Creating an Innovation Exception? Copyright Law as the Infrastructure for Innovation

Innovation is clearly essential for economic growth, cultural development and personal autonomy. Yet the relationship between innovation and copyright law in Australia is uncertain and perhaps overly restrictive. After the Australia-United States Free Trade Agreement Australia now has a copyright regime that can broadly be
described as a lock up and lock out scheme. Whilst the Australian Government has paid lip service to innovation the Australian Copyright Act, which provides the essential legal infrastructure for innovation, now privileges the rights of owners over the interests of the public. In particular, the Copyright Act neglects to create a specific exception for technology innovation. If there is to be some coherence in Australia
thinking with regards to innovation and copyright policy it is crucial that such an exception be created. Arguably, it is possible that such an exception can withstand the scrutiny of the three step test. At present the only ‘exception’ that can be said to exist is in the form of the limits of the authorisation liability provisions or the ISP safe harbour scheme. Australian copyright law needs something more substantial than that
and needs for there to be a clear hierarchy between the exceptions and the liability provisions.

At the crossroads : the relationship between heritage and intellectual property in traditional knowledge protection in Southeast Asia

Matters related to traditional knowledge (TK) and traditional cultural expressions (TCEs) are 'at the crossroads' in various respects. From a legal perspective, TK is discussed in several international forums and is at the intersection of several already established or still emerging fields of law. Of particular interest here is the relationship between heritage and intellectual property. It is discussed in international diplomatic negotiations on intellectual property (IP) protection for TK/TCEs in the context of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore of the World Intellectual Property Organization (WIPO) and in the context of the UNESCO Convention for the Safeguarding of Intangible Cultural Heritage. Geographically, TK is also located 'at the crossroads'. It is linked to cultural spaces associated with certain peoples and certain territories and these are often not identical with the borders of nation states. Such borders are a colonial artefact that often fails to reflect the ethno-geographical reality of a region. The divergent national and ethnic boundaries create overlapping claims in situations that may be further complicated by both ancient and modern transmigrations and/or shared heritage. The Southeast Asian region, which is the geographical focus of this article, has been at the crossroads of trade and religious and cultural influences for centuries and it provides, therefore, excellent examples for such overlapping cultural spaces and resulting conflicting or competing claims. The article examines the legal and geographical intersections that have contributed to the current situation and the relationship between cultural and intellectual property in regional claims as well as examples of disputes that have arisen and the reasons for them.

Professional artists in Vietnam : intellectual property rights, economic and cultural sustainability

The article outlines the legal context for Vietnamese artists that is not discussed in other literature, including the scarcity of data on the art market, the reasons for failure to enforce intellectual property (IP) rights and legal contracts, and the rapid growth of private-sector art dealing that makes an examination of the legal context so essential. The author's field research in Vietnam since 2003 is linked to analyses of Vietnam's art market and to civil codes and other international agreements that determine professional artists’ IP rights. This illustrates the reasons why IP rights have not been enforced or arbitrated in Vietnam. The author includes a discussion of the importance of enforcing IP law for the maintenance of artists’ incomes and careers, the development of a national art market, and for innovation and cultural sustainability in Vietnam.

Intellectual property law in Southeast Asia : Recent legislative and institutional developments

Over the last few decades, countries belonging to the Association of Southeast Asian Nations (ASEAN) all had to revise their intellectual property systems. These revisions resulted at first from bilateral pressure of major trading partners such as the US and EU, then from the WTO-TRIPS Agreement and more recently from bilateral Free Trade Agreements. To observe the IP developments in ASEAN over this period is interesting, because this group of countries covers developed (Singapore), developing as well as least developed countries. All countries had to reform their outdated laws from the colonial era in very short time. However, in comparison to the early 1980s, important differences with regards to intellectual property policies have emerged in recent years.

This article will briefly sketch the developments in individual ASEAN countries and after that examine some broader trends in law making, IP administration, enforcement and the court system. It concludes that the ASEAN enlargement process has created a very diverse picture with regards to IP. With the fast pace of the legislative development, countries have been struggling to keep up with the creation of the institutional and administrative framework. Progress in the ASEAN harmonisation process has been limited. Statistics indicate that some of the new laws have been reasonably well received at the domestic level, while the patent sector remains foreign dominated.

