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Abstract:
This is the text of a paper delivered at that Asia-Pacific Broadcasting Union Copyright Seminar in Tokyo on 15 March 2007 - days after Viacom launched a major copyright infringement action against YouTube. It provides a broad outline of YouTube, the operation of the so-called 'safe harbour' regime of the US Copyright Act, and an assessment of the commercial and technological approaches that may be taken to YouTube by established media industries. It concludes by suggesting that the best protection audio-visual producers have in dealing with YouTube model is the use of embedded marking technologies so as to reliably identify what of their content is being used.

YouTube, Viacom, copyright, infringement, sare harbour, embedded marking

Abstract:
In 2000 the first decision interpreting the copyright provisions of the Trade Related Aspects of Intellectual Property Agreement ("TRIPS") was made by a Panel established under the World Trade Organization Dispute Settlement Understanding. This significant and long-awaited decision is premised upon a fundamental error in the Panel's interpretation of the relationship between TRIPS Article 13 and the incorporated Article 11bis of the Berne Convention for the Protection of Literary and Artistic Works ("Berne"). That error led the Panel to apply the three-step test contained in TRIPS Article 13 to everything that was to be decided before it. In so interpreting TRIPS, what one might have been forgiven for regarding as the specifically relevant Berne provision - Article 11bis(2) - was found to be irrelevant to the dispute.

The paper does not analyse in detail the Panel's application of the three-step test. Some concluding comments are made as to the desirability of "the three-step test frenzy"; the increasing willingness in international copyright law to attempt to define the limits of copyright by reference to the three-step test. Instead, the paper is concerned with the uses - or more precisely misuses - of secondary material in TRIPS interpretation. In analysing this aspect of the Panel's decision, the paper contends that the Panel acted in ignorance of the detail of the very secondary material upon which it placed so much reliance.

Abstract:
This article considers the necessity and desirability of reduction to material form (ie. fixation) as a requirement for subsistence of copyright in spoken words. It examines how this aspect of copyright law has evolved in the United Kingdom from before the Statue of Anne until the present day, and compares this with the law which applies in the United States. It argues that there is nothing inherent in the underlying objectives of copyright law which makes a material form requirement a necessary precondition for copyright subsistence. Indeed, the material form requirement, at least as it applies in relation to spoken words, may lead to outcomes inconsistent with copyright law's objectives. It is concluded that the law ought recognise the potential for copyright to subsist in any perceptible expression emanating from the intellect of a person and intended to appeal to the aesthetic sense or intellect of others, regardless of the expression's materiality.

copyright, law, spoken word

Abstract:
A claim is a concise unilateral written expression of patent scope made by the patentee at the time of application. Claims are contained within a patent specification in which the patent applicant also provides a full written disclosure of the new invention. The invention publicly disclosed should provide a basis to support any claim made. This essay outlines how it was that patent claims in English law came to define the subject-matter scope of any particular patent. The essay traces this evolution from the time of the 1623 Statute of Monopolies to Lord Hoffmann's 2004 decision in Kirin-Amgen v Hoechst Marion Roussel. Claims emerge in patent custom as a response to the judicial development of patent law. Of particular importance were the recognition of incremental invention and the obligation that the patent fully discloses the invention, which together were the catalyst for the emergence of the English patent claim. Viewed within their timeline, two key insights about claims emerge. The first is that the precise ascertainment of patent scope has been something required of claims more in theory than in practice. While the trends have varied, the dominant English tendency has been for courts to determine patent scope ex post, and to not too strictly require that claims delineate scope ex ante. The other insight from the essay is that claims have only been unambiguously accepted as the source of patent scope in relatively recent times, and the recency of this acceptance may suggest a more critical eye should be cast over claim construction methodologies.

Article 69, Patent, European, property, define, English, law, claim

Abstract:
The example of business methods provides an opportunity to consider some of the more fundamental aspects of Australian patent law, in particular the inherent patentability, and its related concepts of general inconvenience and threshold minimum inventiveness. In so doing, business methods may be used as a prism through which these may be considered. The objective here is to argue the case that subject matter like business methods is best dealt with through the principled development of existing, objective criteria for validity in patent law. Key to the argument is that business methods should be, and can be, approached from a point of reference which assesses them no differently from any other alleged invention, and without the presumption of their ad hoc or sui generis exclusion. General inconvenience in Anglo-Australian patent law is considered both from both a historical and an economic perspective. Then the requirement of a technical or other like effect for patent eligibility is a matter looked at under Australian and European patent law, and related to the position in Europe, under TRIPs. Next, the appropriateness under Australian law for a threshold inventiveness requirement to play a role in this area is considered. Finally, some concluding observations are made as to desirable patent policy settings in a time when the short-term demands of the information technology industry appear to have fixated the attention of many.

Australia, patent, business methods, patent law, Europe

Abstract:
This article compares official regulation of printing in England from 1484 to 1695, with the regulation of broadcasting in Australia from 1905 to 2000. This comparison reveals a consistent government impulse to regulate new means of communication, until the time that new means becomes uncontrollable by regulation. It also reveals that during the period of official control, industry incumbents tend to enter into a symbiotic relationship with government. Under the terms of that relationship, regulatory compliance is accepted in return for protection from competition. The article concludes by criticising both the impulse to regulate, and the consequential relationship that emerges between government and media incumbents. It also suggests that technology-neutral and industry-neutral regulation is the only means by which regulation of public communications can be logically considered. This may be only achievable through the creation of new international content norms.

