December 16, 2016 8:00 AM | Posted by Helen Lauder & John Fairbairn | Permalink
Foxtel and a number of movie studios have secured the first site blocking orders in Australia.  The orders require the major Australian ISPs, on a no fault basis, to block access to a number of infamous sources of illegal content, namely, The Pirate Bay, TorrentHound, IsoHunt, Torrentz and SolarMovie.  It is a positive step for creative industries and their ongoing initiatives to stop illegitimate free sources of their content. read more
December 1, 2016 8:30 AM | Posted by Tony Middleton | Permalink
A recent decision by the Federal Court comes amidst the start of the festive season but has left neither party with any holiday cheer. read more
September 1, 2016 9:36 AM | Posted by Timothy Gorton | Permalink
In August last year, this blog discussed the Queensland Supreme Court decision of Coles v Dormer.  That case involved copyright infringement of house plans and the building of a copycat house in a Cairns suburb.  To remedy the infringement, the Court had awarded an injunction requiring remedial works to the front of the house. read more
June 3, 2016 10:59 AM | Posted by Ben Fisher and Paul Kallenbach | Permalink
One of the most ambitious library projects ever conceived, the Google Books project – a plan to scan and digitally store every single book in the world – has recently overcome one of the biggest legal hurdles in its path to creating the world's largest digital library. On 18 April 2016, the US Supreme Court denied without comment a petition from the Authors Guild to hear its appeal of a 2015 court ruling in favour of Google, putting an end to a decade long legal battle. read more
April 29, 2016 3:53 PM | Posted by Jonathan Kelp and Rebecca Pereira | Permalink
Following on from our earlier blog post here, this post considers the key copyright and trade marks aspects of the Productivity Commission's draft report into Australia's intellectual property regime, released today. read more
April 26, 2016 9:00 AM | Posted by James Patto | Permalink
When Neo consulted the 'oracle' in the Matrix movies, he was left confused and uncertain as to whether the Morpheus-led campaign to name him the 'chosen one' was true.  One of the oracle's more famous quotes was that 'we are all here to do what we are all here to do' ... a sentiment that Oracle Corporation of Redwood City, California, may well agree with ... read more
April 8, 2016 11:49 AM | Posted by James Patto & Paul Kallenbach | Permalink

Welcome to the third instalment of the 'When IT hurts, it hurts: Mitigation strategies for cyber attack loss' blog series.  Coinciding with the release of MinterEllison's cyber survey report, Perspectives on Cyber Risk (the Report), this series focuses on key areas of loss that an organisation may suffer as a result of a cyber attack, and key strategies to mitigate that loss.

Today's blog post looks at two other feared exposures of our survey respondents - business interruption and loss of confidential information and intellectual property.

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February 23, 2016 2:59 PM | Posted by James Patto | Permalink
In what has been an eventful few weeks on the copyright high seas, after some set backs, rights holders commenced actions in the Federal Court to block a number of websites that they allege have the 'primary purpose' of infringing copyright.  We've set out a round up of these recent events. read more
December 22, 2015 10:05 AM | Posted by Andrew Jiang & Paul Kallenbach | Permalink
As reported in our previous blog post, in April this year, the Federal Court ordered several internet service providers to hand over the identities and residential addresses of individuals who allegedly impermissibly downloaded Dallas Buyers Club. read more
December 18, 2015 9:42 AM | Posted by Paul Kallenbach | Permalink

In an eventful year for trade mark and copyright law (particularly in the online piracy domain), we look at 9 of the key developments in Australian trade mark and copyright law this year, in Whiskey, websites, bottles and blocks.




