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Copyright, Kookaburras and Greg Ham

By Legal Eagle

I was really sad to read about the recent death of Greg Ham, the flautist from Australian band Men At Work. The cause of death has still not been determined. The worst of it is that right up until his death, Ham appears to have been very distressed about a copyright case, Larrikin Music Publishing Pty Ltd v EMI Songs Australia Ltd [2010] FCA 29, which the band unsuccessfully sought to appeal. The appeal was refused by the Full Federal Court in 2011, and the High Court refused special leave to appeal.

Put in short compass, the case involved Men At Work’s hit, ‘Down Under’, which featured a flute riff played by Ham. It will be familiar to any expatriate Australian (and although I wouldn’t consider myself a particularly patriotic person, the song never failed to bring a tear to my eye when I was living in England). Here it is:

In 2007, on the music quiz show ‘Spicks and Specks’, someone noted in passing that a part of the riff seemed to have borrowed part of the melody of a well-known Australian song, ‘Kookaburra sits in the old gumtree’, which was written and composed in 1934 by a Miss Marion Sinclair. Because Miss Sinclair only died in 1988, copyright still subsisted in the song, as it exists for the life of the author plus 70 years. The publishing rights were purchased by Larrikin Music. Larrikin is owned by a US company, Music Sales Corporation.

Larrikin Music sued EMI, Colin Hay and Ronald Strykert (the composers of the song) in 2009 for copyright infringement, seeking a proportion of Men At Work’s past and future royalties. Hay is also the lead singer of Men at Work. The trial judge said that Men at Work had infringed Larrikin’s copyright because the song ‘Down Under’ reproduced a substantial part of ‘Kookaburra’. At paragraphs [214] – [217], Jacobson J said:

What seems to me to be important in the present part of the case is the inference that flows from the failure to call Mr Ham. It is trite to say that I can infer that his evidence would not have assisted the respondents’ case. But it is also open to me to infer that Mr Ham deliberately reproduced a part of Kookaburra, an iconic Australian melody, for the purpose and with the intention of evoking an Australian flavour in the flute riff.

For present purposes it is sufficient to say that Mr Ham’s reproduction of the relevant bars of Kookaburra reinforces the finding of objective similarity. That is the real significance of the failure to call him.

In my opinion, it is appropriate to draw the inference that Mr Ham deliberately included the bars from Kookaburra in the flute line for the purpose referred to above.

However, I accept Mr Hay’s evidence that he was not aware of the appropriation of the bars of Kookaburra until about the early part of the last decade.

Men at Work were later ordered to pay Larrikin 5% of past and future royalties from 2002 onwards. EMI appealed the decision, but in 2011, the Full Federal Court rejected the appeal in EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 47. In his judgment at [100] – [101], Emmett J noted as follows:

If, as I have concluded, the relevant versions of Down Under involve an infringement of copyright, many years after the death of Ms Sinclair, and enforceable at the behest of an assignee, then some of the underlying concepts of modern copyright may require rethinking. While there are good policy reasons for encouraging the intellectual and artistic effort that produces literary, artistic and musical works, by rewarding the author or composer with some form of monopoly in relation to his or her work…, it may be that the extent of that monopoly, both in terms of time and extent of restriction, ought not necessarily be the same for every work. For example, it is arguably anomalous that the extent of the monopoly granted in respect of inventions under the Patents Act 1990 (Cth), being a limited period following disclosure, is significantly less than the monopoly granted in respect of artistic, literary or musical works, being a fixed period following the death of the author or composer, irrespective of the age of the author or composer at the time of publication.

Of course, the significance of the anomalous operation of the Copyright Act can be addressed in terms of the remedies and relief granted in respect of infringement. Nevertheless, one may wonder whether the framers of the Statute of Anne and its descendants would have regarded the taking of the melody of Kookaburra in the Impugned Recordings as infringement, rather than as a fair use that did not in any way detract from the benefit given to Ms Sinclair for her intellectual effort in producing Kookaburra.

