Faculty and employee ownership of inventions in Australia

A recent decision by the Australian High Court means that, unless faculty are bound by an assignment or intellectual property (IP) policy, they may own inventions resulting from their research. Thirty years after its introduction, the US Bayh-Dole Act, which vests ownership of employee inventions in the employer university or research organization, has become a model for commercialization around the world. In Australia, despite recommendations that a Bayh-Dole style regime be adopted, the recent decision in University of Western Australia (UWA) v Gray1 has moved the default legal position in a diametrically opposite direction. A key focus of the debate was whether faculty’s duty to carry out research also encompasses a duty to invent. Late last year, the Full Federal Court confirmed a lower court ruling that it does not, and this year the High Court refused leave to appeal (denied certiorari). Thus, Gray stands as Australia’s most faculty-friendly authority to date.

The role of the rule of law in virtual communities

There is a severe tendency in cyberlaw theory to delegitimize state intervention in the governance of virtual communities. Much of the existing theory makes one of two fundamental flawed assumptions: that communities will always be best governed without the intervention of the state; or that the territorial state can best encourage the development of communities by creating enforceable property rights and allowing the market to resolve any disputes. These assumptions do not ascribe sufficient weight to the value-laden support that the territorial state always provides to private governance regimes, the inefficiencies that will tend to limit the development utopian communities, and the continued role of the territorial state in limiting autonomy in accordance with communal values. In order to overcome these deterministic assumptions, this article provides a framework based upon the values of the rule of law through which to conceptualise the legitimacy of the private exercise of power in virtual communities. The rule of law provides a constitutional discourse that assists in considering appropriate limits on the exercise of private power. I argue that the private contractual framework that is used to govern relations in virtual communities ought to be informed by the values of the rule of law in order to more appropriately address the governance tensions that permeate these spaces. These values suggest three main limits to the exercise of private power: that governance is limited by community rules and that the scope of autonomy is limited by the substantive values of the territorial state; that private contractual rules should be general, equal, and certain; and that, most importantly, internal norms be predicated upon the consent of participants.

Show us your mess!

Epilogue for the edited book "Nexus: New Intersections in Internet Research"

CC & Government Guide: Using Creative Commons 3.0 Australia Licences on Government Copyright Materials

This guide explains how copyright law applies to Australian government material, how copyright can be managed to facilitate beneficial open access practices by government, how CC licenses can be used to achieve open access to government material, and provides practical step-by-step guidance for agencies and their officers on licensing and use of government copyright materials under CC 3.0 Australia licences.

Identity fraud and torrens - minimising the risks and allocating the loss to achieve a sustainable system

Immediate indefeasibility is the cornerstone of the Torrens system of land registration. However, when combined with the apparent ease in which forged mortgages become registered, the operation of this doctrine can come into question. This article seeks to argue that, rather than question indefeasibility, the focus should be on the verification of identity of parties to land transactions. Whilst no system can ever be infallible, it is suggested that by correctly imposing the responsibility for identity verification on the appropriate individual, the Torrens system can retain immediate indefeasibility as its paramount principle, yet achieve the optimum level of fairness in terms of allocation of responsibility and loss. With the dawn of a new era of electronic conveyancing about to begin, the framework suggested here provides a model for minimising the risks of forged mortgages and appropriately allocating the loss.

Copyright law in the United Arab Emirates in the digital age

This article gives an overview of copyright law in the United Arab Emirates (UAE) and critically evaluates its operation in the digital era, providing suggestions for reform.

Legal responses to climate change

The challenges of climate change pose problems requiring new and innovative legal responses by legal practitioners, government officials and corporate officers. This book addresses a broad range of topic areas where climate change has impact and systematically analyses the key legal responses to climate change, both at the international level and within Australia at federal, State and local levels. In particular, it critically examines: •the rights, duties and market mechanisms established under the international climate change regime •the effect of climate change policies on the implementation of environmental and planning laws •new regimes for the implementation of renewable energy and energy efficiency initiatives •legal frameworks for the implementation of biological and geological sequestration projects (including forest projects and carbon rights); and •legal principles for the design of an effective carbon trading scheme for Australia It also considers the role of the common law including: •the likely response of the law of torts to emerging forms of climate change harm; and •potential liabilities for professionals who must take climate change into account in their decision-making and advice

Peer-to-Patent Australia: First Anniversary Report, December 2010

Peer-to-Patent Australia will initially run as a 12 month pilot project designed to test whether an open community of reviewers can effectively locate prior art that might not otherwise be located by the patent office during a typical examination. Patent applications will be made available for peer review for a period of 6 months and there will follow a 6 month period of joint qualitative and quantitative assessment of the pilot project by IP Australia and QUT. The objective of Peer-to-Patent Australia is to improve the patent examination process and the quality of issued patents by utilising the knowledge and skills of experts in the broader community. It is a way of linking the scientific and technical expertise of anyone with an Internet connection with the expertise of a patent examiner. That community participation consists of members of the public reviewing patent applications and contributing relevant prior art references and comments within a web-based forum. The aim is to bring to light prior art, particularly non-patent prior art, that might otherwise not be identified by patent examiners. The better the prior art resources a patent examiner has at his or her disposal, the more likely a patent application will be assessed properly in terms of novelty and inventive step. The role of Peer-to-Patent Australia in this regard is to act as both a facilitator of discussion and a collector of prior art submissions. Peer-to-Patent Australia collects relevant prior art references on behalf of the reviewing community and forwards that prior art to IP Australia. Section 27 of the Patents Act 1990 (Cth) allows for the Commissioner of Patents to receive submissions of prior art by third parties relevant to the novelty and inventiveness of a particular patent application.

