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Background Paper 12 1995-96
New Ideas, Old Laws: Copyright, Patents, Trade Marks and Designs, and
How to Avoid Plagiarism
Brendan Bailey
Law and Public Administration Group
Major Issues
Introduction
1. Intellectual Property Laws in Australia
2. The Wide Ambit and Ancient Origins of the Concepts
of Intellectual Property
2.1 The Product of One's Mind: Universal Declaration of Human Rights
2.2 Copyright
2.3 Patents
2.4 Trade Marks
2.5 Designs (registered)
2.6 Trade Secrets: Confidential Commercial Information
2.7 Plant Breeder's Rights
2.8 Circuit Layouts Rights
2.9 Aboriginal and Torres Strait Islander Arts and Cultural Expression
3. A Selection of Significant Issues In Intellectual
Property
3.1 Copyright: Moral Rights
3.2 Parallel Imports: The Price of CDs: Book Imports
3.3 International Trade Wars Over Intellectual Property
3.4 Convergence of Technology
3.5 Retailers Playing Radios in Public
3.6 Journalists' Copyright
3.7 Copyright in Commonwealth Statutes and Court Decisions
3.8 Exemption from Copyright for Parliamentary Use: Parliamentary
Library
3.9 A Simple Rule on How to Avoid Plagiarism: Fair Dealing
3.10 The High Price of Patents in Australia 3.11 West Australian Smokebush:
Patents for the Building Blocks of Living Matter
Conclusion
Endnotes
Tables:
Table 1 - Ministers
Table 2 - Specific Commonwealth Statutes on Intellectual Property
Table 3 - Regulatory and Advisory Bodies for Intellectual Property Matters
Table 4 - International Conventions
Table 5 - Other International Conventions
GLOSSARY: INTELLECTUAL PROPERTY RIGHTS
- Circuit layout rights:
- These rights cover the original designs for complex technological
developmentssuch as three-dimensional integrated electronic circuits
and computer chips.
- Copyright:
- Copyright covers rights in original literary, artistic, dramatic or
musical works as well as films, broadcasts and sound recordings and
includes new developments such ascomputer software.
- Designs (registered):
- These rights cover the new or original shape or appearance of a manufactured
article.
- Intellectual property:
- This is the general term to describe the property rights for creations
of the mind or intellect. These rights are recognised in the Universal
Declaration of Human Rights and the Convention establishing the
World Intellectual Property Organisation.
- Moral rights:
- More widely accepted and recognised in European Community countries
than in Australia, these are rights for authors additional to the economic
rights involved in copyright. Moral rights include the right of attribution
of authorship and theright of integrity in a work. Australia is proposing
to introduce the moral rights of attribution and integrity into copyright
law.
- Patents:
- These are monopoly rights granted for inventions which are new, inventive
and useful to encourage technological advancement and to reward innovation.
Patentscan now extend to biological developments of living organisms
and certain higher life forms such as genetically altered animals and
plants.
- Performers' rights:
- Although included in the Copyright Act 1968, performers' rights
are not strictly a copyright. Performers' rights are an ancillary right
such as in a live performance where the audience sees the production
live i.e. it is not reduced to a material form (recorded) for presentation.
One of the prerequisites for copyright is that the work is in a material
form. Essentially, performers' rights enable a performer to prevent
unauthorised recordings of a live performance.
- Plant breeder's rights:
- These rights cover the development of new varieties of plants. They
include exclusive commercial rights to market the new variety or its
reproductive material. These rights are separate from patent rights.
- Trade marks:
- These rights cover words, symbols, pictures and, provided they can
be identifiedgraphically, can now include sound or scent. A trade mark
is used to distinguish the origin of goods and services.
-
Trade secrets:
- These rights include any formula, pattern, plan, device or information
which give acompetitive advantage and the details of which are to be
kept confidential. Trade secrets are protected by the common law and
not by statute.
- TRIPS:
- This acronym means trade-related aspects of intellectual property
rights and is theinternational agreement entered into by member
countries engaged in the global part of the Uruguay Round of the General
Agreement on Tariffs and Trade
Have you ever wondered who benefits financially and artistically from
the production of that volume of turgid poetry, that cacophony of recorded
music that sounds like a nasty accident, or that confronting artwork you
saw recently ? If you have a passing interest in what happens in terms
of copyright when a retail store plays background music, or in the patent
for a transgenic pig, or a plant breeder's development of the ultimate
tomato, then this paper may assist. All of these creations involve intellectual
property rights.
Intellectual property rights embrace copyright, patents, trade marks,
designs, plant breeder's rights, circuit layout rights and trade secrets.
Literary, artistic and scientific creations are important and they generally
advance the interest of society. The commercial value of intellectual
property rights is enormous and runs to billions of dollars. So important
are intellectual property rights that they are recognised in the Universal
Declaration of Human Rights. Adequate laws for the protection of those
rights is an obligation of every country.
Some of the major issues covered in this paper are listed below.
Copyright
- Creative Nation was released by the former Labor Government
in October 1994. In that 101 page document, 16 pages included consideration
of copyright or intellectual property rights. The newly elected Coalition
Government in its arts policy For Art's Sake: A Fair Go! described
copyright as the '...most pressing yet unresolved area of cultural micro-economic
reform in this country'.
- Australia has been slow to recognise that copyright is not solely
concerned with protecting the economic rights of authors and artists.
In the United Kingdom and Europe, recognition is also given to the principle
of moral rights. These rights reflect the principle that a creator has
the right of attribution and the right to maintain the integrity of
his or her work. Australia's Copyright Act 1968 contains only
limited protection for some aspects of moral rights. Protection of moral
rights is included in the Berne Convention, an international convention,
to which Australia became a signatory in 1928. The Coalition's election
commitments included a promise to implement a legislative scheme for
moral rights.
- The high price of CDs in Australia compared to countries such as the
United States is claimed to be based on the adherence by Australia to
restrictions on parallel imports of genuine material by persons other
than those who can assert copyright ownership. This means that the local
subsidiary of a multinational can inhibit the importation of genuine
copies of a newly released CD by an overseas artist irrespective of
whether the local subsidiary intends to release that CD in Australia.
A time-limit has been applied to this restriction in its application
to books so as to avoid the problem of unavailability. The former Prices
Surveillance Authority has argued that the parallel import restriction
(contained in the Copyright Act 1968) on both CDs and books should
be repealed.
- The development of modern communications systems and computerised
techniques for copying designs has posed a threat to the protection
of intellectual property rights. The convergence of technology, particularly
in telecommunications, has meant that vast amounts of material can be
transmitted rapidly by electronic means across nations and across the
world. This convergence has blurred the distinctions between literary,
artistic and musical works. Almost any form of copyright material which
is susceptible to audio and visual presentation can be converted and,
of more concern, pirated or subjected to unauthorised use. One suggestion
is to create a new broad-based transmission right to enable copyright
owners to assert ownership against those who transmit the material.
- The United States of America has recently threatened punitive trade
sanctions against China over alleged pirating by China of up to $US2.3
billion per annum worth of US intellectual property (mainly musical
recordings, computer software, videos and films).
