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Abstract:
In the field of digital sampling, disk jockeys have shown a recent enthusiasm for 'mash-ups' - new compositions created by combining the rhythm tracks of one song and the vocal track of another. Most famously of all, DJ Danger Mouse remixed the vocals from Jay-Z's The Black Album and the Beatles' White Album and called his creation The Grey Album. The Grey Album poses a number of difficult issues regarding copyright law and digital sampling. Does such a 'mash-up' go beyond the de minimis use of a copyright work? Is The Grey Album protected by the defence of fair use under copyright law because it provides a transformative use of copyright works? Can such remixes be compulsorily licensed? Does a 'mash-up' raise issues concerning the moral rights of attribution and integrity, which are recognised in Europe and Australia?

Copyright law, musical works, sound recordings, digital sampling, mash-ups, de minimis use, defence of fair use, creative commons licences, compulsory licensing, moral rights of attribution and integrity, DJ Dangermouse, The Grey Album, Jay-Z, and The Beatles

Abstract:
Whereas Lessig's recent work engages with questions of culture and creativity in society, this paper looks at the role of culture and creativity in the law. The paper evaluates the Napster, DeCSS, Felten and Sklyarov litigation in terms of the new social, legal, economic and cultural relations being produced. This involves a deep discussion of law's economic relations, and the implications of this for litigation strategy. The paper concludes with a critique of recent attempts to define copyright law in terms of first amendment rights and communicative freedom.

Copyright law, peer to peer networks, technological protection measures, constitutional law, first amendment rights, Napster, Freenet, Kazaa, 2600 Magazine, Ed Felten, Dmitry Sklyarov

Abstract:
This article examines the legal responses to protect traditional knowledge of biodiversity in the wake of the Rio Convention on Biological Diversity. It considers the relative merits of the inter-locking regimes of contract law, environmental law, intellectual property law, and native title law. Part 1 considers the natural drug discovery industry in Australia. In particular, it looks at the operations of Amrad, Astra Zeneca R & D, and the Australian Institute of Marine Science. This section examines the key features of the draft regulations proposed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) - model contracts, informed consent, benefit-sharing, and ministerial discretion. The use of Indigenous Land Use Agreements in the context of access to genetic resources is also explored. Part 2 considers the role played by native title law in dealing with tangible and intangible property interests. The High Court decision in Western Australia v Ward considers the relationship between native title rights and cultural knowledge. The Federal Court case of Neowarra v Western Australia provides an intriguing gloss on this High Court decision. Part 3 looks at whether traditional knowledge of biodiversity can be protected under intellectual property law. It focuses upon reforms such as Senator Aden Ridgeway's proposed amendments to the Plant Breeder's Rights Act 1994 (Cth), and the push to make disclosure of origin a requirement of patent law.

Bioprospecting, access to genetic resources, biopiracy, patent law, plant breeders' rights, native title, traditional knowledge, Indigenous intellectual property

Abstract:
This article considers the radical, sweeping changes to Australian copyright law wrought by the Australia-United States Free Trade Agreement 2004 (AUSFTA). It contends that the agreement will result in a "piracy of the public domain". Under this new regime, copyright owners will be able to obtain greater monopoly profits at the expense of Australian consumers, libraries and research institutions, as well as intermediaries, such as Internet Service Providers. Part One observes that the copyright term extension in Australia to life of the author plus 70 years for works will have a negative economic and cultural impact - with Australia's net royalty payments estimated to be up to $88 million higher per year. Part Two argues that the adoption of stronger protection of technological protection measures modelled upon the Digital Millennium Copyright Act 1998 (US) will override domestic policy-making processes, such as the Phillips Fox Digital Agenda Review, and judicial pronouncements such as the Stevens v Sony litigation. Part Three questions whether the new safe harbours protection for Internet Service Providers will adversely affect the sale of Telstra. This article concludes that there is a need for judicial restraint in interpreting the AUSFTA. There is an urgent call for the Federal Government to pass ameliorating reforms - such as an open-ended defence of fair use and a mechanism for orphan works. There is a need for caution in negotiating future bilateral trade agreements - lest the multinational system for the protection of copyright law be undermined.

Copyright Law, Australia-United States Free Trade Agreement (AUSFTA), Digital Agenda Act, Digital Millennium Copyright Act, Sonny Bono Copyright Term Extension Act, copyright term extension, orphan works, technological protection measures, internet service provider liability

Abstract:
This article considers copyright law and the art of appropriation in an Australian context. It tells four stories about Australian artists - Imants Tillers, Gordon Bennett, Juan Davila and Tracey Moffatt. The stories examine the postmodern critique of copyright law, indigenous copyright and self-determination, the introduction of moral rights, and copyright, photography and film. The article concludes that the work of such contemporary artists has practical implications for the reform of copyright law.

Copyright, Art, Photography, Film, Post-modernism, Appropriation, Indigenous Art, Traditional Knowledge

Abstract:
This paper evaluates the litigation over the biotechnology patent dispute between the University of California and Genentech. First it outlines the scientific work behind the cloning of the human growth hormone, and looks at the patent office, and its treatment of biotechnological inventions. Second, it considers the court room dispute, and the legal case of the University of California and the biotechnology company in this dispute. Finally, it considers the implications of this dispute for policy reform in respect of patent law and biotechnology.

Patent law, biotechnology, human growth hormone, insulin, gene patents, research tools, ESTs, utility guidelines, intellectual property management

Abstract:
This article considers the moral rights controversy over plans to redesign the landscape architecture of the National Museum of Australia. This dispute raises issues about the nature and scope of moral rights; the professional standing of landscape architects; and the culture wars taking place in Australia. Part 1 considers the introduction of the Copyright Amendment (Moral Rights) Act 2000 (Cth), with its special regime for architecture and public sculpture. It focuses upon a number of controversies which have arisen in respect of copyright law and architecture - involving the National Gallery of Australia, the National Museum of Australia, the Pig 'n Whistle pub, the South Bank redevelopment, and the new Parliament House. Part 2 examines the dispute over the Garden of Australian Dreams. The controversy is a striking one - as the Australian Government sought to subvert the spirit of its own legislation, the Copyright Amendment (Moral Rights) Act 2000 (Cth). Part 3 engages in a comparative study of how copyright law and architecture are dealt with in other jurisdictions. In particular, it considers the dual operation of the Architectural Works Copyright Act 1990 (US) and the Visual Artists Rights Act 1990 (US) and a number of controversies in the United States - over the Tilted Arc sculpture, a Los Angeles tower block that appeared in the film Batman Forever, a community garden mural, a sculpture park, and the Freedom Tower.

Copyright Law, Moral Rights, Architecture, Landscape Architecture, Design, Sculpture, Gardens, Public Monuments, Cultural Politics

Abstract:
Copyright estates have been unduly empowered by the extension of the term of copyright protection in Europe, the United States, Australia and elsewhere. The Estate of the Irish novelist, James Joyce, has been particularly aggressive in policing his revived copyrights. The keepers of the flame have relied upon threats of legal action to discourage the production of derivative works based upon the canonical texts of the novelist. The Estate has also jealously guarded the reputation of the author by vetoing the use of his work in various scholarly productions. Most radically of all, the grandson Stephen Joyce threatened to take legal action to prevent the staging of Rejoyce Dublin 2004, a festival celebrating the centenary of Bloomsday. In response, the Irish Parliament rushed through emergency legislation, entitled the Copyright and Related Rights (Amendment) Act 2004 (Ireland) to safeguard the celebrations. The legislation clarified that a person could place literary and artistic works on public exhibition, without breaching the copyright vested in such cultural texts. Arguably, though, the ad hoc legislation passed by the Irish Parliament is inadequate. The Estate of James Joyce remains free to exercise its suite of economic and moral rights to control the use and adaptation of works of the Irish novelist. It is contended that copyright law needs to be revised to promote the interests of libraries and other cultural institutions. Most notably, the defence of fair dealing should be expanded to allow for the transformative use of copyright works, particularly in respect of adaptations and derived works. There should be greater scope for compulsory licensing and crown acquisition of revived copyrights.