Intellectual property, creativity and innovation : IP models and the political economy of developing Asia

In advanced capitalist societies, intellectual property laws protecting such subject matter as copyright and patents are justified by a combination of theories, which include the provision of economic incentives to foster creativity and innovation and the prevention of unfair competition. IP academics and policy makers have differing views about the appropriate balance between these objectives and public interest considerations such as health, education and the protection of the environment. These different views entered the policy debate in Asian developing countries in connection with an unprecedented introduction and expansion of IP laws over the last 25 years. This paper will use case studies of law reform from Asia, in particular Southeast Asia, to show that the policy considerations of governments in reforming their laws were often quite different from the standard rationale mentioned above. As much of the IP was, at least initially, held by foreigners and introduced to attract foreign investment, national development considerations were joined with the more commonly quoted objectives to promote the rights, creativity and innovation of individuals. Such national development objectives at times coincided and at other times collided with official explanations and received wisdom about the effects of stronger IP rights.

Especially in the early postcolonial period, copyright laws and other IP laws were frequently restricted or simply not implemented, if they conflicted with development policies in areas such as education or public health. Such policies were slowly changing in the wake of WTO-TRIPS and other international agreements. Nevertheless, the implementation and enforcement of the IP laws has been uneven. Specialised institutions such as courts and IP administering agencies compete with other branches of government and administration for limited funding and a rich repertoire of informal dispute settlement procedures has kept the number of court cases relatively low. In some countries, censorship laws have influenced freedom of expression and led to quite idiosyncratic interpretations of intellectual property laws. Governments often also retain a role in the assessment of licensing and technology transfer contracts. And while there are many programs to foster individual creativity, in most cases R & D activities are still largely taking place in government institutions and this has influenced the thinking about intellectual property rights and creativity in the context of employment.

The paper uses a few case studies to examine the implementation of IP laws in selected Asian developing countries to point to the quite different institutional setting for IP law reform in comparison to European or American models. It reaches some tentative conclusions as to the likely effects on creativity and innovation under these different circumstances.

Authorship, authenticity and intellectual property in Australian Aboriginal art

This article analyzes research and legal cases about authorship, authenticity, and intellectual property in Aboriginal art. The concepts of Aboriginality, authenticity, and ownership are used to show the complexities of Aboriginal law, legal copyright, and the moral rights framework. The clan ownership of Dreaming makes Aboriginal artists’ relationship different to other artists’ individual ownership of their work. Research on this topic by members of the Faculty of Business and Law unit of the Centre for Leisure Management Research at Deakin University was undertaken for the Australian Institute of Aboriginal and Torres Strait Islander Studies. This article provides significant contextual analyses of major issues leading to Commonwealth Government inquiries and legislation in Australia during 2006–8.

Traditional knowledge, traditional cultural expressions and intellectual property law in the Asia-Pacific region

Contents

* The international debate about traditional knowledge and approaches in the Asia-Pacific region / Christoph Antons
* How are the different views of traditional knowledge linked by international law and global governance? / Christopher Arup
* Protection of traditional knowledge by geographical indications / Michael Blakeney
* An analysis of WIPO's latest proposal and the Model Law 2002 of the Pacific Community for the Protection of Traditional Cultural Expressions / Silke von Lewinski
* The role of customary law and practice in the protection of traditional knowledge related to biological diversity / Brendan Tobin
* Can modern law safeguard archaic cultural expressions? : observations from a legal sociology perspective / Christoph Beat Graber
* Branding identity and copyrighting culture : orientations towards the customary in traditional knowledge discourse / Martin Chanock
* Being indigenous' in Indonesia and the Philippines / Gerard A. Persoon
* Indigenous heritage and the digital commons / Eric Kansa
* Traditional cultural expression and the internet world / Brian Fitzgerald and Susan Hedge
* Cultural property and "the public domain" : case studies from New Zealand and Australia / Susy Frankel and Megan Richardson
* The recognition of traditional knowledge under Australian biodiscovery regimes : why bother with intellectual property rights? / Natalie Stoianoff
* Protection of traditional knowledge in the SAARC region and India's efforts / S.K. Verma
* The protection of expressions of folklore in Sri Lanka / Indunil Abeyesekere
* Traditional medicine and intellectual property rights : a case study of the Indonesian jamu industry / Christoph Antons and Rosy Antons-Sutanto.

Australia’s position on medicines policy in international forums: Intellectual property protection and public health

Universal access to affordable medicines, which are safe, efficacious and of high quality, and which are appropriately used, depends on national legislation that is in turn constrained by a range of international agreements. This regulatory configuration also affects the profitability of the pharmaceutical industry, domestic and international. Tensions and contradictions between industry profitability and public health objectives relate to access, innovation and regulation.