Abstract:
The standard justification for trade mark protection is that trade marks enhance consumer decisions and, thereby create incentives for firms to produce products of desirable qualities even when these are not observable before purchase. However this justification applies for any form of trade mark protection, regardless of whether it takes the form of a proprietary grant. Here one additional consequence of property in trade marks is described which may explain why it is socially desirable to create such property; the role of trade marks in facilitating the existence of firms created through vertical integration by contract and licensing. It suggests that when the law provides for clear property rights in trade marks, and thereby a means of putting the locus of brand control unambiguously in the hands of one entity, it encourages efficient interbrand competition by providing a neutral choice between firm integration through ownership and firm integration through relational contracting.

trade mark, protection, firm, proprietary, grant, property, brand

Abstract:
In the 2005 Australian decision Stevens v. Sony the High Court unanimously over-turned a unanimous Full Federal Court. The High Court found that Sony Play Station technology which precluded the use of unauthorised game discs was not protectable under Australia's anti-circumvention regime. This outcome was arrived on the basis that Sony's technology did not 'prevent or inhibit the infringement of copyright', as required by the terms of a statutory definition. The reasons for rejection the Full Federal Court's interpretation of this definition as embracing the Sony technology included the consideration that 'it is important to avoid an overbroad construction which would extend the copyright monopoly rather than match it'. This article is a critical evaluation of the High Court's reasoning. It argues that the outcome arrived at by the High Court may be inconsistent with the origins of the statutory text, fails to deal adequately with the analysis of Justice French in the Full Federal Court and represents an undesirable development as a matter of public policy.

sony, steven, copyright, prevent, inhibit, infringement

Abstract:
This is a chapter about Australian broadcasts as copyright property - in particular television broadcasts. It commences with an idea, an observation and the nub of The Panel Case.

The idea involves reworking the subject matter/rights dichotomy well-known in relation to copyright. In its place we might think not of a dichotomy but of two inter-related aspects of copyright property; scope and exclusion in which neither can be considered in isolation. In certain respects this may be a more realistic way to consider copyright as a delimited property, which treats the concepts of scope and exclusion as integrated. This can be done by reference to the famous Australian case of Universal City Studios v Zeccola. If that case is considered as involving certain subject matter, a screenplay and a novel, that were non-literally reproduced in an Italian film, it may be that the operation of the law is being understood with false precision. The courts' intervention in Zeccola, to treat as an infringement a film with a plot and characters similar to the screenplay and novel, can be usefully understood as a bringing together notions of scope and exclusion in a unitary concept of protection. How can the scope of the subject-matter protected in Zeccola be understood without reference to the nature of the right to exclude that was there recognised? Exclusion gives functional meaning to copyright scope. It is only when the two are considered jointly that copyright can be meaningfully talked about in property terms.

The second thing is the observation which belongs to Ronald Coase. He observed that the delimitation of legal rights was an essential prelude to market transactions, but that a waste of resources may occur when the criteria used by courts to delimit rights result in resources being employed solely to establish a claim. For a property rights system to be efficient in its allocative role, a primary requirement is that those rights can be clearly established and ascertained.

Finally, two bottom lines of the High Court majority's reasoning in The Panel might be distilled. The first was that the majority made clear that what is worth copying is not necessarily worth protecting. To use the refashioned nomenclature, it suggested that the concept of exclusion should be relaxed. The second is that a television broadcast as copyright subject matter can not be defined with precision but it will include something 'put out to the public, the object of the activity of broadcasting, as discrete periods of broadcasting identified and promoted by a title'. Again, to use the suggested nomenclature, the holding was one in which scope was pragmatically defined. Translating these two bottom lines together into the unitary concept outlined above, the High Court majority has crafted television broadcast signal property rights in terms of substantive takings of television programs. The High Court majority did not itself apply its concept of the property, remitting the case back to the Full Federal Court to do so.

This chapter will argue that the interpretative outcome arrived at by the High Court was unsound in history and logic. From this some observations will be made about the existence of broadcast signal copyright, and why the US position may offer a more sensible model than the law as it currently stands in Australia.

television, copyright, Australia

Abstract:
A broadcast flag is an electronic notice which is associated with a digital broadcast. Flags are not effective technological protection measures in the sense understood in copyright. As merely a piece of descriptive code embedded within a broadcast, flags do not per se lock, encrypt or scramble broadcasts prior to reception. Instead the code is merely a request that hardware receivers limit what can be done with the broadcast after reception. Regulatory mandate of hardware compliance with a flag request is the consequence of this light-handed nature. This chapter will: attempt to describe and explain flag technologies formulated in the US and Europe; contrast the quite unique Japanese solution which encrypts at the source of broadcast; consider the extent to which current Australian regulatory settings cater for flags; review the relevance of the draft WIPO Broadcasters' Treaty to flag technologies, and conclude by suggesting a legal framework for flags as a special type of electronic rights management information.

broadcast, flag, digital

Abstract:
Retransmission, the rebroadcasting of a primary broadcast by a third party, has occurred on a commercial basis around the world for over fifty years. This work examines the treatment of retransmission as an international copyright norm in TRIPS. It focuses upon the contentious issue of so-called local area retransmission whereby retransmission occurs within the area served by the primary broadcast. Also extensively analysed is the meaning in the retransmission context of the term "equitable remuneration", given that the international norm permits a right to equitable remuneration to be a surrogate for the grant of an exclusive right. The outcomes of this study (which extend to treaty history, economics and restitutionary monetary awards) are applied to the treatment of retransmission in the copyright law of the US. In so doing some conclusions are made as to the compliance of US law with the TRIPS norm.

retransmission, TRIPS, intellectual property, cyberspace, international law, telecommunications, broadcast, copyright