Copyright law and term extension, the keepers of the flame and copyright estates, cultural festivals, libraries, public exhibitions, derivative works

Abstract:
This article considers the race to sequence the Severe Acute Respiratory Syndrome virus ('the SARS virus') in light of the debate over patent law and access to essential medicines. Part II evaluates the claims of public research institutions in Canada, the United States, and Hong Kong, and commercial companies, to patent rights in respect of the SARS virus. It highlights the dilemma of 'defensive patenting' - the tension between securing private patent rights and facilitating public disclosure of information and research. Part III considers the race to patent the SARS virus in light of wider policy debates over gene patents. It examines the application of such patent criteria as novelty, inventive step, utility, and secret use. It contends that there is a need to reform the patent system to accommodate the global nature of scientific inquiry, the unique nature of genetics, and the pace of technological change. Part IV examines the role played by the World Trade Organization and the World Health Organization in dealing with patent law and access to essential medicines. The article contends that there is a need to ensure that the patent system is sufficiently flexible and adaptable to accommodate international research efforts on infectious diseases.

Patent law, the SARS virus, avian influenza, HIV/AIDS, malaria, TB, defensive patenting, gene patents, patent pooling, access to essential medicines, TRIPS agreement, world trade organization, world heath organization.

Abstract:
This article considers the challenges posed to intellectual property law by the emerging field of bioinformatics. It examines the intellectual property strategies of established biotechnology companies, such as Celera Genomics, and information technology firms entering into the marketplace, such as IBM. First this paper argues that copyright law is not irrelevant to biotechnology, as some commentators would suggest. It claims that the use of copyright law and contract law is fundamental to the protection of biomedical and genomic databases. Second this article questions whether biotechnology companies are exclusively interested in patenting genes and genetics sequences. Recent evidence suggests that biotechnology companies and IT firms are patenting bioinformatics software and Internet business methods, as well as underlying instrumentation such as microarrays and genechips. Finally, this paper evaluates what impact the privatisation of bioinformatics will have on public research and scientific communication. It raises important questions about integration, interoperability, and the risks of monopoly. It finally considers whether open source software such as the Ensembl Project and peer to peer technology like DSAS will be able to counter this trend of privatisation.

Intellectual property, bioinformatics, microarrays, gene chips, copyright law, patent law, contract law, free and open source software, peer to peer technology

Abstract:
In a victory for corporate control of cultural heritage, the Supreme Court of the United States has rejected a constitutional challenge to the Sonny Bono Copyright Term Extension Act 1998 (U.S.) by a majority of seven to two. This paper evaluates the litigation in terms of policy debate in a number of discourses - history, intellectual property law, constitutional law and freedom of speech, cultural heritage, economics and competition policy, and international trade. It argues that the extension of the copyright term will inhibit the dissemination of cultural works through the use of new technologies - such as Eric Eldred's Eldritch Press and Project Gutenberg. It concludes that there is a need to resist the attempts of copyright owners to establish the Sonny Bono Copyright Term Extension Act 1998 (U.S.) as an international model for other jurisdictions - such as Australia.

Copyright law, electronic publishing, public domain, Sonny Bono Copyright Term Extension Act, European Duration Directive, US-Australia Free Trade Agreement, history, constitutional law, cultural heritage, economics, international trade, perpetual copyright

Abstract:
This paper considers the ongoing litigation against the peer to peer network Kazaa. Record companies and Hollywood studios have faced jurisdictional and legal problems in suing this network for copyright infringement. As Wired Magazine observes:

'The servers are in Denmark. The software is in Estonia. The domain is registered Down Under, the corporation on a tiny island in the South Pacific. The users - 60 million of them - are everywhere around the world.'

In frustration, copyright owners have launched copyright actions against intermediaries - like Internet Service Providers such as Verizon. They have also embarked on filing suits of individual users of file-sharing programs. In addition, copyright owners have called for domestic and international law reform in respect of digital copyright. The Senate Committee on Government Affairs in the United States Congress has reviewed the controversial use of subpoenas in suits against users of file-sharing peer to peer networks. The United States has encouraged other countries to adopt provisions of the Digital Millennium Copyright Act 1998 (US) in bilateral and regional free trade agreements.

Copyright Law, Peer-to-Peer Networks, Kazaa, Grokster, Streamcast, Earth Station 5, Internet Jurisdiction, Fair Use, Internet Service Provider Liability, Digital Millennium Copyright Act, Australia-United States Free Trade Agreement

Abstract:
This paper considers the relationship between patent law and plant breeders' rights in light of modern developments in biotechnology. It examines how a number of superior courts have sought to manage the tensions and conflicts between these competing schemes of intellectual property protection. Part 1 considers the High Court of Australia case of Grain Pool of Western Australia v the Commonwealth dealing with Franklin barley. Part 2 examines the significance of the Supreme Court of the United States decision in JEM Ag Supply Inc v Pioneer Hi-Bred International Inc with respect to utility patents and hybrid seed. Part 3 considers the Supreme Court of Canada case of Harvard College v the Commissioner of Patents dealing with the transgenic animal, oncomouse, and discusses its implications for the forthcoming appeal from the Federal Court case of Percy Schmeiser v Monsanto.

Patent law, plant breeders' rights, biotechnology, constitutional law, law and technology, franklin barley, hybrid seed, GM canola, transgenic animals

Abstract:
The global Framework Convention on Tobacco Control (FCTC) requires nations to ban all tobacco advertising and promotion. In the face of these restrictions, tobacco packaging has become the key promotional vehicle for the tobacco industry to interest smokers and potential smokers in tobacco products. This paper reviews available research into the likely impact of mandatory plain packaging and internal tobacco industry statements about the importance of packs as promotional vehicles. It critiques legal objections raised by the industry about plain packaging violating laws and international trade agreements, showing these to be without foundation. Plain packaging of all tobacco products would remove a key remaining means for the industry to promote its products to billions of the world's smokers and future smokers. Governments have appropriated large surface areas of tobacco packs for health warnings without legal impediment or need to compensate tobacco companies. Requiring plain packaging is consistent with the intention to ban all tobacco promotions. There is no impediment in the FCTC to interpreting tobacco advertising and promotion to include tobacco packs.

Trade Mark Law, Plain Packaging, Tobacco Control, Public Health, and International Trade

Abstract:
This paper examines the dispute between the Seattle company Virtual Countries Inc. and the Republic of South Africa over the ownership of the domain name address southafrica.com. The first part of the paper deals with the pre-emptive litigation taken by Virtual Countries Inc. in a District Court of the United States. The second part considers the possible arbitration of the dispute under the Uniform Domain Name Dispute Resolution Process of the Internet Corporation for Assigned Names and Numbers (ICANN) and examines the wider implications of this dispute for the jurisdiction and the governance of ICANN. The final section of the paper evaluates the Final Report of the Second WIPO Internet Domain Name Process.

Trade mark law, Internet Domain Names, ICANN, geographical terms, city region and country names, the Digital Divide, jurisdiction

Abstract:
Drawing on two case studies, this article considers the allegation of a disgruntled author: 'Defamation was framed to protect the reputations of 19th century gentlemen hypocrites'. The first case study considers the litigation over Bob Ellis' unreliable political memoir, 'Goodbye Jerusalem', published by Random House. The second case study focuses upon the litigation over the allegation by Media Watch that Richard Carleton had plagarised a documentary entitled 'Cry from the Grave'. The article considers the meaning of defamatory imputations, the range of defences, and the available remedies. It highlights the competing arguments over the protection of reputation and privacy, artistic expression, and the freedom of speech. This article concludes that defamation law should foster 'gossip we can trust'.

Defamation law, law and literature, biography, history, non-fiction, mixed genres

Abstract:
This paper considers the copyright litigation over the file-sharing program, Napster. The first section examines the culture of collecting at work in Napster. The next part examines the litigation by the major record companies and Metallica against Napster. The final section considers the future of file-sharing, looking at alternatives to Napster, such as Filetopia, Freenet, Gnutella, MP3board.com and streaming media.