Patents
- Human beings, and the biological processes for their generation are
not patentable by law. Australian patent law will, however, allow the
patenting of fragments of DNA which have been identified and copied
from their natural source and then manufactured synthetically. The exception
is allowable because it is argued that the DNA sequence does not exist
as a living organism independently. It is part of the building blocks
of life. A counter view is that the DNA sequence originally existed
in nature and any copy or refinement should not be patentable.
Australia has a significant imbalance between its import and export
of intellectual property. Australia is a net importer of intellectual
property. Australian industry pays a considerable premium for the use
of copyright material, trade marks and inventions protected by intellectual
property rights. To comply with the TRIPS agreement, legislative amendments
in recent years have extended the period of protection for patents from
16 years to 20 years, thus extending Australia's obligation to continue
payments of royalties, mainly to overseas holders of Australian registered
patents.
Everyday life involves interaction with intellectual property rights.
The clock radio that wakes us broadcasts music which is subject to copyright.
The clock radio itself is subject to laws which protect design rights.
The plans for the residence in which we live are subject to copyright.
The breakfast table displays brand name foodstuffs which are subject to
trade marks protection. The formula in some of those products may be the
subject of a trade secret. The fresh fruit may be subject to plant breeder's
rights. A gadget we use in the kitchen may be subject to what is known
as a petty patent. The artwork hanging on our walls is subject
to copyright. The newspaper we read is subject to the copyright of the
publisher and the secondary use of the material (journalists' copyright).
The clothes and wrist watch we wear may be subject to design rights. So
is the vehicle we drive (e.g. a registered design). On arriving at work
we may log-on to a personal computer and encounter layers of copyright
which subsist in the software and in the data bases we access. Technological
convergence in telecommunications has blurred the distinction between
the traditional forms of intellectual property.
Once one stops to consider the range of intellectual property rights
which we encounter the next step is to estimate the value of those rights.
As a total figure the value is enormous and the exclusive rewards for
intellectual property rights are protected for a number of years. In terms
of trade Australia is a net importer of intellectual property. A portion
of the price paid by consumers for many products in Australia rewards
the intellectual property right owner.
It is important to appreciate that the laws which protect intellectual
property rights are very old. They date back, in some cases, to Greek
and Roman times. Simply stated, to take another person's creation and
exploit it or claim it as one's own is unfair and can amount to piracy.
To deliberately distort another person's artistic creation is vandalism
and a breach of what is known as that artist's moral right to maintain
the integrity of their work.
This paper examines the various forms of intellectual property rights
and relates those internationally recognised rights to specific Australian
laws and practices. The paper is intended as a quick reference. The many
forms of intellectual property rights have generated both complex legal
and moral issues. For example, patenting of human DNA fragments and the
debate over transgenic animals and foodstuffs are matters which have caused
significant discussion. Each example of intellectual property warrants
a paper in its own right. For this reason, this paper can only provide
a general outline of the principles and laws involved.
1.1 Constitutional basis: Ministers: Statutes: Regulatory and Advisory
Bodies
The history of laws dealing with intellectual property pre-date settlement
in Australia. On settlement, Australia received English laws including
the Imperial Acts passed by the Parliament of the United Kingdom. Subsequently,
the former Australian colonies added various statutes of their own dealing
with intellectual property.
The reception of English law in Australia and other settled colonies
is historically important in the development of Australian law. Basically,
the Australian colonial legal system initially commenced with the progressive
adoption of English common law (general principles of law established
in decided cases by judges). English Acts of Parliament, however, were
assumed to apply immediately as law in the Australian colonies, largely
because the early colonial authorities were directly answerable to London.
This reception process recognised the legal and practical reality that
the United Kingdom Parliament was paramount to the Australian colonies.
Eventually, with the concurrence of the United Kingdom Parliament, the
colonies and eventually the Commonwealth of Australia, developed what
we now acknowledge to be Australian law. It was the Australia Act 1986
(enacted both in the United Kingdom and in Australia) which finally and
formally acknowledged that Australia is governed by Australian law.(1)
Common law principles are a fundamental part of the legal systems in
various countries. These principles have limitations mainly because they
are applied by judges in a strict legal sense and the principles do not
apply to every legal matter. Centuries ago, the system was supplemented
in England by Chancellors appointed to the Court of Chancery by the Monarch
to resolve an unfair situation (unfair in that the legal effect offended
the conscience). Shortcomings in the common law allowed the intervention
of the Court of Chancery. This development produced the principles of
equity which are used to prevent injustice. (2)Statutes of Parliament
may, when necessary, override the common law.
At federation in 1901, the Commonwealth Constitution included a head
of power to enable the Commonwealth to pass laws with respect to:
-
section 51(xviii)
- Copyrights, patents of inventions and designs, and trade marks:
During the years 1903 to 1906, the Commonwealth Parliament passed its
first series of laws on copyright, patents, trade marks and designs. The
Commonwealth draws upon this head of power in the Constitution to pass
national laws in Australia (to the exclusion of the States) on intellectual
property matters. The Commonwealth's Designs Act 1906 still remains
on the statute book.
The current system of laws which govern intellectual property in Australia
are administered by the Ministers identified by portfolio in Table 1.
Also identified are those Ministers with portfolio responsibilities which
indirectly involve intellectual property issues.
Table 1 - Ministers
The main statutes applicable to intellectual property rights in Australia
are set out in Table 2. Also listed are the agencies which primarily administer
the legislative schemes. It should also be noted the Trade Practices
Act 1974 also has general application. For example, a business which
misleads or deceives the public as to the quality or origin of its products
(e.g. counterfeit goods) may have breached both intellectual property
laws as well as the Trade Practices Act 1974.
Table 2 - Specific Commonwealth Statutes on Intellectual Property
Apart from the administering agencies, intellectual property matters
also come within the jurisdiction of a range of regulatory and advisory
bodies. These are shown in Table 3.
Table 3 - Regulatory and Advisory Bodies for Intellectual Property Matters
The Government also receives information on related matters from other
bodies including the Australia Council and industry based organisations
such as the Australian Copyright Council.
The various copyright collection agencies also play an important part
in collecting fees and royalties for copyright owners and lobbying on
behalf of the industry. In addition, these agencies perform a valuable
role in co-ordinating licensing arrangements for the use of copyright
material. These agencies include:
- Copyright Agency Limited (CAL);
- Audio-Visual Copyright Society Limited (AVCS);
- VI$COPY;
- Australasian Performing Right Association (APRA);
- Phonographic Performance Company of Australia (PPCA);
- Australasian Mechanical Copyright Owners Society (AMCOS).
There are also other smaller collecting societies which deal with specific
copyright and licensing matters such as the use of copyright material
in church services and public broadcasts or filming of religious ceremonies
such as weddings. These include the Christian Copyright Licensing International,
LicenSing, and Word of Life International.
Copyright permission and licensing can, of course, also be handled directly
by publishers, recording companies and film and video distributors.
