Publications
European IP Bulletin, Issue 16, October - Copyright
Copyright
3. Nominet Celebrates Database Copyright Case Victory
Nominet, the registry for .uk internet domain names has won its court case in Australia in relation to copyright infringement and breach of Australian fair trade law by two businessmen.
The case was brought in the Federal Court of Australia by Nominet against Chesley Rafferty and Bradley Norrish and three of their companies (Diverse Internet Pty Ltd, Internet Payments Pty Ltd and Seychelles-based UK Internet Registry Ltd). The action followed Nominet's discovery, in January 2003, that Nominet’s “WHOIS” database, which contains the registrant’s of .uk domain names, had been under data mining attack. The defendants harvested the details of thousands of .uk domain holders and subsequently sent out bogus invoices to 50,000 registrants under the name “UK Internet Registry”. Such was the scale of their activity that Nominet was forced to suspend access to the database for several hours.
Rafferty and the three companies admitted guilt prior to the hearing leaving the trial to proceed against Norrish only.
The Judge termed the invoices as "nothing less than deceitful". He held that Norrish had both authorised copyright infringement and engaged in misleading conduct, stating that "it lies beyond the limits of credulity to suppose that Mr Norrish” was not aware of what was going on since “he was in the scheme with Mr Rafferty."
Nominet was pleased with the result. It has indicated that it will now pursue all of the above parties for costs and damages together with additional damages based on the flagrancy and extent of the copyright infringement.
This case shows that although the “WHOIS” database is publicly and freely available, it is still subject to copyright and as such its use is still subject to the terms and conditions set down by the relevant registry.
4. German Draft Copright Law to Introduce Levy on Reprographic Equipment
On September 9 2004, the German Ministry of Justice published its draft copyright law which, among other things, seeks to introduce a levy on reprographic equipment.
New technologies, especially digital technology, have presented many issues which have to be addressed by the law and various laws have been passed recently to accommodate these changes. The draft copyright law seeks to introduce a levy on media and equipment used to make and store copyright protected works. Under the draft, the manufacturers of such equipment would be expected to negotiate with the right holders, through collective management agencies, as to a fee to be paid on the equipment. These fees would be levied on equipment used to make substantial copies. The draft further provides for mediation in case the parties fail to agree on the fees payable.
In addition to creating this levy system on reprographic equipment, the draft law will also allow digital rights management systems to charge individuals for copying. According to the Ministry of Justice, this will not amount to double payment as the two systems will complement each other. The Ministry of Justice further states that the fee is not expected to substantially increase the price of the equipment.
Other notable features of the draft law include the automatic exploitation of works in media and the new use of the work that was not known at the time the law was passed. Storage equipment likely to be affected includes computers and other sound, audio, audio-visual and data carriers and reprographic equipment. With the fee levied on the equipment, the private end user will in effect pay for the use of works accessed and stored by their equipment. It should not be seen as an extra fee for the use of copyright protected works.
The introduction of the levy on reprographic equipment will ensure that right holders are compensated for the substantial reproduction of their works in the private realm. What constitutes substantial copying will be determined by market research. There is bound to be some resistance from both copyright users and manufacturers of the equipment.
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