Copyright Law, Internet Cultures, MP files, Peer to Peer Networks, Infinite Digital Jukebox, the Pirate Bazaar, Metallica, RIAA, Napster, Freenet, Gnutella, MP3.board.com

Abstract:
This article looks at the various experiences of the film-makers involved in Shine in relation to copyright policy and litigation. Part 1 considers the involvement of Jan Sardi in the campaign to get screenwriters included in the moral rights regime in the film industry. Part 2 recounts the efforts of Scott Hicks to push for directors to acquire royalties under the retransmission scheme in the Copyright Amendment (Digital Agenda) Act 2000 (Cth). Part 3 discusses the contractual dispute between independent producer Jane Scott and the distributor over the gross receipts to the film Shine. Part 4 explores the disputes over the use of Sergei Rachmaninov's music in the film Shine.

Copyright law, cinematographic film, economic rights, moral rights, collaborative work, screenwriters, directors, producers, composers

Abstract:
This article evaluates the adoption and implementation of an Indigenous certification trademark system in Australia. Section II considers the use of copyright law, moral rights provisions and consumer protection laws to protect Indigenous cultural property in Australia. It suggests that there needs to be additional protection under trademark law - especially to deal with problems concerning communal ownership, material form and duration of protection. Section III evaluates the efficacy of the scheme for marks of authenticity established by the National Indigenous Arts Advocacy Association in November 1999. It contends that there were practical problems with the implementation of the scheme and symbolic concerns about the definition of authenticity applied under the regime. Section IV engages in a comparative analysis of other jurisdictions - such as New Zealand, Canada and the United States. It demonstrates that an Indigenous certification mark can be successful, given sufficient support and assistance. The article concludes that there needs to be a sui generis system to protect traditional knowledge at an international level.

Traditional knowledge, copyright law, moral rights, Trade Practices Act, trade mark law, authenticity label, Indigenous certification mark, authenticity mark, Indigenous intellectual property

Abstract:
This paper investigates copyright law and public architecture in the context of cultural institutions of Australia. Part 1 examines the case of the Sydney Opera House to illustrate the past position of architects in respect of copyright law. It goes onto consider the framework laid down by the Copyright Amendment (Moral Rights) Act 2000 (Cth) to resolve copyright disputes over moral rights and architecture. Part 2 considers the argument over the proposed renovations to the National Gallery of Australia between Dr Brian Kennedy and the original architect Colin Madigan. Part 3 finally deals with the allegations that Ashton Raggatt McDougall, the architects of the National Museum of Australia, plagiarised the designs of Daniel Libeskind for the Jewish Berlin Museum.

Copyright law, moral rights, economic rights, artistic works, architecture, sculpture, cultural institutions

Abstract:
This article provides an account of one of Australia's great literary hoaxes - the Demidenko affair. In particular, it focuses upon the accusations that Helen Darville plagiarised a number of historical and literary texts in her novel, The Hand That Signed The Paper. This article considers how the dispute was interpreted in three different contexts - the literary community, the legal system, and the media. Part 1 examines how writers, publishers, and editors understood the controversy in terms of the aesthetics and ethics of plagiarism. Part 2 details how lawyers framed the discussion in light of economic rights and moral rights under copyright law. Part 3 deals with the media attention upon the personalities and politics of the scandal. The conclusion charts the competition between these various communities over who should resolve the dispute.

Copyright law, literary works, historical fiction, plagiarism, economic rights, moral rights, post-modernism

Abstract:
This article considers the artistic and legal practices of Bangarra Dance Theatre in a case study of copyright law management in relation to Indigenous culture. It is grounded in the particular local experience, knowledge and understanding of copyright law displayed by the performing arts company. The first part considers the special relationship between Bangarra Dance Theatre and the Munyarrun Clan. It examines the contractual arrangements developed to recognise communal ownership. The next section examines the role of the artistic director and choreographer. It looks at the founder, Carole Johnson, and her successor, Stephen Page. The third part of the article focuses on the role of the composer, David Page. It examines his ambition to set up a Indigenous recording company, Nikinali. Part 4 focuses upon the role of the artistic designers. It looks at the contributions of artistic designers such as Fiona Foley. Part 5 deals with broadcasts of performances on television, film, and multi-media. Part 6 considers the collaborations of Bangarra Dance Theatre with the Australian Ballet, and the Sydney Organising Committee for the Olympic Games. The conclusion considers how Bangarra Dance Theatre has played a part ina general campaign to increase protection of Indigenous copyright law.

Copyright Law, Traditional Knowledge, Contemporary Dance, Communal ownership, Moral rights, Performer's Rights

Abstract:
This article considers the ground-breaking Supreme Court of Canada decision in The Law Society of Upper Canada v CCH Canadian Limited. The matter involved legal publishers bringing an action for copyright infringement against the Law Society of Upper Canada for operating a photocopy and custom copy service at the Great Library of Osgoode Hall. The Supreme Court of Canada decision laid down important precedents in relation to originality, authorisation, and the defence of fair dealing. The ruling has been hailed as 'one of the strongest pro-user rights decisions from any high court in the world, showing what it means to do more than pay mere lip service to balance in copyright'. This decision will have important implications for the regulation of new technologies. The approach has been applied in two decisions dealing copyright law and the Internet - the Canadian Federal Court case of BMG Canada v John Doe, and the Supreme Court of Canada 'Tariff 22' case. The Supreme Court of Canada decision in The Law Society of Upper Canada v CCH Canadian Limited provides an impetus to reconsider the judicial interpretation of user rights in Australian jurisprudence.

Copyright law, research and lending libraries, photocopiers, originality, authorisation, fair dealing, safe harbours for Internet service providers

Abstract:
An artistic controversy over a group of landscape painters called the Daubists provided impetus for copyright law reform in Australia in the early 1990's.

In the first exhibition of Daubism in 1991 driller Jet Armstrong painted a crop circle over a painting of the Olgas by Charles Bannon - an artist, print-maker, and the father of the State Premier at the time, John Bannon. He called the resulting work, Crop Circles on a Bannon Landscape. Armstrong also inserted an inverted crucifix over a painting of the Flinders Ranges by Bannon, and renamed the work The Crop Circle Conspiracy Landscape. In response, Bannon took legal action against Armstrong in the Federal Court of Australia on the grounds of false attribution and defamation. He won an interlocutory injunction against Armstrong and the gallery, but then reached a settlement with the Daubists. An anonymous buyer purchased the work for $650 on the condition that it was returned to the painter. In his fight against the Daubists, Bannon received help and support from the National Association for the Visual Arts (NAVA). This professional group used the controversy to campaign for the reform of copyright law - in particular, the need for a moral rights regime.

The artistic controversy over the Daubists was a catalyst for the introduction of the Copyright Amendment (Moral Rights) Act 2000 (Cth) in Australia. It offers an illuminating case study of the operation of copyright law in the visual arts.

Copyright law, artistic works, economic rights, moral rights, defamation law, right of resale, romanticism, situationism, dada, post-modernism

Abstract:
This article considers the recent international controversy over the patents held by a Melbourne firm, Genetic Technologies Limited (GTG), in respect of non-coding DNA and genomic mapping. It explores the ramifications of the GTG dispute in terms of licensing, litigation and policy reform, and - as a result of this dispute - the perceived conflict between law and science. GTG has embarked upon an ambitious licensing program with twenty seven commercial licensees and five research licensees. Most significantly, GTG has obtained an exclusive licence from Myriad Genetics to use and exploit its medical diagnostics in Australia, New Zealand, and the Asia-Pacific region. In the US, GTG brought a legal action for patent infringement against the Applera Corporation and its subsidiaries. In response, Applera counterclaimed that the patents of GTG were invalid because they failed to comply with the requirements of US patent law, such as novelty, inventive step, and written specifications. In New Zealand, the Auckland District Health Board brought legal action in the High Court, seeking a declaration that the patents of GTG were invalid, and that, in any case, the Board has not infringed them. The New Zealand Ministry of Health and the Ministry of Economic Development have reported to Cabinet on the issues relating to the patenting of genetic material. Similarly, the Australian Law Reform Commission (ALRC) has also engaged in an inquiry into gene patents and human health; and the Advisory Council on Intellectual Property (ACIP) has considered whether there should be a new defence in respect of experimental use and research.

