1. Australian copyright amendment bill follows the FTA agenda
The Copyright Amendment Bill 2006 is currently before the Senate and is bound to make it even more difficult to interpret and apply copyright law. The amendments are partly being introduced to comply with the Free Trade Agreement (FTA), and a major affect is to make enforcement easier (and harsher) against infringers. They also bring the law up to speed on issues such as time and format shifting, and introduce a fair use exception for parody and satire. Weatheralls Law, a blog by an Australian IP Academic, contains a comprehensive legal discussion of the issues, including a great list of FAQs.
The changes are essentially all good news for copyright holders, and the current version of the Bill contains criminal sanctions for infringement, including strict liability provisions and fines.
2. Woman’s Day fined in the Australian Magistrates Court
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Australian Consolidated Press was ordered in October 2006 to pay A$10,000, plus A$9,100 in damages for wrongly attributing a painting by Sydney artist Vladas Meskenas to someone else. Here at lightbulb we believe the outcome of the case was predictable but what is extraordinary is the failures of Woman’s Day. The magazine’s features editor, Rachel Morris, undertook to publish a correction for Mr Meskanas but it too 90 phone calls and more than 12 months for a correction to appear.
In calculating the damages magistrate Kenneth Raphael noted that ACP had refused to apologise, conduct he said was “less than exemplary”.
The take-away for intellectual property holders and users is that IP should be tagged to take full consideration of the impact of moral rights law. For example, for appropriate credit to be given to authors, photographers and painters there should be proper records made of the creator of each work. Without them a breach of moral rights law is inevitable. Contact us for you would like a guide to moral rights compliance.
3. Australian spammer fined A$5.5 million
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The Federal Court of Australia recently issued a decision fining an email marketing company and its director A$5.5 million dollars for breaches of the Spam Act 2003 (Cth). The offending spammer, a company named Clarity1 and its director Wayne Mansfield, had sent approximately 231 million spam emails to 8 million different email addresses since the Spam Act came into force in April 2004. Clarity1 obtained the email addresses by using address harvesting software and address lists purchased from others.
The Australian Communications and Media Authority (ACMA) commenced proceedings against Clarity1 and the decision was handed down in April 2006, with the fine recently determined by the Federal Court of Australia. Naturally enough, the ACMA welcomed the decision, even though it was originally seeking $10 million in fines, saying the action “demonstrated [ACMA’s] determination to pursue important matters vigorously”.
The take-away for email marketers? Know your obligations under the Spam Act, as courts will impose hefty fines for clear and sustained breaches.To develop or improve your spam law compliance policy, read the ACMA’s FAQs, and remember its three broad guidelines:
- Consent (the recipient must consent to the email),
- Identify (the email must contain accurate information about the person that authorised sending it), and
- Unsubscribe (the email must contain a functional unsubscribe facility).
4. Preparations for copyright wars on the Web 2.0 frontier 
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Google is reported to have created a “law chest” of US$200 million in anticipation of copyright litigation following its recently completed acquisition of YouTube. YouTube hosts various clips uploaded by users, sometimes without the permission of the actual copyright holders. YouTube’s copyright policy roughly equates to, “tell us if your rights are being infringed and we’ll take the offending clip down”. In this sense, it’s not too dissimilar to their attitude on registering other companies keywords with their search engine facility.
There may be other Google manoeuvring in the background. Speculation exists that major record companies (Universal Music & Warner Music Group) hold small stakes in YouTube, negotiated prior to Google’s takeover to passify potential attackers.
Across the Atlantic, Jean-Francois Lepetit, producer of the documentary film “Le monde selon Bush” (The World According to Bush), has announced in a Flach Films press release that it is issuing a writ in the Paris Commercial Court against both Google France and Google Inc for breach of copyright. The claim is that the video on Google (since taken off but viewed at least 43,000 times) damaged business from the video-on-demand and video distribution deal Flach Films has with Editions Montparnasse. Variety reports that French law provide immunity to video host sites. Presumably the suit aims to prove Google Video France was an unauthorised editor or publisher of the content.
Meanwhile News Corp’s MySpace business affairs team is facing similar concerns after Universal commenced proceedings in Los Angeles for alleged copyright infringement of thousands of songs and videos. Universal is now owned by Vivendi, a media group based in France.
What’s the take-away? Following the August 2006 Kazaa decision in Australia ( Universal Music v Sharman Networks [2005] FCA 1242) and the June 2005 US Supreme Court Grokster decided, social networking and content-sharing technology companies are well advised to:
- rigorously review their positions as regards compliance with copyright law, particularly section 36 of the Copyright Act 1968 (Cth) which can hold liable a person who “authorizes the doing in Australia of, any act comprised in the copyright”;
- design their systems taking into consideration copyright law, particularly recent court decisions.
Kazaa was the leading file-sharing system following Napster and claimed to enable the distribution of 3 to 5 billion unauthorised music files per month amongst up to 100 millions users worldwide. Grokster developed and distributed peer-to-peer file trading software. It seems at least 90% of the transferred files consisted of copyrighted music and motion picture files.
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