No fair use for Australia - press release and government response to Digital Agenda Report now online

The Attorney-General has now put up the press release on the outcomes of the Australian Copyright Law Fair Use Review. The full press release, along with a 'FAQs for Consumers', is available here.

Update: Another document promised in the press release, the official Government response to the Digital Agenda Review Report (a report published 2 years ago, in early 2004) is now available online, from this page.

My comments/analysis, posted yesterday, are here.

Note that according to the media release, 'a draft exposure Bill including these and other reforms will be released in the near future to enable further consultation with stakeholders.'

 
No fair use for Australian copyright law ... but some broader specific exceptions and some significant lashings of enforcement

Over the past 12 months, Australia has been going through a major review of its copyright law, and in particular, its exceptions to copyright infringement, with a view to 'updating' this material for the digital environment. Yesterday, the Attorney-General announced that the government has decided not to adopt the US 'fair use' system - where a broadly worded defence must be assessed on a case-by-case basis. Instead, the government will expand, and amend, existing specific exceptions in Australian law. We will get specific exceptions for some private copying, and some other exceptions like fair dealing for parody/satire.

My detailed comments were posted yesterday: click here for the full post.

 
When you have a moment...

Read this story in the New York Times Magazine (hat tip: Joe Miller) on the project(s) to digitise all the books produced by humankind. What's interesting about this story is the discussion of the implications beyond just making books available, and the idea of the 'liquid book' and what it means:

Turning inked letters into electronic dots that can be read on a screen is simply the first essential step in creating this new library. The real magic will come in teh second act, as each word in each book is cross-linked, clustered, cited, extracted, indexed, analyzed, annotated, remixed, reassembled and woven deper into the culture than ever before. In the new world of books, every bit informs another; every page reads all the other pages.

The article goes on to consider the copyright issues, and possible solutions to the copyright issues: solutions that might involve the development of lists and registers of ownership. It's not just a 'ra-ra isn't this wonderful' view: it is careful to point out that saying that Google's 'opt out' approach (we'll scan and you, copyright owner, can tell us if you want your stuff removed) is ok has broader implications - 'Should you as a creator be obliged to find and notify each and every geek who scanned your work, if for some reason you did not want it indexed? What if you miss one?'

And when you've read the article, think about a couple of things:

• What does the 'liquid book' mean for writing books? Will the authors of the future build in tagging, linking, etc into their books too? Will books be written differently?
  
• What do the changes rendered in copyright law in Australia, as a result of yesterday's announcements, mean for projects like the Million Book Project or Google Book Search?
  

 
Oh, and another thing... no resale royalties for Australia either

The Government, in the budget, has quietly shelved proposals for a resale royalties scheme - despite recent introduction in the UK and a recent private members' bill. The idea has gone because 'It would bring little advantage to the majority of Australian artists whose work rarely reaches the secondary art market and would also adversely affect commercial galleries, art dealers, auction houses and investors.' Hat tip: Warwick Rothnie.

update: the National Association for the Visual Arts is very disappointed. To quote their press release:

Despite the fact that no government funds would be involved, last night the Government announced it would not give its support. The Resale Royalty would have meant that artists would be entitled to a small percentage payment on each resale of their art works, so they could participate in the increase in value of their work as their reputation grows. Tamara Winikoff, Executive Director of the National Association for the Visual Arts (NAVA) said today “After patiently asking for fifteen years, artists in Australia are saddened and perplexed about why the Government will not grant them a royalty right comparable with that enjoyed for so many years by writers and musicians”. “With so many visual artists, especially Aboriginal artists, living below the poverty line, even modest amounts of money would make a big difference. If the threshold sale price on which the right was granted was set low, the majority of artists would benefit,” Winikoff continued. “It is a gesture the government could afford to make at a time when auction houses and private investors have been making record profits from the resale of artists’ work. It is reprehensible that they begrudge this tiny percentage going back to the creators who are the underpinning of their industry.”

 
No fair use for Australia - but some expanded exceptions for time-shifting, format-shifting, parody - and more (with a not-so-little serving of enforcement on the side) (UPDATED)

Subtitled: Outcomes of the Australian 'Fair Use' Review Announced Today

For the past 12 months, Australia has been going through a major review of its copyright law, and in particular, its exceptions to copyright infringement, with a view to 'updating' this material for the digital environment. (I note that we are not the only ones: Canada are having an ongoing debate (see Michael Geist on all this), and the UK are having their Gower Review (see here).

