Intellectual Property – What Went Wrong!

In its simplest form the patent system is designed to encourage the disclosure of innovative thought in exchange for a period of exclusivity in which the grantee of the rights may profit from such knowledge. I will attempt in this paper to show that patentees seeking to enforce their patents in Australia will face great difficulty through a number of potentially fatal pitfalls. I also submit that as a result of the decisions in Australia in reported patent cases in the last ten years, legal advisers should place their clients on notice that if they are trying to enforce their patents they are unlikely to succeed...

Review of penalties and additional damages : Trade Marks Act 1995

Effective enforcement of intellectual property (IP) rights has become a significant issue due to concerns about the effects of IP infringement, including trade mark counterfeiting. It is an important issue for the Australian Government as IP rights underpin a strong, modern economy. Criminal offences and civil remedies can be an important element of an enforcement regime. This review of penalties and additional damages in the Trade Marks Act 1995 (Cth) (Trade Marks Act) has been prompted by a recommendation made by the Advisory Council on Intellectual Property (ACIP), recent changes to the Copyright Act 1968 (Cth) (Copyright Act) and concerns raised by stakeholders. The purpose of this paper is to elicit comments on options which IP Australia is considering recommending to Government.

Intellectual Property Laws Amendment Bill 2013

This submission relates to the proposed amendment of the Crown Use provisions in the Patents Act 1990 (Cth) (“the Patents Act”),which are contained in Intellectual Property Laws Amendment Bill 2013 (“The Bill”). Specifically, the submission relates to the method of calculation of the remuneration payable to the patent applicant/owner in circumstances where the Crown exercises its rights under Chapter 17 of the Patents Act.

The Proposed Commonwealth Personal Property Securities Act 2008

Inspired by similar reforms introduced in New Zealand, Canada and the United States, the Commonwealth, with the co-operation of the States, seeks in the Personal Property Securities Bill 2008 (the Bill) to introduce a central repository of recorded information reflecting particular security interests in personal property in Australia. Specifically, the interest recorded is an interest in personal property provided for by a transaction that in substance secures the payment or the performance of an obligation. In addition to providing a notification of the use of the personal property as collateral to secure the payment of monies or the performance of an obligation, the Bill proposes to introduce a regime of prioritising interests in the same collateral. Central to this prioritisation are the concepts of a ‘perfected security interests’and ‘unperfected security interests’. Relevantly, a perfected security interest in collateral has priority over an unperfected security interest in the same collateral. The proposed mechanisms rely on the fundamental integer of personal property, which is defined as any property other than land. Recognising that property may take a tangible as well as an intangible form, the Bill reflects an appreciation of the fact that some property may have a tangible form which may act as collateral, and simultaneously the same property may involve other property, intangible property in the form of intellectual property rights, which in their own right may be the subject of a‘security agreement’. An example set out in the Commentary on the Consultation Draft of the Bill (the Commentary), indicates the practical implications involving certain property which have multiple profiles for the purposes of the Bill. This submission is concerned with the presumptions made in relation to the interphase between tangible property and intangible property arising from the same personal property, as set out in s 30 of the Bill.

Submission: Towards a Stronger and More Efficient IP Rights System : Getting the Balance Right

1. In March 2009, the Australian Government, through IP Australia its administrator of Intellectual Property Rights (IPR) acquired by registration or grant, issued two consultation papers for comment by interested stakeholders. 2. The Consultation Papers have invited written submissions directed towards the object of the paper, namely encouraging discussion on certain proposed changes and their impact on business and innovation. 3. I understand the invitation to make written submissions is predominantly in the areas raised by the Consultation Papers and the questions posed. However, I have made a brief reference to several other areas of concern with the current Australian patent law, which in my opinion inhibit innovation and therefore come under the wider agenda of the government to work toward a stronger and more efficient IP rights system. 4. In this regard, the Consultation Papers indicate that if the IPR are less likely to be invalidated and more likely to be enforced, this confidence will reflect in a greater investment in research leading to innovation. 5. This submission relates to the Balance Paper.

