Google book search settlement : implications for Australia

In 2005, the Association of American Publishers (AAP) and the Authors Guild (AG) sued Google for ‘massive copyright infringement’ for the mass digitization of books for the Google Book Search Project. In 2008, the parties reached a settlement, pending court approval. If approved, the settlement could have far-reaching consequences for authors, libraries, educational institutions and the reading public. In this article, I provide an overview of the Google Book Search Settlement. Firstly, I explain the Google Book Search Project, the legal questions raised by the Project and the lawsuit brought against Google. Secondly, I examine the terms of the Settlement Agreement, including what rights were granted between the parties and what rights were granted to the general public. Finally, I consider the implications of the settlement for Australia. The Settlement Agreement, and consequently the broader scope of the Google Book Search Project, is currently limited to the United States. In this article I consider whether the Project could be extended to Australia at a later date, how Google might go about doing this, and the implications of such an extension under the Copyright Act 1968 (Cth). I argue that without prior agreements with rightholders, our limited exceptions to copyright infringement mean that Google is unlikely to be able to extend the full scope of the Project to Australia without infringing copyright.

Creative Commons : the next generation : Creative Commons licence use five years on

Since its launch in 2001, the Creative Commons open content licensing initiative has received both praise and censure. While some have touted it as a major step towards removing the burdens copyright law imposes on creativity and innovation in the digital age, others have argued that it robs artists of their rightful income. This paper aims to provide a brief overview and analysis of the practical application of the Creative Commons licences five years after their launch. It looks at how the Creative Commons licences are being used and who is using them, and attempts to identify likely motivations for doing so. By identifying trends in how this licence use has changed over time, it also attempts to rebut arguments that Creative Commons is a movement of academics and hobbyists, and has no value for traditional organisations or working artists.

Legal aspects of Web 2.0 activities : management of legal risk associated with use of YouTube, MySpace and Second Life

This Report, prepared for Smart Service Queensland (“SSQ”), addresses legal issues, areas of risk and other factors associated with activities conducted on three popular online platforms—YouTube, MySpace and Second Life (which are referred to throughout this Report as the “Platforms”). The Platforms exemplify online participatory spaces and behaviours, including blogging and networking, multimedia sharing, and immersive virtual environments.

Asia and the Commons : case studies 2008

A collection of case studies of individuals and organisations utilising open models in the Asia Pacific and associated regions. The case studies represent activities in nine countries, broader regions such as the Arab nations, and global efforts towards sustainability and social justice, revealing creative ways of participating in the commons. Featured are remix artists, performers, open source software programmers, film makers, collecting institutions and publishing houses focused on democracy and change, who demonstrate a diverse set of motivations to engage with the shared ideals of openness and community collaboration.

The Federal circuit in Bilski : the machine-or-transformation test

In a much anticipated judgment, the Federal Circuit has sought to clarify the standards applicable in determining whether a claimed method constitutes patent-eligible subject matter. In Bilski, the Federal Circuit identified a test to determine whether a patentee has made claims that pre-empt the use of a fundamental principle or an abstract idea or whether those claims cover only a particular application of a fundamental principle or abstract idea. It held that the sole test for determining subject matter eligibility for a claimed process under § 101 is that: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. The court termed this the “machine-or-transformation test.” In so doing it overruled its earlier State Street decision to the extent that it deemed its “useful, tangible and concrete result” test as inadequate to determine whether an alleged invention recites patent-eligible subject matter.

CC & Government Guide : Using Creative Commons 2.5 Australia Licences on Government Copyright Materials

This guide explains how copyright law applies to Australian government material, how copyright can be managed to facilitate beneficial open access practices by government, how CC licences can be used to achieve open access to government material, and provides practical step-by-step guidance for agencies and their officers on licensing and use of government copyright materials under CC 2.5 Australia licences.

Prosecution history estoppel in the UK?

The doctrine of 'prosecution history estoppel' (PH estoppel) as developed in the United States has strong intuitive appeal, especially when applied to counterbalance a related patent law principle, the doctrine of equivalents. The doctrines are receiving increasing attention in US patent decisions, to the point where one patent litigator recently compared them to "two cars that keep bumping fenders. They are frequently returned to the shop for repairs". Could PH estoppel find its way into UK patent law? This article briefly examines the doctrine, its evolution in the US and the problems associated with importing the doctrine into the UK. As the EU legislation stands, Article 69 and the Protocol to the European Patent Convention (EPC) pose serious obstacles to using the doctrine directly in claim construction. However there appears to be some scope to apply the doctrine as a limited form of defence in infringement actions.

