A Public Interest Document: Background Paper 12 1995-96 New Ideas, Old Laws: Copyright, Patents, Trade Marks and Designs, and How to Avoid Plagiarism

? Copyright 2017, Donald Evan Gilbert as Trustee for Gilbert Family Trust

Update 4/12/2017 Billy Joel concert: explains how he got his copyrighted songs back https://www.billyjoel.com/news/billy-joel-live-shea-stadium-concert-rockets-1-billboard-top-music-dvdvideo-chart/

TITLE

A Public Interest Document ‘“Background Paper 12 1995-96 New Ideas, Old Laws: Copyright, Patents, Trade Marks and Designs, and How to Avoid Plagiarism’

TARGET AUDIENCE

Retail Tenants, Landlords, Investors, Financiers, Valuers & Property Professionals and other professionals (lawyers, Barristers, QCs)

OVERVIEW FROM Mr Bailey’s document from the Parliamentary Libruary

Here is an excellent paper prepared by Brendan Bailey Law and Public Administration Group which can be found at https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/Background_Papers/bp9596/96bp12

A full copy of the paper appears at the end of my article.

# Copyright applies for 70.0 years after one's passing, and not 50.0 years as Mr Bailey's article states. I believe it came out shortly after his article was published.

It covers:

2.1 The Product of One's Mind: Universal Declaration of Human Rights

2.2 Copyright - covers rights in original literary, artistic, dramatic or musical works as well as films, broadcasts and sound recordings and includes new developments such as computer software.

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

On page 4/32 Brendan Bailey writes: “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 . “ Emphasis added by me.

On page 13/32 Mr Bailey writes: “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) [Mr Bailey regards this as so important he has added his own emphasis on this point]

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)"

On page 7/32 Mr Bailey states: “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.”

Australia is a party to International Conventions eg. Bernie Convention of 1886, Paris Convention of 1883, TRIPS (‘Trade Related Aspects of Intellectual Property Rights’), GATT Treaty, World Intellectual Property Convention (‘WIP’) of July 1967 Universal Declaration of Human Rights, we have Statutes on Intellectual Property, regulatory and advisory Bodies, and so on.

 On page 13/32, Mr Bailey writes:

“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.”

 At the bottom of pg. 13 beginning of 14, Mr Bailey states: “….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.”

 Trade marks in Mr Bailey’s article are: “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”.

Mr Bailey covers 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.”

Mr Bailey in this Federal Government Publication on page 19/32 refers to Moral Rights and how there is a European doctrine of droit moral.

The doctrine recognizes:

“…..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.”

 In Australia on pg. 19 of Mr Bailey’s paper states:

 “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.

 At Pt. 3.9 on page 26/32 Bailey writes: “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. ………… and “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)”

On pg. 6/32 Mr Bailey states: “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.” and at the bottom of the page again: “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.”

MY INTELLECTUAL PROPERTY

I have gone back to the first drafts I submitted to the Australian Property Institute (‘API’) of “Market rent: what is it?”, which included the suggestion of a uniform definition of market rent/current market rent.

How did those very words get into the International Valuation Standards Council white pages? The API have never given me any thanks for this and some of my other work.

It follows that I have significant body of Intellectual Property that I own.

There seems to be an absolutely cavalier attitude, showing absolute disregard for the evolution of intellectual property rights, which go back thousands of years.

Each and every bit of my Intellectual Property I own; I have copyrighted all my work, except for my very first paper: “Economics: a most useful tool for the valuer”. I still have those drafts.

Now unlike other inventors, who seek patents, etc. because I write, and I write profusely, I have protected my IP. It is protected for 50.0 years after my passing!

And that also means by describing the value of these works, the presentation of same, the ? (‘Trade Marking’) of same, linking some of the workings of same, which is embodied into software, I own or will own this Intellectual Property, which is described in Mr Bailey’s article as “So important are intellectual property rights that they are recognised in the Universal Declaration of Human Rights. “ and on page 13/32 “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.”

CONCLUSION

I suggest it would be in everyone’s interests in Australia, and indeed my industry and profession that this country cannot get ahead with all brawn and no brain!

I was speaking to good Aussies yesterday as we loaded and unloaded a truck for the Creative Glass Guild’s annual show which my partner organised. One of the guys said: “We have just about sold off everything”.

Exactly. We can continue to take a boorish attitude, or actually recognise and celebrate and bring our countless inventions to the table and swing our massive deficit in its import vs export of IP.  

My work, includes the forensic examination and stripping back of standard valuation concepts of income producing property and presenting ways (and methods) of doing it better.

In all 16 of my major papers, have I recognised the input of other experts, researchers, academics. I know that world-wide, no-one has been doing the work that I have. My body of work stands alone on its own.

