The ways in which “User Generated Content” (UGC) are being used are rapidly expanding – and so are the commercial and legal issues surrounding them.

Microsoft’s recent announcement that they will soon be selling user generated games, and sharing the sales revenue with the creators, means that the opportunities for gamers, game developers and techs to exploit their UGC will soon hit new heights. It also means that the licensing and ownership of such games will attract higher stakes.

New game development software called XNA Game Studio Express has been released by Microsoft. By using that software and joining the ‘creators club’, it will be possible for Xbox users to quickly and efficiently build, test and share their own computer games.

The software and process are still being tested, however, upon launch of the full version of the project, Microsoft estimates that the number of games available on the Xbox will double.

No doubt, independent game developers will be hoping that this new technology will further open the doors to break into the game-development world.

In such a lucrative market, the exploitation of user generated content is a vexed balance of commercial and legal considerations between the creator, the user and the controller of the space in which the user generated content is used. Inevitably, the greater the complexity and value of the user generated content, the more difficult it is to strike a fair and reasonable balance between all the parties.

It will be interesting to see the results of the introduction of the new game development strategy and the effect it will have on the gaming industry, but you can be sure that other technology and gaming companies are watching closely and will soon be devising their own methods and commercial and legal structures which will allow them to utilize UGC.
Chris Chow

It is with delight that we announce that Simpsons is expanding and moving to larger premises in the cultural precinct of Walsh Bay.

After a couple of years of steady growth, the firm has gradually outgrown its Macquarie Street offices.   The location and design of our new offices reflects the firm’s focus on delivering high quality advice across the creative and cultural sectors and to those in need of specialist intellectual property lawyers.

From 18th August 2008,  our new address will be: Level 2, Pier 8/9, Hickson Road, Millers Point, New South Wales, 2000.

It is with great pleasure that we announce that Jules Munro has been appointed a Partner of the firm.

Since joining the firm in 2002, Jules has developed a strong reputation as an entertainment law expert with a particular focus in the music, film and TV industries. His work includes valued contributions to these industries through his volunteer work for the Arts Law Centre of Australia as well as through his speeches, articles and papers.

Jules will now be leading a team of lawyers to assist him in this area of the firm’s practice. This application of increased resources fortifies our position as national leader in entertainment law and complements our other fields of legal and industry expertise.

The primary decision of Bennett J has been overturned on appeal by the Full Federal Court in Nine Network Australia Pty Limited v IceTV Pty Limited [2008] FCAFC 71.

The Full Court found that IceTV had infringed compilation copyright in the weekly television schedules (the “Weekly Schedules”) produced by the Nine Network (“Nine”), by reproducing program titles and times in its subscription-based interactive Electronic Programming Guide known as the Ice Guide (“Ice Guide”). The decision sends a chilling warning to those who reproduce the information contained in a compilation copyright work. Specifically:

• There is considerable risk using information from a compilation copyright;

• Taking even small quantities of information may be held by a Court to constitute a substantial part of a compilation work for the purpose of determining whether infringement has occurred; and

• A person may be liable for copyright infringement if they take a substantial part of another’s work despite having invested time and ingenuity in producing a new work.

Background

In May 2006, Nine commenced proceedings against IceTV for copyright infringement, claiming that that IceTV’s Ice Guide infringed copyright in their Weekly Schedules. Nine argued that they had invested considerable skill and labour in making the programming decisions that were recorded in the Weekly Schedules – this skill and labour their compilations character as original literary works. It was this skill and labour expended by Nine that they claimed IceTV had appropriated.

Trial Decision: Nine Network Australia Pty Ltd v IceTV Pty Ltd [2007] FCA 1172 (9 August 2007).

In her primary judgment, Bennett J found that copyright did subsist in the Weekly Schedules that were produced by Nine – they were to be properly regarded as compilations. However, ultimately she found that Nine’s skill and labour had not been chiefly for the purpose of creating the literary work, but rather for the purpose of choosing programs to broadcast and when so as to maximise Nine’s viewing audiences.