United States still no closer to database legislation

Last year European Intellectual Property Review published an article comparing the latest version of the proposed US database legislation, the Collections of Information Antipiracy Bill with the UK's Copyright and Rights in Database Regulations 1997. Subsequently a new US Bill, the Consumer and Investor Access to Information Act has emerged, the Antipiracy Bill has been amended and much debate has occurred, but the US seems no closer to enacting database legislation. This article briefly outlines the background to the US legislative efforts, examines the two Bills and draws some comparisons with the UK Regulations. A study of the US Bills clearly demonstrates the starkly divided opinion on database protection held by the Bills' proponents and the principal lobby groups driving the legislative efforts: the Antipiracy Bill is very protective of database producers' interests, whereas the Access Bill is heavily user-oriented. If the US experience is any indication there will be a long horizon involved in achieving any consensus on international harmonisation of this difficult area.

Artful determination : "state of the art" and PCME Ltd v. Goyen COntrols Co. UK Ltd

In a recent decision by Mr Justice Laddie, a patent was held anticipated by, inter alia, prior use of a device which fell within the claims of the patent in suit, even though its circuitry was enclosed in resin. The anticipating invention had been "made available to the public" within the terms of section 2 (2) of the Patents Act 1977 because its essential integers would have been revealed by an interesting character, the "skilled forensic engineer".

Locking away the mysteries of fair basis : Lockwood v Doric in the High Court

This article updates a previous article on the Lockwood v Doric fair basing case in the Full Court of the Federal Court which was recently appealed to the High Court. The High Court's decision provides a new and welcome level of clarity in this difficult area of patent law. With this new clarity we can finally lock away some of the mysteries that have plagued the area for some time. Already, indications are that Lockwood's guidelines are being usefully applied in the Patent Office and Federal Court.

Does the fair basing "problem child" escape Lockwood?

In an earlier article the concept of fair basing in Australian patent law was described as a "problem child", often unruly and unpredictable in practice, but nevertheless understandable and useful in policy terms. The article traced the development of several different branches of patent law that were swept under the nomenclature of "fair basing" in Britain in 1949. It then went on to examine the adoption of fair basis into Australian law, the modern interpretation of the requirement, and its problems. This article provides an update. After briefly recapping on the relevant historical issues, it examines the recent Lockwood "internal" fair basing case in the Federal and High Courts.

Australia experiments with 'experimental use' exemption

Lawmakers are asking whether Australian researchers need an express 'experimental use' defense against patent infringement. The overriding policy for establishing a patent system is indisputably the promotion of innovation. According to traditional intellectual property pedagogy, the incentive to innovate flows from the reward afforded to the inventor. A balancing policy is that the patentee must fully disclose the invention to help minimize the risks of duplication and provides a basis for improvements by further research.Where there is uncertainty as to how these competing policy limbs are balanced and whether a patentee can exclude others from experimenting on a patented invention, the uncertain legal environment disadvantages both the patentee and researcher. Different jurisdictions have treated the experimental use question quite differently with varied results for the researcher. The biotechnology industry is evolving at an unprecedented pace and the law will as is always the case, lag behind in its usual cautious fashion. The Australian law may finally catch up to researchers' concerns.

Licensing technology : negotiating and drafting technology transfer agreements [3rd ed.]

Part I of this book covers the commercial and contractual background to technology licensing agreements. Part II discusses the European Community's new regime on the application and enforcement of Article 81 to technology licensing agreements. EC Council Regulation 1/2003 replaced the Council Regulation 17/1962 and repealed the system under which restrictive agreements and practices could be notified to the EC Commission. A new Commission regulation on technology transfer agreements, Regulation 772/2004. These two enactments required consequential amendments to the chapters in Part III where the usual terms of technology licensing agreements are analysed and exemplified by reference to decided cases.

Information interoperability, government and open standards

The activities of governments, by their very nature, involve interactions with a broad array of public and private sector entities, from other governments, to business, academia and individual citizens. In the current era, there is a growing expectation that government programs and services will be delivered in a ‘simple, seamless and connected’ manner,1 leading to increased efficiency in government operations and improved service delivery.2 Achieving ‘collaborative, effective and efficient government and the delivery of seamless government services’ requires the implementation of interoperable technologies and procedures.3 Standards, which aim to enable organisations, platforms and systems to work with each other, are fundamental to interoperability.

Unlocking the potential through Creative Commons

In November 2006, the Australian Research Council Centre of Excellence for Creative Industries and Innovation (CCi), in conjunction with the Queensland University of Technology, hosted the CCau Industry Forum, a research-focused industry engagement event. The event was run by the CCi ccClinic and CC + OCL Research projects, and aimed to evaluate understanding of and attitudes towards copyright, OCL and CC in Australia. The Forum focused on the government, education and the creative industries sectors. Unlocking the Potential Through Creative Commons: An Industry Engagement and Action Agenda evaluates and responds to the outcomes of this Forum and presents a strategy for continued research into Creative Commons in Australia.