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December 15, 2015 12:44 PM | Posted by James Patto & Paul Kallenbach | Permalink
November 25, 2015 4:46 PM | Posted by Paul Kallenbach & James Patto | Permalink
For perhaps the first time since the Copyright Amendment (Online Infringement) Act 2015 (Website Blocking Act) became law, there has been the publication of a demand for an internet service provider (ISP) to block access to an overseas website. More particularly, residential builder Simonds Homes has demanded that a small (as yet unnamed) ISP block access to a website hosted in India. read more
October 1, 2015 3:38 PM | Posted by Elouise Blunt | Permalink
Last week a United States District Court judge declared that the copyright claimed in the lyrics to the song Happy Birthday To You is invalid. read more
August 18, 2015 10:50 AM | Posted by Jonathan Kelp & Timothy Gorton | Permalink
The ongoing dispute between Dallas Buyers Club LLC (DBC), rights holder of the film of the same name, and the internet service providers (ISPs) who hold the key to the identities of alleged copyright infringers, has taken another turn. read more
August 14, 2015 9:47 AM | Posted by Timothy Gorton | Permalink
Whilst imitation is said to be the sincerest form of flattery, the Queensland Supreme Court has reminded a Cairns builder that it may also be copyright infringement. In the recent decision of Coles v Dormer, the Court ordered — by way of injunction — a number of modifications to the front of a house which was largely identical to the plaintiff's. read more
August 11, 2015 9:00 AM | Posted by James Patto & Paul Kallenbach | Permalink
Following a Federal Circuit Court decision in 2014, the United States Supreme Court has refused to hear Google's appeal against Oracle regarding whether application programming interfaces (APIs) for the computer language Java are capable of attracting copyright protection. By refusing to hear this appeal, the highest court in the US has effectively declared that copyright may subsist in APIs, overruling Judge William Alsup's first instance decision. read more
June 25, 2015 6:23 PM | Posted by Rebecca Dutkowski | Permalink
The High Court of England and Wales has used its powers under UK copyright law to force the five main internet service providers (ISPs) in the UK - BT, Virgin Media, Sky, TalkTalk and EE - to block access to seven foreign websites hosting pirated e-books. Similar powers will be introduced into Australian law once the Copyright Amendment (Online Infringement) Bill 2015 (Cth) receives royal assent. read more
June 18, 2015 5:04 PM | Posted by Helen Paterson and Charles Alexander | Permalink

On 11 June 2015, the Legal and Constitutional Affairs Legislation Committee released its report on the Copyright Amendment (Online Infringement) Bill 2015 (Bill).  The Committee (with the Greens dissenting) recommended that the Bill be passed, subject to the Committee's other recommendations. On Tuesday, the Bill was passed with an amendment in the House of Representatives.  A Supplementary Explanatory Memorandum (Supplementary EM) was also  released.  The Bill is now with the Senate and it is expected that it will be passed soon.

We now take a look at the Government's responses to the Committee's recommendations, as shown in the amendment to the Bill and the Supplementary EM.

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May 21, 2015 4:25 PM | Posted by Helen Paterson & Charles Alexander | Permalink

On 18 May 2015, the Full Court of the Federal Court delivered its judgment in Tamawood Limited v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) [2015] FCAFC 65. The decision considered nine issues, including the existence and terms of a licence, innocent infringement, authorisation, damages, costs and the elements involved in determining whether there has been a 'reproduction' of a copyright work.

We look at the Court's consideration of the final issue – the elements involved in determining whether there has been a reproduction of a copyright work, specifically, the interaction between a sufficient degree of objective similarity and causal connection.

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April 28, 2015 9:50 AM | Posted by James Patto, Lucy McGovern & Paul Kallenbach | Permalink

Online infringers will soon receive a series of notices from their ISP under the proposed Copyright Notice Scheme 2015 (the Code).

The primary Australian telecommunications industry body, Communications Alliance, has submitted the final version of the Code for review and approval by the Australian Communications and Media Authority (ACMA). If the Code is approved, the majority of Australian ISPs must send notices to alleged copyright infringers at the request of a copyright owner. After a user receives 3 notices in a 12 month period, the ISP must then assist the copyright owner if it applies to the court for preliminary discovery to identify the alleged infringers.