Patent Law, Non-Coding DNA, gene patents, genomic mapping, haplotyping, novelty, inventive step, defence of experimental use

Abstract:
This article considers the significance of a leading marine biodiscovery initiative. In March 2004, Dr. J. Craig Venter announced the official launch of the Sorcerer II Expedition, a scientific expedition of discovery, which would survey marine and terrestrial microbial populations. The Expedition has the potential to uncover tens of thousands of new microbial species and tens of millions of new genes. Venter has disavowed that the Sorcerer II Expedition has any commercial ambitions. However, some have viewed the Sorcerer II Expedition with suspicion. Various civil society groups have accused the Expedition of engaging in 'biopiracy'. This article investigates the Convention on Biological Diversity 1992 and other relevant international treaties, various national and regional regimes to govern access to genetic resources, and benefit-sharing agreements. It considers the intersection of intellectual property law, contract law, environmental law, and international law in this field. This article provides a blueprint for a nationally consistent scheme for access to genetic resources, and a model for future international developments.

Access to Genetic Resources, Benefit-Sharing, Bioprospecting, Biodiscovery, Biopiracy, Intellectual Property, Contract Law, Environmental Law, Rio Convention on Biological Diversity, Synthetic Biology

Abstract:
The production of the play Heretic in 1996 prompted a debate over copyright and the dramatic arts in Australia. The playwright David Williamson argued that the role of the writer was supreme. Although he was willing to acknowledge the contributions of other collaborators, the playwright did not believe that these interpreters deserved copyright protection. The director Wayne Harrison advocated a more collaborative vision of the performing arts. He believed that the role of the director and the position of the producer deserved greater legal recognition. Furthermore he was also willing to countenance limited rights for performers. This article argues that recognition should be accorded to all of the main collaborators in the performing arts. It contends that economic rights and moral rights should not be just limited to the writer, the director, and the producer, but they should extend to the performers and the designers.

Copyright law, dramatic works, authorship, collaboration, directors, dramaturges, moral rights, performer's rights

Abstract:
This article considers the significance of the first export of essential medicines under the WTO General Council Decision 2003. In July 2007, Rwanda became the first country to provide a notification under the WTO General Council Decision 2003 of its intent to import a fixed-dose, triple combination HIV/AIDS drug manufactured by the Canadian generic pharmaceutical manufacturer Apotex, Inc. In September 2007, Apotex was granted the first compulsory licence application under Canada's Access to Medicines Regime. This article considers the convoluted and protracted negotiations between the Government of Rwanda, Apotex and three patent holders, GlaxoSmithKline, Boehringer Ingleheim Canada and Shire BioChemical, Inc. It questions the efficiency of this process. This article considers the review of the Jean Chretien Pledge to Africa Act 2004 (Canada). It is critical of the refusal of the Conservative Government of Canada to make any amendments to the legislation to improve the cost-effective delivery of essential medicines. This article queries the proposed Hong Kong Amendment to the TRIPS Agreement 1994, given the concerns of the Africa Group. It is submitted that it is undesirable to codify the WTO General Council Decision 2003, given its failure to provide a speedy, efficient and cost-effective delivery of essential medicines.

Patent Law, Pharmaceutical Drugs, Compulsory Licensing, Access to Essential Medicines, HIV/AIDS, Rwanda, Canada, World Trade Organization, TRIPS Agreement 1994, Doha Declaration on the TRIPS Agreement and Public Health 2001, WTO General Council Decision 2003, Jean Chretien Pledge to Africa Act 2004

Abstract:
This article considers the ongoing debate over the appropriation of well-known and famous trade marks by the No Logo Movement for the purposes of political and social critique. It focuses upon one sensational piece of litigation in South Africa, Laugh It Off Promotions v. South African Breweries International (Finance) B.V. t/a Sabmark International. In this case, a group called Laugh It Off Promotions subjected the trade marks of the manufacturers of Carling Beer were subjected to parody, social satire, and culture jamming. The beer slogan "Black Label" was turned into a T-Shirt entitled "Black Labour/ White Guilt". In the ensuing litigation, the High Court of South Africa and the Supreme Court of Appeal were of the opinion that the appropriation of the mark was a case of hate speech. However, the Constitutional Court of South Africa disagreed, finding that the parodies of a well-known, famous trade mark did not constitute trade mark dilution. Moseneke J observed that there was a lack of evidence of economic or material harm; and Sachs J held that there is a need to provide latitude for parody, laughter, and freedom of expression. The decision of the Constitutional Court of South Africa provides some important insights into the nature of trade mark dilution, the role of parody and satire, and the relevance of constitutional protections of freedom of speech and freedom of expression. Arguably, the ruling will be of help in the reformation of trade mark dilution law in other jurisdictions - such as the United States. The decision in Laugh It Off Promotions v. South African Breweries International demonstrates that trade mark law should not be immune from careful constitutional scrutiny.

Abstract:
It's akin to the old Spanish, English and Portuguese explorers. They would take their boats until they found some edge of land, then they would go up and plant the flag of their king or queen. They didn't know what they'd discovered; how big it is, where it goes to - but they would claim it anyway. David Korn of the Association of American Medical Colleges

This article analyses recent litigation over patent law and expressed sequence tags (ESTs). In the case of In re Fisher, the United States Court of Appeals for the Federal Circuit engaged in judicial consideration of the revised utility guidelines of the United States Patent and Trademark Office (USPTO). In this matter, the agricultural biotechnology company Monsanto sought to patent ESTs in maize plants. A patent examiner and the Board of Patent Appeals and Interferences had doubted whether the patent application was useful. Monsanto appealed against the rulings of the USPTO. A number of amicus curiae intervened in the matter in support of the USPTO - including Genentech, Affymetrix, Dow AgroSciences, Eli Lilly, the National Academy of Sciences, and the Association of American Medical Colleges. The majority of the Court of Appeals for the Federal Circuit supported the position of the USPTO, and rejected the patent application on the grounds of utility. The split decision highlighted institutional tensions over the appropriate thresholds for patent criteria - such as novelty, non-obviousness, and utility. The litigation raised larger questions about the definition of research tools, the incremental nature of scientific progress, and the role of patent law in innovation policy. The decision of In re Fisher will have significant ramifications for gene patents, in the wake of the human genome project. Arguably, the USPTO utility guidelines need to be reinforced by a tougher application of the standards of novelty and non-obviousness in respect of gene patents.

Gene patents, expressed sequence tags, utility guidelines

Abstract:
"4,400 people die every day of AIDS in sub-Saharan Africa. Treatment exists. In about 60 days, a patient can go from here to here. We call this transformation the Lazarus Effect. It is the result of two pills a day taken by a HIV/AIDS patient for about 60 days. Learn more about how you can help give people the chance of life and joinred.com."

The Lazarus Effect video, the (RED) Campaign.

This Chapter explores how a number of non-government organizations, charities, and philanthropists have promoted 'grants' as a means of stimulating investment in research and development into neglected diseases. Each section considers the nature of the campaign; the use of intellectual property rights, such as trade marks; and the criticisms made of such endeavors. Part II looks at the (RED) Campaign, which is designed to boost corporate funding and consumer support for the Global Fund. Part III examines the role of the Gates Foundation in funding research and development in respect of infectious diseases. It explores the championing by Bill Gates of 'creative capitalism'. Part IV considers the part of the Clinton Foundation in the debate over access to essential medicines. The Chapter concludes that, despite their qualities, such marketing initiatives fail to address the underlying inequalities and injustices of international patent law.