Today, the Attorney-General has issued a press release, announcing the results of the review. As yet, the press release does not appear to be online (it will go up here), so I'll summarise.

The government has decided not to adopt the US 'fair use' system - where a broadly worded defence must be assessed on a case-by-case basis. Instead, the government will expand, and amend, existing specific exceptions in Australian law. That makes the amendments complicated, but potentially more certain.

The Attorney-General, Philip Ruddock, is characterising the reforms as:

'...significant copyright reforms which make our laws fairer for consumers and tougher on copyright pirates.'

According to the AG:

'These are commonsense amendments which will maintain Australia's copyright laws as the best in the world for the benefit of our creators and other copyright owners and for the many Australians who enjoy their creative works.'

I wonder, though. The government does appear to have caved on the issue of the 'flexible exception' - the 'catch all' provision to except uses not foreseen at the time of this legislation. In my submission, I supported such flexibility, and I'm very sorry to see it apparently not there. I wonder whether in a few years time we will be saying what Bill Cornish (not an IP radical or copyleftist, by any stretch of the imagination) said in his Clarendon Lecture:

'With rapid technical shifts on the scale of the Internet, there must be a case for giving judges some more general power to excuse at the edges, along US lines. After all, at the centre, legislation is rapidly providing the mainstays of control. As one who tried in 1988 to persuade Parliament to introduce a concept of fair use, I feel now even mroe acutely that our failure was a major rebuff. ' (Bill Cornish, Intellectual Property: Omnipresent, Distracting, Irrelevant? (OUP 2004) at page 65)

The press release maintains principles which Ruddock has stated a number of times:

• That copyright must keep pace with technology and rapidly changing consumer behaviour;
• that 'reasonable consumer use of technology to enjoy copyright material' should be recognised - 'Australian consumers should not be in a significantly worse position than consumers in similar countries'
• reforms should not 'unreasonably harm or discourage the development of new digital markets by copyright owners'
• The unique Australian system should be maintained - we are not moving to US-style fair use;
• the law should be updated to tackle rising copyright piracy, and to support the copyright industries.
  

I wonder whether we are now in a situation where Australian consumers are not in a significantly worse position than consumers in other countries - but where Australian copyright users more generally are.

So where's the beef? Well, let's look a little at the detail.

Two new private use exceptions

There will be two new exceptions for private use of legitimately purchased or accessed copyright materials:

1. A time-shifting exception to allow consumers to record most television and radio programs to view or listen to once at a later time.

This will expand the current exception in s 111 of the Copyright Act that currently excuses recording of a broadcast forprivate/domestic use, but not of underlying materials (like, the television program, or the songs broadcast on radio). This is a welcome change, although the idea that people will only be allowed legitimately to watch or listen to taped material once seems a little harsh. What if there are multiple people in a household who want to watch at different times?

Such a qualification does run a risk of being a technical restriction which is unenforceable in practice and unduly restrictive. What's the point? I'm not sure what 'most' television and radio means. I guess we'll have to wait to see the draft legislation.

2. A format-shifting exception to permit a person who has purchased a legitimate copy of some categories of copyright amterial to make a copy in a different format. This will cover individuals who store personal music collection in MP3 players (like iPods) or personal computers. It will also allow people to scan articles from newspapers and store them on computers (though not upload it to the internet).

As for DVDs - well, that question will be monitored, with a review in two yeasr time to see whether it can be expanded to digital audio-visual materials consistent with our international obligations.

This exception, too, is welcome, in that it finally would appear to bring Australian law into some conformity with reality. I, for one, will be relieved when I no longer have to explain to people that no, most uses of iPods are in fact copyright-infringing. This goes further, too, than some copyright owners had suggested - organisations like ARIA had opposed this kind of exception. Whether they have received any concessions/limitations to the consumer right embodied here, we will have to see.

A new 'flexible dealing' exception

The AG has also announced

A new 'flexible dealing exception' that will allow for
1. Non-commercial uses by libraries, museums and archives (eg, to allow a museum to include extracts of historical documents in materials for visitors);
2. Non-commercial uses by educational institutions for the purpose of teaching (eg, to allow a school to put an out-of-date VHS documentary onto DVD);
3. Non-commercial uses for the benefit of people with disabilities (eg, to allow a person with a print disability to convert a book they own into accessible text), and
4. Parody and satire.

It appears that the new exception will include the Berne/TRIPS '3 step' test as a set of conditions which must be met for the exception to apply. That is, the exception is only going to apply:

• in certain special cases;
• where the use does not conflict with a normal exploitation of the work; and
• where the use does not unreasonably prejudice the legitimate interests of the author.