1.2 International Conventions on Intellectual Property To Which Australia
Is A Party
The Australian laws on intellectual property are intended to conform
with the standards and principles established by various international
conventions. In large measure, Australian laws do conform but there are
some aspects which have not been adequately addressed, such as moral rights.
On one view, these international conventions are very important and Australia's
reputation as a reliable and responsible trading nation depends on ensuring
that its laws dealing with intellectual property are kept up to date.
In the broader sense, the importance of Australia recognising the significance
of the principles it has accepted under international treaties has been
reinforced by the High Court in Minister for Immigration and Ethnic
Affairs v. Teoh.(4) In that case (which was concerned with an application
for permanent resident status), the High Court stated that '...ratification
of a convention is a positive statement by the executive government of
this country to the world and to the Australian people that the executive
government and its agencies will act in accordance with the Convention.'(5)
The High Court explained that even though an international convention
has not been incorporated into Australia law, its ratification has significance
for Australian law. For instance, to resolve ambiguity in a relevant statute,
the courts favour a construction which accords with Australia's international
obligations.(6) Such conventions may also play a part in the development
by the courts of Australia's common law.(7)
Table 4 contains a list of international intellectual property conventions
to which Australia is a party. Table 5 identifies international conventions
which are applicable to copyright and other forms of intellectual property.
Table 4 -International Conventions
Table 5 - Other International Conventions
The principles and standards stated in these international conventions
provide guidance for the basic laws on intellectual property. A party
to these conventions is expected to comply, at least to the extent of
observing the minimum standards prescribed. Subject to each country's
own constitutional system, a country may determine that it will legislate
additional protection, or recognise extra ancillary rights to standard
intellectual property categories. In the case of the TRIPS Agreement,
failure to comply with minimum standards may result in the need for the
settlement of a dispute at the international level between the parties.
More directly, the non-complying party may find that further access by
that country to newly released intellectual property becomes difficult.
Obviously, non-compliance also reflects adversely upon the reliability
of that country as a responsible trading nation. A key aspect of these
international conventions is the principle of 'national treatment', which
binds parties to the conventions to treat the intellectual property rights
of residents of other convention countries no less favourably than if
the if the creator was a resident of its own country.
2.1 The Product of One's Mind: Universal Declaration of Human Rights
In modern times we have a tendency to look for a document which codifies
our rights and obligations. Such documents take the form of international
conventions, decisions of judges (i.e. the common law), Acts of Parliament
or codes of conduct. The concept of intellectual property and its protection
is, however, very old. In Continental Europe it is based in natural law
or that which binds the conscience. In the English system of law, the
closest equivalent is equity.
At its most basic form, the concept of protecting intellectual property
is based in the principle that a person has a natural right to the product
of his or her mind.(8) This simple concept is now reflected in the Universal
Declaration of Human Rights which states:
Everyone has the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic production
of which he is the author. (Article 27, paragraph 2)
The ancient Greek and Roman worlds appear to have had a concept that
plagiarism was dishonourable and that literary piracy should be repressed.(9)
Likewise, the justification in English law for protection of copyright
is said to be based in 'fair play'.(10)
Because the origins of laws on intellectual property are, in the main,
very old in time, some Australian laws on intellectual property still
clearly reflect the historical fact that Australia received its laws from
England.
2.2 Copyright
Modern copyright statutes, in the English legal system, can be traced
to the Statute of Anne of 1709. Copyright protection under the
Statute of Anne was 21 years from the date of publication plus
14 years if the author was then still living. As a generalisation, modern
copyright laws now provide a period of protection of 50 years from the
end of the calendar year in which the author died. The Statute of Anne
of 1709 is also significant because the statute is seen as confirming
that copyright belonged, in the first instance, to the author rather than
the publisher. The system of publishing, until then, was also heavily
influenced by a regime of censorship by the Crown (mainly to aid the Reformation
of the Church) resulting in proclamations, the licensing of printers and
booksellers, and the examination of every book by the Privy Council (or
other authorised persons). In those days literature was viewed as having
the potential to threaten the State by sedition and the established Church
by the circulation of heretical manuscripts.(11)
2.3 Patents
The historical origins of patents is obscure but the concept began in
the late Middle Ages in Europe and in the late 15th century in England,
when rulers began to grant monopoly rights to encourage industries.(12)
Patent law can be traced to a Venetian statute of 1474 passed to encourage
the endeavours of '...men of great genius, apt to invent and discuss ingenious
devices'.(13) Patent law in the English legal system is still, to this
day, directly traced to the Statute of Monopolies of 1623.
A patent is a monopoly right granted for a period of 20 years for new,
inventive and useful inventions. There is a more limited and less expensive
form of patent, called a petty patent, which is utilised for a shorter
period (for 1 year but renewable for 5 years) which usually covers gadgets
and simple appliances. The period of 20 years for a standard patent is
the minimum requirement of the international TRIPS agreement.
These international agreements do not, in themselves, accord world-wide
registration of a patent. Separate registrations must be made in each
country to secure world-wide protection. This can be an expensive process.
The international agreements do, however, make it easier to obtain registrations
in other countries provided an application is made within a specified
period of time (12 months from the date of application in Australia for
patents and plant breeder's rights, and 6 months for designs and trade
marks). One benefit of the treaties is the ease in obtaining reciprocal
recognition.
2.4 Trade Marks
Prior to the industrial revolution, the great Guilds had protected craftsmen
by recognition of the craftsman's mark on individual products. Common
law also assisted in providing a legal remedy based in the action of 'passing-off',
i.e. to prevent the practice of deceit whereby one manufacturer produced
goods which bore the markings of another's quality product. The English
case of Sykes v. Sykes(14) (1824) is an example of where the courts
have intervened to prevent the copying, by a manufacturer named Sykes,
of a well known quality product with the same name. The United Kingdom
Parliament passed the Merchandise Marks Act 1862. This statute,
in the English legal system, was the forerunner of modern trade marks
legislation.
The exclusive right to use a registered trademark is available for as
long as the mark remains officially registered. That right, in certain
circumstances, may be subject to conditions. Trade mark protection, subject
to renewal requirements, may be of indefinite duration.
2.5 Designs (registered)
Registered designs legislation developed from a recognition that the
basis for the protection of a design did not neatly fit within copyright
(at the early stage of copyright law, the protection was more readily
applied to a conventional literary work). Also, the concept of a registered
design was more in the nature of a monopoly. In English law, the first
designs statute was the Designing and Printing of Linens, etc. Act
1787. The concept was subsequently expanded by statute to cover designs
protection for the ornamentation, shape and configuration of articles.(15)
As a generalisation, designs legislation precludes the registration of
articles which are primarily literary or artistic in character (as noted
above, such works are to be covered by copyright law). Likewise, designs
legislation tries to prevent an overlap with the patent system.
In modern times, designs legislation is used by manufacturers of some
motor vehicles to register newly designed car body parts and components
to inhibit a growing market in the copying and sale of replica spare parts.
On the face of it, this form of monopoly may appear to be anti-competitive
in nature and it should be noted that laws relating to designs, trade
marks, patents, and copyright are specifically exempted from the restrictive
trade provisions of the Trade Practices Act 1974 (section 51(1)(a)),
in so far as those laws grant limited monopoly rights.