In October 2011, leave to appeal to the High Court was refused.

The Age reported that, after the 2010 court case, Ham felt both the song ‘Down Under’ and his professional reputation had been tarnished, and that people would remember him only as someone who plagiarised. The decision also seems to have had a significant impact on Ham’s financial situation, and he had recently sold his beloved house and split from his wife.

We still don’t know why or how Ham died, and there is no suggestion that his death is linked with any of the foregoing. However, it is extremely sad is that at the time when he died, he was still distressed about the legal case and he felt that all his achievements were tarnished. What a tragic end to a talented man!

In the wake of the trial judge’s decision, SL wrote a post which cogently criticised the length of the artificial monopoly created by copyright law, saying:

1. IP law is rapidly becoming a laughing-stock. IP ‘rights’ (choses in action par excellence) are intangible property rights typically conferred in the form of temporary monopolies. As any economist can tell you, monopolies — especially monopolies backed by the coercive power of the state — are pretty nasty creatures when it comes down to it. You don’t want them hanging around for too long. That’s why — depending on jurisdiction — patents and trademarks are either strongly time-limited (between 10 and 16 years for most patents) and subject to registration and set all about with fever trees (trademarks). IP law exists to facilitate innovation, to reward the clever scientist or gifted writer. Taken too far, however, IP protection stifles innovation — making it harder, not easier, to make new things — and becomes a cash cow for a certain type of lawyer and a certain type of IP owner.

Copyright is the worst of the lot. It requires no registration and lasts for the life of the author plus 70 years. Yes, your grandchildren — if you do well with a novel or song — could be living high on the hog once you’ve popped your clogs. It used to be life plus 50 years, but of late, the IP types have become rather greedy.

2. Property law is only any good if it can protect the interest in question. As IP’s ability to protect intangible property rights has waned thanks to technological changes, IP owners have become increasingly silly about defending what they have. This has manifested itself in various nasty legal and economic ways. …Now we have a corporation suing in the name of a creator who died in 1988. That means Men at Work — if this decision stands — will be paying out until 2058.

In my view, copyright should expire with the author. This ‘life plus 70′ crap is an invitation to abuse and prevents the timely release of useful information and data into the public domain. It also encourages abuse in the opposite direction: witness the army of people out there who decide the whole thing isn’t worth their trouble and just partake in illegal downloading of all stripes.

SL goes on to point out that when the law is an ass (and it seems pretty clear that it is an ass in this case) it loses its moral authority.

I think we need to reconsider copyright and the length of protection given to works in the wake of Ham’s death, if it is possible to do so. Of course, under the terms of the AUSFTA it may not be possible (it was this agreement that led to the extension of copyright from 50 years to 70 years in Australia). But copyright holders should think about whether they are undermining the moral authority of the law they are seeking to uphold with cases such as this.

53 Comments

  1. Posted April 20, 2012 at 8:21 pm | Permalink

    {sings} “Kookaburra sits on the telephone wire,
    Jumping up and down with his pants on fire.
    Laugh, kookaburra, laugh, kookaburra
    Sore your ass must be…”

    It’s like “happy birthday” isn’t it? There’s a copyright notice and royalty paid every time someone sings it in a movie.

  2. Posted April 20, 2012 at 8:41 pm | Permalink

    But really this was just a momentary tribute, and certainly not worth 5% of the song.

  3. Posted April 20, 2012 at 8:51 pm | Permalink

    Marcellous, I have nowhere near the music memory that people like you or DEM have, but I always saw that flute riff as an affectionate homage to the original song. If musicians can’t do that any more, then the law really is an ass.

    And yes, way less than 5%.

  4. Posted April 20, 2012 at 9:12 pm | Permalink

    PS:

    DEM

    Where did you get “ass” from? Surely not Australian English just yet?

  5. Darryl Rosin
    Posted April 20, 2012 at 9:17 pm | Permalink

    It’s a terrible pity that poor Mr Ham seems to have thought it *shameful* to have copied something.