The new middle class meets the creative class : the Master of Business Administration (MBA) and creative innovation in 21st-century China

‘MBA fever’ in China needs to be understood in the wider context of forces driving structural change in China’s relation to the global knowledge economy. The rise of a ‘new middle class’ in China is connected to the new claims for cultural leadership of an emergent ‘creative class’, which generates new issues about the relevance of the MBA in China, in terms of its relevance to Chinese economic circumstances, and its flexibility and capacity to respond to accumulation strategies that emphasise innovation, creativity and entrepreneurship.

Source of concern for IT purchasing decisions

The open source juggernaut seems to be gaining pace. The open source model certainly has appeal - cutting costs, while at the same time potentially increasing staff and system efficiencies. However, open source poses a number of significant legal challenges and risks for those that incorporate it. Clients need to look carefully before leaping.

Review of regulatory framework for environmental information

If Australian scientists are to fully and actively participate in international scientific collaborations utilising online technologies, policies and laws must support the data access and reuse objectives of these projects. To date Australia lacks a comprehensive policy and regulatory framework for environmental information and data generally. Instead there exists a series of unconnected Acts that adopt historically-based, sector-specific approaches to the collection, use and reuse of environmental information. This paper sets out the findings of an analysis of a representative sample of Australian statutes relating to environmental management and protection to determine the extent to which they meet best practice criteria for access to and reuse of environmental information established in international initiatives. It identifies issues that need to be addressed in the legislation governing environmental information to ensure that Australian scientists are able to fully engage in international research collaborations.

Immediate indefeasibility : is it under threat?

Immediate indefeasibility has been adopted in Australia for close to 40 years. Recently however, and against the backdrop of economic fragility and global deregulation, there has been a polite questioning of its place. In Australia, some may argue that case law developments and legislative reform have placed indefeasibility under the microscope — in New Zealand, a similar telescoping by the respected views of their Law Commission. This note examines these reforms. It concludes that these reforms do not place immediate indefeasibility under threat. Rather, they modify and adapt the doctrine to fit within the context of contemporary financial instruments. Nevertheless, changes have so far been piecemeal, and its time for a consistent and logical examination of this issue to occur on the national, rather than the stage of each state.

Physicality in the Information Age : a normative perspective on the patent eligibility of non-physical methods

There has been much conjecture of late as to whether the patentable subject matter standard contains a physicality requirement. The issue came to a head when the Federal Circuit introduced the machine-or-transformation test in In re Bilski and declared it to be the sole test for determining subject matter eligibility. Many commentators criticized the test, arguing that it is inconsistent with Supreme Court precedent and the need for the patent system to respond appropriately to all new and useful innovation in whatever form it arises. Those criticisms were vindicated when, on appeal, the Supreme Court in Bilski v. Kappos dispensed with any suggestion that the patentable subject matter test involves a physicality requirement. In this article, the issue is addressed from a normative perspective: it asks whether the patentable subject matter test should contain a physicality requirement. The conclusion reached is that it should not, because such a limitation is not an appropriate means of encouraging much of the valuable innovation we are likely to witness during the Information Age. It is contended that it is not only traditionally-recognized mechanical, chemical and industrial manufacturing processes that are patent eligible, but that patent eligibility extends to include non-machine implemented and non-physical methods that do not have any connection with a physical device and do not cause a physical transformation of matter. Concerns raised that there is a trend of overreaching commoditization or propertization, where the boundaries of patent law have been expanded too far, are unfounded since the strictures of novelty, nonobviousness and sufficiency of description will exclude undeserving subject matter from patentability. The argument made is that introducing a physicality requirement will have unintended adverse effects in various fields of technology, particularly those emerging technologies that are likely to have a profound social effect in the future.

Standardisation and patent ambush : potential liability under Australian competition law

This article examines the problem of patent ambush in standard setting, where patent owners are sometimes able to capture industry standards in order to secure monopoly power and windfall profits. Because standardisation generally introduces high switching costs, patent ambush can impose significant costs on downstream manufacturers and consumers and drastically reduce the efficiency gains of standardisation.This article considers how Australian competition law is likely to apply to patent ambush both in the development of a standard (through misrepresenting the existence of an essential patent) and after a standard is implemented (through refusing to license an essential patented technology either at all or on reasonable and non-discriminatory (RAND) terms). This article suggests that non-disclosure of patent interests is unlikely to restrained by Part IV of the Trade Practices Act (TPA), and refusals to license are only likely to be restrained if the refusal involves leveraging or exclusive dealing. By contrast, Standard Setting Organisations (SSOs) which seek to limit this behaviour through private ordering may face considerable scrutiny under the new cartel provisions of the TPA. This article concludes that SSOs may be best advised to implement administrative measures to prevent patent hold-up, such as reviewing which patents are essential for the implementation of a standard, asking patent holders to make their licence conditions public to promote transparency, and establishing forums where patent licensees can complain about licence terms that they consider to be unreasonable or discriminatory. Additionally, the ACCC may play a role in authorising SSO policies that could otherwise breach the new cartel provisions, but which have the practical effect of promoting competition in the standards setting environment.

Copyright future copyright freedom

If copyright law does not liberate us from restrictions on the dissemination of knowledge, if it does not encourage expressive freedom, what is its purpose? This volume offers the thinking and suggestions of some of the finest minds grappling with the future of copyright regulation. The Copyright Future Copyright Freedom conference held in 2009 at Old Parliament House Canberra brought together Lawrence Lessig, Julie Cohen, Leslie Zines, Adrian Sterling, Sam Ricketson, Graham Greenleaf, Anne Fitzgerald, Susy Frankel, John Gilchrist, Michael Kirby and others to share the rich fruits of their experience and analysis. Zines, Sterling and Gilchrist outline their roles in the genesis and early growth of Australian copyright legislation, enriching the knowledge of anyone asking urgent questions about the future of information regulation.