Designs law provides exclusive rights for a period of 16 years.
2.6 Trade Secrets: Confidential Commercial Information
Returning to the original concept of a law that binds the conscience,
the field of intellectual property also covers trade secrets and breach
of confidential information. Briefly stated, a person who imparts confidential
commercial information to another can prevent further disclosure to a
third party by a legal injunction or, if unauthorised use is made of the
information, obtain damages or an account of any profits. Also available
is an order for seizure or destruction of an unauthorised manufacture
(including what is now known as an 'Anton Piller' order for entry and
seizure of evidence).
In Australia, the legal remedies for breach of confidence are mainly
found in the common law. For some time, however, it was considered that
a breach of confidence in the context of an unpublished
manuscript should be dealt with under copyright legislation. Eventually,
the courts identified the principle that a separate legal obligation can
be imposed on the conscience of a person to whom a secret has been communicated.(16)
In some cases such obligations can also arise from a written contractual
agreement. A legal action for breach of confidence, therefore, can be
pursued in equity or as a contractual dispute. The most common form of
these actions arises when an employee leaves employment where he or she
had access to the trade secrets of their employer. (As noted above, these
are common law actions and there is no Commonwealth trade secrets legislation).
A simple example of a trade secret is the recipe for Coca Cola.
The stylised name of Coca Cola is a registered trade mark. The
distinctive 'Coke' bottle falls into the intellectual property category
of a design. An attempt to register the bottle as a trade mark in itself
(as distinct from a design) for a re-launch of 'classic Coke' was refused
by the House of Lords in the case Coca Cola Trade Marks in 1986.(17)
The House of Lords considered that the application was an unacceptable
attempt to expand the boundaries of intellectual property.
2.7 Plant Breeder's Rights
In the 1930s, a debate intensified amongst intellectual property lawyers
over whether the breeding of plants should be dealt with under patent
law or under a separate regime. This debate was the forerunner of the
modern debate on patenting and biotechnology.(18) One of the main issues
in the debate is the fundamental policy consideration of whether laws
which grant monopoly rights should apply to living matter. The argument
is whether intellectual property protection fosters the advancement of
society by the use of human ingenuity. Thus science and industry will
invest time and money in developing new crops if the opportunity is there
to also recoup some financial reward. The same basic argument now applies
to genetic engineering.
The United States introduced the Plant Patent Act 1930, and in
1932 issued the first patent for a rose. The European approach, initially,
was to provide a much weaker form of protection which was mainly a licensing
system for seeds and their accompanying trademark. The European approach
became more widely accepted and after World War II the use of 'plant variety
protection' and 'breeder's rights' legislation was the standard European
system for plant species protection. Eventually, an international agreement
was formulated, the International Convention for the Protection of New
Varieties of Plants of 1961. This Convention was amended in 1978 to allow
countries to offer both patent and plant variety legislation.(19) Australia
has the Plant Breeder's Rights Act 1994 which protects new plant
varieties (but not fodder crops). This legislation is administered by
the Minister for Primary Industries and Energy.
Australia allows the choice of the Patents Act 1990 and the Plant
Breeder's Rights Act 1994 for protection of intellectual property
rights in relevant developed plant species. The first plant patent granted
in Australia was in 1983 for a cymbidium orchid cultivar (Scott's Sunrise
Aurora).(20)
Plant breeder's rights are granted for a period of 20 years and the
rights are subject to conditions.
2.8 Circuit Layouts Rights
The electronic transistor was developed in the United States in the
late 1940s. This development led to semiconductors and integrated circuits.
An integrated circuit is a pattern of inter-connected transistors integrated
into a wafer of silicon. Another descriptive term is a circuit board.
Further development has seen the introduction of the microprocessor utilising
a silicon chip which, at its simplest, is miniature electronic circuitry.
Silicon chips contain layers of circuitry which have been photo-reduced
and imprinted on the chip from original drawings. An integrated circuit
represents technological complexity and the potential for enormous commercial
reward. Once designed, semiconductor chips are cheap to produce and copy
but their initial design is a very expensive process.
This brilliant technological device presented initial difficulties in
terms of intellectual property rights. A patent is not, as a broad generalisation,
really appropriate because the integrated circuit 'innovation' utilises
the logic of arithmetic and is therefore not susceptible to monopoly rights.
In other words, because the process relies on addition and comparing by
way of rapid electronic pulses it is not an 'invention' in the pure sense
of a patentable device. Copyright does not readily apply because the integrated
circuit is a functional item within an electronic device. The United States
became concerned that the then international conventions on intellectual
property did not afford adequate protection for the property rights in
integrated circuits. The subsequent legislative approach for protection,
therefore, categorised integrated circuits as separate to copyright but
somewhat like copyright. This is called a sui generis protection
system. (Sui generis simply means 'the only one of its kind').
It should be noted, however, that the debate on whether such devices
are patentable continues with intensity and some patents for related developments
have been issued. This area of the law is one of great complexity and
exhibits some apparent contradictions.
Initially, Australia thought that protection for integrated circuits
might be possible under copyright legislation, as an adaptation of an
artistic work. This approach was abandoned and Australia now offers protection
for an original circuit layout under the Circuit Layouts Act 1989.
To that extent, Australia has conformed with the legislative approach
(sui generis) adopted in the United States. This initiative has
practical advantages because it affords easier reciprocal recognition
between the United States and Australia.(21)
2.9 Aboriginal and Torres Strait Islander Arts and Cultural Expression
Aboriginal and Torres Strait Islander communities are protective of
their art and culture. Copyright legislation does not suitably direct
its automatic protection in this culturally important and diverse area.
Individual indigenous artists can look to copyright legislation for protection
but great difficulties arise when dealing with material which is of prime
cultural significance. Understandably, some sacred illustrations and significant
communal artwork are not regarded as suitable for commercial exploitation.
It is therefore inappropriate that such material is only protected under
legislation which is aimed at allowing a creator to reap economic benefits
from the product of his or her mind.
As noted in the former Labor Government's policy document Creative
Nation, a new approach, in consultation with indigenous communities,
may be to provide specific legislation to address this important matter
of indigenous art and cultural expression.(22) The aim would be to enhance
the preservation of indigenous cultural heritage and, where relevant and
appropriate, acknowledge the role of community ownership and control within
that culture. Moral rights provisions which recognise a communal interest,
as distinct from an individual artist's moral rights, could also be considered
in any such legislation.
An illustration of complexities involved in the interaction of copyright
law and the rules of indigenous traditional ownership are discussed in
the 1995 Federal Court decision Milpurrurru & Ors v Indofurn Pty
Ltd & Ors.(23)
3.1 Copyright: Moral Rights
A Sydney corporation commissioned a sculpture. When it found the work
did not fit the foyer it lopped the top third of the work.(24)
A simple description of Australia's Copyright Act 1968 is that
it is mainly concerned with protecting the economic interests of the author
or artist. There is another aspect to the concept of copyright and that
is that an author or artist has the right to claim 'authorship', and the
right to protect the integrity (i.e to prevent distortion or mutilation
that affects honour or reputation) of his or her creation. These rights
are referred to as moral rights.
