According to the Sydney Morning Herald and Fairfax Telstra’s dispute with NRL over internet broadcast rights has settled.

Although I can’t find a media release from Telstra, NRL or News Limited on the issue, Fairfax reports that Telstra agreed to resume its sponsorship payments to NRL following an agreement between News and
Telstra to limit the amount of time that
News-related companies could broadcast footage for news reporting.
Fox Sports will be able to broadcast up to 105 seconds of each
match on its website and offer 90 seconds on mobile phones. The
deal does not impose any time limits on other media outlets in
broadcasting news reports about the code.

In Cadbury Schweppes Pty Ltd (ACN 004 551 473) v Darrell Lea Chocolate
Shops Pty Ltd (ACN 000 498 386) [2007] FCAFC 70 (21 May 2007), Cadbury won an appeal against the Federal Court’s original decision that Cadbury does not have an exclusive reputation in the use of this dark purple colour in connection with chocolate and that, therefore, by such use of purple, Darrell Lea engaged in conduct that
is misleading and deceptive, in contravention of provisions of Part V of the
Trade Practices Act 1974 (Cth). Cadbury also claimed that Darrell Lea’s conduct constitutes passing off of its chocolate
confectionary business and products as a business or products of, or connected
or associated with, Cadbury.

The principal question in the appeal was whether the primary judge erred in
refusing, in the course of the trial, to admit certain
evidence that Cadbury sought to adduce from Brian John Gibbs, Associate Professor of Marketing and Behavioural
Science in the Melbourne Business School at the University of Melbourne and others relating to the making of consumer
decisions for the purchase of chocolate.

On appeal the Full Court found that the evidence was wrongly rejected and the Court could not conclude that there was no miscarriage of justice."If the evidence of
Dr Gibbs and Messrs Stavros and Riches were to be accepted at face value, it
would certainly be open to a Court to find that Darrell Lea’s use of
purple is likely to cause the consumer errors identified by Dr Gibbs. That
could be sufficient to justify a conclusion that Darrell Lea had engaged in
conduct that was likely to mislead or deceive."

The action was remitted to the primary judge for further hearing.

In Burge v Swarbrick [2007] HCA 17 (26 April 2007), the High Court of Australia considered the meaning of "artistic work" in s 10 and in s 77(1)of the Copyright Act and whether copyright protection for the designer was available for a yacht marketed as the "JS 9000" in Australia, Europe, the United States and elsewhere.

The designer (Swarbrick) failed in his claim because the boat was designed to satisfy
functional utilitarian considerations (eg speed, safety) and be mass-produced rather than for artistic purposes.

The designer had not registered the design under the Designs Act.

What happens to intellectual property (IP) acquired by the Australian Government through its many activities in science, health, education, public infrastructure, information technology, defence and arts and culture?

Most government contracts stipulate that IP created under the contract belongs to the Crown. Is there a list of such rights? Can the public have access to such IP?

Whilst it does not answer these questions specifically, the Statement of IP Principles (pdf) (published by the Attorney-General’s Department) provides a framework for
effective management of IP by Australian Government agencies. It identifies a range of issues relevant to effective management of IP,
including procurement, record keeping, industry development and broader
innovation policy, and public access.

All Australian Government agencies which are subject to the Financial Management and Accountability Act 1997 must comply with the requirements of the Statement of IP Principles by 1 July 2008.

A guidebook, the IP Better Practice Manual, will provide agencies with up-to-date information on implementing the Statement, and is expected to be published in late 2007.

In Telstra Corporation Pty Limited v Premier
Media Group Pty Limited [2007] FCA 568, the Federal Court refused to grant Telstra (which had an exclusive license from the NRL to show NRL matches on the internet) an injunction against FoxSports News using NRL match highlights audio-visual footage on its website.

The interim hearing focussed on whether the use was fair dealing under s 103B of the Copyright Act.

There was no dispute that the footage used in each Fox
Sports news report on each NRL match represented a substantial part of whatever
copyright might subsist in the total footage of an individual match. FoxSports said, however, that the relevant footage was a fair dealing with an
audiovisual item for the purpose of or associated with the reporting of news by
means of a communication, and hence within s 103B(1)(b).

The length of each of the footage in relation to each match covers a
range of times but the longest were over two minutes of footage from
the match.

Judge Allsop said:

31 The evidence reveals that in other media, that is free to air television
and pay television, there has been over the years, the use of audio visual
footage of a similar nature to the impugned program. Examples include past and
present programs, such as Channel 10’s "Sports Tonight", SBS’s
"World Sport" and "World Game", Channel 9’s "AFL Footy Show" and Channel
7’s "Sportsworld" and "Sportswatch".

32 Similarly, pay television had broadcast news services that include
sporting news, for instance, "SKY News". The respondents submitted that it is
an integral part of free to air or pay television news services to report on
events by showing relevant video footage of a particular sport, such as rugby
league.  Just as events are covered in written match descriptions in print
media.  Fox Sports News is a species of that form of sporting news which has for
many years been shown on Australian television, and I accept those submissions.

33 It is unnecessary to compare minutely the length of time taken in these
examples of other media, given the respondents’ evidence as to the
impugned broadcasts.  It may be, and I do not make a finding about this now,
that even by these standards, that is the standards of pay television and free
to air television, it will be found, that the respondents have, to put it
bluntly, been a little greedy in what they have taken for the dealing to be fair
as well as newsworthy…

36 I accept that there will be a substantial issue on a final hearing as to
the operation of the internet and mobile phones and telephony, including the
nature and character of their structure, and how the public use them.  This will
be important in the assessment of fairness in the fair dealing, in the use of
audio-visual footage and in the delivery of news.  At an interlocutory level,
however, I am simply not persuaded that there is a case to distinguish delivery
of such programs on the internet and telephony from free-to-air and pay
television, bearing in mind the clear conduct of Telstra in negotiating the AFL
bargain in December 2005.

UPDATE 22 May: Dispute settled