A Submission to the Advisory Council on Intellectual Property in Relation to the Issues Paper Relating to the Enforcement of Trade Marks - February 2002

With respect to “shape” marks, there would appear to be a “break”, imposed by the Australian Courts, in the logical conclusion that registration of a shape, which performs a functional purpose, or even further, is indistinguishable from the shape of the item or product, creates a perpetual monopoly in the manufacture of that product.

The game of clones and the Australia tax : divergent views about copyright business models and the willingness of Australian consumers to infringe

It is often said that Australia is a world leader in rates of copyright infringement for entertainment goods. In 2012, the hit television show, Game of Thrones, was the most downloaded television show over bitorrent, and estimates suggest that Australians accounted for a plurality of nearly 10% of the 3-4 million downloads each week. The season finale of 2013 was downloaded over a million times within 24 hours of its release, and again Australians were the largest block of illicit downloaders over BitTorrent, despite our relatively small population. This trend has led the former US Ambassador to Australia to implore Australians to stop 'stealing' digital content, and rightsholders to push for increasing sanctions on copyright infringers. The Australian Government is looking to respond by requiring Internet Service Providers to issue warnings and potentially punish consumers who are alleged by industry groups to have infringed copyright. This is the logical next step in deterring infringement, given that the operators of infringing networks (like The Pirate Bay, for example) are out of regulatory reach. This steady ratcheting up of the strength of copyright, however, comes at a significant cost to user privacy and autonomy, and while the decentralisation of enforcement reduces costs, it also reduces the due process safeguards provided by the judicial process. This article presents qualitative evidence that substantiates a common intuition: one of the major reasons that Australians seek out illicit downloads of content like Game of Thrones in such numbers is that it is more difficult to access legitimately in Australia. The geographically segmented way in which copyright is exploited at an international level has given rise to a ‘tyranny of digital distance’, where Australians have less access to copyright goods than consumers in other countries. Compared to consumers in the US and the EU, Australians pay more for digital goods, have less choice in distribution channels, are exposed to substantial delays in access, and are sometimes denied access completely. In this article we focus our analysis on premium film and television offerings, like Game of Thrones, and through semi-structured interviews, explore how choices in distribution impact on the willingness of Australian consumers to seek out infringing copies of copyright material. Game of Thrones provides an excellent case study through which to frame this analysis: it is both one of the least legally accessible television offerings and one of the most downloaded through filesharing networks of recent times. Our analysis shows that at the same time as rightsholder groups, particularly in the film and television industries, are lobbying for stronger laws to counter illicit distribution, the business practices of their member organisations are counter-productively increasing incentives for consumers to infringe. The lack of accessibility and high prices of copyright goods in Australia leads to substantial economic waste. The unmet consumer demand means that Australian consumers are harmed by lower access to information and entertainment goods than consumers in other jurisdictions. The higher rates of infringement that fulfils some of this unmet demand increases enforcement costs for copyright owners and imposes burdens either on our judicial system or on private entities – like ISPs – who may be tasked with enforcing the rights of third parties. Most worryingly, the lack of convenient and cheap legitimate digital distribution channels risks undermining public support for copyright law. Our research shows that consumers blame rightsholders for failing to meet market demand, and this encourages a social norm that infringing copyright, while illegal, is not morally wrongful. The implications are as simple as they are profound: Australia should not take steps to increase the strength of copyright law at this time. The interests of the public and those of rightsholders align better when there is effective competition in distribution channels and consumers can legitimately get access to content. While foreign rightsholders are seeking enhanced protection for their interests, increasing enforcement is likely to increase their ability to engage in lucrative geographical price-discrimination, particularly for premium content. This is only likely to increase the degree to which Australian consumers feel that their interests are not being met and, consequently, to further undermine the legitimacy of copyright law. If consumers are to respect copyright law, increasing sanctions for infringement without enhancing access and competition in legitimate distribution channels could be dangerously counter-productive. We suggest that rightsholders’ best strategy for addressing infringement in Australia at this time is to ensure that Australians can access copyright goods in a timely, affordable, convenient, and fair lawful manner.

