Optus began offering a new service called “TV Now” in July 2011 to its private, as well as small to medium business, customers. The service gives a user the ability to record free to air television programs, including AFL and NRL games, and play them back on any one of four compatible devices, namely, PCs, Apple devices, Android devices and 3G devices.

The user can view the recording in the 30 days following the time of the original broadcast. When a user clicks “play” on his or her compatible device, Optus’ data centre streams the copy of the program in the appropriate format to that device so that the user can watch it. However, the streamed copy is not downloaded to the users’ device. And, users with Apple iPads or iPhones can watch a program selected for recording “almost live” within about two minutes of the commencement of the actual free to air broadcast. Users with other compatible devices (PCs, Android and 3G devices) can only watch a recorded program after the broadcast had finished.

Optus contended that each user of the TV Now service, rather than it, had recorded, or made the recording, and played it without any infringement of copyright. Optus relied on an exception in s 111 of the Copyright Act (the “timeshifting” exemption). In essence, the exception allows a person to make a film, or copy, or recording of a broadcast solely for his or her private and domestic use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast is made. If the person does make a copy in those circumstances, then the making of the recording will not infringe copyright in the broadcast.

The parties agreed there were 7 key legal issues but the decision was based on 2 findings:

1. that the user made each recording of a broadcast by clicking on the “record” button on his or her compatible device. Justice Rares considered that this result was substantially similar to the position where a person used a video cassette recorder (VCR), digital video recorder (DVR) or similar device to copy a television broadcast. Even though Optus provided all the significant technology for making, keeping and playing the recording, he considered that in substance this was no different to a person using equipment or technology in his or her home or elsewhere to copy or record a broadcast.

2.Justice Rares decided that when the user clicked the “record” button, he or she did not infringe the rightholders’ copyright in the broadcasts of the AFL and NRL games because of s 111(1) and (2) of the Copyright Act. That was because the evidence suggested that individual users had made the recordings using the TV Now service solely for their private and domestic use by watching the recordings at a more convenient time, even if they watched these “near live” within minutes of the start of the broadcast.

The decision will be appealed.

One of the claims made by ACCC related to the use of “Kloster Ford”: the business names “Kloster Ford” and “Charlestown Toyota” appeared in the title of Google sponsored links to Trading Post’s website. Kloster Ford and Charlestown Toyota are Newcastle car dealerships who competed against Trading Post in automotive sales. In other words, the ACCC said that Trading Post bought those names for use to link to its site when certain automotive sales searches were performed on Google even though Trading Post had no association with those names.

The ACCC had previously settled its action against Trading Post and declarations were made about its misleading conduct. The decision therefore mostly related to Google.

The ACCC alleged that the appearance of organic search results and sponsored links was essentially the same and therefore misleading. It also complained about misleading keywords in the headlines of particular advertisements.

After considering Google’s technical evidence and trade marks policy Justice Nicholas dismissed the claims against Google.

He concluded:

“I do not accept that ordinary and reasonable members of the class would be likely to be lead to believe that either top left or right side sponsored links were not advertisements or that they were no different to organic search results. This conclusion applies not only to the Kloster Ford advertisement and the Charlestown Toyota advertisement but also to top left sponsored links and right side sponsored links generally…”

“Once it is accepted that the ordinary and reasonable members of the class would have understood, as was the fact, that the Kloster Ford advertisement and the Charlestown Toyota advertisement were advertisements, then it seems to me to follow that they would be most unlikely to have understood that any information conveyed by those advertisements was endorsed or adopted by Google. They would have understood that the message conveyed was a message from the advertiser which Google was passing on for what it was worth.”

UPDATE 14 October 2011: The ACCC has appealed the decision

Whilst RSA argues the data breach risk was low, there is a major reputational risk.

This has lead to reports that Westpac, ANZ, NAB and CBA as well as the ATO will replace the security tokens they have issued to their customers.

It is still not clear what information has been obtained from RSA but clearly its customers are not taking chances.

In lengthy judgments the Full Court judges split 2:1 against the film studios but were all critical of iiNet and Judge Emmett suggested a better way in which the film studios should have given notice of their concerns.

For detailed analysis see Kimberlee Weatherall’s post here.