The concept is based in the European doctrine of droit moral.
This doctrine recognises that intellectual property also reflects the
personality of the person who created the work and, as such, is linked
to the honour and reputation of that person.
There have been outcomes in Australia which demonstrate the lack of
statutory protection available to artists and authors. A sculpture on
display at an institution was spray painted and had additions to it so
that it was more stable thus allowing children to climb on it.(25) A painting
in three panels was to be exhibit with all panels together as a complete
work. In its initial display the work was presented with the panels separated.(26)
A poem submitted for publication was published without attribution and
with its title changed.(27) In the majority of these cases the existing
remedies under copyright law were inadequate.
In June 1994, the Commonwealth Attorney-General's Department issued
a discussion paper Proposed Moral Rights Legislation for Copyright
Creators which sought submissions on the need for specific legislative
protection for moral rights. In February 1996, the then Labour Government
issued an exposure draft of a Bill to amend the Copyright Act
1968. That Bill included provisions on moral rights.
In the technical sense, the concept of moral rights involves the following
general principles:
- right of attribution: the author's right to be known to the
public as the creator of the work;
- right of integrity: the right to object to distortions and
mutilations of the author's work in such a way that would prejudicially
affect the author's honour or reputation;
- right of disclosure: the author's right to determine if and
when a work is to be divulged to the public; and
- right of withdrawal: the right to withdraw a work from the
public, if the author wishes.(28)
The first two of the rights mentioned above are specifically included
in Article 6 bis of the Berne Convention. Australia is presently
bound by the Berne Convention.
Under existing Australian law authors are accorded some limited protection
for moral rights. The Copyright Act 1968 contains provisions dealing
with false attribution of authorship (Part IX). The Copyright Act 1968
also recognises the right of journalists to protect the integrity of their
work which is used for 'secondary purposes' (e.g. photocopying of articles
they write for their employer - section 35(4)). A commissioned artist
is accorded protection to the extent that, in certain circumstances, the
work may only be used for the purpose for which it was commissioned (section
35(5)).
The newly elected Australian Government announced in its arts policy
(For Art's Sake: A Fair Go!) that '...the Coalition will implement
a legislative scheme that properly recognises the moral rights of authors
and artists'.(29)
3.2 Parallel Imports: The Price of CDs: Book Imports
Example of the restriction on parallel imports: XYZ (USA) Inc, based
in the United States is a major publisher of recorded music and has an
Australian subsidiary XYZ Music (Australia) Pty Ltd. XYZ (USA) Inc has
a catalogue of 100 artists, including some artists who record in Spanish.
XYZ Australia Pty Ltd imports and releases in Australia half of the US
parent company's catalogue. XYZ Australia Pty Ltd has the authority to
assert copyright in Australia in all XYZ records. Fred Bloggs speciality
music shop is aware that there is a market for XYZ Spanish artists in
Australia and that XYZ Australia Pty Ltd does not stock those records,
preferring to concentrate on mainstream artists. Fred Bloggs is unable
to buy CDs direct from US suppliers and import them into Australia unless
Fred Bloggs has a licence consistent with section 37 of the Copyright
Act 1968. In other words, Fred Bloggs is not free to engage in 'parallel
imports' without the permission/ licence of the copyright owner. Ironically,
if Fred Bloggs was able to import the CDs, they may be available at a
lower price compared to the Australia market equivalent CD.
Sections 37-38 and 102-103 of the Copyright Act 1968 require
an importer of copyright material into Australia to have a licence from
the copyright owner. These provisions of copyright law are there, primarily,
to inhibit the importation of pirated material. As a consequence, Australia
can point to its laws as providing copyright protection for overseas copyright
owners consistent with its international obligations. The practical effect
of the provisions is that parallel importation of copyright material by
other than the publisher or approved distributor in Australia is severely
restricted.
This restriction on parallel imports applies to, recorded music, films,
videos, computer software, and in a limlted form , to books.
In the case of CDs, the music industry has long argued that the resultant
higher price for CDs sold in Australia translates into a premium which
is channelled by the music industry for the development of Australian
artists. A comparison of the prices for new releases of CDs is shown below:
The Price of CDs(30)
Australia $AUS 30-31
New Zealand $AUS 35
United Kingdom $AUS 29
United States $AUS 19-21
The Australian sound recording industry is comprised of 5 multi-nationals
(EMI: Thorn-EMI, Sony Music, Polygram: N.V. Philips, Warners Music and
Bertelsman Music Group: BMG). In addition, there is one major national
company (Festival records - owned by News Ltd). These companies control
90% of the Australian market. The remaining 10% is shared by 45 independents,
including Mushroom Records.(31)
The arrival of the Internet with its access to international communications
has, however, posed a major problem in terms of restricting the ordering
and importation of 'cheaper' CDs by Australian consumers. The retention
of the restriction on parallel imports may, in the future, be of limited
effect.
In 1991, the Government amended the Copyright Act 1968 to modify
the restriction on imported books. The primary impetus for modifying the
restriction was to ensure that individual Australians were not disadvantaged
in obtaining access to the latest overseas titles at the same time as
they were released overseas. Had the parallel import restriction applied
in an inflexible manner, the consumer would have had to place an order
with the local approved distributor and wait for the order to be placed
and filled. At the time of introduction, the Government foreshadowed that
the amendments would be reviewed.
The 1991 amendments stipulated that Australian copyright control over
importation only applied to new releases published within 30 days of publication
overseas. Orders for backlist titles have to be filled within 90 days
to retain the importation 'monopoly'. On 28 April 1995, the Prices Surveillance
Authority (PSA) released its report Inquiry Into Book Prices and Parallel
Imports with its primary recommendation that the import restriction
be fully repealed. The PSA further recommended that if the Government
did not accept full repeal then the restriction be modified to a single
30 day rule for all overseas publications (i.e. new releases and backlisted
titles).(32)
The PSA, in its report, argues that an open market for legitimate editions
is the only option that would give confidence that prices are determined
competitively. Again, the counter-view is that the protection afforded
by the restriction allows the fostering of Australian authors because
the Australian publishing sector is dominated by multinational companies.
About 80 per cent of the of the total turnover in the Australia is attributed
to multinational interests. To an Australian author, the attraction of
a multinational publisher can be the potential for both domestic and international
sales. Australian authors are, in any event, receiving an increasing acceptance
in the domestic market. The PSA noted that, on average, Australian prices
for new releases were 14.9 per cent higher than the UK, and 18.6 per cent
higher than the USA, for first half of 1994.(33)
The end result of the review of the 1991 amendments appears to be that
there has been a significant improvement in efficiency in making new releases
available more promptly. Prices have declined on a comparative basis (i.e.
based on a comparison of the 1989 and 1995 PSA reviews) but there are
other factors to consider, such as the trend to publish more in paperback
rather than in the highly priced hardback.
It is noted that, given Australia's apparent domination by multinationals
in the area of book and music publishing, some local authors and artists
understandably tend to support the views of their publisher. It is therefore
unlikely that the parallel import restrictions will be substantially amended
(or even repealed) except over the objections of the local print and music
industries.