    Art is best when it is interpreting and reflecting existing culture. Shoulders of giants/good artists copy, great artists steal etc.

    Pretty good result though in the kookaburra case, given how crap copyright law is.

    d

  6. Darryl Rosin
    Posted April 20, 2012 at 9:23 pm | Permalink

    Oh, and Fair Use in Au Copyright Law would be a big improvement. Fair Dealing doesn’t cut the mustard.

    d

  7. Robert Parsons
    Posted April 21, 2012 at 1:12 am | Permalink

    Did Men at Work steal it or would it be more reasonable to say, honored it for its contribution to the Aussie culture both songs are about — and at that, only the tiniest little pieces of it. If they weren’t so litigious the owners of the rights to the kookaburra song would be happy that MAW had given a nod to their song. The defense should have been “We stole nothing, we hinted at a piece of our culture many Australians know and love”.

    To argue that +/-4 seconds of similarity in the song is any real part of the song proves judges do more drugs than artists do. If there is a similarity, then the notoriety of the MAW song and the publicity of this frivolous bit of pettifoggery will have more people listening to the Kookaburra song. That means maybe Larrikin music should have to pay Men at Work a promotional fee for the lift it gives their song. I hate litigious people, stupid judges and greedy asses who want to put a yoke around the necks of the movers and shakers of the world. The outcome here sickens me. Plagiarism is when you take someone else’s song, like Led Zep did with a certain blues song in its entirety. If the Men at Work song had been Kookaburra sits in an old gum tree, and they took it for their own work, then you have a reason to use up the court’s time. I have always thought that greedy self centered and litigious people cause other people fatal stresses with their venial attacks, but it is usually difficult to see. This one shows in my opinion a direct cause and effect ending in the death of Greg Ham.

  8. Robert Parsons
    Posted April 21, 2012 at 1:18 am | Permalink

    Spellcheck error, I mean venal not venial.

  9. Posted April 21, 2012 at 2:08 am | Permalink

    Robert, as I said to Marcellous above, I always heard this as homage, and didn’t need ‘Spics & Specs’ to recognise it. I must admit I assumed that everyone else thought the same way, and it never occurred to me to discuss it further — with anyone!

    I was flabbergasted by the result at first instance (and yes, did mutter to myself darkly about the difference between ‘fair dealing’ and ‘fair use’, as Darryl mentions). I still find the whole business mind-bendingly stupid and petty.

  10. Posted April 21, 2012 at 5:17 am | Permalink

    Virtually all art and all ‘classical’ music’ is therefore a form of plagiarism. Humans build on what went before, being inspired, taught, taking pieces, honouring their predecessors. It’s easy to see that Mozart took folk songs and bits of J C Bach, and Haydn, Handel owes a great debt to Vivaldi… and what artist hasn’t taken ideas, colours and other bits and pieces from those who preceded him? This decision is utter nonsense.

  11. conrad
    Posted April 21, 2012 at 5:30 am | Permalink

    Perhaps all cheesy flute riffs sound the same.

  12. Posted April 21, 2012 at 5:39 am | Permalink

    This made me very sad, LE. I was talking to a wise friend the other day and he quoted an Australian writer who said that people need three things for happiness: a sense of territory; someone to love; and something to look forward too.

    Regradless of the circumstances of Mr Ham’s death, he had been hit at all three levels. That’s very sad.

  13. Posted April 21, 2012 at 7:04 am | Permalink

    One has to ask what property is for? Well delineated boundaries of rightful control lead to far more productive activity and exchanges. (Which, btw, is why permit rajs are always bad ideas.)

    So, what productive activity and exchanges are promoted by this decision? It makes it harder and more fraught to pay homage to the work of past artists.

    It seems to be based on some absolute worship of “originality” at the expense any sense of connections between creative works. It is, therefore, a classic decision of the WEIRD (Western Education Industrialised Rich Democratic) mindset, which see things as individual rather than as embedded in relationships. But understanding where it comes from does not make it less bad law.