Further, she held that IceTV had not infringed the Nine Network’s copyright. She concluded that copyright subsists in a compilation as a whole work. Therefore, Nine could not claim copyright in the time and title information for a single day or week as if that information made were a separate compilation. The skill and labour of selecting programs was ‘antecedent’ or ‘preparatory’ to the exercise of skill and labour in preparing the Weekly Schedules. Thus the individual program titles and times were not a substantial part of Nine’s copyright work. IceTV’s taking of slivers of time and title information and incorporating this into their Ice Guide, did not reproduce a substantial part of Nine’s work. Her Honour concluded by confirming that the question of what is considered to be a “substantial part” is to be decided according to the quality of the work reproduced, rather than the quantity. IceTV had not taken a substantial part and therefore Nine’s case based on time and title information failed.

Overturned on Appeal

On appeal, the Full Federal Court found that the trial judge had erred by distinguishing between the exercise of skill and labour in selecting program times and the modest skill and labour involved in tabulating the results. It was propounded that even a small quantity can form a substantial part of the work, and a Court will be particularly willing to make a finding of infringement, if small quantities are systematically taken on a regular basis, as in this case.

It was held that “the skill and labour expended by Nine were part of a single process leading to the creation of the copyright work as the written record of Nine’s programming decisions and the associated program information”. Thus, the information used by IceTV in the Ice Guide (i.e. the reproduction of times and titles) amounted to a substantial part of Nine’s compilation copyright work. The Court reached this conclusion on the basis that these were crucial elements and the centrepiece of Nine’s Weekly Schedule. Further, a great deal of skill and labour exerted by Nine in the process.

The fact that IceTV had also exerted skill and labour with a degree of ingenuity in producing their IceGuide, was regarded as irrelevant by the Court on the question of infringement. It was held that substantial reproduction of Nine’s work was not justified despite any originality in the form of the IceGuide.

Last weekend I participated in the 2020 Summit in the Creative Stream. I still do not know who nominated me but I am grateful.

Without qualification, I thought the 2020 Summit was an important event for Australia and many Australians.

It was important even for its democratic symbolism. People from an extraordinarily diverse range of backgrounds, cultures, religions and interests converged and put forward and exchanged ideas with each other and our Government. In a country where many are disillusioned by the political processes it was deeply symbolic and powerful. For many, that symbolism was heartening, empowering and inspiring. Those feelings were palpable in the discussions. People were thinking seriously about the future with fresh expectations and hopes about not only Government’s role in the future but the role that they and other Australians themselves should play. That itself will enliven our democracy and our country.

It was important because regardless of what the Government now does, a thousand diverse Australians robustly exchanged ideas, praise, criticism and experiences. Not just within their streams but wider. There was an exceptional level of good will and interest amongst the participants. A better understanding of Australia and Australians was reached by many. For example, a mid-wife from hospital approached many of us in the creative stream about the violence and despair in the emergency ward in which she worked. She urged us to think of ways in which arts and creativity can help our health system. We did and ideas about integrating arts into the public health system was recorded. I shared with her the work of the Nordoff-Robbins Music Therapy centre. She was amazed and said she will contact them to discuss ideas. I also learnt of the experiences of the manager of a youth club centre in Sydney’s diverse South-West. We have already talked about what our firm can do to make music, arts and creativity a unifying activity in an area that has over 25 different nationalities. Even with these small examples, changes to improve Australia’s future are underway.

It was important as there is a real opportunity that some of the new ideas will turn into Government action and results for Australians.

Perhaps more importantly, there is an opportunity for each of us, who participated, to involve others in the leveraging of the summit dialogue and the follow-up actions we take. The summit was the first stage.

I don’t think there is any value now in criticising the concept or the process. It was certainly not perfect. It was a Herculean task and it was not a disaster. Suffice to say, all those who I worked with and met took the challenge seriously and worked hard within the time and framework we were given. Particularly on the second day, innovative, practical and bold ideas to benefit Australia, its people and its communities were captured. These are ideas we now hold. They can advance independently of the Summit to Government or amongst ourselves.

Thank you to everyone who provided me with their thoughts before the Summit. They informed all my contributions. Thank you particularly to all those from the Contemporary Music Working Group who have been going through a type of 2020 Summit with me for years now. This was not lost on either the Minister nor Department.

