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|
Cases 2001 to 2005
This page supplements the Intellectual Property Guide
elsewhere on this site.
It identifies major copyright and competition law rulings
by courts and tribunals since 2000, along with pointers
to selected academic studies -
ACCC v Universal Music Australia
2001 Justice Hill of the Federal Court held in Australian
Competition & Consumer Commission v Universal Music
Australia Pty Ltd that the record companies breached
sections 46 and 47 of the Trade Practices Act 1974
by ceasing to supply particular retailers engaged in parallel
importation of CDs and indicating that other retailers
might also face supply problems. Penalties of $450,000
were imposed on each record company, with $45,000 penalties
for each of three of company executives. | (2001) FCA
1800.
Panel Case
2001 TCN Channel Nine Pty Ltd v Network Ten Ltd
('Panel Case') - Federal Court ruling
on fair dealing in broadcast television, with claims that
commercial broadcaster Network Ten infringed copyright
in Channel Nine broadcasts when re-broadcasting extracts
of Nine's programme 'The Panel'. | FCAFC 146 (2002)
There is a cogent exploration by Michael Handler in 'A
Real Pea Souper: The Panel Case & the Development
of the Fair Dealing Defences to Copyright Infringement
in Australia' in Melbourne University Law Review
27 (2003) and 'Before the High Court: The Panel Case &
Television Broadcast Copyright ' in Sydney Law Review
25 (2003)
On 11 April 2003 the High Court granted Network Ten leave
to appeal against the decision of the Full Court of the
Federal Court and in September 2003 heard arguments
on the operation of ss 14, 25(4) and s 87 of the Copyright
Act 1968 regarding the claimed infringement.
DtMS v Telstra
2002 Desktop Marketing Systems Pty Ltd v Telstra Corporation
Limited - Federal Court decision
and High Court decision
about originality (protection for telephone alphabetical
white pages and colour pages
directories). The Federal Court held that common law historically
granted copyright in directory and other 'list' cases
on the basis of sweat of the brow, irrespective of any
"creative" element in arrangement/selection
of the list.
It upheld Telstra's
copyright in the directories on the basis of effort and
expense in compilation, despite criticism by publisher
Desktop Marketing Systems that there was no selective
or creative effort and claims that Telstra's statutory
obligation to compile the directories removed the incentive
that is generally regarded as a public policy justification
for recognition of copyright.
Henley Arch v Tamawood
2003 Henley Arch Pty Ltd v Tamawood Pty Ltd -
Federal Court decision
regarding copyright in architects' plans. The Court held
that the defendant had infringed copyright in the architectural
plans and drawings of a project home, purchased from a
developer and subsequently adapted for construction by
another builder. | FCA 204 (14 March 2003)
Sony v University of Tasmania
2003 Sony Music Entertainment (Australia) Ltd v University
of Tasmania - Federal Court decision
on discovery application by record companies against three
universities for alleged use of the universities' computer
networks for reproduction and communication of MP3 files,
infringing copyright in music and sound recordings. The
companies sought access to university records to identify
alleged infringers and to determine whether there are
grounds to seek relief for infringement.
The universities resisted on grounds that included privacy.
The Federal Court agreed to grant the orders on certain
conditions, primarily regarding preservation of confidentiality
and privilege. | FCA 532 (30 May 2003)
Universal Music Australia Pty Ltd v ACCC
In its 22 August 2003 decision
in the appeal by Universal, Warner and their executives
regarding Australian Competition & Consumer Commission
v Universal Music Australia Pty Ltd (above) the Full
Federal Court overturned the finding that the companies
had abused their market power in breach of section 46
of the Trade Practices Act.
It held that neither Universal Music nor Warner held a
'substantial' degree of power in the market for wholesale
recorded music in Australia but increased penalties imposed
on the companies to $1 million each in upholding the finding
that the companies breached section 47 of the Trade Practices
Act by engaging in exclusive dealing. Failure to achieve
a "substantial effect on the market" by witholding
supply from parallel importers was no defence. The Court
ordered the companies and four executives to pay one half
of the ACCC's costs of the trial and of the appeals. |
FCAFC 193
Sony v Stevens
2003 Kabushiki Kaisha Sony Computer Entertainment
v Stevens - full Federal Court decision
regarding anticircumvention. The Court overturned the
decision regarding circumvention of technological protection
measures ("mod chips" in Sony playstations).