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April 8, 2015 5:40 PM | Posted by Lucy McGovern & Paul Kallenbach | Permalink
In a landmark decision, Justice Perram of the Federal Court has indicated that he will order Australian ISPs to divulge the names and physical addresses of their customers associated with IP addresses that shared the film 'Dallas Buyers Club'. In light of the decision, copyright owners can expect to find it easier to obtain prospective online copyright infringers' details. read more
April 7, 2015 9:38 AM | Posted by McCubbin, George | Permalink
In Pocketful of Tunes Pty Ltd v The Commonwealth of Australia [2015] ACopyT 1, Justice Bennett (President) of the Copyright Tribunal of Australia had to assess compensation for the unlicensed use of a song by the Commonwealth. read more
September 2, 2014 6:00 PM | Posted by Emily Hawcroft, Charles Alexander, Paul Kallenbach | Permalink
It's been an active and interesting 18 months in the ever-changing Australian copyright sphere. From copyright reform to copyright in compilations, from the dangers of litigation to the unlicensed use of stock photography, we've collated a summary of the more significant developments over that time which may be helpful or instructive when similar issues arise. read more
August 25, 2014 3:00 PM | Posted by Charles Alexander and Helen Paterson | Permalink

On 30 July 2014, the Government released its Online Copyright Infringement Discussion Paper (Discussion Paper).  The Discussion Paper contains a number of proposals designed to address online piracy.  The proposals relate to the extension of authorisation liability for copyright infringement, the availability of injunctive relief to block infringing overseas websites and the extension of the safe harbour scheme that is currently restricted to carriage service providers.

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July 10, 2014 12:01 PM | Posted by Nicole Reid | Permalink
A US court has dismissed an appeal by Arthur Conan Doyle's estate that sought to prevent the publication of stories featuring Sherlock Holmes on the basis that some (but not most) of Conan Doyle's stories featuring the character remained under copyright. read more
June 25, 2014 5:41 PM | Posted by Ella Biggs and Paul Kallenbach | Permalink
The scope of copyright protection afforded to compilations remains a vexed issue in Australia.  In a judgment handed down on 6 June 2014, the Federal Court has further considered the issue. read more
June 18, 2014 4:52 PM | Posted by Charles Alexander | Permalink
After a lengthy investigation, the ACCC has again authorised APRA's licensing arrangements for five years, but subject to some important conditions. read more
May 30, 2014 2:00 PM | Posted by Nicole Reid | Permalink
The exceptions to copyright infringement that the United Kingdom is endeavouring to introduce provide an interesting contrast to the broad-based fair use exception that has been proposed in Australia, as both countries grapple with how copyright law should adapt in the digital age. read more
May 29, 2014 5:03 PM | Posted by Helen Paterson, Emily Hawcroft & Charles Alexander | Permalink

It is common practice in the fashion industry to use others' garments and artwork as 'inspiration' for new designs.  A recent decision in the Federal Court illustrates the financial consequences for those who cross the line where inspiration ends and infringement begins.

In Seafolly Pty Limited v Fewstone Pty Ltd [2014] FCA 321, Dodds-Streeton J found that Fewstone (trading as City Beach) infringed Seafolly's copyright in three artistic works by instructing its designers and manufacture to make swimwear based on pictures and samples of Seafolly's swimwear.

