Network' mailing list, 4 November 2010:

o   A music band posted some music on a French open content music website under a CC BY-NC-ND licence. (This licence allows use of the work providing that it is attributed to the creator, and is not used for a commercial purpose, or adapted to create a derivative work.) A theatre adapted the music for one of its advertisements, played on national radio stations several times, without attributing the music to the band. The advertisement, even if it benefited a theatre used by a non-profit organisation, was a commercial use prohibited by the licence. The theatre raised mistake and good faith as defences, both of which were rejected by the court. The court awarded 4500 Euros to the band – 1500 Euros for each attribute of the licence that was breached.

·         Lack of copyright protection and patenting of designs in the fashion industry

o   Johanna Blakley, ‘Lessons from fashion’s free culture’ (Presentation delivered at the TEDxUSC 2010 forum, Los Angeles, April 2010) <http://www.ted.com/talks/lang/eng/johanna_blakley_lessons_from_fashion_s_free_culture.html> at 4 November 2010.

§  While there is Trademark protection in the fashion industry (e.g. protecting the image and name of a brand – you can’t just put the Nike label and swish on your made-for-Big-W socks) there is no copyright protection for clothing design, or patenting of designs. For example, Prada can legally replicate the design of a jacket that they didn’t design themselves.

§  The courts have deemed fashion ‘too utilitarian’ to attribute proprietary rights to designs.

§  There are advantages to this – freedom to copy encourages fast innovation to keep ahead of the pirates, and establishes trends quickly which is good for new entrants to the market.

·         [E.g. if a consumer sees people on the street wearing a particular design, and they associate that design with a particular brand (regardless of which brand produced the others’ outfits), they will be more likely to buy that design from the brand??]

§  Similarly, can’t copyright recipes or magic tricks (fact), car designs (utilitarian), fireworks displays, databases, etc...

§  However, the sales of the low IP industries (food etc) far outstrip those of the high IP protection industries (films, music).

§  Artistic object = deserves protection; utility = doesn’t deserve protection. Idea = deserves protection; physically fixed expression = doesn’t deserve protection. However, now that many objects are digital and intangible, e.g. digital files of books and music, they are a lot more like ideas than physical objects.

§  QUESTION: Is fashion’s ‘free culture’ of lack of intellectual property protection a good thing? Should the ‘IP heavy’ industries such as the movie industry adopt it, and just let people share movies freely over P2P systems like BitTorrent?

·         Crowd Sourcing

o   Brad Howarth, ‘Crowd sourcing gets the job done’ (17 August 2010) Sydney Morning Herald (Sydney) <http://www.smh.com.au/technology/enterprise/crowd-sourcing-gets-the-job-done-20100817-127nt.html> at 5 November 2010.

o   Crowd Sourcing websites allow businesses to register and submit a project brief. Designers, also registered, then submit designs and ideas in response to the briefs. The websites facilitate agreements between the creator of the chosen design/idea and the business. Usually a creator will have intellectual property rights in their design/idea until it is ‘bought’ by a business. Additionally, businesses that are seeking ideas are granted some form of licence to enable them to display the ideas or designs outside of the crowd-sourcing website while they are deciding on which idea or design to ‘buy’. The websites generally disclaim any liability for damages to the business, or copyright infringements against either party.

Examples of such websites’ terms of service are:

·         99designs.com http://99designs.com/legal/general-services-agreement

·         Designcrowd.com http://www.designcrowd.com/user-agreement.aspx

·         Freelancer.com http://www.freelancer.com/page.php?p=info/terms

·         QUESTION: What is the potential here for abuse of intellectual property rights? Should there be more protection for the creators’ intellectual property rights in the design, or should the requesting parties (the businesses) be able to own the design?

·         P2P sharing

o   Greg Sandoval, ‘Porn maker sues 7,098 alleged film pirates’ (2 November 2010) CNet News <http://news.cnet.com/8301-31001_3-20021438-261.html> at 4 November 2010.

The producer of the porn movie “Batman XXX: A Porn Parody” is suing 7,098 people for sharing the movie through BitTorrent. According to the legal director of the Electronic Frontiers Foundation (EFF, an advocacy group for Web users and tech companies), if a plaintiff sues a large group of defendants together and not individually, there’s an unfair prejudice to the defendants, some of whom may not have infringed to the same extent as others. It’s fairer if each single case is heard on its merits.

The method of suing individually involves the plaintiff’s attorneys gathering IP addresses of the sharers, filing a complaint in the Federal Court naming the defendants all “John Doe”, and requesting the court to issue subpoenas to each John Doe’s ISP to obtain their names and other details. The attorneys will then offer each defendant a chance to settle out of court.