  14. Posted April 21, 2012 at 8:23 am | Permalink

    If Ham’s death is found to be a suicide, it raises some questions whether there is sufficient financial/emotional assistance given to losing litigants.

  15. Robert Parsons
    Posted April 21, 2012 at 10:08 am | Permalink

    “mind-bendingly stupid and petty”. That about sums this one up.

  16. Posted April 21, 2012 at 2:22 pm | Permalink

    The tendency for regulation to favour incumbents over market entrants is also on display.

    David Glasner, during a sensible post on intellectual property, quotes Ronald Coase:

    A waste of resources may result when the criteria used by courts to delimit rights result in resources being employed solely to establish a claim.

    Over the top IP law encourages precisely that.

    Coase is responsible for one of the two most important ideas in C20th economics–transaction costs matter. The other key idea being information and action are profoundly interwoven.

    IP law which raises transaction costs and blights the creative process is not a social positive, but a great way to waste resources via rent-seeking incumbents.

  17. Darryl Rosin
    Posted April 21, 2012 at 9:14 pm | Permalink

    Jarryd@15 & LE@16

    Ham wasn’t a party to any of the proceedings, was he? He merely gave evidence (written, as I recall, not in court). He is not even one of the composers of ‘Down Under’, and so doesn’t have even moral rights over the work.

    I don’t disagree with your comments about the support failed litigants might require, but Greg Ham falls well outside the class of people who would be covered by that support.

    Greg Ham bore no financial penalty nor any legal penalty from the decision. Formally, there wasn’t even any repetitional damage. Whatever shame he felt was entirely of his own concoction. Forget the statutes for a moment, it’s this attitude that we’ve developed, that copying is somehow wrong, that’s to blame.

    Everything is a remix, and pretending otherwise damages our society and the individuals that comprise it.

    d

  18. bodijelen
    Posted April 22, 2012 at 1:52 am | Permalink

    I hope you don’t mind my saying it, but the view on IP that you seem to endorse is so onesided it would be interested to know who pays your salary.

    The corporate world is pushing the self-employed to the brink, robbing them of their IP wherever possible. Take a technical translator. To ensure consistency in terminology, he purchases a CAT (computer assisted translation) tool. According to the EU law, the data bases he creates with his skills using the software he himself purchased, belong to him. But self-employed translators these days frequently depend on translation and localization brokers (who themselves employ no translators and basically know zilch about what translation entails – their strength lies in management and marketing to end clients, often corporations dealing with at least a dozen languages; they advertise themselves as translation companies but merely act as an intermediary between the translator and the end client) for livelihood.

    These intermediaries push translators (who are in no position to negotiate a fair deal) to sign away the rights to their data bases (called “translation memories”). The intermediaries then use those translation memories for their own profit. Literary translators. A literary translator under the EU law owns his or her work and is entitled to fair compensation. Because literary translators as individuals working with publisher have no negotiating power, they are forced to give away their rights for meager one-time payments if they want to work at all.

    Unlike blogging know-it-all generalizers, I find D’Agostino’s study, Copyright, Contracts, Creators – New Media, New Rules, very much to the point in this respect.

  19. Posted April 22, 2012 at 4:12 am | Permalink

    If it helps at all (it is so interesting to be accused of being a shill, I must add it to my collection), I work for an IP firm. Unlike many people wholly opposed to IP (who think it is all malarkey, because it cannot be analogized with corporeal property/chattels, and therefore cannot be stolen), I think IP is important and ought to be protected.

    However, one of the things you learn as a lawyer is that laws incapable of enforcement — no matter how moral or right — aren’t worth a damn. See, for historical reference, prohibition, anti-abortion laws, anti-sodomy laws, attempts to equate downloading with theft (trespass is probably the better analogy), and so on:

    http://www.abc.net.au/news/2012-04-20/illegal-downloading-more-like-trespass-than-theft/3963688

    Because I would like to have a job, not just next year but for, oooh, the next 30 or so years, I want to see IP laws that are effective, because if they are rendered nugatory then there will be nothing to protect: the whole system will collapse under its own weight. The best way to make laws effective is not to use them to attempt to produce a moral society, but a society in which we would like to live. The difference may be a small one, but it is important to bear it in mind.

