Australian Regulatory Compliance Review

Copying other people's designs (update)

I previously noted some recent cases on design copyright infringement, including Barrett v Metricon.

In Barrett Property Group Pty Ltd v Carlisle Homes Pty Ltd [2008] FCA 375 the Federal Court has upheld Barrett's claim that Carlisle has infringed their copyright by reproducing in its Provence home a "substantial part" of the copyright works in a home design and building , namely the al fresco dining area, first marketed by Barrett under the name Seattle.

Copyright review

The Government has released an Issues Paper (pdf)calling for submissions on whether sections 47J and 110AA of the Copyright Act 1968 which permit photographs and cinematograph films to be reproduced in a different format for private use, subject to certain conditions, are operating satisfactorily or whether either provision should be modified in some way.

The closing date for submissions is 29 February 2008.

Australian domain name disputes update

Australian cricket captain Ricky Ponting has lodged an application (set for hearing in the Federal Court on 8 February 2008) claiming misleading and deceptive conduct against the operator of a website which described itself as "the official Ricky Ponting site": Ricky Thomas Ponting v Kevin Leonard Consulting Pty Limited (ACN 087 382 858) & Anor (also see Computerworld story)

It is not clear why Ricky Ponting has chosen litigation rather than the domain name disputes resolution procedure administered by .auDA. [UPDATE 17 January: David Starkoff comments]

UPDATE 13 February 2008: Ricky Ponting discontinued his action on 8 February.

According to this data from the World Intellectual Property Organization 2007 was a record year for domain name disputes. Disputes are dealt with under ICANN's Uniform Domain Name Dispute Resolution Policy (“UDRP”)

The auDRP is an adaptation of the Uniform Dispute Resolution Policy (UDRP) administered by ICANN with respect to the generic top level domains such as .com.

auDA can compel dispute resolution where:

(i) a domain name is identical or confusingly similar to a name, trademark or service mark in which the complainant has rights; and
(ii) the domain name owner has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered or subsequently used in bad faith.

The complainant has the burden of proof.

The Australian 2007 decisions made by WIPO include decisions to transfer the domain name to the complainant as well as cancellation of the name.

The WIPO Domain Name Dispute Resolution Service has resources and past decisions.

In the UK recently Maestro (a subsidiary of Mastercard) failed in its attempt to stop another organisation using maestro.co.uk.

The appeal panel ruled that it did not prove the case that the registration was abusive, and that because maestro is a normal word with a dictionary definition it could not monopolise its use in domain names just because it also happened to be one of its brands.

auDA's policy states that it accepts that a complainant has rights in the complainant's personal name.

International trade mark registration

The Madrid System provides the means to file a single application, in one office, in one language, with a single fee, and secure trade mark protection in multiple countries.

The advantages and disadvantages for Australian trade mark owners are discussed in this article by Nick Weston.

Proposal for Anti‑Counterfeiting Trade Agreement

The Department of Foreign Affairs and Trade has issued a discussion paper to provide information on a new treaty being proposed by Japan, the EC, the US and Switzerland, provisionally called the Anti‑Counterfeiting Trade Agreement (ACTA).

The ACTA is proposed to establish a new standard of intellectual property rights enforcement to combat global counterfeiting and piracy.

DFAT welcomes submissions from individuals and groups with views on Australia entering into negotiations on ACTA. Participation in such negotiations would be without prejudice to a final decision as to whether Australia would join any future treaty.

Copyright amendments under fire

The Copyright Amendment Bill is an example of legislation compiled to deal with a range of specific issues in rapidly-changing industries:  there are too many "unintended consequences".

The Bill has attracted criticism from lawyers, technology companies, the education sector and civil liberty groups. (see all submissions). No one is happy or understands its impact.

It is not clear yet how Mr Ruddock will respond.

Copyright amendments

The Attorney-General intends to introduce the Copyright Amendment Bill 2006 into the Parliament in October and to refer the Bill to the Senate Standing Committee on Legal and Constitutional Affairs for consideration following its introduction.

The Bill will contain amendments to implement the outcome of various reviews the Government has conducted including:

• the ‘Fair Use and Other Copyright Exceptions Review’,
• the review of the 2001 Digital Agenda reforms,
• the subscription broadcast review and
• the harmonisation of criminal law provisions with the Criminal Code Act 1995 and Australian Government criminal law policy.

It will contain amendments to implement Australia’s remaining obligations under the Australia-United States Free Trade Agreement in relation to technological protection measures (TPMs). Drafts of the TPM amendments have already been released.

The Bill will also contain other initiatives that the Government has been working on such as measures to improve Australia’s copyright enforcement regime and amendments to implement various reforms concerning the Copyright Tribunal.

Australian copyright reform

The Attorney-General has announced proposed changes to the current law. A draft exposure Bill will be released in the near future to enable consultation with stakeholders. More

Australian Spam Act review announced

The Minister for Communications, Information Technology and the Arts, Senator Helen Coonan, has called for public submissions as part of a review of the Spam Act 2003.

Feedback received will contribute to a report to be tabled in Parliament in 2006.

Industry and members of the public are invited to make submissions to the Spam Act 2003 review by Wednesday 1 February 2006.

An issues paper is available

Financial institutions, privacy, EFT Code and deceased estates

Digital Property and the Laws of Inheritance from TechNews World discussses whether executors have the right to obtain passwords to websites and email services used by a deceased.

Starting with a discussion of the Yahoo case when Yahoo refused to give the parents of a US Marine killed in Iraq access to their son's email account without court approval, the article then considers wider inheritance issues.

How does this apply to Australian internet service providers and financial institutions?

Assuming the provider or the institution can even access your personal confidential password, the general principle is that the provider will not release a person's personal information without proof that the third party enquirer is properly authorised either as an attorney (if the account holder is still alive) or an executor or administrator (if the account holder is deceased).

Section 69AA of the Banking Act only gives ADI's the power to deal with a deceased's depositor's  money in an account; it does not discuss the right to other information such as passwords. Usually a financial institution will only disclose information to a person who claims to be an executor after they produce a certificate of death and evidence of their appointment as executor or administrator.

In Australia, the EFT Code is silent about a person or their financial institution giving their estate details of their passwords to different accounts. The assumption must be that in giving your password to your executors you have authorised any electronic transaction they undertake.

The bottom line is that passwords and usernames which give access to online data such as financial records, journals, emails and photos can be just as valuable as cash and property and should be securely stored in a place accessible to beneficiaries. An online business customer should not assume that their estate will automatically be given their information by their service provider.

UPDATE 16 June: I have just received a notice from my telecommunications provider that it has amended my general terms to clarify that "personal information" may include numbers I have called, the time of a call and the location of a call. The amendment allows it to disclose personal information to emergency services organisations. No mention of disclosure to my estate.