The function of property in creating an effective legal regime for trade in environmental offsets

Market-based environmental regulation is becoming increasingly common within international and national frameworks. Environmental offset and trading regimes are part of the market-based instrument revolution. This paper proposes that environmental market mechanisms could be used to introduce an ethic of land holder responsibility. In order for market based regimes to attract sufficient levels of stakeholder engagement, participants within such scheme require an incentive to participate and furthermore need to feel a sense of security about investing in such processes. A sense of security is often associated with property based interests. This paper explores the property related issues connected with environmental offset and trading scheme initiatives. Relevant property-related considerations include land tenure considerations, public versus private management of land choices, characteristics and powers associated with property interests, theories defining property and the recognition of legal proprietal interests. The Biodiversity Banking Scheme in New South Wales is then examined as a case study followed by a critique on the role of environmental markets.

Early land grants and reservations : Any lessons from the Queensland experience for the sustainability challenge to land ownership

Environmentalists have called for a new property paradigm premised on the idea of land ownership as a delegated responsibility to manage land and resources for the public benefit. An examination of Crown freehold grants from the beginnings of settlement until the 1890s in Queensland shows that fee simple titles were granted subject to express conditions and reservations designed to reserve useful natural resources to the Crown, and to promote public purposes. Over time, legislative regulation of landowner’s rights rendered obsolete the use of express conditions and reservations in grants. One result of this change was that the inherently limited nature of fee simple ownership, and the communal obligations to which it is subject, are less transparent than in colonial times.

Creative Commons : fair to share?

This article explores new the realities of the permissions culture and “all rights reserved copyright” in the networked environment and poses the question: why is lending a copy of a book sharing but emailing a PDF of it piracy? It explores new approaches to publishing and distribution of books by highlighting two books in the Aduki Independent Press catalogue. It was modeled on a presentation delivered by Elliott Bledsoe at the Changing Climates in Arts Publishing forum run by Artlink and the Copyright Agency Limited in Adelaide, Australia on 9 May 2009 and in Sydney, Australia on 27 June 2009.

Open Access and Public Sector Information : Policy Developments in Australia and Key Jurisdictions

This book chapter considers recent developments in Australia and key jurisdictions both in relation to the formation of a national information strategy and the management of legal rights in public sector information.

A comparative overview of "know-how" protection in Japan and Australia

"Know How" protection varies enormously from country to country and is a complex equation of legal, political, cultural and economic factors. A contrast between Japan and Australia serves to highlight some of these factors. For the purposes of this article, a working definition of "know how" is required. In Australia and other common law systems, no statutory definition of "know how" exists, "confidential information" proving the closest comparative term in Australia ('trade secret law' in the United States).

Google book search settlement : implications for Australia

In 2005, the Association of American Publishers (AAP) and the Authors Guild (AG) sued Google for ‘massive copyright infringement’ for the mass digitization of books for the Google Book Search Project. In 2008, the parties reached a settlement, pending court approval. If approved, the settlement could have far-reaching consequences for authors, libraries, educational institutions and the reading public. In this article, I provide an overview of the Google Book Search Settlement. Firstly, I explain the Google Book Search Project, the legal questions raised by the Project and the lawsuit brought against Google. Secondly, I examine the terms of the Settlement Agreement, including what rights were granted between the parties and what rights were granted to the general public. Finally, I consider the implications of the settlement for Australia. The Settlement Agreement, and consequently the broader scope of the Google Book Search Project, is currently limited to the United States. In this article I consider whether the Project could be extended to Australia at a later date, how Google might go about doing this, and the implications of such an extension under the Copyright Act 1968 (Cth). I argue that without prior agreements with rightholders, our limited exceptions to copyright infringement mean that Google is unlikely to be able to extend the full scope of the Project to Australia without infringing copyright.

Behavioural biases and information disclosure laws relating to residential property sales : narrowing the gap between existing laws and calls for future reforms

Market failures involving the sale of complex merchandise, such as residential property, financial products and credit, have principally been attributed to information asymmetries. Existing legislative and regulatory responses were developed having regard to consumer protection policies based on traditional economic theories that focus on the notion of the ‘rational consumer’. Governmental responses therefore seek to impose disclosure obligations on sellers of complex goods or products to ensure that consumers have sufficient information upon which to make a decision. Emergent research, based on behavioural economics, challenges traditional ideas and instead focuses on the actual behaviour of consumers. This approach suggests that consumers as a whole do not necessarily benefit from mandatory disclosure because some, if not most, consumers do not pay attention to the disclosed information before they make a decision to purchase. The need for consumer policies to take consumer characteristics and behaviour into account is being increasingly recognised by governments, and most recently in the policy framework suggested by the Australian Productivity Commission

United States still no closer to database legislation

Last year European Intellectual Property Review published an article comparing the latest version of the proposed US database legislation, the Collections of Information Antipiracy Bill with the UK's Copyright and Rights in Database Regulations 1997. Subsequently a new US Bill, the Consumer and Investor Access to Information Act has emerged, the Antipiracy Bill has been amended and much debate has occurred, but the US seems no closer to enacting database legislation. This article briefly outlines the background to the US legislative efforts, examines the two Bills and draws some comparisons with the UK Regulations. A study of the US Bills clearly demonstrates the starkly divided opinion on database protection held by the Bills' proponents and the principal lobby groups driving the legislative efforts: the Antipiracy Bill is very protective of database producers' interests, whereas the Access Bill is heavily user-oriented. If the US experience is any indication there will be a long horizon involved in achieving any consensus on international harmonisation of this difficult area.

