Canadian rhapsody: Copyright law and research libraries

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.

Franklin Barley: Patent law and plant breeders’ rights

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.

Heretic: Copyright law and dramatic works

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.

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

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.

The Black Label: trade mark dilution, culture jamming, and the no logo movement

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.

Intellectual Property and Biotechnology: Biological Inventions

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 commercialization 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.

Free Mickey! The copyright term and the public domain

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 (US) by a majority of seven to two.

Sports anti-siphoning laws and the controversy of sports broadcasting: A case study of Pakistan

Controversies between private and public broadcasters over the broadcasting of live sports, especially cricket, during important sports events have emerged as a serious legal issue in Pakistan. Controversy between Geo Super and Pakistan Television over live telecast of the ICC Cricket World Cup is a typical example of such controversies. An aggressive legal battle, during a most important cricketing event, not only hampered the enjoyment of cricket viewers across the country but also gave Pakistan a bad name across the globe. This article discusses in detail this controversy and highlights lacunas in the existing sports broadcasting regime of Pakistan. There are no clear and well defined sports broadcasting laws in Pakistan. The Pakistan Electronic Media Regulatory Authority (PEMRA) rules are of general nature. Secondly, PEMRA rules are not comprehensive and explicit enough to provide clear guidelines about sports broadcasting. This may be a possible reason why sports broadcasting controversies reach the highest court in Pakistan, the Supreme Court of Pakistan. Despite these ugly battles between broadcasters, the government of Pakistan has never given due importance to this issue and no efforts have been made at any level to come up with legislation on sports broadcasting to avoid such controversies or to resolve them amicably in the light of well-defined laws on this subject. The purpose of this article is to draw the attention of the concerned authorities towards this important issue because in future more such controversies may be expected in the absence of a sports broadcasting regime in the country.

A growing good faith in contracts

The Supreme Court of Canada's ruling in Bhasin v Hrynew represents a significant step forward in harmonising the multiple strands of debate surrounding the existence of a good faith provision in common law contracting. Although a general principle of good faith (derived from Roman Law) is recognized by most civil law systems and a growing number of common law countries have embraced statutory provisions towards this end, Bhasin v Hrynew is argued to be a critical advance in catalysing uniform acceptance of good faith as a fundamental principle essential to support an increasingly integrated global commercial environment.

Australian court holds Google is responsible for linking to defamatory website

The South Australian Supreme Court this week found that Google is legally responsible when its search results link to defamatory content on the web. In this long-running case, Dr Janice Duffy has been trying for more than six years to clear her name and remove links to defamatory material when people search for her using Google. The main culprit is the US based website Ripoff Reports, where people have posted negative reviews of Dr Duffy. Under United States law, defamation is very hard to prove, and US websites are not liable for comments made by their users. Since it was not possible to get harmful or abusive comments removed from the source, Dr Duffy instead asked Google to remove the links from its search results. Google removed some of these links, but only from its Australian domain (google.com.au), and it left many of them active. This latest court decision is a big win for Dr Duffy. The court found that once Google was alerted to the defamatory material, it was then under an obligation to act to censor its search results and prevent further harm to Dr Duffy’s reputation.

Lawyers linked to litigation funding face court censure: Bolitho v Banksia Securities Limited (No.4) [2014] VSC 582

In Bolitho v Banksia Securities Limited (No 4) [2014] VSC 582 the Supreme Court of Victoria concluded that the proper administration of justice, including the appearance of justice, required that the lawyers representing the plaintiff in the group proceeding should be restrained from continuing to act for the plaintiff. This Victorian case illustrates how courts are likely to respond when lawyers attempt to circumvent the prohibition on contingency fees through litigation funding in which they have a financial interest.