ACcess to Medicines, Trade Mark Law, Celebrity Rights, the (RED) Campaign, the Gates Foundation, the Clinton Foundation, creative capitalism

Abstract:
The draft negotiating text on long-term co-operative action under the United Nations Framework on Climate Change FCCC/AWGLCA/2009/8; the Foreign Relations Authorization Act, Fiscal Years 2010 and 2011 HR 2410 (United States); the American Clean Energy and Security Act of 2009 HR 2454 (United States); the Foreign Operations, and Related Programs Appropriations Act 2010 HR. 3081 (United States); and the TRIPS Agreement 1994.

In the lead-up to the discussions over IP and climate change in Copenhagen in 2009, the US House of Representatives passed a resolution that it should be the policy of US government officials in discussions over the long-term action under the United Nations Framework on Climate Change to ‘prevent any weakening of, and ensure robust compliance with and enforcement of, existing international legal requirements as of the date of the enactment of this Act for the protection of IP rights related to energy or environmental technology’.

Intellectual Property, Climate Change, Clean Technology, Patent Subject Matter, Compulsory Licensing, Technology Transfer, US Protectionism

Abstract:
Historically, there have been intense conflicts over the ownership and exploitation of pharmaceutical drugs and diagnostic tests dealing with infectious diseases.

Throughout the 1980’s, there was much scientific, legal, and ethical debate about which scientific group should be credited with the discovery of the human immunodeficiency virus, and the invention of the blood test devised to detect antibodies to the virus. In May 1983, Luc Montagnier, Françoise Barré-Sinoussi, and other French scientists from the Pasteur Institute in Paris, published a paper in Science, detailing the discovery of a virus called lymphadenopathy (LAV). A scientific rival, Robert Gallo of the National Cancer Institute, identified the AIDS virus and published his findings in the May 1984 issue of Science. In May 1985, the United States Patent and Trademark Office awarded the American patent for the AIDS blood test to Gallo and the Department of Health and Human Services. In December 1985, the Institut Pasteur sued the Department of Health and Human Services, contending that the French were the first to identify the AIDS virus and to invent the antibody test, and that the American test was dependent upon the French research.

In March 1987, an agreement was brokered by President Ronald Reagan and French Prime Minister Jacques Chirac, which resulted in the Department of Health and Human Services and the Institut Pasteur sharing the patent rights to the blood test for AIDS. In 1992, the Federal Office of Research Integrity found that Gallo had committed scientific misconduct, by falsely reporting facts in his 1984 scientific paper. A subsequent investigation by the National Institutes of Health, the United States Congress, and the US attorney-general cleared Gallo of any wrongdoing.

In 1994, the United States government and French government renegotiated their agreement regarding the AIDS blood test patent, in order to make the distribution of royalties more equitable...

The dispute between Luc Montagnier and Robert Gallo was not an isolated case of scientific rivalry and patent races. It foreshadowed further patent conflicts over research in respect of HIV/AIDS. Michael Kirby, former Justice of the High Court of Australia diagnosed a clash between two distinct schools of philosophy - ‘scientists of the old school... working by serendipity with free sharing of knowledge and research’, and ‘those of the new school who saw the hope of progress as lying in huge investments in scientific experimentation.’ Indeed, the patent race between Robert Gallo and Luc Montagnier has been a precursor to broader trade disputes over access to essential medicines in the 1990s and 2000s. The dispute between Robert Gallo and Luc Montagnier captures in microcosm a number of themes of this book: the fierce competition for intellectual property rights; the clash between sovereign states over access to medicines; the pressing need to defend human rights, particularly the right to health; and the need for new incentives for research and development to combat infectious diseases as both an international and domestic issue.

Access to Essential Medicines, International Trade Law, Innovation, Intellectual Property, Human Rights, Public Law, International Law

Abstract:
Introduction

Access to Essential Medicines: Public Health and International Law

Professor Thomas Pogge, Dr Matthew Rimmer, and Professor Kim Rubenstein

Part I International Trade

1. TRIPS and Essential Medicines: Must One Size Fit All? Making the WTO Responsive to the Global Health Crisis

Professor Rochelle Cooper Dreyfuss, New York University

2. The TRIPS Waiver as a Recognition of Public Health Concerns in the WTO

Associate Professor Andrew Mitchell and Associate Professor Tania Voon, University of Melbourne

3. Public Law Challenges to the Regulation of Pharmaceutical Patents in the US Bilateral Free Trade Agreements

Dr Hitoshi Nasu, The Australian National University

4. Global Health and Development: Patents and Public Interest

Associate Professor Elizabeth Siew Kuan Ng, National University of Singapore

Part II Innovation

5. The Health Impact Fund: Boosting Innovation without Obstructing Free Access

Professor Thomas Pogge, Yale University and The Australian National University

6. The Health Impact Fund: A Critique

Dr Kathleen Liddell, University of Cambridge

7. A Prize System as a Partial Solution to the Health Crisis in the Developing World

Professor William W. Fisher and Talha Syed, Harvard Law School

8. Innovation and Insufficient Evidence: The Case for a WTO-WHO Agreement on Health Technology Safety and Cost-Effectiveness Evaluation

Associate Professor Thomas Faunce, The Australian National University

Part III Intellectual Property

9. Opening the Dam: Patent Pools, Innovation, and Access to Essential Medicines

Professor Dianne Nicol and Dr Jane Nielsen, University of Tasmania

10. Open Source Drug Discovery: A Revolutionary Paradigm or a Utopian Model?

Dr Krishna Ravi Srinivas, Research Information System for Developing Countries (RIS), India

11. Accessing and Benefit Sharing Avian Influenza Viruses through the World Health Organisation: a CBD and TRIPS Compromise thanks to Indonesia’s Sovereignty Claim?

Dr Charles Lawson, Griffith University Faculty of Law and Associate Professor Barbara Hocking, Queensland University of Technology

12. The Lazarus Effect: The (RED) Campaign and Creative Capitalism

Dr Matthew Rimmer, The Australian National University

Part IV Health-Care

13. Beyond TRIPS: The Role of Non-state Actors and Access to Essential Medicines

Professor Noah Benjamin Novogrodsky, University of Toronto

14. Securing Health Through Rights

Katharine Young, Harvard University

15. The Role of National laws in Reconciling Constitutional Right to Health with TRIPS Obligations: An Examination of the Glivec Patent Case in India

Dr Rajshree Chandra, Delhi University

16. Tipping Point: Thai Compulsory Licenses Redefine Essential Medicines Debate

Jonathan Burton-MacLeod, The Australian National University

Bibliography

Access to Essential Medicines, International Trade Law, Innovation, Intellectual Property, Health-care, Public Law, International Law

Abstract:
This chapter considers the legal ramifications of Wikipedia, and other online media, such as the Encyclopedia of Life. Nathaniel Tkacz (2007) has observed: 'Wikipedia is an ideal entry-point from which to approach the shifting character of knowledge in contemporary society.' He observes: 'Scholarship on Wikipedia from computer science, history, philosophy, pedagogy and media studies has moved beyond speculation regarding its considerable potential, to the task of interpreting - and potentially intervening in - the significance of Wikipedia's impact' (Tkacz 2007). After an introduction, Part II considers the evolution and development of Wikipedia, and the legal troubles that have attended it. It also considers the establishment of rival online encyclopedia - such as Citizendium set up by Larry Sanger, the co-founder of Wikipedia; and Knol, the mysterious new project of Google. Part III explores the use of mass, collaborative authorship in the field of science. In particular, it looks at the development of the Encyclopedia of Life, which seeks to document the world's biodiversity.