World-wide 110.0’s of billions of dollars swing between stakeholder interests mentioned above. Because we could be doing it better.

I own the IP.

# 22/8/2020 An invention is a unique or novel device, method, composition or process. The invention process is a process within an overall engineering and product development process. It may be an improvement upon a machine or product or a new process for creating an object or a result. An invention that achieves a completely unique function or result may be a radical breakthrough. Such works are novel and not obvious to others skilled in the same field. An inventor may be taking a big step in success or failure.

https://en.wikipedia.org/wiki/Invention

Donald E Gilbert Copyright ? 2017

Mr Bailey's paper

Background Paper 12 1995-96 New Ideas, Old Laws: Copyright, Patents, Trade Marks and Designs, and How to Avoid Plagiarism

Index

Brendan Bailey

Law and Public Administration Group

Contents

Major Issues

Introduction

1. Intellectual Property Laws in Australia

1.1 Constitutional basis: Ministers: Statutes: Regulatory and Advisory Bodies

1.2 International Conventions on Intellectual Property To Which Australia Is A Party

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

Major Issues

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.

Introduction

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. Intellectual Property Laws in Australia

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. 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

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 [that was changed to 70 years after the author's death shortly a

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. A Selection of Significant Issues In Intellectual Property

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)

Conclusion

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.

Endnotes

1. See Blackshield, T., Williams, G., Fitzgerald, B. Australian Constitutional Law and Theory, The Federation Press, Sydney, 1996.
2. See Meagher, R., Gummow, W. and Lehane, J. Equity: Doctrines and Remedies, 2ed, Butterworths, Sydney, 1984.
3. 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.
4. (1995) 69 ALJR 423.
5. (1995) 69 ALJR 423 at 432.
6. (1995) 69 ALJR 423 at 430.
7. ibid.
8. 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.
9. Kennedy, P. 'International Copyright Conventions from An Australian Perspective' in Symposium: Copyright Law and Practice, Copyright Society of Australia Inc, Sydney, 1983: 6.
10. See Ricketson, S. op.cit.: 7 at footnote 20, where Ricketson quotes from the 'Whitford Committee' report on the United Kingdom's copyright law.
11. 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.
12. Ricketson, S. op.cit.: 859.
13. Ricketson, S. op.cit.: 860-861.
14. (1824) 3 B.&C. 541.
15. Ricketson, S. op.cit.: 445-447.
16. Prince Albert v. Strange (1849) 64 ER 291, see McKeough J. and Stewart A., Intellectual Property in Australia, Butterworths, Sydney, 1991: 47.
17. Coca Cola Trade Marks [1986] RPC 421.
18. See Winter, G. 'Patent Law Policy in Biotechnology', Journal of Environmental Law, Volume 4 (2), 1992: 168.
19. McKeough, J and Stewart, A. op.cit.: 267.
20. Australian Patent Number 532235.
21. Drawn from Christie, A. Integrated Circuits and their Contents: International Protection, The Law Book Company Limited, Sydney, 1995.
22. Creative Nation, Commonwealth Cultural Policy, Canberra, 1994: 67.
23. (1995) AIPC 91-116.
24. See examples in Proposed Moral Rights Legislation for Copyright Creators: Discussion Paper, Attorney-General's Department, Canberra, June 1994: 61-63.
25. ibid.
26. ibid.
27. ibid.
28. ibid. 5-7.
29. For Art's Sake: A Fair Go!, Arts Policy of the Liberal and National Coalition, 1996: 25.
30. 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).

1. ibid. (Bailey, B.).
2. Inquiry Into Book Prices and Parallel Imports, Matter No. PI/95/1, Prices Surveillance Authority, Melbourne, 28 April 1995: pages xi-xvii.
3. Ibid
4. Editorial, 'Piracy war holds up trade peace', The Canberra Times, 21 May 1996.
5. Hutcheon, S 'China steps up war of words' The Sydney Morning Herald, 17 May 1996.
6. Highways to Change: Copyright in the New Communications Environment, Report of the Copyright Convergence Group, Canberra, August 1994.
7. Mason, Sir A. 'Reading the Future', ALIA Australian Library Week Oration, National Library of Australia, 1 May 1966.
8. Source Report on Journalists' Copyright, Copyright Law Review Committee, 1994.
9. See Ricketson, S. op.cit.: 242-250
10. Wright, L 'Patents blunder could cost $4b', The Canberra Times, 18 April 1996.
11. ibid.
12. Media Release, Senator Brian Harradine, 'Patent Blunder Costing Australia Billions', Canberra, 18 April 1996.
13. See McKeough, J.op.cit.: 333.
14. Drawn from Wuethrich, B 'All Rights Reserved', Science News, Volume 144(10), September 1993: 154-157.
15. ibid.