The Bill has wide ranging changes affecting the IP profession including provision for incorporation of patent and trade mark attorneys.

The deadline for written submissions is 4 April 2011.

Click on Expand All to show all the posts or Collapse All to just see this month’s posts.

Chief Justice Keane accepted the contention of the defendants that “the directories were compiled, not by the individuals engaged to facilitate the process, but by a computerised process of storing, selecting, ordering and arranging the data to produce the directories in the form in which they were published. ”

He confirmed that while “It may be that if the author of a work is the employee of another person, ownership of the copyright may vest in the employer; but copyright in a literary work can subsist only if it originates from an individual. This case highlights the difficulty confronting a claim to copyright in a literary work which is compiled by an automated process.”

In this case it was clear that “Numerous individuals, some identified and some not, contributed to the work preparatory to the compilation of each of the WPDs and YPDs, but the compilations were brought into the form in which they were published primarily by an automated computerised process.”

He rejected the argument that the directories should be regarded as a work of joint authorship.

If Telstra does not appeal further it may lobby for a change to the Copyright Act.

UPDATE 21 January 2011: Telstra has applied to the High Court for special leave to appeal

UPDATE 2 September 2011: THe High Court refused Telstra’s application for special leave to appeal

In deciding that none of the ten selected headlines are capable of being literary works in which copyright can subsist, no matter how clever, Judge Bennett said:

Headlines generally are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works. The function of the headline is as a title to the article as well as a brief statement of its subject, in a compressed form comparable in length to a book title or the like. ..

The majority of the headlines in the sample editions are short factual statements of the subject of the article. The addition of a pun does not, of itself, in the absence of evidence, convert such statements into literary works. … It is not the “ideas” of the author that is protected by copyright but their fixed expression (IceTV at [160]).

The headline and by-line is, as Reed says, meta-information about the work, not part of the work, the work being the article. The need to identify a work by its name is a reason for the exclusion of titles from copyright protection in the public interest. A proper citation of a newspaper article requires not only reference to the name of the newspaper but also reproduction of the headline. This was a matter of common ground between the witnesses. If titles were subject to copyright protection, conventional bibliographic references to an article would infringe.

Judge Bennett also decided that:

• Even if the Article/Headline Combination constituted a copyright work, Reed did not take a substantial part of such a work.
• Although it was not necessary to decide whether Reed was entitled to rely on the defences claimed, Reed’s conduct in reproducing and communicating the AFR headlines as part of the Abstracts is a fair dealing for the purpose of reporting news such that Reed’s conduct would not constitute an infringement of copyright by reason of s 42(1)(b) of the Act.

Coincidentally, Harvard Law has recently published a note on the US law regarding online aggregation. It gives a useful overview of the aggregation models and some helpful best practices which could apply in Australia:

1. Reproduce only those portions of the headline or article that are necessary to make your point or to identify the story. Do not reproduce the story in its entirety.

2. Try not to use all, or even the majority, of articles available from a single source. Limit yourself to those articles that are directly relevant to your audience.

3. Prominently identify the source of the article.

4. Whenever possible, link to the original source of the article.

5. When possible, provide context or commentary for the material you use.

In response to the investigation, Google has given written undertakings that it will:

* Publish an apology to Australians in Google’s official Australian blog (www.google-au.blogspot.com) for its collection of unsecured WiFi ‘payload’ data.
* Undertake to conduct a Privacy Impact Assessment (PIA) on any new Street View data collection activities in Australia that include personal information.
* Provide a copy of these PIAs to the Privacy Commissioner’s Office.
* Regularly consult with the Australian Privacy Commissioner about personal data collection activities arising from significant product launches in Australia.

Google’s undertakings will last for three years. These undertakings will be reviewed following any reforms to the Privacy Act.

It managed to cover the issues related to individual creativity and intellectual property (ranging from open source to mega-litigation) in an entertaining way.

The book is not science fiction although it is set in the not too far future. It references corporations such as Kodak, Duracell and Disney and follows the journey of 2 inventors and a reporter. A key element is the effect of litigation on their lives.

And it appears to be part of a new stream of literature: tech lit.

It refers to the Burning Man. If you want to know about him you’ll have to read Daemon and Freedom by Daniel Suarez.