  20. Posted April 22, 2012 at 5:51 am | Permalink

    <>
    Very good, SL. Very good indeed.

  21. Posted April 22, 2012 at 8:33 am | Permalink

    Bodijelen, I’m not quite sure what your complaint is? Is it that we said there’s some use for IP law and didn’t call for IP law’s total abolition? I haven’t read D’Agostino’s work – what is his argument? You don’t actually tell us. Please explain your argument in more detail.

    Personal view is somewhat like SL’s: there’s a place for IP law but not in its present form which does not help innovation or protect creators. In fact it leads to perverse outcomes where creators are not protected and people cannot legitimately use information to generate new material.

    And my salary is paid by a university if you must know.

  22. Posted April 22, 2012 at 9:04 am | Permalink

    Marcellous, clearly “The Law is an Ass” uses “Ass” in the sense of – an alternative word for a donkey, now obsolete. And therefore clearly proper English, just archaic. Surely memories aren’t that short!?

    Not commenting directly on the OP just yet as I’m still too angry to do much other than swear and stick pins in an effigy of a Larrikin exec…

  23. kvd
    Posted April 22, 2012 at 9:40 am | Permalink

    Helen in defence of Marcellous I believe he directed his comment to DEM, not the post as such. So he’s right, and you’re right, but in different senses.

    - signed an archaic ass ;) (since when did I become archaic? I missed that memo)

  24. Adrien
    Posted April 22, 2012 at 10:20 am | Permalink

    To argue that +/-4 seconds of similarity in the song is any real part of the song proves judges do more drugs than artists do. If there is a similarity…

    There is. The flute solo borrows bits of the melody line of “Kookaburra” like jazz players who’d incorporate bits of other tunes into their solos. I imagine 20 years of hip-hop precipitated litigation inspired this case.

    The defense should have been “We stole nothing, we hinted at a piece of our culture many Australians know and love”.

    And copyright, as now practised, restricts the extent to which such stuff belongs to the culture in general. When a tune, a story or a picture obtain a place in the heart of the public, or some distinguished subset thereof, they become part of the general culture. They become necessary in a spiritual sense.

    The law now grants too much power to the property holders – ironic analysis, considering the philosophical predisposition of this blog. I don’t like the idea of registration.

  25. kvd
    Posted April 22, 2012 at 12:29 pm | Permalink

    ideas are not rivalrous

    CP/M-MsDOS, Beta-VHS, Apple-TheRest, Muslim-Christian, LarvatusProfundity-Catallaxy, Democracy-Not.

    But I agree with you, and love it as a phrase ;)

    The other thing that I would note is that “rent seekers” is generally regarded as an insult. But in fact that is precisely what the holder of a right seeks: rent.

  26. kvd
    Posted April 22, 2012 at 1:34 pm | Permalink

    Anyway I thought this post was about the longevity of, and just recompense for, copyright – not about abandoning the concept altogether. I dunno where bodijelen got any impression, from what was said, or from ensuing comments, that it was biased in any particularly self-serving manner.

    So maybe just a blip in comprehension? I do that all the time.

  27. kvd
    Posted April 22, 2012 at 3:59 pm | Permalink

    Thanks LE. And proves my last sentence perfectly!

  28. Posted April 22, 2012 at 4:36 pm | Permalink

    Also too (just to add to the mix) there is no copyright in an idea, just the expression of an idea. And plagiarism and breach of copyright are legally distinct, with some overlap. I suspect what happened to Greg Ham has something to do with people trying to blend the two concepts.

    No-one here has really addressed Darryl’s & Rigby’s point (maybe because we’re all unimaginative lawyers) that the current obsession with originality is completely barmy (to my mind of a piece with the obsession with authenticity). At some point I suspect it’s going to bite us rather hard, especially in music (particularly jazz and classical, where affectionate homage is sorta kinda the point).