This exception is going to be really interesting, for a number of reasons.

First, it's not clear why it is being called 'flexible'. To me, it looks like the current Australian system - where specific exceptions are allowed for specific purposes - is simply being expanded by the addition of a few new purposes. This will not allow for 'unforeseen' or innovative uses (such as, for example, use of thumbnails by search engines, or, say, the Google Book Search project). But it will address some current problems.

Second, because it will be interesting to see how courts go about applying those conditions. Our courts are going to be directed to apply - not the kind of conditions that apply in the US in fair use (purpose and character of the use; nature of the copyrighted work; amount and substantiality of the portion used; effect of the use upon the potential market), but the international conditions.

Where might they look for assistance in interpreting this? Presumably, the WTO decisions, and also the decisions of the European courts (several European jurisdictions have also incorporated the 3 step test, as a result of the EU Information Society Directive). Those publications and reports by Professor Sam Ricketson (here (warning - huge pdf), and here (warning - another huge pdf)) may also become more relevant. It will be fascinating to see how this all pans out in the end.

Another thing which is interesting about the flexible dealing exception is this idea that 'parody and satire' will be allowed. The extension is a very welcome one, in my view. Finally, the Australian sense of humour is recognised in its copyright law! There were plenty of submissions seeking this extension made to the review. I'm glad to see it through.

It is interesting that both parody and satire are listed on the press release as things which will be allowed. The US fair use exception, as interpreted by the US courts, tends to draw a distinction between parody and satire. The cases have allowed use of material for parody (where references to a work are necessary), but not so much satire (where a work is used to make broader comments on the world at large). The EU directive allows countries to have an exception use 'for the purposes of caricature, parody or pastiche'. Arguably, the attempt to draw a line between parody and satire is relatively meaningless in the end. Arguably, too, it leads to the unedifying spectacle of people trying to argue that their work is parody when it is clearly more like political commentary). But the inclusion of both is, I think, interesting.

Note, too, that the coverage of certain 'non-commercial uses by libraries, museums, archives, and educational institutions' suggests that the time-shifting and format-shifting exceptions are only going to apply to individuals for private/domestic uses.

Responses to the Digital Agenda Review: more extensive provisions to allow digital uses by libraries, cultural institutions, and educational institutions

The other thing that is going to be done in these laws is the response to the Digital Agenda Review. According to the press release:

1. Reforms will be made to allow libraries and archives to better assist users online;
2. Statutory licenses will be updated to 'better reflect the needs of educational institutions and copyright owners when dealing with online material' - for example, the status of caching and distributed technologies in classroom teaching will be clarified;
3. The scope of the communication right will also be clarified to overcome any doubt that Internet browsing is not part of the communication right.
4. The Act will be clarified to confirm that statutory licenses do not override the operation of other existing exceptions in the Act, including those allowing temporary copies to be made in the course of a communication.
5. There will be a new exception for national cultural institutions to be able to more effectively preserve and provide public access to items in their collections of historical and cultural significance to Australia for future generations without breaching copyright

Wow. There's some potentially very significant stuff here.

First, have a look at point 3 and 4. It looks to me like the government is planning to take the wind out of the sails of one of CAL's arguments in its current dispute in the Copyright Tribunal regarding 'tell students to view' material: CAL have been arguing that schools should potentially pay every time a student is told to go look at a website. You might recall I've ranted about the silliness of the argument being made before (here, here, and here). Now, there's still lots of other arguments raised in the case - but it looks to me like the government has decided to step in and eliminate the really silly one.

I'm not sure what the 'online updating' will cover - I will have to go look at the full government response to the digital agenda review (it's meant to be online but I've not found it yet).

And look at that last one - point 5. There have been ongoing issues about the ability of cultural institutions to preserve important material in light of copyright. In fact, these issues are in part behind the complaints about 'orphan works' and the silliness of copyright standing in the way of preservation and other activities. It will be very interesting to see how far that provision extends - and to see whether it takes some of the wind from the sails of those advocating a full review of the issue of orphan works.