3.3 International Trade Wars Over Intellectual Property
The importance of intellectual property rights should never be underestimated.
The United States of America has no hesitation in facing-down other significant
trading countries which it believes are violating US intellectual property
rights. The current serious trade rift with China is an example. Fortunately
a trade war has been averted at the 11th hour.
The modernisation and economic reform in China has seen the creation
of satellite cities which utilise advanced Western technology. It was
alleged that corruption in China, particularly in Guandong Province, has
led to a flood of pirated software, CDs, videos and books onto the Asian
and Pacific markets.(34) The United States was threatened serious sanctions
against China and, in response, China has said that is considering retaliation
against the threatened US trade sanctions. There was concern that the
dispute may jeopardise trade liberalisation talks currently being negotiated
under the auspices of the Asia-Pacific Economic Cooperation (APEC) forum.
Australia is a member country of APEC.
The estimated value that the United States places on US copyright pirated
by plants in southern China runs to $US2.3 billion a year. The threatened
US trade sanctions, by way of punitive tariffs, was to $US3 billion.(35)
3.4 Convergence of Technology
One of the more important studies completed in the area of Australian
copyright law in recent years is the report of the Copyright Convergence
Group Highways to Change (36) (1994). This document is a report
to Government on the dramatic changes in the communications sector and
the capacity of existing copyright legislation to cope with the rapid
rate of technological development.
Digital telecommunications on an international basis, satellite and
cable transmission have placed considerable strain on laws which were
framed to address specific technology such as printing, artwork and, in
more recent years, musical recordings. The speed at which vast amounts
of information can now be converted and transmitted with considerable
clarity across nations and across the world was not foreseen when the
basic principles of copyright were formulated.
A key issue with convergence is that it blurs the boundaries between
literary, artistic and musical works. Converting material into digitised
form for transmission is becoming increasingly sophisticated and common.
A personal computer can now be used to access print, music, film and art.
The Copyright Convergence Group recommended that copyright legislation
be amended so that it is technology neutral and provide for recognition
of a new broad-based right of transmission to the public. In other
words, the copyright owner has a basic right to authorise whether his
or her work is transmitted, irrespective of the technology employed.
Another aspect of new technology is that it may simply render unworkable
the basic laws of copyright. This may see a move for higher initial unit
costs for all forms of copyright material so that publishers and creators
can obtain financial return, at least in the short term. Once the material
is widely available it is difficult to protect copying of the material
given the sophistication and comparatively inexpensive technology that
can be utilised for copying.
Sir Anthony Mason, former Chief Justice of the Australian High Court,
recently expressed concern at some of the proposed copyright reform recommended
by the Copyright Law Review Committee in its Issues Paper Copyright
Reform: A Consideration of Rationales, Interests and Objectives.(37)
Sir Anthony notes that, basically, an emphasis on copyright protection
to safeguard the commercial interests of stakeholders mitigates against
the free flow of information and ideas. A balance is, of course, necessary.
Sir Anthony suggests that the key issue to consider is what interest is
paramount, the stakeholder or the public and he notes the current significant
imbalance of over $1 billion per annum in Australia's net import of copyright
material compared to its exports.
A further point made by Sir Anthony is the possibility of electronic
monitoring of transmission (by, say, copyright agencies) to collect fees
for copyright owners. The concern here is that some users may simply be
'browsing' and then find that they are charged a fee.
3.5 Retailers Playing Radios in Public
A retailer of car radios played a broadcast over demonstration units
in an automotive equipment shop. A court injunction was granted to prevent
further broadcasts on the ground that the copyright agency which represented
copyright owners was entitled to assert a claim for a licence fee for
the benefit of copyright owners of the music. (Australasian Performing
Right Association Limited v Tolbush Pty Ltd & Ors (1986) AIPC 90-276)
It is not readily appreciated that a service station which plays the
local FM stereo radio over speakers in the driveway may, technically,
be infringing the public performance copyright. What the service station,
retail store, hairdresser or aerobic gymnasium should do is contact the
Australasian Performing Right Association Limited (APRA) and pay a licence
fee. This licence is necessary because APRA is the collecting society
which represents most of the music recording artists on release in Australia.
The right to broadcast in public is a right owned by the copyright holder
and not the unlicensed (in terms of copyright) retailer.
The same rule applies if the retailer places a CD on a player within
the store.
3.6 Journalists' Copyright
Broadly stated, an employed author is not entitled to copyright in his
or her work (section 35(6) of the Copyright Act 1968), unless he
or she has a contractual arrangement with the employer. There is a variation
to this rule and it applies to employed journalists. The copyright in
a newspaper article by an employed journalist belongs to the newspaper
proprietor for the purposes of publication in a newspaper or magazine,
broadcasting or reproduction (section 35(4)). Copyright for the secondary
use of the material (e.g. a photocopy of the newspaper article for a press
clipping service) remains with the journalist and not with the newspaper.
Journalists are entitled to receive royalties for photocopies of their
articles.
Newspaper proprietors have argued that employed journalists are employees
and that the royalty paid for secondary uses such as electronic copying
and photocopying should be paid to the newspaper. This situation applies
in the United States and United Kingdom. Countries in which the copyright
ownership is 'split' in the same way as Australia, include New Zealand
and Canada.(38)
The issue of journalists' copyright also involves convergence, the point
being that a journalist who prepares material in print has to accept (at
least at the moment) that his or her employer has the right to convert
the material into another form for transmission utilising new technology.
The modification is not, at this stage, assessed as a secondary usage.
It is understandable that with the increasing use of the Internet, journalists
and publishers may want to revisit this issue.
3.7 Copyright in Commonwealth Statutes and Court Decisions
Acts of Parliament and the reported decisions of the courts are the
source of Australian law. The citizen is expected to know the law. In
a democracy, the citizen has a right to obtain access to the law.
The Crown in right of Australia has the prerogative right to claim copyright
in Commonwealth statues and in the decisions of federal courts, including
the High Court. The same prerogative rests with the Crown in right of
a State. Historically, the Crown's concern with enforcing its copyright
was to ensure the accuracy of printed laws and court reports. Modern technology
for copying has provided a level of sophistication and accuracy which
now renders this concern to be insignificant. The headnote to a court
decision is provided by the approved publisher of the court decision and
copyright of the headnote resides with the publisher and not the Crown
in right of Australia.
Although the Crown in right of Australia still retains copyright in
Acts of the Parliament and in the reported decisions of its courts, it
is worth considering whether the time has come for this copyright to be
formally relinquished by legislative amendment to copyright law.
3.8 Exemption from Copyright for Parliamentary Use: Parliamentary Library
Section 48A of the Copyright Act 1968 specifically provides that
copyright in a work is not infringed by an officer of the Parliamentary
Library who provides a member of the Parliament with material to assist
that member in his or her duties as a member.