The role of the Saudi government and the Saudi building code in implementing sustainable housing construction in Saudi Arabia

The housing construction industry in Saudi Arabia has been booming rapidly in the past two decades. This boom has faced multiple downfalls in relation to government regulations and building codes, one of which is the application of sustainable methods to the housing construction. This paper sheds some light on the current role of the Saudi government and the role of the Saudi Building Code (SBC) in the housing construction industry. The methodology utilised in this paper was a Delphi survey that was distributed to twenty-five key stakeholders in the housing construction industry in Saudi Arabia. The results indicate that there is a lack of integration between the Saudi Building Code and the current construction methods used in the current construction industry. Some factors and elements are recommended to be incorporated into the Saudi Building Code and to be adopted as regulations in the Saudi housing construction industry.

Protection of intellectual property in Islamic Shari'a and the development of the Libyan intellectual property system

This thesis introduces a theory of intellectual property (IP) law informed by Islamic Shari'a. The sources and objectives of Islamic Shari'a support the theoretical framework underpinning IP laws. However, they strongly emphasise the importance of development goals in intellectual property policy making. This thesis argues that an optimal IP system from an Islamic perspective shall not overprotect IP holders but should instead endeavor to empower people to access knowledge resources to enhance access to education, public health and economic opportunities. Taking Libya as a case study, this thesis makes recommendations for the improvement of IP law that have important broader implications for developing countries.

New regime for property agents and residential property sales in Queensland : Property Occupations Act 2014

This article examines the new Property Occupations Act 2014 (POA) and relevant provisions of the Agents Financial Administration Act 2014 (AFAA) and the impacts for property practitioners. The Acts are due to commence later in 2014 once regulations and relevant forms are drafted. Coinciding with the commencement of the Acts further versions of the REIQ Houses and Land Contract and REIQ Community Title Contract will also be released. The POA introduces changes for licencing of real estate agents, property developers and resident letting agents as well as significant changes for the contract formation process. The AFAA includes the trust account and claim fund provisions of PAMDA, which avoids duplication of these provisions across each of the industry-specific Bills. The most significant change is to the process for making a claim against the fund for the conduct of property agents.

New laws for off the plan contracts in Queensland

The Land Sales Act 1984 regulates “off the plan” sales in Queensland in conjunction with several provisions in the Body Corporate and Community Management Act 1997. Together the Acts regulate sales in both unit developments and housing estates. From 2010 to 2013 the Queensland Government undertook a comprehensive review of the Land Sales Act 1984 to identify opportunities to modernise and improve the legislation. Significant changes were recommended by the Review to align the Land Sales Act 1984 (LSA) with current surveying and conveyancing practice and to overcome a number of practical issues faced by developers under the current legislation. A significant outcome of the review is the removal of provisions related to off the plan community title sales from the LSA to the Body Corporate and Community Management Act 1997 (BCCMA) and the Building Units and Group Titles Act 1980 (BUGTA). This article examines the Land Sales and Other Legislation Amendment Act 2014 due to commence in November 2014.

Capital-C culture : the perfect American at the Brisbane Festival

A review of Philip Glass's opera The Perfect American. The Brisbane Festival’s production of Philip Glass’s opera The Perfect American is only the third production of the 2012 work ever to be staged. That’s quite a coup for the Brisbane Festival and Opera Queensland. The Perfect American was commissioned by Madrid’s Teatro Real and London’s English National Opera to mark the American composer’s 75th birthday. Glass’s telling of the Disney myth focuses on the final stages of Walt Disney’s life and career – a high art critique of a popular culture icon...

Digital technology and public apology : responses by Indigenous Australians to a government saying sorry

Australia has had two recent public apologies, one to the ‘ Stolen Generation’ of Aboriginal and Torres Strait Islander Australians and the second to the ‘Forgotten Australians' – people who had been removed from their parents as children and institutionalized. Both acts occurred in time when there was no Internet and peoples’ stories took years to collect and decades for their weight to carry the public momentum required to gain a public apology. Now, in a digital age, the reports and the testimonies held within them are available for all to read on the Internet. We all now know what happened and formal public apologies ensued. Both public apologies also draw attention to an emerging intersection between digital technologies, personal historical stories and public apology. Research has identified the potential of digital narrative, such as digital storytelling3 and videoed oral histories to assist in the production of digital narratives that can help to present the multiple voices and viewpoints of those affected by these subjects co-creatively (Burgess et al, pp.152-153). Not all Australians however have access or the skills to use digital tools so as to benefit from these technologies ⎯ especially Indigenous Australians. While the Federal Government is committed to helping Australians enjoy digital confidence and digital media literacy skills, experience inclusive digital participation and benefit through online engagement (Department of Broadband, communications and the Digital Economy, 2009) there are many initiatives that can also be undertaken locally by State funded institutions, such as libraries to assist. This paper highlights the outcomes of recent empirical projects undertaken at the State Library of Queensland (SLQ) in particular focusing on digital initiatives in Family History practices by Indigenous users, and a digital story project in response to the public apology to the Stolen Generation instigated by SLQ.

