Here are some of the stories that caught my attention in the past 6 weeks or so:
The Federal Court of Canada has ruled that Access Copyright is entitled to collect royalties from York University for its staff’s and students’ copying of articles and other materials used in “coursepacks” and learning management systems. The University had argued that its copying was fair dealing under the Copyright Act (RSC 1985, c C-42). Commentator Michael Geist offers a scathing review (http://www.michaelgeist.ca/2017/07/ignoring-supreme-court-trial-judge-hands-access-copyright-fair-dealing-victory/) of the decision, saying it ignores the Supreme Court of Canada’s copyright decisions; while commentary from other firms including Bereskin & Parr are more neutral (http://www.bereskinparr.com/Doc/id956). This decision seems ripe for an appeal.
On 26 May 2017, the Full Federal Court found that a trade mark application must be made in the true owner’s name, and a later assignment from an applicant to the true owner cannot correct any defect in ownership. See Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd (http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2017/2017fcafc0083). This overturns the previous Australian law position about ownership of a trade mark application. However, the Insight decision means that the ownership requirement for trade mark applications is different to that of registered designs and patents.
The Age’s Tony Wright comments on a new book from David Dufty, “The Secret Code-Breakers of Central Bureau: How Australia’s signals intelligence network helped win the Pacific War”, about Australia’s WWII signals intelligence and code-breaking operations at the Monterey building in Melbourne – a local version of the UK’s Bletchley Park.
The Copyright Amendment (Disability Access and Other Measures) Act 2017 to implement Australia’s obligations under the Marrakesh Treaty (WIPO) received royal assent on 22 June 2017. Among other changes, this will create a new “fair dealing” exception to allow other people to help people living with disabilities by creating and sharing accessible versions of books and other materials in braille, large print or DAISY audio formats. When I last checked in mid-June, 28 countries had ratified the Marrakesh Treaty.
On 20 April 2012 the High Court of Australia handed down its decision in the “iiTrial” between Australian Federation Against Copyright Theft (a group of 34 movie studios and TV production companies) and Australian Internet service provider iiNet.
The main question on appeal to the High Court was whether iiNet “authorised” its users’ copyright infringment by not sending warning notices to customers and not stopping them from any infringing use of Internet file-sharing tools and services.
The Court found that the copyright infringement notices issued by AFACT members to iiNet were merely allegations of infringing behaviour and did not satisfy the civil standard of proof (at ). The notices “did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers’ accounts” (at ). The Court dismissed the appeal by a 5-0 verdict and ordered AFACT to pay iiNet’s costs in the High Court hearings.
In 2010, justice Cowdroy of the Federal Court held that iiNet did not “authorise” alleged copyright-infringing activities by iiNet’s customers (see Roadshow Films Pty Ltd v iiNet Limited (No. 3)  FCA 24). In February 2011 justices Emmett, Jagot and Nicholas of the Federal Court of Appeal upheld justice Cowdroy decision 2:1 (see Roadshow Films Pty Limited v iiNet Limited  FCAFC 23 per Emmett and Nicholas JJ, Jagot J dissenting). In August 2011, the High Court granted leave to AFACT to appeal against the Full Federal Court’s decision. That appeal was heard on 1-2 December 2011.
The two-year old copyright dispute between Australian ISP iiNet and the Australian Federation Against Copyright Theft (AFACT) will be heard in the High Court on 1-2 December 2011.
As discussed in my post of 23 February 2011, the Federal Court in 2009 and 2010 found that iiNet did not “authorise” alleged copyright infringing activities by its customers. In August 2011, the HCA granted AFACT the right to appeal against the decision of the Full Federal Court, on five grounds.
consulting on a proposal to broaden the definition of “carriage service provider”, which currently excludes entities that do not provide network access but provide online services (eg Google, Yahoo);
inviting submissions on whether new exceptions under the Copyright Act 1968 (Cth) should be introduced to permit some circumvention of technological protection measures, such as for education purposes; and
providing the Australian Law Reform Commission with a reference on copyright later in the year, which may include examining “some exceptions under our law in the context of the online environment and whether the correct balance exists”.