Freedom of speech by a Member or Senator in Parliament is, of course,
a fundamental privilege recognised by the Parliamentary Privileges
Act 1987 and section 49 of the Constitution. That privilege was received
from the Parliament of the United Kingdom where it is derived from article
9 of the Bill of Rights of 1689. This privilege means that a Member
or Senator (or a witness who appears before a Parliamentary Committee)
is immune from legal action for anything said in a debate or in proceedings
in Parliament.
It is a usual practice, however, for speakers in Parliament to give
appropriate attribution when quoting from the work of others.
3.9 A Simple Rule on How to Avoid Plagiarism: Fair Dealing
Section 40 of the Copyright Act 1968 recognises that copyright
in a work is not infringed by 'fair dealing' for the purposes of study
or research. Also permissible is quoting parts of the work for the purposes
of criticism/review (section 41), or reporting the news (section 42).
In addition, there is a separate and basic concept that copyright is not
infringed unless a substantial part of the work has been used. The concept
of 'substantial' in the legal sense means quality rather than quantity.
In other words, a single key table of information from a publication may
be 'substantial' in that it is a key summary of the text of the article
itself.(39)
The simple rule to follow is to always identify the source of the material
used and where that is 'substantial', seek prior permission of the publisher
or author. Seeking that permission may mean that a fee is charged, particularly
if the material is to be used in a commercial publication.
The advent of the Internet means that publications are perused by a
vast number of readers which may, of course, include the original author
or a person familiar with the author's work. Be warned, and be courteous
to other authors.
3.10 The High Price of Patents in Australia
As noted already, Australia is a signatory to an international agreement
known as TRIPS (trade-related aspects of intellectual property rights).
This agreement was apart of the establishment of the World Trade Organisation
by the General Agreement on Tariffs and Trade (GATT). The Uruguay Round
of GATT negotiations commenced in 1986 and culminated in 1993 with global
agreements on trade relations, including TRIPS. The TRIPS agreement is
designed to strengthen the protection and enforcement of intellectual
property rights in trade-related activities. TRIPS provides minimum standards
with which member countries must comply.
One of the minimum standards in TRIPS is that the period of a conventional
patent should run for 20 years. In recent years, the statutory period
in Australia was 16 years. The Patents (World Trade Organization Amendments)
Act 1994 extended that period to 20 years effective from 1 July 1995.
The practical effect of the legislative amendments was to give existing
patents a further 4 years. All new patents would, of course, automatically
qualify for a 20 year protection period.
Ownership of a patent gives the owner the right to charge a fee for
the use of the invention. Once the 20 year patent period expires the invention
is then available to the public without restriction. It is argued that
the extension of the patent protection period by four years under Australian
legislation will cost Australian industry a further $3-4 billion in fees
and royalties because 90 percent of all Australian patents are foreign
owned.(40)
There is another side to this argument and that is that Australia initialled
argued for a minimum period of 15 years under the TRIPS agreement. The
majority of the negotiating parties supported the longer term of 20 years.
The additional costs to industry in paying for an additional period of
4 years must be assessed in the light of the overall benefits Australia
gains from the World Trade Organisation.
On one view, this extension of the patent period under Australian legislation
recognises the practical reality that Australia trades with other countries
which expect a 20 year period as a minimum standard. Countries like the
United States are very vigilant in ensuring that other countries respect
US intellectual property rights. A counter view is that Australia, like
some other smaller countries, was outmatched by the United States in the
TRIPS negotiations.(41)
Senator Harradine has called for an inquiry into the issue of monopoly
patent privileges and has publicly criticised Australia's legislative
response to the TRIPS agreement.(42)
3.11 West Australian Smokebush: Patents for the Building Blocks of
Living Matter
Human beings, and the biological processes for their generation are
not patentable by law. However a patent can be granted for inventions
involving the building blocks of living matter, such as DNA and genes
(including human DNA and genes) which have for the first time been identified
and copied from their natural source and then manufactured synthetically
as unique materials with a definite industrial use.
Source : Australian Patents for Genetically Manipulated Organisms
- Patent Office, Australian Industrial Property Organisation, Canberra,
August 1994.
In the area of the patentability of living organisms, patents have been
issued for an improved process for the manufacture of yeast for foodstuffs
and processes which use micro-organisms for the production of antibiotics.
Such patents have not generated controversy, largely because such developments
are clearly very useful in society and the subject matter is lower life
forms.
One patent which has caused some initial concern within Australia is
the patent obtained by the United States National Cancer Institute for
'conocurvan' which is an isolation of an active ingredient, conocorvone,
of the West Australia smoke bush (conospermum - a wildflower of
the banksia group of plants). The compound has shown promise in the laboratory
tests for the treatment of AIDS. It is not the Australian native plant
itself which has been patented but a compound derived from the plant.
The US National Cancer Institute has subsequently granted a licence to
the Australian pharmaceutical company, AMRAD, to develop the compound.
New developments in biotechnology have, however, resulted in a patent
being issued in the United States in 1987 for a laboratory mouse known
as the 'Harvard Mouse'. This is a genetically altered rodent which has
an enhanced susceptibility to cancer (thus it is also called the 'oncomouse').
The oncomouse is used in laboratory research and its patent has proven
very valuable in terms of revenue.(43)
The Australian Patent Office has issued a patent for a transgenic pig
which contains an extra growth hormone.
What has become the subject of more recent debate is the patenting of
refined human gene sequences. Basically, the human genome (complete genetic
material for a human cell) is a varying series of simple chemical units
called nucleotide bases. These bases (in billions) link together to form
molecules of DNA. The linear sequences of those bases along the DNA molecule
defines a gene. DNA is the building block of life. Scientists understand
the function of fewer than 1,500 genes. Decoding genes provides researchers
with an understanding of the correct sequence for individual genes. This
information has enormous beneficial (and commercial) potential because
the process can be used to identify genetic predisposition to certain
illnesses. In 1988, the Human Genome Project was launched in the United
States with the aim of mapping the entire record of human DNA (an estimated
6 billion nucleotide bases). This project is science at its best but peripheral
developments have caused concern in that patent applications have been
made for 'fragments' of human genes.(44)
These applications for patents of the human genetic blueprint do not
apply to the gene that occurs in nature but to a gene sequence which has
been separated from the human body and refined or manufactured synthetically.
The patent application overcomes the basic objection to the proscription
on patenting of human beings on the ground that the gene 'fragment' does
not occur in isolation in that form in nature. A counter argument is that
the genetic fragment is not an invention in the true sense but an adaptation
of something that is discovered in nature. In other words, what is being
patented is merely an adaptation of nature's blueprint for the human body.
A fundamental objection to any patent is that it is really just a discovery
of something which is already naturally occurring. The distinction becomes
somewhat blurred when these simple propositions are further reduced to
concede that a discovery of how to use a known thing for a new purpose
may be patentable. It is suggested that the whole purpose of trying to
patent gene fragments is to use the information to support commercial
applications in the treatment of the human body based on a genetic sequence
discovered in the human body in the first place.
The debate raises profound philosophical issues such as whether it is
appropriate to exploit research which is aimed at the treatment of human
disease. Information and treatment of human disease should be available
on a more open and less commercial basis. The argument being that the
proscription on patenting human beings extends to all manifestations of
the life form including its genetic blueprint.
