Le v The Queen 20/09/2007

On 18 September 2007, the Federal Court of Australia delivered its decision

in the appeal by Ms Le against the severity of a criminal sentence for

Ms Le had pleaded guilty and was initially sentenced to 12 months’

imprisonment for six offences under the Copyright Act 1968 for possessing

infringing articles for sale or hire and possessing a device for infringing

goods with falsely applied trade marks. Ms Le argued that the sentencing

Magistrate made two errors by failing to consider alternatives to full-time

imprisonment and by failing to apply a discount for a guilty plea.

Edmonds J of the Federal Court acknowledged that other individuals convicted

of the same offences had received suspended custodial sentences and had not

been imprisoned. However, His Honour considered that future acts of

infringement, particularly repeat similar offences, needed to be deterred.

The non-release period was varied from eight months to three months but the

12 month sentence was upheld.

Le v The Queen [2007] FCA 1463 (18 September 2007)

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Decision reserved in row over Rugby World Cup Footage 16/09/2007

The New Zealand Herald reports that on 14 September 2007, the High Court of New Zealand reserved its decision of the dispute between MediaWorks, the owner of the television station TV3, and SkyTV. MediaWorks, which owns exclusive broadcast rights in Rugby World Cup footage, claims that SkyTV is using its footage in breach of a licence granted to SkyTV for reporting the news. SkyTV is said to claim that it is operating within its rights under the Copyright Act to report current events. The article notes that the interim injunction granted against SkyTV on 12 September will remain in place pending the decision of the Court.

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Handi-Craft Company v B Free World Ltd 06/09/2007

The England and Wales High Court of Justice Patents Court has ruled in favour of the claimants in a copyright dispute over the copying of a substantial part of the claimants’ logo in the defendants’ logo.

The defendants responsible for creating the logo in question were not liable for primary infringement under UK law because copying occurred outside the jurisdiction, in Israel. However, the defendants responsible for importing, possessing and distributing copies of the infringing work, with the relevant knowledge, were found liable for secondary infringement. Liability extended to a director.

The claimants were also successful in claims for passing off and trade mark infringement, the claimants and defendants having both traded in babies' nursing bottles.

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Goodall v Nationwide News Pty Ltd (No.2) 31/08/2007

The Federal Magistrate's Court awarded damages of $1250 for copyright infringement, and additional damages of $7500 for “personal hurt”, after five family photos were published in a newspaper. The photos were taken by the father of five children, all deceased in tragic circumstances. The father had given permission for a single use of the photos in an article in New Idea magazine. However, the photographs were kept in the News Limited Photographic archives and subsequently used without permission to illustrate two articles in The Sunday Times, a Perth newspaper.

Lucev FM found that The Sunday Times was not aware of the applicant’s copyright when it published the first article. However, as the applicant had complained about the unauthorised use of the photos, the publisher was on notice that further use of the photos might infringe copyright. In awarding additional damages, the Court referred to the “blasé” and “uncaring” attitude of the respondent, the distress caused to the applicant as a result of the use of the photographs and the need to deter similar infringements.

Claims under the Trade Practices Act 1974 (Cth) and for defamation were dismissed.

Goodall v Nationwide News Pty Ltd (No.2) [2007] FMC 1427 (24 August 2007)

Copyright Agency Limited v Queensland Department of Education 14/08/2007

Copyright Agency Limited (CAL) and the school sector have been in dispute before the Copyright Tribunal of Australia in relation to, among other things, access to sampling data collected under Part VB of the Copyright Act. At the request of the parties, the Tribunal referred questions of law to the Full Federal Court of Australia concerning what can be taken into account for the purposes of an “electronic use system” in s135ZWA(2).

The Court held that the phrase “electronic use system” should be given a “generous interpretation”, that the jurisdiction of the Tribunal includes the ability to provide for access to either unprocessed or processed data from electronic use sampling surveys, and that the Tribunal can make determinations for the use of such data either without limitation as to its use or subject to conditions. CAL was ordered to pay costs

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Nine Network v IceTV (9 August 2007) 10/08/2007

On 9 August 2007, the Federal Court (Bennett J) rejected a claim by Channel Nine that its television program schedules were infringed by IceTV’s electronic program guide “the IceGuide”. The court held that Nine’s Weekly Schedule was protected by copyright as a compilation, and that “Aggregated Guides”, which included the Weekly Schedule, were also, separately, protected. The Court went on to find, however, that IceTV did not copy a substantial part of the Weekly Schedule. IceTV ascertained information by independent inquiry, and its selection, arrangement and expression of information differed from that in the Weekly Schedule. The Court distinguished this case from Desktop Marketing v Telstra, which concerned telephone directories. That case was a “whole of universe” case which involved comprehensive information rather than a selection, and where there was only one arrangement of the information (alphabetical).

Nine Network Australia Pty Ltd v IceTV Pty Ltd [2007] FCA 1172 (9 August 2007)

Full Court decision on appeal
Declarations by Bennett J (27 June 2008)