Provisions on copyright enforcement

The AG has also announced new developments regarding enforcement: namely:

1. Police will be given teh power to issue on-the-spot fines for copyright piracy;
2. New presumptions will be created to make it easier for copyright owners and prosecutors to prove ownership and subsistence of copyright;
3. The government 'will address large-scale Internet piracy ... by giving a court additional power to award larger damages payouts or other remedies' - to apply 'where there have been multiple acts of infringement, but where it may not be practical for the copyright owner to prove every single act of infringement';
4. The government is going to change the definition of 'article' to cover electronic copies (addressing an issue that arose in both Kazaa and in the Cooper case)
5. Pay TV piracy will be criminalised (this has already been announced).
6. There will be research into piracy by the Australian Institute of Criminology (to research the nature and extent of piracy and counterfeiting in Australia);
7. More seizure powers will be given to Customs;
8. There will be continued support for cooperation between law enforcement and agencies, and public awareness campaigns.

Some of these moves are pretty significant too. The idea of larger damages payouts for Internet infringements, on-the-spot fines, and that extension of the definition of 'article' (which will make more provisions of the Act applicable to things that happen online) - these are things the copyright owners have wanted for a while and will, I think, be pretty significant in the long term.

Concluding comments

This is going to be one helluva piece of amending legislation. It will represent the culmination of a series of Reviews (the Digital Agenda Review, and the Fair Use Review in particular). The changes being proposed would appear to go well beyond the cosmetic, although final judgment will have to be withheld until draft legislation is released.

If the changes go as far as the press release indicates, the government will have dealt with some long-standing issues in Copyright law. Exceptions for parody, for time and format shifting; updating of the digital provisions, and perhaps some more freedom to act for our cultural institutions: these are all going to be beneficial from a users' perspective and will bring the law further into line with - as the AG puts it - 'commonsense'.

There is some devil in the details, even on the face of it the relatively brief media-release. Time-shifting to watch once only, and the inclusion of the 3 step test (which, in the long term, could be quite restrictive depending on what our courts do, and whether they follow restrictive European interpretations), and large damages provisions for internet conduct - all of these will be things to watch.

Another interesting thing to note is that there is no mention, in the press release, of the issue of TPMs and amendments to anti-circumvention law in light of the FTA. I had wondered, given the delay in announcing these laws, whether perhaps they would try to deal with the issues all at once. They haven't, which means it will be interesting to see how those laws interact. There is potential for much of this to become less meaningful depending on how those laws end up being drafted. But it's only potential - and regardless, I think these amendments, on the face of them, look pretty good - subject to the details.

Wow.

Further sources

The history of the review can be traced via the links on the side bar to this blog. Note in particular,

• The Issues Paper, available here.
• The Submissions made in the review, available here.

For other coverage, see:

• Story in the SMH: 'Cutting Crime as easy as MP3'
• Fiona Bradley here
  

 
Personal copying of CDs

The Australian Record Industry Association, 2005

'On a general note, ARIA considers that any amendment to the reproduction right and its exemptions needs to support new business models and the successful roll out of digital formats and online services. The industry considers that the market requires music products that are tailored to consumer needs and expectations, including home copying. This can and needs to be achieved through product design and technology, not through legislative amendment which distorts the market response to consumer demands.'

And they go on to elaborate:

• It is the goal of record companies, both internationally and in Australia, to support the introduction of new options and business models offering different services and options to consumers at different price points.
• in the short term, technological developments will enable consumers to make a reasonable number of copies of recordings under licence from the copyright owner;
• in the short term, technological developments will provide copyright owners with the means to limit uncontrolled copying of recordings;
• in the short term, technological developments will provide to consumers the flexibility that they are seeking whilst ensuring that, at the same time, Australia continues to be able to meet its obligations under various copyright treaties;
• an abrogation of the rights of copyright owners and creators cannot be justified on the basis that because technology allows private copying to occur (and has done so for
  some time), such copying has assumed the status of a “right”;
• there is no problem, because no one has ever been prosecuted for private copying, and while 'that does not mean that the copyright owners condone that private copying, it clearly demonstrates that copyright owners have not sought to utilise remedies available to them under the Copyright Act to address the problem.'

United Kingdom, BPI, 2006:

'The British music industry is to recommend to the Government that consumers be allowed to legally copy music without fear of prosecution.

The BPI, the body that represents British record companies, believes copyright on CDs and records should be changed to allow consumers to copy music if it is for personal use. Currently, it is technically illegal for anyone to copy a CD onto their computer for the purposes of downloading music onto their own portable music player.

In its submission to the Gowers Review - the independent review body set up by the Treasury to examine the UK's intellectual property framework - the BPI has asked for the issue of this area of music copyright to be addressed.

