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Arthur HoyleSenior Lecturer in Law and TechnologySenior Lecturer in Law and Technology
School of LawUniversity of Canberra
W ill l k t f l tWe will look at a few relevant cases
the history of copyright represents a continual struggle between public and private rights, with first one and then other gaining a temporary ascendencythen other gaining a temporary ascendency
I want to look briefly at a number of recent Australian cases and in particular: cases, and in particular: Ice TV, Kazaa, Larrikin Records iiiNet ; and Optus
Ice TV The pre‐existing relevant law represented a rejection of the American Feist line on originality in compilations by the Australian courtscompilations by the Australian courts
The High Court of Australia rejected Nine’s complaint The High Court of Australia rejected Nine s complaint, saying that there was little substantial originality in arranging a list the time and title information in g gchronological order.
The Larrikin Records case Kookaburra Sings in the Old Gum Tree is and old Australian song created for a competitionC i h h d f f l Copyright purchased for $6,000 from an estate sale
Fifty years later Men At Work recorded Do you come from the Land Downunder which was alleged by from the Land Downunder which was alleged by Larrikin to contain elements of Kookaburra in a flute riff subsequently added by Greg Hayq y y g y
Hay Admitted
‘It was inadvertent, naive, unconscious, and by the time Men At work recorded the song, it had become unrecognisableunrecognisable.
Relevant Materials http://www.youtube.com/watch?v=IbsfupH8W1o&feature=related (play to 1:06)
http://www.youtube.com/watch?v=IT8SHafGIpU&feature related (start at 1:30 and go to 2:36)ture=related (start at 1:30 and go to 2:36)
http://wwwyoutube com/watch?v=OZzm1C‐ http://www.youtube.com/watch?v=OZzm1C‐NlME&feature=related
The Court Found There was objective similarity sufficient to be classified as breach, but did fi di h h fl iff i It did not amount to a finding that the flute riff is a
substantial part of ‘Down Under’ or that it is indeed the ‘hook’ of that songthe hook of that song
The 40% to 60% damages claimed were "excessive, over‐reaching and unrealistic“g
Were assessed as 5% going back only to 2002
A Shift in Judicial treatment ofA Shift in Judicial treatment of Copyright?
Seen in the context of Ice TV, this was seen by many in the interested legal community as indicating a di ibl hift i th t’ i f i ht d it discernible shift in the court s view of copyright and its enforceability through a distinct softening in the sanctions
Th Sh KThe Sharman or Kazaa case
Sharman Networks and certain others associated with the Kazaa P2P “file sharing” software were liable for the authorisation of copyright infringement engaged the authorisation of copyright infringement engaged in by Kazaa users.
The Judge expressed the view that “it has long been The Judge expressed the view that it has long been obvious that those (warnings in end user agreements) measures are ineffective to prevent, or even substantially to curtail, copyright infringements by users”
Kazaa His Honour stated that he wished to be careful in protecting copyright whilst balancing the rights of subscribers to freedom of expression and subscribers to freedom of expression and communication where no infringement occurs
The court could be seen as pushing back against large scale claims of this type, and this was to at least yppartially proven to be the case in the later iiiNet case
The iiNet case AFACT sent notices to iiNet, attaching information allegedly demonstrating that iiNet users were using BitTorrent to infringe the film companies’ copyrightBitTorrent to infringe the film companies copyright
the court reviewed not only the Kazaa decision but all relevant precedent including Moorhouse, Jain, Metro, C d KCooper and Kazaa
It found that “the means by which the applicant's copying is infringed is in iiNet users' use of the copying is infringed is in iiNet users use of the constituent parts of the BitTorrent system. IiNet has no control over the BitTorrent system and is not responsible for the operation of the BitTorrent system”responsible for the operation of the BitTorrent system
The situation in Australia post iiNetThe situation in Australia post‐ iiNet
the mere provision of the facility to copy is not considered sufficient to render the supplier of the service guilty of any act that affects a third party service guilty of any act that affects a third party undertaken using that service
The High Court in its ruling on an appeal from the The High Court in its ruling on an appeal from the Federal Court held that iiNet had no direct technical power to prevent its customer from using the BitTorrent system, and that iiNet’s only power was indirect
The Optus Casep Optus used a minimal delay before they rebroadcast
i l i i ll ld b h f b ll d T l material originally sold by the football codes to Telstra under a process by which Optus customers can record and watch matches screened on free‐to‐air television and replay with delays as short as two minutes on some devices
An appeal panel of the Federal Court overturned the An appeal panel of the Federal Court overturned the decision, finding that the Betamax precedent was inapplicable
This reinforced the status quo, and in doing so restated the validity of contractual arrangements involving the assignment of copyrightinvolving the assignment of copyright
The Struggle therefore continues
The struggle therefore between public and private rights in the use of materials produced by others goes on, but is seems that the ever present pendulum is now swinging back towards the public interest at the now swinging back towards the public interest at the expense of the private one