Thursday, January 31, 2013

Copyright Tribunal takes Man Down

RihannaThe music industry has won its first copyright case under the New Zealand three strikes law. A Rihanna fan has been rapped over the knuckles for unlawfully downloading Man Down.

The Recording Industry of New Zealand (RIANZ) filed an application with the Copyright Tribunal after sending a Detection Notice, a Warning Notice and an Enforcement Notice to an individual internet account holder.

What is interesting about this decision is that we now have a sense of what sort of monetary penalties an unsuccessful Respondent will have to pay. In my earlier blog post A copyright tale of RIANZ and Rihanna I noted that the calculation of damages devised by RIANZ was never tested. Now it has been.

The Tribunal awarded RIANZ a total of NZ$616.57 in respect of three songs. This was calculated as follows:

  • $6.57 in lost sales of the music
  • $50 to reimburse RIANZ for cost of the notices
  • $200 to reimburse RIANZ for the tribunal fee
  • $360 as a deterrent

It is acknowledged that the song tracks were not only downloaded but were uploaded as well. RIANZ argued that the lost sales are not just what the account holder downloaded, but what she uploaded as well. However, RIANZ couldn't show how many downloads were made from the sound recordings she uploaded. So the Tribunal based its assessment on the price of the works on iTunes.

On the cost of notices, the Tribunal adopted a sliding scale. It based the amount on one-third of the Detection Notice fee ($8.33), two-thirds of the Warning Notice fee ($16.67) and the entire cost of the Enforcement Notice fee ($25).

The Tribunal calculated the deterrent amount as $120 per infringement, noting that the other sums it calculated were modest.

It is good to see that one of these cases has made it to the Copyright Tribunal. Now we have an idea of the sort of penalties an account holder will face for unlawful downloading of copyright works.

Photo courtesy of author Bob Xu under Creative Commons licence.

Monday, January 28, 2013

Brave new patent law

Men's HurdlesIt has been a few months since my colleagues and I watched the Second Reading of the New Zealand Patents Bill on the tellie. I cover this event in my post Patent Party in the House. It is now time for the New Zealand Parliament (known as the Committee of the whole House) to consider the Bill part by part.

The Bill has jumped to Number 2 on the Order Paper. The Committee stage may happen within the next few weeks. Is this really the final hurdle? Could it be that we will see patent law reform at last?

As I mentioned in A makeover for the Patents Bill there is Supplementary Order Paper (SOP) 120 tabled by the Government on 28 August 2012.

During the Select Committee process the Ministry of Economic Development (MED) prepared a Supplementary Report to the Commerce Select Committee on the issue of the patentability of computer programs. The report recommended an exclusion from patent protection for computer programs, "the wording of the exclusion being similar to, or the same as, the exclusion for computer programs contained in the EPC and the UK Patents Act."

The desire for a European-style exclusion was echoed in many of the submissions. For example, there were three written submissions from the New Zealand Open Source Society (NZOSS). The first of these submissions favoured harmonisation with Europe. The submission suggested that "New Zealand could follow the European lead in patent law, and explicitly exclude software from being patentable".

The Supplementary Order Paper introduces new clause 10A. It has a European look about it. This new clause reads as follows:
10A Computer programs
(1) A computer program is not an invention for the purposes of this Act.
(2) Subsection (1) prevents anything from being an invention for the purposes of this Act only to the extent that a patent or an application relates to a computer program as such.
The Explanatory note states that the new clause is "considered to be more consistent with New Zealand's international obligations ... [and] is also more consistent with overseas precedents and makes it clear that it is only computer programs themselves that are ineligible for patent protection.

As the Government said in a press release titled Progress towards modernising patent law, the Bill will continue to protect genuine innovations and encourage Kiwi businesses to export and grow. The changes will overhaul sixty-year old legislation and create a balanced patent system that will protect inventions and encourage innovation. The Bill will align our patent laws more closely with international best practice, and builds on initiatives that will help create a more productive and competitive economy.

The next few weeks should be interesting.

Photo courtesy of author KKfromBB under Creative Commons licence. 
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