1. Arthur Hoyle
Senior Lecturer in Law and Technology
School of Law
University of Canberra

2. W ill l k t f l t
We will look at a few relevant cases
 the history of copyright represents a continual struggle
between public and private rights, with first one and
then other gaining a temporary ascendency
 I want to look briefly at a number of recent Australian
cases, and in particular:
cases and in particular:
 Ice TV,
 Kazaa,
 Larrikin Records
 iiiNet ; and
 Optus

3. Ice TV
 The pre‐existing relevant law represented a rejection
of the American Feist line on originality in
compilations by the Australian courts
 The High Court of Australia rejected Nine’s complaint
The High Court of Australia rejected Nine s complaint,
saying that there was little substantial originality in
arranging a list the time and title information in
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chronological order.

4. The Larrikin Records case
 Kookaburra Sings in the Old Gum Tree is and old
Australian song created for a competition
CCopyright purchased for $6,000 from an estate sale
i h h d f f l
 Fifty years later Men At Work recorded Do you come
from the Land Downunder which was alleged by
Larrikin to contain elements of Kookaburra in a flute
riff subsequently added by Greg Hay
q y y g y

5. Hay Admitted
‘It was inadvertent, naive, unconscious, and by the
time Men At work recorded the song, it had become
unrecognisable.
unrecognisable

6. Relevant Materials
 http://www.youtube.com/watch?v=IbsfupH8W1o&fea
ture=related (play to 1:06)
 http://www.youtube.com/watch?v=IT8SHafGIpU&fea
ture=related
ture related (start at 1:30 and go to 2:36)
 http://www youtube com/watch?v=OZzm1C‐
http://www.youtube.com/watch?v=OZzm1C‐
NlME&feature=related

8. The Court Found
 There was objective similarity sufficient to be classified
as breach, but
 It did not amount to a finding that the flute riff is a
did fi di h h fl iff i
substantial part of ‘Down Under’ or that it is indeed
the hook of that song
the ‘hook’ of that song
 The 40% to 60% damages claimed were "excessive,
over‐reaching and unrealistic“
g
 Were assessed as 5% going back only to 2002

9. A Shift in Judicial treatment of
A Shift in Judicial treatment of
Copyright?
 Seen in the context of Ice TV, this was seen by many in
the interested legal community as indicating a
discernible shift in the court s view of copyright and its
di ibl hift i th t’ i f i ht d it
enforceability through a distinct softening in the
sanctions

10. Th Sh K
The Sharman or Kazaa case
 Sharman Networks and certain others associated with
the Kazaa P2P “file sharing” software were liable for
the authorisation of copyright infringement engaged
in by Kazaa users.
 The Judge expressed the view that “it has long been
The Judge expressed the view that it has long been
obvious that those (warnings in end user agreements)
measures are ineffective to prevent, or even
substantially to curtail, copyright infringements by
users”

11. Kazaa
 His Honour stated that he wished to be careful in
protecting copyright whilst balancing the rights of
subscribers to freedom of expression and
communication where no infringement occurs
 The court could be seen as pushing back against large
scale claims of this type, and this was to at least
yp
partially proven to be the case in the later iiiNet case

12. The iiNet case
 AFACT sent notices to iiNet, attaching information
allegedly demonstrating that iiNet users were using
BitTorrent to infringe the film companies’ copyright
to infringe the film companies copyright
 the court reviewed not only the Kazaa decision but all
relevant precedent including Moorhouse, Jain, Metro,
Cooper and K
C d Kazaa
 It found that “the means by which the applicant's
copying is infringed is in iiNet users' use of the
users use of the
constituent parts of the BitTorrent system. IiNet has
no control over the BitTorrent system and is not
responsible for the operation of the BitTorrent system”
system

13. The situation in Australia post iiNet
The situation in Australia post‐
 the mere provision of the facility to copy is not
considered sufficient to render the supplier of the
service guilty of any act that affects a third party
undertaken using that service
 The High Court in its ruling on an appeal from the
Federal Court held that iiNet had no direct technical
power to prevent its customer from using the
BitTorrent system, and that iiNet’s only power was
indirect

14. The Optus Case
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 Optus used a minimal delay before they rebroadcast
material originally sold by the football codes to Telstra
i l i i ll ld b h f b ll d T l
under a process by which Optus customers can record
and watch matches screened on free‐to‐air television
and replay with delays as short as two minutes on some
devices
 An appeal panel of the Federal Court overturned the
decision, finding that the Betamax precedent was
inapplicable
 This reinforced the status quo, and in doing so
restated the validity of contractual arrangements
involving the assignment of copyright

15. The Struggle therefore continues
The struggle therefore between public and private
rights in the use of materials produced by others goes
on, but is seems that the ever present pendulum is
now swinging back towards the public interest at the
expense of the private one