IP Makes The News Bigtime!

And I managed not to wet myself.

I almost fell over this evening, as TV3 had a whole series of articles about copyright and IP issues.

3 News reported on the copyright infringement case taken by Larrikin Music against EMI and songwriters Colin Hay and Ron Strykert of iconic Aussie band Men at Work (The Sydney Morning Herald has a story on the ruling). An Australian court has ruled that the famous flute riff in Men at Work's hit song Down Under infringed the copyright in a 1930s song called Kookaburra Sits In the Old Gum Tree, because it amounted to a substantial reproduction of the Kookaburra song.

Larrakin, as owner of the rights to Kookaburra, is now seeking millions in backdated and future royalties. 

Then a bugbear of mine - 3 News also reported that Hone Harawira is looking to have the the Tino Rangatiratanga flag "copyrighted". I always get irritated when the word "copyright" is used as a verb. People, you don't need to do anything to create copyright in a work! Copyright exists the moment the work in question comes into existence. So copyright in a work such as a flag (being an artistic work under the Copyright Act 1994) existed the moment the flag design was created.

But it's my experience that people get IP rights such as copyright, trade marks and patents hopelessly mixed up all the time.

Then Campbell Live had a story about a clever Kiwi inventor, Keith Alexander, and his springfree trampoline. It is apparently a huge seller in the US, making millions for the company selling it. What I wanted to know was whether the thing was patented (I took a look and it is patented in a number of countries), and whether he had made any money out of the thing. According to Campbell Live the rights were acquired by a US company.

But perhaps the most interesting IP news of the day (and this wasn't reported on TV3) is the victory by the ISP iiNet in Australia, who were sued by AFACT, the Australian arm of the Motion Picture Association. AFACT sued iiNet for copyright infringement, alleging that the ISP was liable for the illegal downloading activities of its customers, because it had failed to take adequate steps to prevent illegal filesharing.

The Australian Copyright Act provides safe harbour provisions for ISPs. These provide that ISPs have reduced liability for copyright infringement, provided they introduce certain policies and procedures to deal with illegal filesharing, and provided they terminate the accounts of repeat infringers.

But there is no requirement on the part of ISPs to co-operate with rights-holders.

In this case AFACT alleged that iiNet "authorised" copyright infringement by its account holders by unreasonably failing to pass on AFACT's complaints, and by failing to disconnect the accounts of those alleged to have infringed copyright.  iiNet had argued among other things that it was prevented from forwarding on complaints under Australian privacy laws.

In what may prove to be a landmark decision in this area of law, Justice Cowdroy held that iiNet had no duty to prevent copyright infringement. The Sydney Morning Herald reports:

"iiNet is not responsible if an iiNet user uses that system to bring about copyright infringement ... the law recognises no positive obligation on any person to protect the copyright of another," Justice Cowdroy said. 

This case may not have direct application to New Zealand, because the Govrnment is in the process of developing a copyright infringement policy for filesharing, that involves provision for the giving of notices and, ultimately, determination of issues via the Copyright Tribunal.

But this case represents a massive victory by ISPs worried about the threat posed by copyright infringement claims. And it is unquestionably a setback for rights-owners.