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March 2, 2008

Website designer fails in action against former employee

In Dais Studio Pty Ltd v Bullet Creative Pty
Ltd
[2007] FCA 2054 Dais failed in its action against a former employee it accused of copying without authorisation 2 utility files from its website design program.

Dais sued for infringement of copyright, to
restrain the unauthorised use of confidential information,
for breach of
contract and for breach of certain provisions of the Corporations Act
2001
(Cth).

Although the judge concluded that each of the 2 small files  was a computer program,
and therefore a literary
work capable of being protected by copyright, Dais failed to prove they were a
substantial part of the source code as a whole in their program.

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Posted 2nd March 2008 by David Jacobson in Legal

February 8, 2008

Does copyright in a label prevent importation?

In The Polo/Lauren Company L.P. v Ziliani Holdings Pty Ltd [2008] FCA 49, the Australian copyright owner of the Palph Laren "polo player" symbol failed in its action under s 37 of the Copyright Act in the Federal Court to prevent clothing bearing its embroidered logo being imported from USA into Australia.

The symbol was lawfully embroidered overseas into the external surface of an article of clothing, but the  person entitled to the copyright here did not consent to its importation.

The defendants succesfully contended that the polo player logo embroidered on each article amounted to a non-infringing accessory within the meaning of the exception to infringement in section 44C of the Copyright Act, because it is a ‘label’ embroidered onto an article of clothing.

UPDATE: December 2008: Appeal dismissed

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Posted 8th February 2008 by David Jacobson in Legal

December 31, 2007

Use of name permitted: Mythbusters

In Knight v Beyond Properties Pty Ltd [2007]
FCAFC 170
the Full Court of the Federal Court of Australia rejected an appeal by Mr Knight from the Court's dismissal of his claim that Beyond Properties breached
the Trade Practices Act 1974 (Cth) and engaged in the tort of
passing off by publishing its Mythbusters television programs and spin-off books. Knight earlier wrote (using a nom de plume) 3 books about a group of persons who investigate
paranormal or
supernatural phenomena, using the name of ‘Mythbusters’.

The central issue for determination in thes appeal was whether the use of
the name ‘Mythbusters’ in the Mythbusters
TV Show was likely to
wrongly suggest to the mind of a reasonable television viewer that the show was
associated in some way with
Mr Knight’s Mythbusters Books (and other
associated activities, such as interviews and plans to develop a television show
of
his own) when in fact, as is acknowledged by both parties, there was never
any such association. Determination of this issue involved
a consideration
whether Mr Knight’s reputation in relation to the name was sufficient
to provide a reasonable basis for
such an assumption of association.

The trial judge concluded as a question of fact that the development
and adoption of the name had nothing to do with Mr Knight
or any of his ideas,
and that it was a belated choice because "it was a catchy term descriptive of
the activities portrayed by the Mythbusters TV show
".His Honour analysed
the material supplied by Mr Knight, including material which his Honour
held was not received by Beyond,
and found no similarity between the content of
Mr Knight’s Mythbusters Books and other materials and the content of the
Mythbusters
TV Show.

The Full Court agreed that Mr Knight failed to prove a sufficient connection
between the Mythbusters TV Show and his books: "any reputation vested in Mr Knight’s Mythbusters Books,
quite apart from being limited
to a narrow class of television broadcasters and
executives, was not sufficiently widespread to create an association in
the mind of the ordinary television viewing public with the Mythbusters TV Show
when that show entered the public arena in late
2004."

we are of the view that the term
‘Mythbusters’ describes, in general terms, the breaking of beliefs
or understandings wrongly held in relation to a certain topic or proposition,
and is therefore in a broad sense descriptive.  It
is, however, also true that
when one looks at the Mythbusters TV Show, the type of myths it addresses, the
personalities of the presenters,
the format of the show, the script, and the
methods used are not described by the term ‘Mythbusters’, and
to this extent the term is not descriptive.  His Honour so concluded, and he
used the expression "
to an extent at least" at... to indicate that the
name ‘Mythbusters’ was only broadly descriptive of the process of
"busting" myths, and
did not describe the detailed content of the program with
any specificity.

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Posted 31st December 2007 by David Jacobson in Legal

November 29, 2007

Legal Aspects of Web 2.0 Activities

"Legal Aspects of Web 2.0 Activities: Management of Legal Risk
Associated with Use of YouTube, MySpace and Second Life
"(pdf), considers general issues created by these social networking sites as well as specific issues created in each case. (via The House of Commons)

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Posted 29th November 2007 by David Jacobson in Legal

November 10, 2007

Lessig at TED: are we heading for a “read only” culture?

I saw Professor Lessig speak in Brisbane 2 years ago. He has a distinctive presentation style.

At TED this year he distilled his argument into an entertaining, but persuasive, 20 minute presentation on the nature of copyright, youth culture and technology. Do we want a "read only" culture (where use of original material is restricted) or a "read/write culture" (where original material can be adapted)?

Watch the video here.