This chapter expresses concern that Wiki-based software had to develop in a largely hostile and inimical legal environment. It contends that copyright law and related fields of intellectual property need to be reformed in order better to accommodate users of copyright material (Rimmer 2007). This chapter makes a number of recommendations. First, there is a need to acknowledge and recognize forms of mass, collaborative production and consumption - not just individual authorship. Second, the view of a copyright 'work' and other subject matter as a complete and closed piece of cultural production also should be reconceptualised. Third, the defense of fair use should be expanded to accommodate a wide range of amateur, peer-to-peer production activities - not only in the United States, but in other jurisdictions as well. Fourth, the safe harbor protections accorded to Internet intermediaries, such as Wikipedia, should be strengthened. Fifth, there should be a defense in respect of the use of 'orphan works' - especially in cases of large-scale digitization. Sixth, the innovations of open source licensing should be expressly incorporated and entrenched within the formal framework of copyright laws. Finally, courts should craft judicial remedies to take into account concerns about political censorship and freedom of speech.

Wikipedia, The Encyclopedia of Life, Copyright Law, Open Source Licensing, Creative Commons

Abstract:
The famous wine region of Coonawarra in South Australia has been promoted as 'Australia's other Red Centre', emphasizing its terra rossa soil and its cabernet sauvignon. In his atlas of the wine regions of Australia, John Beeston comments upon the rich and contested history of the region: 'Coonawarra is certainly the most famous cabernet sauvignon region in Australia, and some would argue, the most renowned wine region in Australia per se'. A reporter, Penelope Debelle, captures a sense of the legal conflict over the parameters of the boundaries of Coonawarra: 'Behind the name Coonawarra, an inglorious contest is being waged that pits the romance of South Australia's terra rossa cool-climate wine region against the cold commercial reality of the label.'

This Chapter tells the story behind the Coonawarra litigation, addressing the parties to the dispute; the legal and historical context of the case; and the immediate impact case, as well as its lingering significance. It considers the 'Coonawarra' case as, very literally, a landmark in Australian jurisprudence in respect of intellectual property. This chapter engages in the methodology of 'legal storytelling'. In the field of new historicism, the use of anecdotes - petite histoire - has been seen as a useful way of challenging grand historical narratives. Joel Fineman has observed that the anecdote is 'the literary form or genre that uniquely refers to the real.' This chapter has three parts. Part 1 outlines the European Community - Australia Wine Agreement 1994, and the operation of the Australian Wine and Brandy Corporation Act 1980 (Cth). Part 2 considers the various stages of the dispute over the Coonawarra region - moving from the decision of the Geographical Indications Committee, to the ruling of the Administrative Appeals Tribunal; and the conclusive decision of the Full Court of the Federal Court of Australia. Part 3 examines the implications of the Coonawarra litigation for other wine regions of Australia - most notably, the King Valley in Victoria; but also the Hunter Valley in the New South Wales; and the Margaret River in Western Australia. The conclusion considers the ramifications of the European Community-Australia Wine Agreement 2007, which has been initialed by both sides.

Geographical Indications, Trade Mark Law, Appellations of Origin, Coonawarra, King Valley, Agreement Between Australia and the European Community on Trade in Wine

Abstract:
This book documents and evaluates the dramatic expansion of intellectual property law to accommodate various forms of biotechnology from micro-organisms, plants, and animals to human genes and stem cells. It makes a unique theoretical contribution to the controversial public debate over the commercialisation of biological inventions.

The author also considers the contradictions between the Supreme Court of Canada rulings in respect of the Harvard Oncomouse, and genetically modified canola. He explores law, policy, and practice in both Australia and New Zealand in respect to gene patents and non-coding DNA. This study charts the rebellion against the European Union Biotechnology Directive - particularly in respect of Myriad Genetics' BRCA1 and BRCA2 patents, and stem cell patent applications. The book also considers whether patent law will accommodate frontier technologies - such as bioinformatics, haplotype mapping, proteomics, pharmacogenomics, and nanotechnology.

Intellectual Property and Biotechnology will be of prime interest to lawyers and patent attorneys, scientists and researchers, business managers and technology transfer specialists.

Introduction

1. Anything Under the Sun: Patent Law and Micro-Organisms

2. Franklin Barley: Patent Law and Plant Breeder's Rights

3. The Human Chimera Patent Initiative: Patent Law and Animals

4. The Storehouse of Knowledge: Patent Law, Scientific Discoveries, and Products of Nature

5. The Book of Life: Patent Law and the Human Genome Project

6. The Dilettante's Defence: Patent Law, Research Tools, and Experimental Use

7. The Utah Saints: Patent Law and Genetic Testing

8. The Alchemy of Junk: Patent Law and Non-Coding DNA

9. Still Life with Stem Cells: Patent Law and Human Embryos

Conclusion. Blue Sky Research: Patent Law and Frontier Technologies

Reviews

"Rimmer's new book is a timely and very thought-provoking analysis of patent law and biotechnology and asks a very serious question: can a 19th century patent system adequately deal with a 21st century industry".

Kate McDonald, Australian Life Scientist

"Rimmer's book provides a valuable resource in addressing these questions and incorporates an extensive bibliography and several annotated chapters that run the gambit from stem cells to medical diagnostics. He utilises a strongly comparative approach, often first tracing the historical development of certain basic patent doctrines, and analysing the approach various jurisdictions, generally Canada, the US, and Australia, have taken with regards to biological inventions... Throughout Rimmer presents a panorama of some of the most important issues related to patents and biotechnology. A reader will likely be intrigued to see which way the pendulum swings on these issues in the near future. In conclusion, Rimmer's book is highly recommended for anyone interested in the issues and debate related to biological inventions, regardless of which side the reader is on."

Stefan Miller, Journal of Commercial Biotechnology

"This book gives an excellent account of the most celebrated biotechnology cases from three continents, and for this alone is to be thoroughly recommended. Intellectual property practitioners, who do not agree with the author's conclusions, should be able and willing to say why - only then can the patent profession itself play a role in influencing public opinion on these controversial issues."

David Rogers, the European Intellectual Property Review.

"Considering the technical nature of the topic and the unfamiliarity with its vocabulary to most readers, the author has done an extremely good job. He explains the subject in an open, accessible manner and leads the reader from the known to the unknown rather than dropping him into the middle of it. "

Jeremy Phillips, IP Kat

"Rimmer seeks to air the theories that abound, discuss them and see not only what he concludes himself from his extensive reading and research (the bibliography runs to an impressive 55 pages), but also to throw out some questions to the reader. He includes some fun and diverting quotes... Rimmer has put a great deal of thought and effort into this series of chapters. For those looking at how to reform, direct and develop laws in relation to biotechnology, this book is brimming with ideas, suggestions and recommendations of what to do next."

Rebecca Halford-Harrison, the Chartered Institute of Patent Agents Journal

Patent Law, Micro-organisms, Plant Breeders' Rights, GM Crops, Transgenic animals, Human-Animal Chimera, Scientific Discoveries, Abstract Ideas, Methods of Human Treatment, Gene Patents, ESTs, Research Tools, Experimental Use, Genetic Testing, Non-Coding DNA, Stem Cell Patents, Frontier Technologies

Abstract:
This article considers the debate over patent law, informed consent, and benefit-sharing in the context of biomedical research in respect of Indigenous communities. In particular, it focuses upon three key controversies over large-scale biology projects, involving Indigenous populations. These case studies are representative of the tensions between research organisations, Indigenous communities, and funding agencies. Section two considers the aims and origins of the Human Genome Diversity Project, and criticisms levelled against the venture by Indigenous peak bodies and anti-biotechnology groups, such as the Rural Advancement Foundation International. It examines the ways in which the United Nations Educational, Scientific, and Cultural Organization (UNESCO) grappled with questions of patent law, informed consent, and benefit sharing in relation to population genetics. Section three focuses upon the ongoing litigation in Tilousi v. Arizona State University, and the Havasupai Tribe v. Arizona State University. In this matter, the Havasupai tribe from the Grand Canyon in the United States brought legal action against the Arizona State University and its researchers for using genetic data for unauthorised purposes - namely, genetic research into schizophrenia, migration, and inbreeding. The litigation raises questions about informed consent, negligence, and larger matters of human rights. Section four explores the legal and ethical issues raised by the Genographic Project. It considers the aims and objectives of the venture, and the criticisms levelled against it by Indigenous communities, and anti-biotechnology groups. It examines the response of the United Nations Permanent Forum on Indigenous Issues to the Genographic Project. It charts the debate over the protection of traditional knowledge in various international fora. The conclusion recommends a number of measures to better regulate large-scale biology projects involving the participation of Indigenous communities.

