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Abstract:
Since the development of cheap and simple tape recording technology in the seventies and eighties of the last century, copyright law has struggled to reach a balance between persons wishing to tape copyright material for their own personal use and owners of the copyright material who claim that this is breach of copyright. With the development of peer-to-peer copying on the internet, which allows for the downloading of perfect copies, the issue has become more urgent and more complex. The article follows developments in the battle by music companies in particular to prevent private copying of their copyright material from the internet and the threats to privacy which have resulted. Recently, the companies have targeted individuals who have been involved in frequent copying and sued them for breach of copyright with the aim of publicising the breach of copyright involved in such copying and to deter others. They have hoped that through successful court actions they may be able to convince the public that private copying off the internet is a serious breach of their rights. Two threats to privacy have resulted from the companies' actions. First, they have subpoenaed internet service providers to release information about customers who have used the internet to breach copyright. Secondly, they have sought to publicise cases against those whom they have sued as serious violators in order to shame them and to make the case against private copying. The article discusses the moral and legal arguments for and against these threats to privacy, concluding that compelling internet service providers to provide evidence about the activities of their customers does not infringe privacy rights to a disquieting extent but that using evidence gained by such methods to name and shame offenders may be a misuse of the discovery process.

copyright, music, internet, privacy, technology, copyright law, intellectual property

Abstract:
This broad-ranging examination of privacy law considers the challenges faced by the law in changing technological, commercial and social environments. The book encompasses three overlapping areas of analysis: privacy protection under the general law; legislative measures for data protection in digital communications networks; and the influence of transnational agreements and other pressures toward harmonised privacy standards. Leading, internationally recognised authors discuss developments across these three areas in the United Kingdom, Europe, the United States, APEC (the forum for Asia-Pacific Economic Cooperation), Australia and New Zealand. Chapters draw on doctrinal and historical analysis of case law, theoretical approaches to both freedom of speech and privacy, and the interaction of law and communications technologies, in order to examine present and future challenges to law's engagement with privacy. The table of contents and first chapter are available here.

privacy, technology, media, law, data protection, digital, transnational, UK, comparative, US, Europe, APEC, Australia, New Zealand, freedom of speech

Abstract:
This article takes as its starting point the brief but illuminating discussion of the transnational phenomenon of the internet in Michael Whincop and Mary Keyes' 2001 book 'Policy and Pragmatism in the Conflict of Laws', and observes that the prospect of internet publication will inevitably influence the framing of choice of law and jurisdictional rules from now on. This has already been shown by the High Court's decision in the recent case of Dow Jones & Company Inc v Gutnick where, in attempting to adapt the previously certain lex loci delicti defamation choice of law rule to the exigencies of the internet, the court effectively transformed the rule into a more fluid - and more reasonable - standard that only allows for presumptive conclusions about the place of the tort as ordinarily (but by implication not inevitably) the place of downloading. Further, the fact that the court stressed that the lex loci delicti for other kinds of torts will depend on the 'essence' of the tort suggests that policy is now central to choice of law to an extent not previously contemplated. We suggest that it is possible to elucidate some relatively certain choice of law rules for internet publications - being as much as can be hoped for at this stage.

jurisdiction, tort, lex loci delicti, defamation, internet, publishing, Australia, High Court of Australia

Abstract:
The traditional perception is that trade marks signal the origin of goods and services. The perception is challenged in this article. It is argued that trade marks are an important component of popular culture. Popular culture thrives in a fluid, unregulated environment. Yet the rhetoric of trade mark law is that the great open commons of the English language require the protective mantle of regulation: 'trade marks' should be narrowly defined and thresholds for registration set high in order that the language commons should remain in their pristine natural state; while at the other end infringement of a registered trade mark should be narrowly construed to avoid anything that would grant a full 'proprietary' right in a trade mark. The article explores the evolution of such ideas and their apparent hold still over the law. It is observed that there is a more sophisticated understanding now of the nature and function of language as a cultural device compared with that which existed at the time the British trade mark registration system was established. And it is suggested that trade marks that develop a cultural dimension should be granted rights accordingly. Regulation in the name of protecting the language commons should be kept to a minimum, targeting cases where trade mark owners seek to use their trade marks as instruments of censorship and control.

trade marks, intellectual property, proprietary rights, language, English, language commons, popular culture, censorship

Abstract:
This authoritative text provides a picture of how Australian intellectual property law has developed as a distinctly Australian body of law during the century since Federation. The book takes a selection of key intellectual property law cases and tells their stories, situating each case in its social context, as well as providing factual details about the arguments made in each case and the evidence adduced. Landmarks in Australian Intellectual Property Law offers a closer legal analysis of selected cases, many of which have been central to the framing of Australian intellectual property law. It provides a fuller sense of each case as revealing and influencing wider understandings and practices. Landmarks in Australian Intellectual Property Law is a valuable resource for academics, researchers, practitioners and judges in Australia and throughout the common law world.