In overturning the decision that the chip was not a technological
protection measure within the meaning of the Copyright
Act the Full Court agreed that there was no reproduction
or copying in RAM when the game was played. | FCAFC 157
(30 July 2003)
Universal Music v Hendy Petroleum
The Federal Magistrates Court of Australia decision
in Universal Music & Ors v Hendy Petroleum &
Ors concerned a successful action under the Copyright
Amendment (Parallel Importation) Act 2003 for damages
and punitive damages against a service station selling
infringing CDs. | FMCA 373
MP3 WMA Land
The 2003 MP3 WMA Land case, which featured prison terms
for supplying and distributing unlawful copies of copyrighted
music via the eponymous site, is discussed here.
Seven Network v Media Entertainment & Arts Alliance
The Federal Court May 2004 decision
in Seven Network (Operations) Limited v Media Entertainment
& Arts Alliance concerns the MEAA's infringement of
copyright when it used a Seven Network internal telephone
directory for polling Seven's employees on a proposed
enterprise agreement.
Justice Gyles held that Seven owned copyright in the compilation
of the directory and that MEAA annotation of the directory
was a reproduction of the directory in material form,
with development by the MEAA agent of a database using
the annotated directory was also an infringement of copyright.
| FCA 637 (21 May 2004)
BP plc v Woolworths
A 2004 decision
by the Federal Court of Australia in October 2004 confirmed
that 'colours or colour combinations give rise to valid
trade marks' under the Trade Marks Act 1995.
The case followed three applications in 1991 and 1995
by BP for registration of 'the colour green' in the Australian
Register of Trade Marks under the Trade Marks Act 1955.
The 1995 amendments to the Act recognised 'colour, shape,
sound and smell' as trademarks. The oil company sought
registration of a specific shade of green for goods in
class 4 (eg oils), services in class 37 (eg maintenance)
and in class 42 (eg retailing relating to petrol stations).The
applications were eventually accepted for registration
in 1997 but were successfully opposed by Woolworths before
AIPO. BP appealed to the Federal Court, with Justice Finkelstein
- in finding that registerability of a colour mark is
to be approached in the same way as registerability of
any other mark (with acceptance of colour marks in the
US and EU) - directing that the applications proceed to
registration.
BP successfully established that in the public's mind
the green identified petroleum products or services as
originating from a particular (albeit not necessarily
identified) trader and that it had used the specific green
as its mark over several years. | FCA 1362 (2004)
Universal Music, MP3s4free.net and Com-cen
The 2005 MP3s4free.net case considered the responsibility
of a site operator and an internet service provider in
breaching Australian law by creating hyperlinks to sites
that had infringing sound recordings.
The ruling
by Justice Tamberlin in Universal Music Australia
Pty Ltd v Cooper that ComCen was liable through hosting
the MP3s4free.net website was the first decision of its
kind in Australia.
Tamberlin J's ruling was upheld by the Full Federal Court
in December 2006, with Cooper and ISP E-Talk Cooper, being
found guilty of authorising copyright infringement.
The case is discussed in more detail here.
Universal Music Australia v Sharman License Holdings
In September 2005 Justice Wilcox of the Federal Court
ruled
that Sharman Networks, the Australian company behind Kazaa,
had breached music copyright by authorising its users
to swap songs illegally and had exhorted users to "Join
the Revolution", encouraging "visitors to think
it 'cool' to defy the record companies by ignoring copyright
constraints". Sharman was ordered to modify Kazaa
so that users can access only licensed music files and
to pay most of the legal costs. A spokesman for the 30
record companies that sued Sharman indicated that they
would seek damages.
Wilcox found that Sharman and Brilliant Digital Entertainment
had acted in "common design" and allowed Kazaa
users to infringe copyright. The court indicated that
a total stop to online music piracy might not be possible
and - given the importance of "freedom of speech
and communication" - was anxious that any orders
did not shut down legitimate file sharing of "licensed
music, photographs and recipes".
Sharman was ordered to fit Kazaa with one of two filter
technologies (one stopping users from sharing files that
match a list provided by record companies, the other showing
only licensed works) and to put "maximum pressure"
on current users to upgrade to the filtered version. |
FCA 1242 (5 September 2005)
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