Morphological and developmental comparisons of seven greens quality hybrid bermudagrass (Cynodon dactylon (L.)Pers.x C transvaalensis Burtt-Davy

Fine-textured hybrid bermudagrass [Cynodon dactylon (L.) Pers. x C. transvaalensis Burtt-Davy] cultivars have been widely used for golf putting greens and lawn bowls greens in warm-climate areas for more than 40 years. During the past decade, the choice of cultivar for professional turfgrass managers has been expanded by a range of secondgeneration hybrid bermudagrasses, which differ from the first-generation cultivars ‘Tifgreen’ and ‘Tifdwarf ’ in their management requirements. In this paper, we present comparative morphological and developmental data for seven cultivars (Champion Dwarf, FloraDwarf, MS-Supreme, Novotek, Tifdwarf, TifEagle, Tifgreen) grown in spaced plant and sward experiments at Cleveland, Australia (27º32’S lat, 153º15’E long, 25 masl). The four ‘ultradwarf ’ cultivars (Champion Dwarf, MS-Supreme, FloraDwarf, TifEagle) showed slower vertical extension and produced fewer inflorescences than Tifdwarf, Tifgreen, and Novotek. However, in terms of the length of stolon internodes and their overall rate of lateral spread, Champion Dwarf, FloraDwarf, and TifEagle were comparable to Tifdwarf; MS-Supreme (with longer internodes) spread faster laterally, though slower than Tifgreen (which had the longest stolon internodes). In unmown swards, the four ultradwarfs produced shorter leaves than Tifgreen, Tifdwarf, and Novotek, but only Champion Dwarf produced significantly narrower leaves than Tifgreen, Tifdwarf, and Novotek, with TifEagle leaves also significantly narrower than those of Tifgreen and Novotek. Minimum threshold temperatures for growth were approximately 9° to 10°C (air temperature) and 15° to 16°C at 10 cm soil depth.