See www.australia2020.gov.au

Australian Bureau of Statisics - Australia’s Digital Game Developers

The ABS has released statistics in relation to Australia’s digital game developers. The report estimates that in the 2006/07 period $136.9 million in income was generated. The press release highlights the following statistics:

• The 45 game developers reported an operating profit before tax of $8.5 million and an operating profit margin of 6.2%.
• The major source of income was the provision of game development services ($116.9 million), with most of that income (93% or $108m) coming from overseas businesses.
• Games developed for console formats (e.g. PS2, PS3, Xbox, Wii) accounted for nearly three-quarters (71.1% or $83.2 million) of game development services income.
• Games developed for PC and Mac formats accounted for 14.6% ($17.1 million).
• Two states - Queensland and Victoria - accounted for the majority of game development income (40.4% and 33.2% respectively) and employment (48.6% and 33%). (Source: GDAA/CCH)

On Tuesday 12 February 2008, Jules Munro, Victoria Chylek, Moses Kakaire and Christopher Chow were invited to present at the CLE (Continuing Legal Education) Entertainment Law Seminar, conducted by the College of Law. Presenting at CLE seminars provides lawyers with an opportunity to impart their their specialist legal knowledge to their peers within the legal profession. As such, a lot of research is done in preparation for these seminars to ensure that the current laws and industry trends are covered. The topics covered by our lawyers on this occasion were:

• Jules Munro - ‘New Developments in Record Contracts’
  

• Moses Kakaire - ‘Regulation of Content Delivered by Convergent Devices’

• Victoria Chylek - ‘Media, Privacy and Celebrity: A New Cause of Action for Invasion of Privacy’

• Christopher Chow - ‘Deus Ex Machina or How Game Developers Play God in MMORPGs’

The presentations were very well received. Copies of these papers will be available on the website soon.

The Recording Industry Association of America (RIAA) has won the first lawsuit against a file-sharer that has made it into court. The RIAA has brought more than 26,000 lawsuits against file-sharers over the last four years, but almost all defendants have settled.

The defendant, Ms. Jammie Thomas of Minnesota, was found liable for copyright infringement by the jury after five hours of deliberation. The jury levied a penalty of $222,000 for the twenty four songs she was charged with illegally sharing on the Kazaa network in February 2005. The penalty equates to $9,250 per song, which is at the bottom end of the $750 - $150,000 range for copyright violations.

Ms. Thomas and her lawyer have appealed the verdict, arguing that the awarded damages are unconstitutionally excessive.

In Australia, MIPI has threatened to start suing individuals for illegal file-sharing. Until now MIPI has sought to work with ISPs in order to stop illegal downloaders, but without success.

Sabiene Heindl, general manager of MIPI said “We would hope that the ISPs and the record companies could come up with an alternative solution. That said, if that solution cannot be reached, and at this stage it’s because of the ISPs refusing to play ball, then we may have no alternative other than to take legal action [against individuals].”

http://www.smh.com.au/articles/2007/10/08/1191695804646.html
http://blog.wired.com/27bstroke6/riaa_trial/index.html

IceTV has successfully defended itself against Channel Nine’s claims that IceTV’s Electronic Program Guide (EPG), which also covers channels 7, 10, the ABC and SBS, was breaching Nine’s copyright in its program listings.

Nine launched the action just days before IceTV was to be floated on the Australian Stock Exchange, forcing IceTV to cancel the float and return investors’ money.

Justice Annabelle Bennett dismissed Nine’s claims after examining IceTV’s methodology for compiling and updating its EPG, finding “Ice has not infringed Nine’s copyright in the course of making and updating the IceGuide”. A full copy of the judgement is available at http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/1172.html

IceTV now has the go-ahead to consolidate its position as Australia’s only source for an EPG for free-to-air television and round up subscribers before Channel 7 launches its TiVo-based DVR strategy in 2008, which will have its own industry-blessed EPG.

Simpsons assisted IceTV.

For more background:

http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/1172.html
http://www.icetv.com.au/

The Interactive Entertainment Association of Australia has released Interactive Australia 2007, their report on the state of the Australian game industry. The big news is that the industry made approximately $1 billion in sales over the last financial year. This figure indicates the growing commercial importance of computer and video games in the media landscape.

Some other interesting statistics from the report:

• 79% of Australian households have a device for playing computer or video games
• 41% of Australian gamers are female
• The average age of gamers is 28 and increasing. By 2014 it will be 42, the same as non-gamers.

On the production side of things, Australia has 40 game development companies which have developed more than 200 titles.

The full report can be found on the IEAA web site: http://www.ieaa.com.au/home/home.do