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Posted 10th November 2007 by David Jacobson in Legal

October 10, 2007

Implications of US file sharing decision for Australia

Last week's US copyright breach decision in favour of the record companies ($222,000 for 24 songs, $9,250 for each) has raised the question: could it happen in Australia?

Kim Weatherall gives a thorough analysis of the differences in concluding that actions against individuals are unlikely here.

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Posted 10th October 2007 by David Jacobson in Legal

October 5, 2007

Copying house designs: Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd

In Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd [2007] FCA 1509 the Federal Court upheld a breach of copyright claim by Porter Davis Homes because substantial parts ("the alfresco quadrant") of certain of its home designs had been copied by Metricon Homes to produce designs from which project homes have been built and
sold to the public.

Judge Gilmour gives a thorough review of copyright issues relating to project home design and the importance of "overall impression", analysing firstly whether the claimant's design was capable of protection and then conducting an objective similarity analysis to decide whether the defendant's designs were in breach.

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Posted 5th October 2007 by David Jacobson in Legal

October 3, 2007

Liability of internet forum operators: Silberberg v The Builders Collective of Australia Inc

In Silberberg v The Builders Collective
of Australia Inc
[2007] FCA 1512 the Federal Court of Australia held that the person who posted messages on to an unmoderated Internet discussion forum which contained material which caused
offence and distress to the subject of the messages because of his Jewish race and ethnicity breached Pt II of
the Racial Discrimination Act 1975 (Cth). But the forum operator was not held liable.

Whilst the failure of the operator to remove the material was offensive, the trial judge could not conclude that the operator's failure to remove the offensive material was
attributable, even in part, to the race or ethnic origin of the applicant.

He distinguished the test under the Racial Discrimination Act from the liability of a publisher for defamation or breach of copyright. 

Is the Collective
responsible without actual knowledge of the offensive contents of the messages?
If the question arose in defamation or breach of copyright, the answer is likely
to be in the affirmative. The Collective chose to conduct an open anonymous
forum available to the world without any system for scrutinising what was
posted.  The party controlling a website of such a nature is in no different
position to publishers of other media. In my opinion, failure to remove the
offensive material within a reasonable time of it having been posted was an act
caught by s 18C(1)(a)...

However, there is substance to the argument that the failure to remove
the offensive material has not been shown to have any relevant connection with
race or ethnic origin of the applicant or indeed any other Jewish person as
required by s 18C(1)(b) of the Act. The failure of the unidentified
administrator to remove the Second Message on and after 1 July 2006 was the
clearest case of failure to act.  I cannot conclude that such failure was
attributable, even in part, to the race or ethnic origin of the applicant.

For further comment on this case see this post by a representative for the forum operator. See also his comments on other cases pending relating to forum operators.

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Posted 3rd October 2007 by David Jacobson in Legal

September 29, 2007

Australian Blogging Conference 2007: legal issues

Bloggers are a diverse bunch and thanks to organiser Peter Black the Australian Blogging Conference managed to have something of interest for most people: politics, legal issues, research issues, creativity, citizen journalism, education and corporate and business blogging.

I deal with the business blogging session here. And there's a note on the politics of blogging here and here. So this note deals with the legal issues and other thoughts on the day

First off, my observation was that they weren't all techies. I had just read Cory Doctorow's When Sysadmins Ruled the Earth and was relieved to be with ordinary "authentic" people (see attendee's list).

I was spoiled for choice but was pleased I attended the Legal Issues session. The theme ended up being "what are the risks related to what you say on your blog, what other people say on your blog and what you link to?". Lead by Professor Brian Fitzgerald and Nic Suzor from QUT and Dale Clapperton from Electronic Frontiers Australia over 2 hours we ranged from copyright to defamation, primary and secondary liability issues, "innocent dissemination", a brief history of internet law, privacy, what we'd like in a blogger's guide to law and current legal actions.

The bottom line: understand the risks and take strategies to minimise them (and don't rely on US centric information).

I see that Dale Clapperton has posted a note on "backdoor defamation" issues we didn't get to properly.

Also noted were Legal Issues for Wikis (pdf) and  Blogs and the Law.

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Posted 29th September 2007 by David Jacobson in Legal, Web/Tech, Weblogs

September 26, 2007

WIPO Internet treaties come into force in Australia

On 26 July 2007, the World Intellectual Property Organisation (WIPO)
Copyright Treaty and the Performances and Phonograms Treaty
came into
force in Australia. The treaties are known as the Internet treaties
and protect copyright in the online environment. There are over 60
other parties to the treaties including the USA, Japan and China.

The coming into force of the treaties means that Australian creators
and performers will enjoy digital-age protection for their creative
output in other treaty‑member countries.

It also means that Australia’s performers will enjoy the right to be
known and respected for their performances in a similar way to authors
and film-makers.  Now that Australia is a party to the WIPO Performance
and Phonograms Treaty, provisions currently set out in Note 2 of the
Copyright Act for performers’ moral rights come into operation as new
Part IX.

A fact sheet outlining moral rights for authors, film-makers and performers is available.

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Posted 26th September 2007 by David Jacobson in Legal
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