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Australian Intellectual Property Journal
Volume 20, Number 1, March 2009
TOPIC OF INTEREST
ISPs and the authorisation of their customers' copyright exploitations
Licensing the manufacture of records: The current statutory licence and the alternative of collective administration
Part I of this article explores the development of the legal landscape in which records are made, highlighting that copyright statutes evolve in response to technological developments and industry pressure. Part II examines the case for and against the statutory licence. Part III argues that collective administration should be considered as an alternative to the statutory licence given that the possibilities of abuse of monopoly power by collecting societies have been dramatically reduced by developments over the past 15 years.
Custodians of traditional knowledge under the WIPO draft principles and objectives
This article examines the concept of ownership in relation to traditional knowledge holders. It provides a policy context for traditional knowledge and examines the form of protection proposed under WIPO's draft provisions. It establishes a clear definition of what constitutes traditional knowledge subject matter. This is critical to a discussion on ownership because beneficiaries of traditional knowledge protection are in part defined by reference to the subject matter of protection. The article explores the role of community and customary law in assessing the interests of intellectual property holders under WIPO's draft provisions. Finally, it reviews the legal status of traditional knowledge holders under existing regimes and draws conclusions on how best to characterise the interests of traditional knowledge holders.
Too many stitches in time? The Polo Lauren case, non-infringing accessories and the copyright/design overlap defence
This article discusses the recent Federal Court case, Polo/Lauren Co LP v Ziliani Holdings Pty Ltd  FCA 49 and the Full Federal Court appeal decision, Polo/Lauren Co LP v Ziliani Holdings Pty Ltd  FCAFC 195 (18 December 2008). Rares J held at first instance that the famous polo player logos embroidered on genuine imported Ralph Lauren t-shirts were "accessories" within the meaning of the defence to parallel importation in s 44C of the Copyright Act 1968 (Cth). Those findings were upheld on appeal by the Full Court. Rares J also held (obiter) that the "design-copyright overlap" defence under s 77 of the Copyright Act was available because the heavily stitched applications of the labels were "embodied" in the t-shirts and were thus corresponding designs. The Full Court held (obiter) that Rares J had erred on this point and that s 77 only applies to three-dimensional embodiments of an artistic work. This article summarises the courts' findings in relation to s 44C and identifies some issues arising from the court's interpretation of "label". It then concentrates on the obiter findings in relation to the design/copyright overlap provisions. The article closely explores the reasoning of the Full Court, identifies and discusses unresolved questions, and argues that the application of the overlap defence to articles such as embroidered labels is contrary to the policy underpinning the defence.
Contributory infringement under s 117 of the Patents Act 1990 (Cth): What suppliers need to know
"Use" means different things in the Patents Act 1990 (Cth), depending on whether the alleged use is in the context of secret use, or contributory infringement. Secret use requires the patentee to reap some commercial benefit amounting to a de facto extension of the patent term. The meaning of a use that would infringe in s 117(1) has been amplified by referring to the various uses of the product described in s 117(2): only use; intended use; and instructed use. Arguably, "reason to believe" in s 117(2)(b) implies actual knowledge, and s 117(2)(c) requires that an instructed use must knowingly induce infringement. This interpretation gives effect to IPAC's recommendation that the supply of a staple commercial product must be accompanied by an inducement to infringe in order to attract liability, it acknowledges the distinction IPAC drew between knowing goods will infringe and knowing they may possibly infringe, and it is consistent with the level of knowledge required for accessorial liability at common law. This has significant consequences for suppliers of goods who plead innocent infringement, because lack of knowledge of an infringing use is arguably a complete defence to contributory infringement.