The Senate Standing Committee on Legal and Constitutional Affairs has issued its report into the Copyright Amendment Bill 2006.

The majority made 16 recommendations for changes.

Kim Weatherall’s comments

The Copyright Amendment Bill 2006 was introduced into Parliament on
19 October 2006 by the Attorney-General.

The full text of the Bill, the Explanatory Memorandum and the
Attorney-General’s Second Reading Speech are available on the
Parliament House website.

The Government has referred the Bill for consideration by the Senate
Standing Committee on Legal and Constitutional Affairs. 

The Attorney-General also tabled in Parliament the Government’s
response to the House of Representatives Standing Committee on Legal
and Constitutional Affairs report on ‘Review of Technological
Protection Measures Exceptions’.

Read Kim Weatherall’s analysis.

UPDATE 26 October: Kim Weatherall’s index to her posts

Brian Fitzgerald’s critique: Copyright vision: copyright jails

In Meskenas v ACP Publishing Pty Ltd [2006] FMCA 1136 (14 August 2006), the Federal Magistrates Court of Australia awarded an artist damages of $9,100.00 against a magazine that published a photograph of his work with attribution to another person.

The artist’s son contacted Woman’s Day shortly after publication in March 2005 and requested a correction and an
apology but despite many requests none was made until June 2006.

It was not in dispute that
Meskenas was the author of the portrait although he no longer had copyright because he had given the painting away.

Under Part 9 of the Copyright Act , derived
from the Copyright Amendment (Moral Rights) Act 2000 (Cth) he was entitled to attribution, the right to be clearly identified and the right
not to have the authorship falsely attributed.

The Magistrate awarded Meskenas the sum of
$1,100.00 for the wrongful attribution which includes the "non-attribution" and
the distress which it caused him. He also awarded the sum of $8 000.00 for an
infringement of moral rights . THe Magistrate made " it clear this award (of $8000) relates to the conduct of the respondent and the
additional hurt caused by that conduct to the applicant following his advice to
it that his copyright/moral right had been infringed. It is therefore additional
to the lesser sum awarded in respect of the original infringement.  It is not
also to be considered a species of exemplary or punitive damages."

In Woolworths Limited v BP plc [2006] FCAFC 132 (4 September 2006)the Full Court of the Federal Court reversed Judge Finkelstein’s decision that BP could register its trade mark for green at its service stations.

Whilst it was not argued that a distinctive colour could not be
registered as a trade mark, the decision considered BP’s history of use
of green , its use of its logo and the use of survey evidence.

More at Kim Weatherall, Warwick Rothnie.

UPDATE 15 June 2007: High Court refuses BP’s application for special leave to appeal.

The Attorney-General has released an exposure draft of the technological protection measure (TPM) provisions of the Copyright Amendment Bill 2006.

UPDATE 15 September: The draft Regulations are also now available.

The Bill is in compliance with the technological protection measures (TPM) obligation in Article 17.4.7 of the Australia–United States Free Trade Agreement (AUSFTA). Australia has until 1 January 2007 to implement this obligation. Comments on the TPM provisions of the draft Bill are open until close of business 22 September 2006.

The Attorney-General plans to introduce these amendments into Parliament in mid-October 2006.

The Government has not yet released for public comment the draft amendments to the Copyright Regulations which will include the additional exceptions to the new technological protection measures (TPM) scheme (as provided for in Article 17.4.7(e)(viii) of the Australia-United States Free Trade Agreement).

However it is anticipated that the following exceptions to the TPM scheme will be included in the Regulations:
• reproduction of computer programs to make interoperable products (as authorised by section 47D of the Copyright Act 1968 in as far as it applies to articles)
• the reproduction and communication of copyright material by educational and other institutions assisting people with disabilities (as authorised by Part VB, Divisions 1-3 of the Copyright Act 1968)
• the reproduction and communication of copyright material by libraries, archives and cultural institutions for certain purposes (as authorised by sections 49, 50, 51A, 110A and 110B of the Copyright Act 1968)
• the inclusion of sound recordings in broadcasts and the reproduction of sound recordings for broadcasting purposes (as authorised by sections 107 and 109 of the Copyright Act 1968)
• access where a TPM is obsolete, lost, damaged, defective, malfunctioning or unusable and a replacement TPM is not provided, and
• access where a TPM damages a product, or where circumvention is necessary to repair a product.

The Government has asked the Attorney-General’s Department to conduct a limited further review of some possible additional exceptions to the TPM scheme. The Department is calling for submissions and any further evidence in support of granting the following exceptions to the TPM scheme as identified in the Review of TPM Exceptions (February 2006) by the House of Representatives Standing Committee on Legal and Constitutional Affairs:
• An exception to allow circumvention of TPMs to gain access for making back-up copies of computer programs
• An exception to allow circumvention of TPMs to gain access for the reproduction or adaptation of computer programs for correcting errors in computer programs
• An exception to allow circumvention of TPMs to gain access for the reproduction and
communication of works etc by institutions assisting persons with an intellectual disability
• An exception to allow circumvention of TPMs to gain access for the inclusion of works in broadcasts and the reproduction of works for broadcasting purposes, and
• An exception to allow circumvention of TPMs to gain access for fair dealing with copyright material by broadcasters for criticism, review or news reporting for purposes other than broadcasting.

Submissions are due by 25 September 2006.

The Parliamentary Secretary to the Minister for Industry, Tourism and Resources, Bob Baldwin has
released the Final Report on the Review of the Innovation Patent (pdf).

The review has found that whilst the innovation patent system was created principally for SMEs for less-knowledge intensive innovations, because the innovation patent system is also generally speedier and has lower fees than the standard patent system, there is preliminary evidence that a significant proportion of innovation patents are being used to obtain a form of quick protection for higher-level inventions while a standard patent is being pursued, rather than as the system was designed.

Neverthesless, at this stage it appears that the objectives of the innovation patent are generally being met, and public awareness of the system appears to be reasonable.