Patent law, informed consent, benefit-sharing, traditional knowledge, UNESCO, Big Science projects, Human Genome Diversity Project, Arizona State University research on the Havasupai Tribe, Genographic Project

Abstract:
This book documents and evaluates the growing consumer revolution against digital copyright law, and makes a unique theoretical contribution to the debate surrounding this issue.

With a focus on recent US copyright law, the book charts the consumer rebellion against the Sonny Bono Copyright Term Extension Act 1998 (US) and the Digital Millennium Copyright Act 1998 (US). The author explores the significance of key judicial rulings and considers legal controversies over new technologies, such as the iPod, TiVo, Sony Playstation II, Google Book Search, and peer-to-peer networks. The book also highlights cultural developments, such as the emergence of digital sampling and mash-ups, the construction of the BBC Creative Archive, and the evolution of the Creative Commons.

Digital Copyright and the Consumer Revolution will be of prime interest to academics, law students and lawyers interested in the ramifications of copyright law, as well as policy-makers given its focus upon recent legislative developments and reform proposals. The book will also appeal to librarians, information managers, creative artists, consumers, technology developers, and other users of copyright material.

Table of Contents

Introduction

1. The dead poets society: copyright term and the public domain

2. Remote control: time-shifting and space-shifting

3. The privateers of the information age: copyright law and peer-to-peer networks

4. The grey album: copyright law, digital sampling, and mash-ups

5. Grand turismo in the high court: copyright law and technological protection measures

6. Agent smith and the matrix: copyright law and intermediary liability

7. Google: search or destroy?

8. Remix culture: the creative commons and its discontents

Conclusion. A consumer's manifesto: the declaration of innovation independence

Reviews:

"This book, which has a structure that flows with concinnity and concision, makes it easy to navigate some of the most complicated and controversial issues surrounding copyright law and the digital age. Rimmer makes a cogent argument for a growing consumer revolution against digital copyright law, depicting how the interests of the consumer can often be overshadowed in the legal arena."

Lisa Wong, Osgoode Hall Law Journal

"Rimmer's Hands Off My iPod is a comprehensive and detailed analysis of current problems facing copyright holders as they struggle (and often fumble) to find a balance between profiting off their property and keeping the newly-powerful, increasingly agile user happy."

Adam Sulewski, Journal of High Technology Law

'This book provides food for two schools of thought: those who are trying to predict how the new economy will affect legislation, and those who are keen to stay one step ahead of the (post)modern infringer.'

Matthew Packer, IP Review

"This engaging account of US copyright law (and copyright wars) is thorough and informative... The author's interest in copyright law, is, as he says, 'a longstanding one', fostered predominantly in Australian academic institutions. His deep understanding of the subject matter, as well as his profound empathy with consumers, are evident throughout the work; the book will, no doubt, foster a similar interest in another generation of copyright law scholars."

Louise Buckingham, Copyright Reporter

"Digital Copyright and the Consumer Revolution... is a crucial vade mecum on the ever evolving "global maze of case law and copyright reform."

Colin Steele, Australian Library Journal

Copyright Law, Consumer Rights, Copyright Term Extension, Time-Shifting and Space-Shifting, Peer-to-Peer Networks, Mash-ups, Technological Protection Measures, Safe Harbours for ISPs, Google and Search Engines, the Creative Commons

Abstract:
This article considers whether the granting of patents in respect of biomedical genetic research should be conditional upon the informed consent of research participants. It focuses upon several case studies. In Moore v the Regents of the University Of California, a patient sued his physician for breach of fiduciary duty and lack of informed consent, because the doctor had obtained a patent on the patient's cell line, without the patient's authorisation. In Greenberg v Miami Children's Hospital, the research participants, the Greenbergs, the National Tay Sachs and Allied Diseases Association, and Dor Yeshorim brought a legal action against the geneticist Reubon Matalon and the Miami Children's Hospital over a patent obtained on a gene related to the Canavan disease and accompany genetic diagnostic test. PXE International entered into a joint venture with Charles Boyd and the University of Hawaii, and obtained a patent together for 'methods for diagnosing Pseudoxanthoma elasticum'. In light of such case studies, it is contended that there is a need to reform patent law, so as to recognise the bioethical principles of informed consent and benefit-sharing. The 2005 UNESCO Declaration on Bioethics and Human Rights provides a model for future case law and policy-making.

Patent Law, Genetic Diagnostic Testing, Research Participants, Informed Consent, Benefit-Sharing, Bioethics, Human Rights

Abstract:
In response to scientific breakthroughs in biotechnology, the development of new technologies, and the demands of a hungry capitalist marketplace, patent law has expanded to accommodate a range of biological inventions. There has been much academic and public debate as to whether gene patents have a positive impact upon research and development, health-care, and the protection of the environment.

In a satire of prevailing patenting practices, the English poet and part-time casino waitress, Donna MacLean, sought a patent application - GB0000180.0 - in respect of herself. She explained that she had satisfied the usual patent criteria - in that she was novel, inventive, and useful:

It has taken 30 years of hard labor for me to discover and invent myself, and now I wish to protect my invention from unauthorized exploitation, genetic or otherwise. I am new: I have led a private existence and I have not made the invention of myself public. I am not obvious (2000: 18).

MacLean said she had many industrial applications. 'For example, my genes can be used in medical research to extremely profitable ends - I therefore wish to have sole control of my own genetic material' (2000: 18). She observed in an interview: 'There's a kind of unpleasant, grasping, greedy atmosphere at the moment around the mapping of the human genome ... I wanted to see if a human being could protect their own genes in law' (Meek, 2000).

This special issue of Law in Context charts a new era in the long-standing debate over biological inventions. In the wake of the expansion of patentable subject matter, there has been great strain placed upon patent criteria - such as 'novelty', 'inventive step', and 'utility'. Furthermore, there has been a new focus upon legal doctrines which facilitate access to patented inventions - like the defence of experimental use, the 'Bolar' exception, patent pooling, and compulsory licensing. There has been a concerted effort to renew patent law with an infusion of ethical principles dealing with informed consent and benefit sharing. There has also been a backlash against the commercialisation of biological inventions, and a call by some activists for the abolition of patents on genetic inventions.

This collection considers a wide range of biological inventions - ranging from micro-organisms, plants and flowers and transgenic animals to genes, express sequence tags, and research tools, as well as genetic diagnostic tests and pharmaceutical drugs. It is thus an important corrective to much policy work, which has been limited in its purview to merely gene patents and biomedical research. This collection compares and contrasts the various approaches of a number of jurisdictions to the legal problems in respect of biological inventions. In particular, it looks at the complexities of the 1998 European Union Directive on the Legal Protection of Biotechnological Inventions, as well as decisions of member states, such as the Netherlands, and peripheral states, like Iceland. The edition considers US jurisprudence on patent law and policy, as well as recent developments in Canada. It also focuses upon recent developments in Australia - especially in the wake of parallel policy inquiries into gene patents and access to genetic resources.

Introduction
After the Gold Rush: Patent Law and Biological Inventions
Matthew Rimmer

1. European Bio-Protection Laws: Rebels with a Cause
Margaret Llewelyn

2. Essential Derivation, Law, and the Limits of Science
Jay Sanderson

3. Rules v. Standards for Patent Law in the Plant Sciences
Mark D. Janis

4. Wind of Change: In re. Fisher and the Evolution of the American Biotechnology Patent Law
Yann Joly

5. Cooperative Strategies for Facilitating Use of Patented Inventions in Biotechnology
Dianne Nicol and Janet Hope

6. Something is Rotten in the State of Iceland: DeCODE Genetics, Population Research and Informed Consent
Jennifer French

7. Regulating Access to Biological Resources: The Market Failure for Biodiversity Conservation
Charles Lawson

Patent Law, Biotechnology, Genetics, Micro-organisms, Plants, Animals, Research Tools, the Anti-Commons, Benefit-Sharing and Informed Consent.