Distributing sensitive information in the MPEG-21 multimedia framework

The MPEG-21 Multimedia Framework provides for controlled distribution of multimedia works through its Intellectual Property Management and Protection ("IPMP") Components and Rights Expression Language ("MPEG REL"). The IPMP Components provide a framework by which the components of an MPEG-21 digital item can be protected from undesired access, while MPEG REL provides a mechanism for describing the conditions under which a component of a digital item may be used and distributed. This chapter describes how the IPMP Components and MPEG REL were used to implement a series of digital rights management applications at the Cooperative Research Centre for Smart Internet Technology in Australia. While the IPMP Components and MPEG REL were initially designed to facilitate the protection of copyright, the applications also show how the technology can be adapted to the protection of private personal information and sensitive corporate information.

Creative Commons and the creative industries

This paper explores the growing significance of legal questions to innovation and creative practice in what are now being termed the creative industries. Noting that the case for strong copyright protection as the cornerstone of innovation is highly contested, it explores the significance of Creative Commons licences as an alternative to Digital Rights Management and copyright law. It also introduces the case studies of music, online computer games, and ‘remix culture’ that are covered in this special issue of Media and Arts Law Review.

Sharing with Creative Commons : a business model for content creators

Creative Commons (CC) is often seen as a social movement, dismissed by critics as a tool for hobbyists or academics who do not sell their creations to make a living. However, this paper argues that the licensing of creative copyright works under a CC licence does not preclude commercial gain. If used wisely, CC licences can be a useful tool for creators in their quest for commercial success. In particular, this paper argues that the sharing of creative works online under a CC licence allows creators to circumvent traditional distribution channels dominated by content intermediaries, whilst maintaining a level of control over their copyright works (i.e. explicitly reserving some rights but not all rights). This will be illustrated by case studies on how CC is being used by content creators and intermediaries respectively, and how successful their respective methods are in harnessing this tool.

Access to medicine and the dangers of patent linkage : lessons from Bayer Corp v. Union of India

In February 2010, the Delhi High Court delivered its decision in Bayer Corp v Union of India in which Bayer had appealed against an August 2009 decision of the same court. Both decisions prevented Bayer from introducing the concept of patent linkage into India’s drug regulatory regime. Bayer appealed to the Indian Supreme Court, the highest court in India, which agreed on 2 March 2010 to hear the appeal. Given that India is regarded as a global pharmaceutical manufacturer of generic medications, how its judiciary and government perceive their international obligations has a significant impact on the global access to medicines regime. In rejecting the application of patent linkage, the case provides an opportunity for India to further acknowledge its international human rights obligations.

Regulating for Sustainability : Property Issues

All Australian governments recognize the need to ensure that land and natural resources are used sustainably. In this context, ‘resources’ includes natural resources found on land such as trees and other vegetation, fauna, soil and minerals, and cultural resources found on land such as archaeological sites and artefacts. Regulators use a wide range of techniques to promote sustainability. To achieve their objectives, they may, for example, create economic incentives through bounties, grants and subsidies, encourage the development of self-regulatory codes, or enter into agreements with landowners specifying how the land is to be managed. A common way of regulating is by making administrative orders, determinations or decisions under powers given to regulators by Acts of Parliament (statutes) or by regulations (delegated legislation). Generally the legislation provides for specified rights or duties, and authorises a regulator to make an order or decision to apply the legislative provisions to particular land or cases. For example, legislation might empower a regulator to make an order that requires the owner of a contaminated site to remediate it. When the regulator exercises the power by making an order in relation to particular land, the owner is placed under a statutory duty to remediate. When regulators exercise their statutory powers to manage the use of private land or natural or cultural resources on private land, property law issues can arise. The owner of land has a private property right that the law will enforce against anybody else who interferes with the enjoyment of the right, without legal authority to do so. The law dealing with the enforcement of private property rights forms part of private law. This report focuses on the relationship between the law of private property and the regulation of land and resources by legislation and by administrative decisions made under powers given by legislation (statutory powers).

Crown copyright

Copyright protects much of the creative, cultural, educational, scientific and informational material generated by federal, State/Territory and local governments and their constituent departments and agencies. Governments at all levels develop, manage and distribute a vast array of materials in the form of documents, reports, websites, datasets and databases on CD or DVD and files that can be downloaded from a website. Under the Copyright Act 1968 (Cth), with few exceptions government copyright is treated the same as copyright owned by non-government parties insofar as the range of protected materials and the exclusive proprietary rights attaching to them are concerned. However, the rationale for recognizing copyright in public sector materials and vesting ownership of copyright in governments is fundamentally different to the main rationales underpinning copyright generally. The central justification for recognizing Crown copyright is to ensure that government documents and materials created for public administrative purposes are disseminated in an accurate and reliable form. Consequently, the exclusive rights held by governments as copyright owners must be exercised in a manner consistent with the rationale for conferring copyright ownership on them. Since Crown copyright exists primarily to ensure that documents and materials produced for use in the conduct of government are circulated in an accurate and reliable form, governments should exercise their exclusive rights to ensure that their copyright materials are made available for access and reuse, in accordance with any laws and policies relating to access to public sector materials. While copyright law vests copyright owners with extensive bundles of exclusive rights which can be exercised to prevent others making use of the copyright material, in the case of Crown copyright materials these rights should rarely be asserted by government to deviate from the general rule that Crown copyright materials will be available for “full and free reproduction” by the community at large.