Perception of prescription medicine sample packs among Australian professional, government, industry, and consumer organizations, based on automated textual analysis of one-on-one interviews

Background Prescription medicine samples provided by pharmaceutical companies are predominantly newer and more expensive products. The range of samples provided to practices may not represent the drugs that the doctors desire to have available. Few studies have used a qualitative design to explore the reasons behind sample use. Objective The aim of this study was to explore the opinions of a variety of Australian key informants about prescription medicine samples, using a qualitative methodology. Methods Twenty-three organizations involved in quality use of medicines in Australia were identified, based on the authors' previous knowledge. Each organization was invited to nominate 1 or 2 representatives to participate in semistructured interviews utilizing seeding questions. Each interview was recorded and transcribed verbatim. Leximancer v2.25 text analysis software (Leximancer Pty Ltd., Jindalee, Queensland, Australia) was used for textual analysis. The top 10 concepts from each analysis group were interrogated back to the original transcript text to determine the main emergent opinions. Results A total of 18 key interviewees representing 16 organizations participated. Samples, patient, doctor, and medicines were the major concepts among general opinions about samples. The concept drug became more frequent and the concept companies appeared when marketing issues were discussed. The Australian Pharmaceutical Benefits Scheme and cost were more prevalent in discussions about alternative sample distribution models, indicating interviewees were cognizant of budgetary implications. Key interviewee opinions added richness to the single-word concepts extracted by Leximancer. Conclusions Participants recognized that prescription medicine samples have an influence on quality use of medicines and play a role in the marketing of medicines. They also believed that alternative distribution systems for samples could provide benefits. The cost of a noncommercial system for distributing samples or starter packs was a concern. These data will be used to design further research investigating alternative models for distribution of samples.

Secondary prevention of osteoporosis in Australia: Analysis of government-dispensed prescription data

Background Osteoporosis is a common cause of disability and death in elderly men and women. Until 2007, Australian Government-subsidized use of oral bisphosphonates, raloxifene and calcitriol (1α,25-dihydroxycholecalciferol) was limited to secondary prevention (requiring x-ray evidence of previous low-trauma fracture). The cost to the Pharmaceutical Benefits Scheme was substantial (164 million Australian dollars in 2005/6). Objective To examine the dispensed prescriptions for oral bisphosphonates, raloxifene, calcitriol and two calcium products for the secondary prevention of osteoporosis (after previous low-trauma fracture) in the Australian population. Methods We analysed government data on prescriptions for oral bisphosphonates, raloxifene, calcitriol and two calcium products from 1995 to 2006, and by sex and age from 2002 to 2006. Prescription counts were converted to defined daily doses (DDD)/1000 population/day. This standardized drug utilization method used census population data, and adjusts for the effects of aging in the Australian population. Results Total bisphosphonate use increased 460% from 2.19 to 12.26 DDD/1000 population/day between June 2000 and June 2006. The proportion of total bisphosphonate use in June 2006 was 75.1% alendronate, 24.6% risedronate and 0.3% etidronate. Raloxifene use in June 2006 was 1.32 DDD/1000 population/day. The weekly forms of alendronate and risedronate, introduced in 2001 and 2003, respectively, were quickly adopted. Bisphosphonate use peaked at age 80–89 years in females and 85–94 years in males, with 3-fold higher use in females than in males. Conclusions Pharmaceutical intervention for osteoporosis in Australia is increasing with most use in the elderly, the population at greatest risk of fracture. However, fracture prevalence in this population is considerably higher than prescribing of effective anti-osteoporosis medications, representing a missed opportunity for the quality use of medicines.