On 13 November 2009, the plaintiffs taking action against Google for scanning and creating an electronic database of their books filed an amended settlement agreement and a motion for preliminary approval of the amended settlement.

The changes proposed in the amended settlement agreement include:

• the class of authors and publishers narrowed to those from the US, Australia, the UK and Canada only;

• each country represented in the class will have an author and a publisher seat on the Book rights Registry Board;

• an independent fiduciary will have sole decision-making responsibility in relation to unclaimed works;

• unclaimed funds will be held for up to 10 years, not 5, with any unclaimed monies at the end of the 10 year period to go court-approved charities in the US, Canada, the UK and Australia;

• any discounting will come out of Google’s share of funds, not from authors or publishers;

• limits have been placed on potential future business models – none of which may be implemented without notice to rightsholders and approval of the Registry board.

More information:

Authors Guild article

Copyright Agency Limited

Full news release

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The Internet Industry Association (IIA) sought leave to appear as amicus curiae in these proceedings, to the extent of making oral and written submission.

Leave was denied. Cowdrey J held that the IIA’s contribution was not “useful and different” from the contribution otherwise given by the parties, saying that the mere fact that the IIA is not iiNet, and thus claims to bring a “broader perspective” does not render its submissions “useful and different”.

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This case concerned a claim by Deckers that the respondents had infringed copyright in its logo, in a photo and in text contained in an “Information Booklet” and “Care Instruction Card” for Ugg boots.

Tracey J held that the logo was of sufficient complexity to attract copyright protection, being “plainly drawn with care, to obtain an effect” and that Deckers’ copyrights had indeed been infringed. The court further held that the respondents had breached earlier terms of settlement, and had engaged in passing-off and in misleading and deceptive conduct in breach of the Fair Trading Act 1999 (Vic) and the Trade Practices Act 1974 (Cth).

Orders made by the court included delivery up and awards of additional damages against the third and fourth respondents. Tracey J commented that, while not giving rise to flagrant damages, “this case must be adjudged as one of the worst of its kind to come before the Court”.

In addition, various restraint orders were made in relation to the use of the word “Ugg” and various similar words.

(Note that Deckers conceded that there exists a style of footwear known as “UGG boots” and that its claim was based on features that distinguished its products from the generic product and that conveyed to consumers the impression that its footwear comes from a particular branded source.)

More:

Deckers Outdoor Corporation Inc v Farley (No 5) [2009] FCA 1298

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The Full Federal Court has dismissed an appeal by Vawdrey Australia Pty Ltd (”Vawdrey”), confirming that Vawdrey (a trailer manufacturer) infringed copyright by indirectly copying the drawings of Krueger Transport Equipment’s “load constraint system” for cargo.

In his consideration of whether a “substantial part” was reproduced, Lindgren J draws on the approach of the High Court in the IceTV case, emphasising the importance of authorship and finding that the Krueger sketches were “original”. In their joint judgement, Moore and Bennett JJ found that the Vawdrey drawing used “substantially the same form of expression” as the Krueger drawings.

It was also confirmed that there was sufficient causal connection between the copyright infringement and the damage suffered by Krueger.

More:

Vawdrey Australia Pty Ltd v Krueger Transport Equipment Pty Ltd [2009] FCAFC 156

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This case concerned the interception of signals during an authorised transmission of an episode of a TV series in Taiwan; the signal was then re-transmitted to subscribers of a pay TV service in Australia.

The Federal Court of Australia has found that the re-transmission constituted a communication of the episode, within the meaning of section 10 of the Copyright Act 1968 (Cth). It consequently held that the corporation which intercepted and re-transmitted the episode infringed copyright in the film comprising that episode. It further held that the Chairman of Directors of the corporation was liable for authorising the infringement.

More:

TVBO Production Ltd & Ors v Australia Sky Net Pty Ltd & Ors [2009] FCA 1132

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The Federal Court of Australia has found that Technicon Industries Pty Ltd (Technicon) infringed the copyright and registered design right of Caroma Industries Ltd (Caroma) when it relied on Caroma’s Trident toilet suite design in the design of its Technicon toilet pan.

The joint CEO of Technicon directed its Chinese manufacturer to use a Caroma brochure “as a guide”. The Court found that Technicon infringed Caroma’s copyright when a Trident design drawing was substantially reproduced; Technicon’s design drawings depicted the Trident pan rather than the Technicon pan.

In Technicon’s defence, the CEO claimed that his instruction was to use the Caroma brochure merely as a guide to the brochure layout. The Court rejected the defence of innocent infringement.

As there was no finding of a blatant intention to reproduce the drawing, additional damages were not payable.

The Court also found that Technicon fraudulently imitated and therefore infringed the Trident design which Technicon knew or suspected was a registered design.

Caroma Industries Ltd v Technicon Industries Pty Ltd [2008] FCA 1465 (2 October 2008)

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