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The ADA Monthly Intellectual
Property Wrap-Up
A monthly summary of recent legislation,
cases, reports and other events relating to Australian intellectual property
and the public interest.
December 2000
[1] About this
publication
[2] The Intellectual Property and Competition Review
[3]
The Andrews Committee Report on Copyright Enforcement
[4] Microsoft v
Business Boost: Temporary Copies Are A Reproduction
[5] Review of
Australian Internet Domain Names
[6] The Hague Convention on Jurisdiction
and Foreign Judgements in Civil and Commercial Matters
[7] The Copyright
Amendment (Moral Rights) Act 2000
[8] I Can Copy, Right?
>[1] About This Publication
This summary of recent IP
happenings of relevance to Australia will be published very month by email and
on the Australian Digital Alliance website at www.digital.org.au. If you have
any suggestions as to what you should go in the next issue, please let the Nick
Smith know by email: (nsmith@nla.gov.au).
Also welcome
are any ideas for a better name for this publication. Anything apposite, subtly
funny and erudite will do.
>[2] The Final Report of the
Intellectual Property and Competition Review Committee (IPCRC)
On 6
December 2000, the IPCRC released its comprehensive review of intellectual
property legislation under the Competition Principles Agreement. This Report
examines copyright, patents and trademarks (as well and as the 51(3) exemption
for IP in the Trade Practices Act) from a competition perspective.
The
Report (which can be found in full at www.ipcr.gov.au) contains many positive
elements. While endorsing the need for the 3 year review of the Digital Agenda
Act which the Government is already committed to, the Committee supports: (i)
the role of libraries in disseminating electronic material; (ii) the
decompilation (reverse engineering of computer programs) exceptions; (iii) the
making of caching copies on the Internet; (iv) the public policy exemptions to
circumvention device offences; (v) increased oversight of collecting societies;
and (vi) the repeal of parallel importation restrictions. It also opposed an
extension of the term of copyright protection (such has occurred in the US and
Europe).
>[3] The Andrews Committee Report on Copyright
Enforcement
The House Committee on Legal and Constitutional Affairs
recently released its report on copyright enforcement, 'Cracking Down on
Copycats: Copyright Enforcement in Australia' (who comes up with these
titles?).
The Report contains a number of recommendations which either
make the process of copyright infringement litigation or criminal prosecution
easier for plaintiffs or increase the penalties that defendants may face. There
are also proposed new offences.
The proposed litigation 'improvements'
(a number of which have distinct civil liberties implications) include: (i) the
reversal of the onus of proof in civil (and criminal) cases with respect to
ownership of copyright; (ii) increased powers of civil seizure of infringing
material; (iii) the withdrawal of the privilege against self-incrimination in
civil proceedings; and (iv) reversal of onus of proof in relation to
defendant's knowledge in civil actions.
Full text of the report:
http://www.aph.gov.au/house/committee/laca/copyrightenforcement/contents.htm
More information:
http://www.digital.org.au/issue/copycats.htm
>[4] Microsoft v Business Boost: Temporary Copies Are A
'Reproduction'
A recent decision by the Federal Court held that
copying copyright material into the Random Access Memory (RAM) of a computer is
a 'reproduction in material form' for the purposes of the Copyright Act.
This hammered the last nail into consumers' right to read. Because all
use of electronic material (including viewing it on a screen to read it)
necessarily entails making temporary copies, then (electronic) reading becomes
an activity that requires a licence.
An exception in the Digital Agenda
Act exempts some temporary copies from the exclusive right of the owner but
only those made as part of a communication. For all other copies, you'll need
permission… The full text of the case is available at:
http://www.austlii.edu.au/au/cases/cth/federal_ct/2000/1651.html
>[5] Review of Australian Internet Domain
Names
Internet Domain Names are an important part of the
infrastructure of the Internet and, as such the Domain Name Space (DNS) is an
important public resource. .au Domain Administration (.auDA), the
self-regulatory body which governs the Australian DNS is looking at the issue
of who should be entitled to what domain names and under what conditions.
Its Name Policy Advisory Panel sought responses to its public
consultation report (available here:
http://www.auda.org.au/panel/name/papers/publicreport.html). The ADA made a
submission (available here:
http://www.auda.org.au/panel/name/submissions/smith.html)
The gist of the ADA submission is the Australian DNS should cater
equally to all potential users, be they individuals or organisations,
commercial or non-commercial.
>[6] The Hague Convention on
Jurisdiction and Foreign Judgements in Civil and Commercial Matters
The purpose of the draft Convention is to provide an orderly international
framework for recognition and enforcement of civil judgments. There is a
concern that the Convention might be used to the disadvantage of consumers by
allowing businesses to locate in countries with favourable laws and have them
enforced world-wide. It is possible, for example, that a plaintiff might sue an
Australian web site owner for copyright infringement in Europe with respect to
material that is in the public domain in Australia (because of the different
period of copyright protection). This European judgment might then be
recognised in an Australian court.
A diplomatic conference is due to
discuss this convention next year. It is important that Australia does not sign
up to a treaty that would allow for the de facto application of foreign laws in
this country.
More information about Hague Convention issues can be
found here: http://www.cptech.org/ecom/jurisdiction/hague.html The
Attorney-General's Department issues paper can be found here:
http://www.law.gov.au/publications/haguepaper/
> [7] The Copyright Amendment (Moral Rights) Act 2000
The Commonwealth passed the Moral Rights Act on 7 December and it is
likely that this legislation will commence shortly. Moral rights (the right of
an author to object to certain uses of a work that damage their reputation)
have been canvassed in Australia for a number of years.
The Moral
Rights Act grants authors the right to: (i) be attributed as the author of
their work; (ii) to object to false attributions of their work; and (iii) the
right to object to derogatory acts with respect to an author's work which harm
that author's reputation (the right of integrity).
Moral Rights
legislation has been held up for some time over the issue of waiver provisions:
under what circumstances can an author waive their moral rights? Business
groups have sought a broad waiver to allow authors to waive all their rights up
front, rendering moral rights more or less worthless in a number of situations.
The final compromise waiver is narrower than the Government originally
proposed.
>[8] I Can Copy, Right?
Yes, you can copy
this publication. Feel free to send it to friends or colleagues, print it off
or even archive it on your website provided that all text is included or, in
the case of an excerpt, appropriate credit is given.
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