At least one country, France, opposes patenting gene fragments on both
moral and practical grounds. Numerous patent applications have been lodged
in the United States, the United Kingdom and Japan. Admittedly some applications
are lodged on a protective basis. The largest volume of applications comes
from private biotechnology companies in the United States.(45)
Intellectual property rights are based in principles which have been
developed over centuries. Those principles are recognised both internationally
and domestically and are found in the statutes of nearly every country.
Ironically, laws to protect patents were initialled enacted to reward
inventors and scientists of great genius yet it is science itself that
has provided remarkable technology which allows ease of copying, and even
replicating the very blueprint of life itself.
The fact that some technological development has outstripped the protective
regime of copyright laws is a problem faced by all countries. The United
States is prepared to threaten a trade war with China to protect US intellectual
property rights. The economic value of intellectual property rights is
enormous.
Australia is a net importer of intellectual property and there is a
significant imbalance in favour of imports over exports of this expensive
commodity. To some extent, Australia has exacerbated the imbalance by
readily agreeing to extend the protection period for intellectual property
rights. It may be time to consider whether the competing interests of
intellectual property rights and the free exchange of information is too
heavily weighed in favour of protecting intellectual property. Old principles
to protect a literary work for a period of 50 years from the death of
an author have little real relevance to a protection period for computer
software which is obsolete within 5 years. Yet copyright law deems both
pieces of work to be the same in terms of the protection period.
It is important to protect the rights of those who create new works
in society, whether those creations are literary, artistic or scientific.
To that end, statutes must be reviewed and modified to recognise technological
development. This does not mean, however, that the period of protection
must remain lengthy. In some cases, it may be more practical to allow
creators to obtain reasonable economic reward at the point of release
rather than pursue the practical difficulty of monitoring subsequent use
of the material.
Considerable review and discussion has surrounded proposals for legislative
reform for those Australia laws which protect intellectual property rights.
In one particular area, copyright, much has been discussed in terms of
legislative reform but very little has been achieved in recent years.
- See Blackshield, T., Williams, G., Fitzgerald, B. Australian Constitutional
Law and Theory, The Federation Press, Sydney, 1996.
- See Meagher, R., Gummow, W. and Lehane, J. Equity: Doctrines and
Remedies, 2ed, Butterworths, Sydney, 1984.
- Recognition must also be given to the Australian Customs Service
which plays an important role in the protection of intellectual property
rights by the seizure of unauthorised copies (i.e. pirate versions)
of various products imported into Australia.
- (1995) 69 ALJR 423.
- (1995) 69 ALJR 423 at 432.
- (1995) 69 ALJR 423 at 430.
- ibid.
- Ricketson, S. The Law of Intellectual Property, The Law Book Company
Limited, Melbourne, 1984: 6. This text is a basic tool for reference
when researching intellectual property matters. Much of the history
of intellectual property outlined in this paper was drawn from that
text. It will be referred to in the following Endnotes as Ricketson,
S. The Law of Intellectual Property.
- Kennedy, P. 'International Copyright Conventions from An Australian
Perspective' in Symposium: Copyright Law and Practice, Copyright Society
of Australia Inc, Sydney, 1983: 6.
- See Ricketson, S. op.cit.: 7 at footnote 20, where Ricketson quotes
from the 'Whitford Committee' report on the United Kingdom's copyright
law.
- Ricketson, S. op.cit.: 58-70, and McKeough, J. Blakeney & McKeough
Intellectual Property, Commentary and Materials, Second Edition, The
Law Book Company Limited, Sydney, 1992: 14-15.
- Ricketson, S. op.cit.: 859.
- Ricketson, S. op.cit.: 860-861.
- (1824) 3 B.&C. 541.
- Ricketson, S. op.cit.: 445-447.
- Prince Albert v. Strange (1849) 64 ER 291, see McKeough J. and Stewart
A., Intellectual Property in Australia, Butterworths, Sydney, 1991:
47.
- Coca Cola Trade Marks [1986] RPC 421.
- See Winter, G. 'Patent Law Policy in Biotechnology', Journal of Environmental
Law, Volume 4 (2), 1992: 168.
- McKeough, J and Stewart, A. op.cit.: 267.
- Australian Patent Number 532235.
- Drawn from Christie, A. Integrated Circuits and their Contents: International
Protection, The Law Book Company Limited, Sydney, 1995.
- Creative Nation, Commonwealth Cultural Policy, Canberra, 1994: 67.
- (1995) AIPC 91-116.
- See examples in Proposed Moral Rights Legislation for Copyright Creators:
Discussion Paper, Attorney-General's Department, Canberra, June 1994:
61-63.
- ibid.
- ibid.
- ibid.
- ibid. 5-7.
- For Art's Sake: A Fair Go!, Arts Policy of the Liberal and National
Coalition, 1996: 25.
- Bailey, B. 'The Price of CDs: Parallel Imports', Research Note No.
38, 6 June 1995, Parliamentary Research Service, Department of the Parliamentary
Library, Canberra. The 1995 figures are a composite of a variety of
sources including Ramsey, A. 'Multinationals still enjoy record profits',
The Sydney Morning Herald, 29 April 1995, a Canberra retail outlet and
informal comments of foreign nationals.
The music industry is now the target of the Australian Competition
and Consumer Commission. A recent press report noted that Professor
Fels, Chair of the Australian Competition and Consumer Commission,
is lobbying key ministers of the new Coalition Government to throw
open Australia's national copyright boundaries. The report quoted
Professor Fels as saying 'I have, on previous occasions, mentioned
the matter to various ministers as a good topic for micro-economic
reform. They [the Coalition] don't appear to be in need of going back
to a bunch of industry mates to make up their mind about the matter
- unlike some ministers in the previous government'. (see Lewis, S.
'Fels targets the music industry', The Australian Financial Review,
5 June 1996).
- ibid. (Bailey, B.).
- Inquiry Into Book Prices and Parallel Imports, Matter No. PI/95/1,
Prices Surveillance Authority, Melbourne, 28 April 1995: pages xi-xvii.
- Ibid
- Editorial, 'Piracy war holds up trade peace', The Canberra Times,
21 May 1996.
- Hutcheon, S 'China steps up war of words' The Sydney Morning Herald,
17 May 1996.
- Highways to Change: Copyright in the New Communications Environment,
Report of the Copyright Convergence Group, Canberra, August 1994.
- Mason, Sir A. 'Reading the Future', ALIA Australian Library Week
Oration, National Library of Australia, 1 May 1966.
- Source Report on Journalists' Copyright, Copyright Law Review Committee,
1994.
- See Ricketson, S. op.cit.: 242-250
- Wright, L 'Patents blunder could cost $4b', The Canberra Times, 18
April 1996.
- ibid.
- Media Release, Senator Brian Harradine, 'Patent Blunder Costing Australia
Billions', Canberra, 18 April 1996.
- See McKeough, J.op.cit.: 333.
- Drawn from Wuethrich, B 'All Rights Reserved', Science News, Volume
144(10), September 1993: 154-157.
- ibid.
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