Kookaburra still up the gum tree, but judge feels disquiet

In February, in "The kookaburra wins down under", Ben posted this note on the Australian ruling that Men at Work copied Larrikin Music’s song Kookaburra Sits in the Old Gum Tree, written by Marion Sinclair in 1934, in their composition and recording Down Under. There's a neat note here from Australian law firm Allens Arthur Robinson (here) on the dismissal of Men at Work's appeal by the Full Court of the Federal Court in EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47.

A case note from another Australian law firm, Davies Collison Cave, focuses on the following comment of Emmett J, in which he expressed some disquiet concerning the finding of infringement:

"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 (see Ice TV at [24]), 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…".