United States, RIAA, for a very long time:

If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that's great. It's your music and we want you to enjoy it at home, at work, in the car and on the jogging trail.

So here's what I don't get. Why is the Australian position so very different? Is it because here, unlike, say, Canada, there is so little outcry against the ridiculous position under Australian law? What do people think about this?

 
Justice Heerey had a point....

You might recall some comments I made, a couple of weeks ago, on Justice Heerey's evidentiary rulings in the passing off litigation between Cadburys and Darrell Lea. Justice Heerey limited the presentation of certain survey and expert evidence. The judge's ruling was informed by a policy against allowing infinite expansion of evidence in a case dealing with straightforward consumer products. The judge considered that:

'Such evidence shouldn't be admitted because of the rules of law above, which are based on sound policy: avoiding overcomplicated, expensive trials with lots and lots of evidence and cross-examination and warring experts. The judge is clearly concerned that admitting the evidence in this case will lead to it being expected in all of these types of cases.'

My clever RA Aaron Newell has pointed me to a case that perhaps indicates that Justice Heerey had a good point here: a recent Canadian decision concerned with trade mark issues - amongst them, dilution style harm. From the sound of things, the amount of evidence was a little breathtaking - so much so that the judge commences his judgment like a Logies speech:

'Subsequent to 14 years of preparation time by the parties for this trial, and an eight-week trial that spanned for over a year, after more than 6,000 exhibits, 200 binders, dozens of brochures and tens of actual accessory samples, such as suitcases, briefcases, knapsacks, key chains, vehicle wallets, key fobs and dinky toys, the analysis of the evidence was made possible by the kind assistance of Madame Sylvie Baillargeon and Mr. Alain Dernek, two registrars of the Federal Court. It is they, who catalogued and organized the material, assisted by two most able individuals, who worked as archivists for the respective legal counsel of both parties, Ms. Bettina Murphy and Mr. Tyson Neil. Madame Mireille Legault deserves special mention. It is she who put this judgment into printed format, ensuring that the end notes were included and cited.

In addition, it is noted that due to the fact that for closing arguments, the two parties filed four and eight binders, respectively, for a further twelve binders (six of which consisted of authorities), the parties were asked to submit within a week a summary of closing arguments, in no longer than 90 page memoranda as to what, respectively, they considered essential to their positions. This, both parties, kindly did.

Emerson said the essence of all is found in simplicity.

This trademark case has at its core one question: who has a right to what, when and for what purpose?'

I don't envy the court staff.

 
Copyright Tribunal and the Retransmission case - how much is the retransmission of Free To Air Television worth?

According to the Copyright Tribunal - 22.5c per subscriber per month is what it is worth. That is how much Pay TV channels will soon be ordered to pay copyright owners (through their collection vehicle, Screenrights) for the privilege of retransmitting free to air channels to their subscribers. The decision, handed down 3 May, has already been reported in the Sydney Morning Herald and in the Australian.

The flavour of the story in the media has been interesting - the Australian pitches it as 'nothing comes free' for Pay TV; the SMH is even more blunt. Under the headline 'Pay TV hit with copyright fee' it comments that:

''PAY TV operators, including Foxtel, Optus Vision and Austar, will now have to fork out $3.5 million a year for retransmitting the five free-to-air channels on their platforms'

But there's a little more to it than that. As the SMH notes, Screenrights had initially asked for $10 per subscriber, per month. Screenrights in their final submissions argued that an amount of $2.50 per subscriber per month was 'conservative'. And as the Australian also notes that 'The pay-TV networks, including Foxtel, Optus and the regional network Austar, argued they should pay no more than 20c per subscriber per month.'

Hmmm: so Screenrights thought $2.50 was conservative; the upper bound of the Pay TV people was 20c. The result was 22.5c - a smidgeon above what the Pay TV people had argued (admittedly, the Pay TV people were arguing that the 'lower bound was zero', based on past arrangements). While Screenrights has 'welcomed' the decision, my guess would be that they would view this as a pretty low fee.

A quick look at the decision confirms the intuition that Screenrights aren't likely to be all that happy: largely because the main basis for their case - a contingent valuation survey in which consumers were asked how much additional they would pay for having Free to Air television retransmitted - was accorded no weight by the Tribunal.

Oh, and spare a thought, by the way, for the film directors in all of this. When, with some fanfare, directors' copyright was introduced last year, the only right film directors actually got was a right to a share of income from retransmission of their material. So, the only thing directors got was a cut from the $3.5 million or so that this Tribunal decision will actually generate. Oh, and that is assuming that their rights haven't been contracted away.... well, at least they aren't getting a cut of the lower bound of the Pay TV people's proposed license fee - zero!