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April 17, 2014 4:00 PM | Posted by Nicole Reid and Paul Kallenbach | Permalink
The Court of Justice of the European Union has recently held that providing a clickable link to a work on a website without the permission of the owner of the copyright in that work does not amount to infringement of copyright. read more
April 4, 2014 9:36 AM | Posted by Nicole Reid and Paul Kallenbach | Permalink
The Federal Circuit Court recently found against a travel agent who had posted a stock image on her website without obtaining a licence. read more
March 27, 2014 5:41 PM | Posted by Florian Poetzlberger | Permalink
The Australian Law Reform Commission has recommended the introduction of a broad fair use exception to copyright infringement, similar to that in the US.  Florian Poetzlberger, a lawyer recently visiting us from Germany, explains that a similar debate is also raging in the EU. read more
February 24, 2014 11:35 AM | Posted by Nicole Reid and Paul Kallenbach | Permalink
Over the last few years, there have been a number of news reports about the use of loud music as an interrogation or torture technique employed against prisoners at the Guantanamo Bay military detention camp.  Recently, Canadian electro-industrial band Skinny Puppy has generated further publicity on the issue with its members' response to the discovery that their music had been used in this way. Upset by this use of their work, they have reportedly sent an invoice to the US government for $666,000 for musical services. read more
February 18, 2014 11:40 AM | Posted by Paul Kallenbach | Permalink
The Australian Law Reform Commission Final Report into Copyright and the Digital Economy is now publicly available. read more
February 10, 2014 2:40 PM | Posted by Nicole Reid, Paul Kallenbach | Permalink
How is a character in a literary work, as distinct from the literary work itself, protected by copyright? read more
December 11, 2013 2:56 PM | Posted by Matt Davies and Paul Kallenbach | Permalink
The recent decision of the Australian High Court in Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2013] HCA 21(Aristocrat) serves as an intriguing illustration of the evidentiary challenges confronting those seeking to enforce their intellectual property rights in a global marketplace.
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November 26, 2013 3:28 PM | Posted by Nick Liau and Paul Kallenbach | Permalink
Since the inception of the Google Books project in 2004, Google has scanned and digitised over 30 million books. Google Books enables users to search for text within digitised books. Users' search results return short extracts of books together with title and other bibliographical details. Google's search engine can thus be employed to perform complex analyses of the Google Books database, for instance, by enabling users to search for how frequently certain words or phrases are used across time. Users are not, however, able to view or download the full content of the books contained within the Google Books database. read more
October 25, 2013 4:30 PM | Posted by Genevieve Watt and Paul Kallenbach | Permalink
The application of copyright law to works for which the rights holder (or holders) cannot be found (so-called 'orphan works') is a question that has recently been under consideration in several jurisdictions. Given the ease with which works can be de-identified when reproduced or transmitted using digital means, this is not surprising. read more
October 1, 2013 3:56 PM | Posted by Ella Biggs, Nicole Reid and Kylie Diwell | Permalink
The popular US hit 'Blurred Lines' has been the subject of allegations of copyright infringement for the song's similarity to two other songs, Marvin Gaye's 'Got To Give It Up' and Funkadelic's 'Sexy Ways'. read more
September 16, 2013 4:15 PM | Posted by Genevieve Watt and Paul Kallenbach | Permalink
The question of IT pricing, and the perception that Australian consumers and businesses are overcharged for IT products, was referred to the House of Representatives Standing Committee on Infrastructure and Communications (the Committee) by then Minister for Broadband Communications and the Digital Economy, Stephen Conroy, on 18 May 2012. read more
March 22, 2013 12:00 AM | Posted by Genevieve Watt and Paul Kallenbach | Permalink
In late January, in Association of New Zealand Inc v Enforcement Number: Telecom NZ 2592 [2013] NZCOP 1, the New Zealand Copyright Tribunal issued orders against a copyright infringer under New Zealand's "three strikes" anti-piracy legislation for the first time. The respondent had uploaded musical works via peer-to-peer file sharing protocol BitTorrent, in breach of the copyright holder's exclusive right to communicate the works to the public. read more
February 21, 2013 12:00 AM | Posted by Tarryn Ryan and Paul Kallenbach | Permalink
Yes, you read it right. In a move that has raised more than a few eyebrows, the operators of The Pirate Bay, a website that facilitates the downloading of copyright material, have lodged a complaint with Finnish police and are threatening legal proceedings against a Helsinki-based anti-piracy group for allegedly infringing their copyright in The Pirate Bay's website. read more
February 11, 2013 12:00 AM | Posted by Nicole Reid and Paul Kallenbach | Permalink