  29. kvd
    Posted April 22, 2012 at 5:12 pm | Permalink

    SL@33 I may not have addressed the points, but I did write down “Everything is a remix” as a possible inscription for my tombstone, in place of “The medium is the message”.

    Now that we’ve established my position as a plagiarist, we need only discuss price. (copyright: W. Churchill) ;)

    B-gger! Along comes LE with “Homage is the point”. Is there no end to this rearrangement of the alphabet? ;)

  30. Painfree
    Posted April 22, 2012 at 8:52 pm | Permalink

    I think the perverse idea in IP law is the concept of the transferability of copyright.

  31. Posted April 23, 2012 at 8:43 am | Permalink

    “there is no copyright in an idea, just the expression of an idea. ”

    This is the bit that makes no sense to me, as applied to this case. As everyone who is into music knows (perhaps ruling out most of the Federal Court, a competent but extremely dry jurisdiction) the effect (ie the expression, surely) of a particular melodic line is utterly transformed if the notes it is paired with (in harmony, or counterpoint) are changed. While a VERY SMALL handful of notes followed the same melody, the minor 6, 4th- 5th resolution under the flute line gives it an entirely different feel – ie expression – than the pottering along on the tonic that occurrs in Kookaburra.

    I add that cross examination is rancid, and perhaps he didn’t subject himself to it after reading the mindless barbarism of Garfield Barwick’s Archibald Prize cross examinations.

    2c.

  32. Jonathan D
    Posted April 23, 2012 at 9:52 am | Permalink

    I also always saw it as a deliberate and effective homage (although no tears in my eye, certainly not once it had been played at least once every evening we visited a certain bar after a seminar for a couple of years).

    I was amazed that anyone tried to argue otherwise when it became a legal matter, and am very unclear on what the law is. (Am I right to say that homage is in a very different position to satire?)

    Apart from that, it doesn’t seem quite right to say that post-death copyright can’t benefit the creator. I’m not sure I’d call it perverse as Painfree does, but transferability does make post-death income relevant to the creator even without regard to their children. Once you allow creators to profit from future earnings, is there a sensible reason (or way) to exclude situation where the creator didn’t receive full allowance for the protection? Perhaps limiting it to life is simplest and/or best, but it wouldn’t be a no loss to creators generally.

  33. Posted April 23, 2012 at 1:47 pm | Permalink

    In these types of cases, is the probability of the copyright holder actually losing money taken into account at all?

    That is: “Kookaburra” is not on any top 40 or top 100 of pop tunes being played on radio, so any “sales figure” in any format will be minimal. As far as I can make out, the most likely way someone would actually purchase the song would be in sheet music format as a teacher intending to use the song in a school concert or musical. In that case, is it likely that the teacher or camp leader or whoever would go “Sweet! No need to get the sheet music of lyrics. I’ve got a copy of Men at Work’s Land Downunder and we’ll just extrapolate it.” Really! NOT GOING TO HAPPEN. Not only does the one-bar reference NOT deny Margaret Sinclair’s heirs, or the rapacious record execs, their contemporary sales, but it can only increase them by jogging peoples’ memories of the song. In other words, I think it is impossible for the copyright holders to have lost anything. How can the court have failed to take this into account?

  34. Posted April 23, 2012 at 6:16 pm | Permalink

    Well spotted indeed, Helen – putting your finger on one of the curliest problems in private law (Legal Eagle has a forthcoming book on just this issue!).

    It’s one of the quirks of private law that certain civil wrongs (torts/delicts) are considered per se wrongs – trespass at common law, and the iniuria of sexual harassment in Roman law, for example.

    When something is a per se wrong, the plaintiff – if he makes out his case to the requisite standard – always gets an award of damages, however small. That’s why there was provision in both English and Roman law for damages in the amount of ‘the lowest coin in the realm’ – traditionally a farthing or an as. These days, it’s a pound and a Euro respectively.