Intellectual Property law, Landmarks, Australian law, law cases, social context, legal analysis, common law

Abstract:
This introductory paper explains the genesis of the following set of articles on current issues relating to cross-border communications disputes. By way of background it gives a brief overview of private international law in Australia, its particular applications to communications disputes (especially in the internet context) and attempts to deal with current problems, and the need for international reform.

cross-border, communication, Australia, international law, internet, reform

Abstract:
Simple assertions that fans are harmless may be belied by the copyright cases threatened and launched by authors of popular fictional works, against fans who write secondary works based on distinctive elements of the original stories. On the other hand, it may be that authors are too possessive of their creations, seeking to control their imaginary afterlives. The story of Warner Bros v RDR Books - the Harry Potter Lexicon case - provides a vehicle to examine the conundrum. The decision of Patterson J in the US District Court seeks to navigate a fine line between original authorial control and literary activities of fans, in suggesting that, in the main, fan literature should be encouraged and protected as fair use for copyright law purposes. However, the judge faced an uphill battle in countering Rowling's insistence that she was entitled to exercise control over all products derived from her 'nominative genius'. In the decision's aftermath, Rowling has elected to support rather than challenge a new version of the Lexicon, which seeks to incorporate substantially more commentary than the original version. However, we wonder what breathing space will be left for fan fiction.

copyright cases, Harry Potter, Rowling, fans, Warner Bros, RDR Books

Abstract:
Books reviewed:
Richard O. Zerbe Jr,
Economic Efficiency in Law and Economics
Steve Keen,
Debunking Economics: The Naked Emperor of the Social Sciences
Ralph E. Gomory and William J. Baumol,
Global Trade and Conflicting National Interests
D. Cutler and E. Berndt,
Medical Care Output and Productivity
Tracy C. Davis,
The Economics of the British Stage, 1800-1914
Robert Skidelsky,
John Maynard Keynes. Fighting for Britain
Wendy Smits and Thorsten Stromback,
The Economics of the Apprenticeship System
Manuel Tarrazo,
Practical Applications of Approximate Equations in Finance and Economics
D. Gruen and J. Simon (eds),
Future Directions for Monetary Policies in East Asia
John B. Taylor,
Monetary Policy Rules

Abstract:
The economically focused understandings of intellectual property and competition law has generally resulted in courts adopting a welfarist approach to provide a policy frame for understanding and elaborating legal standards of liability. Under the welfarist approach, attention is focused on the effects of conduct and questions of industry economics and consumer, or user, welfare rather than the intent of the alleged wrongdoer. However, this situation may be changing. In a recent copyright infringement case and a recent case concerning exclusive dealing in the music industry, liability was imposed on the basis of the 'bad behaviour' of the defendant. That the cases are both to do with music is striking. It is possible that the subtle and evolving characteristics of music markets mean that a disciplined focus on industry economics and consumer or user welfare still eludes the courts, leading them to fall back on more intuitive moralistic answers. Although some are concerned about such moralistic reasoning, we argue that moralistic judgments may point to more sophisticated understandings of welfare effects and that combining moralistic and welfarist approaches should generally lead to results that are both socially beneficial and morally desirable.

intellectual property law, competition law, copyright

Abstract:
In the aftermath of Douglas v. Hello! Ltd., in which pictures surreptitiously taken of a New York wedding were published in a United Kingdom magazine, it is becoming increasingly apparent that privacy invasions are not restricted by national borders. The equitable doctrine of breach of confidence, which gave a remedy in that case, has shown adaptability in the face of changing circumstances and practices. The challenge for the future will be ensuring greater international harmonisation of substantive legal protection of privacy. Already there are some positive signs.