Following in the wake of furore concerning proposed changes to Instagram's terms of service that seemingly would have allowed commercial uses of user's photographs without any compensation to them (which we posted about here), a US court has issued a decision about the rights of third parties to use online content under the terms of service of another popular social media site, in this case Twitter. This case provides further comfort to the users of social media sites that they retain at least some control over content that they post online. read more
December 19, 2012 12:00 AM | Posted by Posted by Tarryn Ryan and Paul Kallenbach | Permalink
In a recent decision of the District Court of New York, the HathiTrust Digital Library's 'digitisation' of literary works was held to fall within the fair use exception to copyright infringement because of the purposes behind the making of the reproductions. This decision has significant implications for the US fair use doctrine in the digital age. read more
December 3, 2012 12:00 AM | Posted by Posted by Tarryn Ryan and Paul Kallenbach | Permalink
You may have seen the Facebook post that went viral over the last week or so, supposedly invoking copyright protection over everything you've ever uploaded to Facebook. There were similar posts on privacy rights going around earlier this year when Facebook was floated on the stock market. read more
November 27, 2012 4:14 PM | Posted by Tarryn Ryan and Paul Kallenbach | Permalink
In the wake of the High Court's decision in IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14 (IceTV), a recent decision of the Full Federal Court has provided some helpful guidance on when a compilation will be an original literary work protected by copyright. read more
September 3, 2012 5:06 PM | Posted by Lucy McGovern and John Fairbairn | Permalink
Can a building name become a geographical indicator with the consequence that businesses operating from that building cannot include the name in their trade marks? read more
August 30, 2012 5:22 PM | Posted by Nicholas Liau and Paul Kallenbach | Permalink
Bill Granger, an Australian chef, has written a series of very popular cookbooks over the years which have been published by Murdoch Books (Murdoch). Murdoch published a series of cookbooks entitled Best of Bill and Bill Cooks for Kids, which were compilations of recipes that had been previously published by Murdoch in Bill Granger's other cookbooks. read more
August 28, 2012 5:24 PM | Posted by Genevieve Watt and Paul Kallenbach | Permalink
Three recent Canadian Supreme Court decisions involving the Society of Composers, Authors and Music Publishers of Canada (SOCAN) have tested the application of the fair dealing provisions in the Canadian Copyright Act, R.S.C 1985, c. C-42 to relatively new technologies including music streaming, internet sales of video games and free previews of musical works on music publishing sites. These cases test the boundaries of the principle of technological neutrality and raise interesting issues that Australian courts may well need to consider at some stage. read more
August 21, 2012 5:46 PM | Posted by Lucy McGovern and John Fairbairn | Permalink
On 20 August 2012, the Australian Law Reform Commission (ALRC) released its IssuesPaper for the inquiry into Copyright and the Digital Economy. The Paper sets out 55 questions reflecting the issues that will be the focus of the Inquiry as well as proposed guiding principles for reform. read more
July 11, 2012 11:28 AM | Posted by Ben Wong and Paul Kallenbach | Permalink
In the recent decision of Warman v Fournier [2012] FC 803, the Federal Court of Canada considered alleged copyright infringement for linking and posting content online. The decision has implications for user generated content on forums, blogs, social media and similar platforms. read more
May 31, 2011 3:51 PM | Posted by Kate Rintoul and Paul Kallenbach | Permalink
S. Victor Whitmill - the tattoo artist who designed and applied the tattoo gracing the left side of Mike Tyson's face - caused a stir in Hollywood last week when he launched proceedings against Warner Bros for copyright infringement. The film giving rise to those proceedings, The Hangover: Part Two, was released in the US (and elsewhere) as originally scheduled after Whitmill failed to convince a US District Court judge that its release should be injuncted. Mr Whitmill is, however, proceeding with a damages claim against the studio. read more
January 31, 2011 6:30 PM | Posted by Paul Kallenbach | Permalink
A decade of lawsuits, particularly in the US, has failed to curb the vast scale of copyright infringing activity occurring on peer-to-peer file sharing networks. In Australia, last year’s iiNet decision arguably shields internet service providers (ISPs) against claims by copyright owners that, by failing to take action against their infringing subscribers, ISPs authorise those infringements. As a result of this decision (currently the subject of an appeal), many Australian ISPs now simply forward infringement notices received from rights holders to users, or take no action at all. read more
December 17, 2010 4:50 PM | Posted by Jessica Childs and Paul Kallenbach | Permalink
The Full Federal Court’s landmark decision this week in Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCAFC 149 suggests that the ‘sweat of the brow’ – the expending of skill and labour in creating a database or other work – is not, of itself, sufficient to attract copyright protection under the Copyright Act 1968 (Cth). Something more is required – that something being that the work in question must originate from some independent intellectual effort of a (human) author. read more