Copyright has long been recognised as critical to the arts and industry, and is a basic element in any strategy to capture and protect your business' intellectual property.
Whether you are seeking strategic advice, need to protect your copyright, or defend an action commenced by a third party, Clayton Utz's team of copyright lawyers can help you.
We are known for our expertise in identifying and advising on copyright issues in new and emerging technologies, having been retained for the groundbreaking KaZaA litigation, and acting in the first case anywhere in the world to deal with BitTorrent technology. We also represented the Internet Industry Association in relation to proceedings commenced by members of the Australian Federation Against Copyright Theft against the ISP iiNet which determined (subject to appeal) the liability of ISPs for the copyright infringement of their customers.
We can assist you with:
Litigation - we act for clients in copyright infringement proceedings, particularly in complex, cutting-edge copyright cases. Our experience extends to preventing the unauthorised use of your copyright by making urgent injunction applications (or defending applications brought by other people).
Search and seizure (Anton Piller) orders - we obtain, execute and defend search and seizure orders for our clients, including orders executed in multiple locations.
Copyright Tribunal matters - we have acted in the most significant Copyright Tribunal disputes, including those over the digital downloads scheme and the free-to-air broadcast scheme, and for industry bodies in disputes with collecting societies.
Anti-piracy campaigns - we develop and execute campaigns to combat piracy and counterfeiting, including for electronic game and fashion industry clients.
General copyright advice - we regularly advise clients on infringement risks and enforcement strategies.
Commercialisation - we can help you with all aspects of commercialising copyright, from capturing copyright that is created as part of your business, drafting licences, content agreements and assignments, to due diligence or other copyright issues that arise as part of a larger transaction. We have experience in copyright commercialisation across a broad range of industries including media, music, broadcasting, film, apparel, sport, entertainment, computing, internet and telecommunications.
Free TV Australia Ltd - licensing scheme for the television broadcast of commercial sound recordings in Australia: Generally in Australia a license is required from record labels when their sound recordings are included in soundtracks of films or other TV programs that are broadcast. The Phonographic Performance Co of Australia Ltd (PPCA), the collecting society representing the interests of record labels (including the majors) and Australian recording artists, purports to administer licenses for these activities on behalf of licensors. PPCA has referred the scheme to the Copyright Tribunal to determine, amongst other things, the license fees it will seek from Australia's commercial free-to-air television broadcasters for the broadcast of commercial sound recordings within its repertoire.
We act for Free TV Australia Ltd (which represents Australia's commercial free-to-air television broadcasters) in these proceedings, which will be the first time that the Copyright Tribunal has determined a licensing scheme for the television broadcast of commercial sound recordings in Australia.
iTunes - royalties payable for digital music downloads: We represented Apple in the Copyright Tribunal of Australia in a case over the royalties payable by digital music services such as iTunes in Australia. The proceedings were brought by the Australasian Performing Right Association and Australasian Mechanical Copyright Owners' Society (analogous proceedings were on foot in the United States, Canada and the United Kingdom).
We were able to achieve a favourable result for our client in a case which will affect the future of the recorded music market in Australia.
The iiNet case - liability of ISPs for users' copyright infringement: We represented the Internet Industry Association in relation to the landmark iiNet case brought by the Australian Federation Against Copyright Theft, which determined the liability of ISPs for the copyright infringement of their customers.
Swiftel Communications / BitTorrent: We acted in the first case anywhere in the world to deal with BitTorrent technology. Our clients were two Australian broadband ISPs and related parties who were sued for copyright infringement by the Australian subsidiaries of the world's four major record companies. At the heart of the case were two peer-to-peer file sharing technologies used by a small number of one of the ISP's customers - BitTorrent and Direct Connect.
Not only was this the first case to consider the copyright issues in BitTorrent, but it was the first case in Australia brought solely against an ISP concerning authorization of copyright infringement by the ISP's customers using peer-to-peer file sharing technologies. It was also the first brought against an ISP since the introduction of a safe harbour scheme similar to that in the US Digital Millennium Copyright Act, which severely limits the remedies available against an ISP found liable for copyright infringement (Part V Division 2AA of the Copyright Act). The case was resolved on a most satisfactory basis by mediation shortly before trial.
Sharman Networks / KaZaA: We represented Sharman Networks and others in Federal Court copyright and Trade Practices Act proceedings commenced by the major record companies arising out of the development, distribution and use of the P2P software known as KaZaA.
This was the first major Australian case, and one of the first in the world, to give detailed consideration to the application of copyright to the internet. It was also one of the largest copyright cases ever run in Australia and was watched with interest by copyright owners around the world. We subsequently represented Sharman and others in an analogous dispute with the Australasian Mechanical Copyright Owners' Society, the Australasian Performing Right Association and their global affiliates (as representatives of music publishers). The parties ultimately reached an international settlement.
Victorian racing industry: We have represented the Victorian thoroughbred racing industry over many years in various copyright matters, including the aggregation and on-licensing of the rights to exploit audiovisual coverage of race meetings in a variety of media. We have also acted for the industry in relation to its strategy designed to protect copyright in race fields, including disputes with corporate bookmakers regarding unlicensed use of race fields (with those disputes being resolved to the satisfaction of our client without the need to commence legal proceedings).
Minova Australia (Part of the Orica Group): We represented Minova/Orica in breach of contract, breach of Corporations Law, misuse of confidential information and breach of copyright proceedings against former senior employees of a subsidiary, Ground Consolidation Pty Limited. The proceedings were commenced by way of successful search and seizure orders executed at the homes of three former employees and interlocutory orders that protected our client's business.
Redberry Enterprises: We successfully represented Redberry Enterprises Pty Ltd in proceedings commenced in the Federal Court by Review Australia Pty Limited, a designer and retailer of women’s clothing. Review alleged that Redberry infringed its registered design for a dress. In October 2008 the Federal Court found in our client's favour, and delivered the first judicial decision on infringement under the Designs Act 2003 (Cth), a decision which has clarified and strengthened the position of owners of registered designs.