Management Guidelines for New Warm-Season Grasses in Australia

After more than 30 years in which ‘Tifgreen’ and ‘Tifdwarf’ were the only greens-quality varieties available, the choice for golf courses and bowls clubs in northern Australia has been expanded to include six new Cynodon hybrids [Cynodon dactylon (L.) Pers x Cynodon transvaalensis Burtt-Davy]. Five of these – ‘Champion Dwarf’ (Texas), ‘MS-Supreme’ (Mississippi), FloraDwarf™ (Florida), ‘TifEagle’ (Georgia), MiniVerde™ (Arizona) - are from US breeding programs, while the sixth, ‘TL2’ (marketed as Novotek™) was selected in north Queensland. The finer, denser and lower growing habit of the “ultradwarf” cultivars allows very low mowing heights (e.g. 2.5 mm) to be imposed, resulting in denser and smoother putting and bowls surfaces. In addition to the Cynodon hybrids, four new greens quality seashore paspalum (Paspalum vaginatum O. Swartz) cultivars including ‘Sea Isle 2000’, Sea Isle Supreme™, Velvetene™ and Sea Dwarf™ (where tolerance of salty water is required) expands the range of choices for greens in difficult environments. The project was developed to determine (a) the appropriate choice of cultivar for different environments and budgets, and (b) best management practices for the new cultivars which differ from the Cynodon hybrid industry standards ‘Tifgreen’ and ‘Tifdwarf’. Management practices, particularly fertilising, mowing heights and frequency, and thatch control were investigated to determine optimum management inputs and provide high quality playing surfaces with the new grasses. To enable effective trialling of these new and old cultivars it was essential to have a number of regional sites participating in the study. Drought and financial hardship of many clubs presented an initial setback with numerous clubs wanting to be involved in the study but were unable to commit due to their financial position at the time. The study was fortunate to have seven regional sites from Queensland, New South Wales, Victoria and South Australia volunteer to be involved in the study which would add to the results being collected at the centralised test facility being constructed at DEEDI’s Redlands Research Station. The major research findings acquired from the eight trial sites included: • All of the new second generation “ultradwarf” couchgrasses tend to produce a large amount of thatch with MiniVerde™ being the greatest thatch producer, particularly compared to ‘Tifdwarf’ and ‘Tifgreen’. The maintenance of the new Cynodon hybrids will require a program of regular dethatching/grooming as well as regular light dustings of sand. Thatch prevention should begin 3 to 4 weeks after planting a new “ultradwarf” couchgrass green, with an emphasis on prevention rather than control. • The “ultradwarfs” produced faster green speeds than the current industry standards ‘Tifgreen’ and ‘Tifdwarf’. However, all Cynodon hybrids were considerably faster than the seashore paspalums (e.g. comparable to the speed diference of Bentgrass and couchgrass) under trial conditions. Green speed was fastest being cut at 3.5 mm and rolled (compared to 3.5 mm cut, no roll and 2.7 mm cut, no roll). • All trial sites reported the occurrence of disease in the Cynodon hybrids with the main incidence of disease occurring during the dormancy period (autumn and winter). The main disease issue reported was “patch diseases” which includes both Gaumannomyces and Rhizoctonia species. There was differences in the severity of the disease between cultivars, however, the severity of the disease was not consistent between cultivars and is largely attributed to an environment (location) effect. In terms of managing the occurrence of disease, the incidence of disease is less severe where there is a higher fertility rate (about 3 kgN/100m2/year) or a preventitatve fungicide program is adopted. • Cynodon hybrid and seashore paspalum cultivars maintained an acceptable to ideal surface being cut between 2.7 mm and 5.0 mm. “Ultradwarf” cultivars can tolerate mowing heights as low as 2.5 mm for short periods but places the plant under high levels of stress. Greens being maintained at a continually lower cutting height (e.g. 2.7 mm) of both species is achievable, but would need to be cut daily for best results. Seashore paspalums performed best when cut at a height of between 2.7 mm and 3.0 mm. If a lower cutting height is adopted, regular and repeated mowings are required to reduce scalping and produce a smooth surface. • At this point in time the optimum rate of nitrogen (N) for the Cynodon hybrids is 3 kg/100m2/year and while the seashore paspalums is 2 to 3 kg/100m2/year. • Dormancy occurred for all Cynodon and seashore paspalum culitvars from north in Brisbane (QLD) to south in Mornington Peninsula (VIC) and west to Novar Gardens (SA). Cynodon and Paspalum growth in both Victoria and South Australia was less favourable as a result of the cooler climates. • After combining the data collected from all eight sites, the results indicated that there can be variation (e.g. turfgrass quality, colour, disease resistance, performace) depending on the site and climatic conditions. Such evidence highlights the need to undertake genotype by environment (G x E) studies on new and old cultivars prior to conversion or establishment. • For a club looking to select either a Cynodon hybrid or seashore paspalum cultivar for use at their club they need to: - Review the research data. - Look at trial plots. - Inspect greens in play that have the new grasses. - Select 2 to 3 cultivars that are considered to be the better types. - Establish them in large (large enough to putt on) plots/nursery/practice putter. Ideally the area should be subjected to wear. - Maintain them exactly as they would be on the golf course/lawn bowls green. This is a critical aspect. Regular mowing, fertilising etc. is essential. - Assess them over at least 2 to 3 years. - Make a selection and establish it in a playing green so that it is subjected to typical wear.

Louis Marshall papers undated, 1905-1933

Chiefly material relating to activities against restrictive immigration legislation; also some items referring to decisions of the United States Supreme Court and naturalization of immigrants. Correspondence with members of the American Jewish Committee, primarily Herbert Friedenwald, Fulton Brylawski, and Max James Kohler. Contains also printed extracts of Congressional hearings and Congressional record.

Julius Bisno collection, undated, 1780, 1801-1980.

Jewish organization executive. Primarily autographs, photos, writings, speeches, and biographical material, collected by Bisno, relating to ca. 120 Jews who have attained prominence in American public life; together with papers (1923-32) from Congregation Talmud Torah of Los Angeles, letters (1928-37) relating to other Jewish organizations in Los Angeles, and 3 letters of Stephen S. Wise, dealing with the general Jewish situation in Europe in 1933 and with the question of Jewish participation in the 1936 Olympic games. Persons represented include Benjamin N. Cardozo, Abe Fortas, Felix Frankfurter, Henry Horner, Herbert H. Lehman, and Lewis L. Strauss.