    Other civil wrongs are not per se wrongs – the plaintiff actually has to prove and quantify the loss. Negligence is an example of this.

    Working out why something has evolved into a per se civil wrong is immensely tricky and involves a lot of to-and-fro among comparative lawyers, as it’s one area where the Romans and the English have completely different ‘lists’. This has led legal systems derived from the two civilisations to diverge markedly from each other. It’s why, for example, sexual harassment is a crime defined by statute in common law jurisdictions (because the common law never protected women’s interests very well; parliament and the equitable jurisdiction had to do all the heavy lifting), while it is still a delict in civilian countries (because the Romans already had a good rule on point that didn’t need to be changed as a result of feminism – it just had to be enforced).

    Copyright is a wholly common law development, and so it is infused with common law ideas about the infinite ‘splittability’ of title (the ‘bundle of rights’ made famous by the Mabo decision). This makes Roman lawyers’ heads go round (the Romans developed a unitary conception of title); that is why they have given us concepts like moral rights, which cannot be assigned and always vest in the creator (this ties in with Painfree’s comment above).

  35. Posted April 24, 2012 at 9:17 pm | Permalink

    A nice riff on the ‘more like trespass than theft’ argument, by a writer I admire:

    http://ma.ttrubinste.in/?p=512

  36. kvd
    Posted April 25, 2012 at 2:24 pm | Permalink

    Since it’s a quiet, reflective sort of day may I politely ask either SL or LE to comment upon these two statements:
    LE@27: It’s important to note that IP is an artificial statutory monopoly
    SL@41: Copyright is a wholly common law development

    Also, SL@43 references a post which seems quite clear, until it finishes by referring to ‘piracy’ and pirated’. I’d just say that the layman’s idea of piracy is not ‘trespass’; it’s more like a maritime equivalent of break and enter, theft, then burn your house down.

    I accept there’s discussion about this, but I’m just saying ‘piracy’ is an unfortunate choice of word – if you are pushing the idea of trespass.

  37. Posted April 25, 2012 at 5:51 pm | Permalink

    LE@46 The US in the C19th used to act like it has spent much of the time since c.1950 complaining about other countries acting. Being IP Piracy centre was just one of them.

  38. kvd
    Posted April 25, 2012 at 5:53 pm | Permalink

    Thanks LE. Now I’ll go back to trying to understand @33 – “no copyright in an idea, just the expression of an idea” – which I think you’ve repeated.

    I gave up long ago pretending I understood everything. There is no ego involved, or ‘trick question’. It’s just far quicker to be honest, and simply ask for a further explanation, imo.

  39. kvd
    Posted April 25, 2012 at 7:39 pm | Permalink

    LE@49 yes thanks. You are saying that there can be only one legally protected expression of an idea, even though many may have independently contemplated the idea, or something so remarkably similar as to appear a copy – even though it isn’t.

    With due recognition to Highlander.

  40. Posted April 25, 2012 at 9:39 pm | Permalink

    kvd, I was altogether too brief in my outlining of the principle, which comes naturally to IP lawyers, to the point that we forget that it took us some time to learn. Apologies. This chapter (from a relevant and clearly written textbook) provides the history:

    http://www.federationpress.com.au/pdf/Reynolds%20IP%20Ch02.pdf

    The section on the idea/expression dichotomy begins on page 14, although the earlier material on why the Romans (who had block printing) and the Germans (who had Gutenberg) did not come up with copyright is fascinating. The Romans, it must be remembered, did have passing off. ‘Trademarks’ are very old.

  41. kvd
    Posted April 26, 2012 at 12:30 pm | Permalink

    Thank you for that link SL. A very clear and interesting read.

  42. Robert Parsons
    Posted April 28, 2012 at 5:13 am | Permalink

    Have a look at this if you want to see how petty the Ham case really is.

    http://kosmo.hubpages.com/hub/Did-Led-Zeppelin-Steal-Music-from-other-Artists

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