Abstract:
This article examines a series of controversies within the life sciences over data sharing. Part 1 focuses upon the agricultural biotechnology firm Syngenta publishing data on the rice genome in the journal Science, and considers proposals to reform scientific publishing and funding to encourage data sharing. Part 2 examines the relationship between intellectual property rights and scientific publishing, in particular copyright protection of databases, and evaluates the declaration of the Human Genome Organisation that genomic databases should be global public goods. Part 3 looks at varying opinions on the information function of patent law, and then considers the proposals of Patrinos and Drell to provide incentives for private corporations to release data into the public domain.

Intellectual property, genomics, scientific publishing, data-sharing, rice and staple crops, food security, copyright law, scientific databases, patent law, research exemption

Abstract:
This article evaluates the implementation of the WTO General Council Decision in 2003, which resolved that developed nations could export patented pharmaceutical drugs to member states in order to address public health issues - such as HIV/AIDS, tuberculosis, malaria and other epidemics. The Jean Chretien Pledge to Africa Act 2004 (Canada) provides authorisation for the export of pharmaceutical drugs from Canada to developing countries to address public health epidemics. The European Union has issued draft regulations governing the export of pharmaceutical drugs. A number of European countries - including Norway, the Netherlands, France, and Switzerland - are seeking to pass domestic legislation to give force to the WTO General Council Decision. Australia has shown little initiative in seeking to implement such international agreements dealing with access to essential medicines. It is argued that Australia should implement humanitarian legislation to embody the WTO General Council Decision, emulating models in Canada, Norway, and the European Union. Ideally, there should be no right of first refusal; the list of pharmaceutical drugs should be open-ended; and the eligible importing countries should not be limited to members of the WTO.

Patent Law, Pharmaceutical Drugs, Compulsory Licensing, World Trade Organization, Doha Declaration on the TRIPS Agreement and Public Health, WTO General Council Decision, Access to Essential Medicines, HIV/AIDS, Tuberculosis, Malaria

Abstract:
This article considers the origins and the development of the defence of experimental use in patent law - the 'freedom to tinker'. It explores the impact of such an exemption upon a number of important industries - such as agriculture, biotechnology, and pharmaceutical drugs. This article takes a comparative approach in its analysis of patent law and experimental use. It highlights the competing norms, and lack of harmonization between a number of jurisdictions - including the United States, the European Union, and Australia. Section 2 provides a critique of the development of the common law defence of experimental use in the United States. It considers a series of precedents - including Roche Products Inc v Bolar Pharmaceuticals, Madey v Duke University, Integra Lifesciences I Ltd v Merck KgaA, and Applera v MJ Research. Section 3 explores the operation of patent law and experimental use in European jurisdictions. It looks at a number of significant precedents in the United Kingdom, the Netherlands, France, Italy, and Germany. Section 4 considers the policy debate in a number of forums over the defence of experimental use in Australia. It examines the controversy over Genetic Technologies Limited asking research organisations to obtain a licence in respect of its patents associated with non-coding DNA and genomic mapping. It also considers the inquiries of the Australian Law Reform Commission and the Advisory Council on Intellectual Property, as well as the impact of the TRIPS Agreement and the Australia-United States Free Trade Agreement. The conclusion contends that there is a need for a broad-based defence of experimental use for all the member states of the Organisation for Economic Co-operation and Development.

Patent Law, Experimental Use, Research Exemption, Philosophical Inquiry, Experimental Purposes, Bona Fide Research, Public Research, Agriculture, Biotechnology, Pharmaceutical Drugs

Abstract:
This article considers the efforts of the Australian Law Reform Commission to clarify the meaning of section 18(2) of the Australian Patents Act 1990 (Cth): 'Human beings and the biological processes for their generation are not patentable inventions.' It provides a critique of the proposals of the Commission with respect to patent law and stem cell research. The Commission has recommended that IP Australia should develop examination guidelines to explain how the criteria for patentability apply to inventions involving stem cell technologies. It has advised the Australian Government that the practice code of the United Kingdom Patent Office (UKPO) would be a good model for such guidelines, with its distinction between totipotent and pluripotent stem cells. Arguably, though, there is a need to codify this proposal in a legislative directive, and not merely in examination guidelines. The Commission has been reluctant to take account of the ethical considerations with respect to patent law and stem cell research. There could be greater scope for such considerations, by the use of expert advisory boards, opposition proceedings and the requirement of informed consent. The Commission has put forward a number of general and specific recommendations to enhance access to patented stem cell technologies. It recommends the development of a research exemption, and the modernisation of compulsory licensing and crown use provisions. It also explores the establishment of a stem cell bank and the promulgation of guidelines by funding agencies. Such proposals to promote greater public access to stem cell research are to be welcomed.

Patent law, stem cell research, human cloning, patent administration, examination guidelines, law reform, research exemption, compulsory licensing, crown use, stem cell banks, funding guidelines

Abstract:
This article considers the integral role played by patent law in respect of stem cell research. It highlights concerns about commercialization, access to essential medicines and bioethics. The article maintains that there is a fundamental ambiguity in the Patents Act 1990 (Cth) as to whether stem cell research is patentable subject matter. There is a need to revise the legislation in light of the establishment of the National Stem Cell Centre and the passing of the Research Involving Embryos Act 2002 (Cth). The article raises concerns about the strong patent protection secured by the Wisconsin Alumni Research Foundation and Geron Corporation in respect of stem cell research in the United States. It contends that a number of legal reforms could safeguard access to stem cell lines, and resulting drugs and therapies. Finally, this article explores how ethical concerns are addressed within the framework of the European Biotechnology Directive. It examines the decision of the European Patent Office in relation to the so-called Edinburgh patent, and the inquiry of the European Group on Ethics in Science and New Technologies into The Ethical Aspects of Patenting Involving Human Stem Cells.

Patent law, stem cell research, human cloning, patent administration, examination guidelines, research exemption, compulsory licensing, competition law, European Biotechnology Directive, ethical objections

Abstract:
This paper considers the legal challenges to the legal validity of the patents held by Myriad Genetics in respect of genetic testing for breast cancer and ovarian cancer. It argues that broad-based patents on gene sequences and medical diagnostics will have a harmful effect upon access to patient care, genetic research, and the administration of public health care.

Patent law, genetic testing, inventorship, novelty, inventive step, utility, European Biotechnology Directive, ethical objections, research exemption, compulsory licensing

Abstract:
This article argues that copyright law is not just a creature of statute, but it is also a social and imaginative contruct. It evaluates a number of critiques of legal formalism. Part 1 examines whether the positive rules and principles of copyright law are the product of historical contingency and political expediency. Part 2 considers the social operation of copyright law in terms of its material effects and cultural significance. Part 3 investigates the future of copyright law, in light of the politics of globalisation and the impact of new information technologies.

Copyright law, legal theory, new historicism, cultural studies, cyber-law, globalisation

Abstract:
Back in the 1996, the World Intellectual Property Organisation promulgated internet treaties to help protect copyright owners in the digital environment. The United States passed the Digital Millennium Copyright Act 1998 (US) to comply with its treaty obligations; and Australia has spasmodically revised its copyright laws in 2000, 2004, and 2006 to deal with new technological developments.

Such a regime has been ill-adapted to deal with a new generation of Internet services - described by the open source publisher, Tim O'Reilly, as Web 2.0 - which have encouraged users to create, share, and remix content. The term, Web 2.0, has been applied to the internet video site YouTube, the online community MySpace, the open access encyclopedia Wikipedia, and the digital photography site Flickr.

Recent litigation between Viacom International and YouTube has highlighted the tensions between anachronistic digital copyright laws and new Web 2.0 sites.

Copyright Law, Internet Videos, Web 2.0, YouTube, Viacom International