 
The other side of fair use/fair dealing

Those of us who have a tendency to place high importance on free speech, and fair dealing, and transformation of existing creative material sometimes discount the very real interests of authors to control the outputs of their own creative impulses. In some respects, the submission of the National Association for the Visual Arts in the Attorney-General's Fair Use Review is a useful reminder of the other side.

If you need another useful reminder - or maybe just some food for thought - head on over to Mike Madison's post on what sounds like an extremely interesting panel presenting the conflict in terms of real people. He describes a panel at a conference where an appropriative artist and a photographer, got up on the same stage to defend their views and approaches.

 
The colour purple (continued) (updated)

Well, well, well - haven't we all been painting the town purple this last couple of weeks! We've had the decisions of Justice Heerey on evidence in passing off/s 52 a little while ago, then last week his Honour's final decision holding that Darrell Lea had not passed off its goods as Cadburys, nor confused nor misled consumers through use of the colour purple.

Now, IP Australia have put online their decision (watch it - 59 page pdf) in Darrell Lea's opposition to Cadbury's application to register a trade mark for the colour purple for chocolate. The application was for:

'The trade mark is the colour PURPLE depicted in the representations attached to the application form used as the substantial colour of packaging in relation to the nominated goods.[the ‘nominated goods’ are class 30: chocolate].'

When Justice Heerey handed down his decision, he made some pretty specific findings regarding colour, and Cadbury's reputation in the colour purple. He found that:

• Cadbury does not have an exclusive reputation in the use of this dark purple colour in connection with chocolate. Other traders have, with Cadbury’s knowledge, for many years used a similar shade of purple. Cadbury has not consistently enforced its alleged exclusive reputation. In relation to its chief competitor Nestlé, Cadbury has, for its own commercial reasons, permitted a use of purple in relation to popular chocolate products; and
  
• Cadbury’s use of purple in marketing advertising and promotion is, and is seen by consumers to be, inextricably bound up with the well known name Cadbury in its distinctive script. Cadbury never uses the colour purple in isolation as an indicium of trade.

At the time, I wondered out loud what this meant for the opposition: if a judge is specifically finding the colour not distinctive of Cadbury, could a registration go ahead?

Now we know. The result? The opposition succeeded. The application could not proceed as drafted. HOWEVER, this ruling was qualified - Cadbury had succeeded in showing the colour was distinctive for moulded block chocolate:

'The evidence has established to my satisfaction that the applicant’s use of the colour purple as a trade mark (which, by the terms of the application, is the substantial colour of packaging in relation to the nominated goods), was in fact capable of distinguishing at the filing date, in respect of moulded block milk chocolate and boxed milk chocolate bonbons. The use, and acquired distinctiveness, was such that it clearly should not have been taken to be capable of distinguishing in respect of ‘chocolate’ in general. It is not appropriate therefore that the application be registered in respect of ‘chocolate’ in Class 30, which is how the application now stands. The opponent has also established to my satisfaction that the application was wrongly amended in terms of section 62 of the Act and the application should not be registered in respect of any colour other than one which approximates to Pantone® PMS 2685c.'

Now, as Heerey found in the passing off case, Darrell Lea does not sell moulded block chocolate: so this decision may suit them just fine. And, of course, Justice Heerey did not have to consider distinctiveness in a narrower sense than 'chocolate' generally. But it is interesting, and it does mean that we can't say, in sweeping tones, 'Cadbury does not own purple'. It owns a little bit of purple for a few limited goods. Not bad. It's a nice colour. I'm guessing that since I don't sell chocolate, I'm ok with the colours of this blog...

Update: just had a more detailed read of the decision, and I'm kind of thinking that Darrell Lea really wouldn't be thrilled with this particular decision. That is because of the way the amendments proposed by the TMO work.

The TMO has decided that Cadbury can go ahead if it amends it's application to cover its purple only for boxed and block chocolate. Now, while Heerey J said that Darrell Lea don't sell block chocolate - they do sell boxed chocolates, right? So a registration like that will constrain future conduct by them (or at least might, depending on the views the courts take regarding what counts as infringement - which we don't know yet). Remember too that infringement can occur where a mark (or something close) is used on similar goods - and just about any form of chocolate would be similar goods, right? In other words, even if Cadburys end up with a slightly shorter sword, they can still swing it around wildly, can't they...