Global rules on conflict-of-laws matters in international insolvency law cases: An Australian perspective

The 2012 Report “Transnational Insolvency: Global Principles for Co-operation in International Insolvency Cases” – commissioned by The American Law Institute in conjunction with The International Insolvency Institute – annexed 23 “Global Rules on Conflict-of-Laws Matters in International Insolvency Cases”. These proposed “Global Rules” are intended to “serve as legislative recommendations” to (inter alia) promote uniformity and greater certainty in the unpredictable area of conflict of laws. This article provides a brief commentary upon the 23 proposed Global Rules from an Australian perspective (comparing the effect and intent of each rule with the current Australian conflict-of-laws position) and offers some conclusions as to the merits of the “Global Rules” initiative.

The road to Copenhagen: Intellectual property and climate change

In the lead-up to the discussions over IP and climate change in Copenhagen in 2009, the US House of Representatives passed a resolution that it should be the policy of US government officials in discussions over the long-term action under the United Nations Framework on Climate Change to ‘prevent any weakening of, and ensure robust compliance with and enforcement of, existing international legal requirements as of the date of the enactment of this Act for the protection of IP rights related to energy or environmental technology’.

The Sorcerer II expedition: Intellectual property and biodiscovery

This article considers the significance of a leading marine biodiscovery initiative. In March 2004, Dr. J. Craig Venter announced the official launch of the Sorcerer II Expedition, a scientific expedition of discovery, which would survey marine and terrestrial microbial populations. The Expedition has the potential to uncover tens of thousands of new microbial species and tens of millions of new genes. Venter has disavowed that the Sorcerer II Expedition has any commercial ambitions. However, some have viewed the Sorcerer II Expedition with suspicion. Various civil society groups have accused the Expedition of engaging in 'biopiracy'. This article investigates the Convention on Biological Diversity 1992 and other relevant international treaties, various national and regional regimes to govern access to genetic resources, and benefit-sharing agreements. It considers the intersection of intellectual property law, contract law, environmental law, and international law in this field. This article provides a blueprint for a nationally consistent scheme for access to genetic resources, and a model for future international developments.

Reality bites: When copyright law and reality cooking meet, only the lawyers win

There’s nothing new about this recipe for success: toss in high-stress scenarios, flavour generously with competitive chefs, and garnish with a panel of celebrity judges. With all major broadcasters in the country now dishing up some form of reality cooking programme, Australians could be forgiven for having lost any expectation of original TV material. But that didn’t stop Channel Seven from taking Channel Nine to court last week, arguing its copyright in My Kitchen Rules had been infringed with Nine’s latest prime-time effort, The Hotplate. After the first few episodes went to air, Seven asked for an injunction to stop Nine from broadcasting any more episodes of the reality show. So let’s look at some common confusions about copyright law and how it relates to reality television. Because in this context, copyright infringement isn’t about shows sharing major similarities, or about protecting ideas, but rather the expression of these ideas in the final product. Still, stretching copyright law to protect the “vibe” of a work isn’t good for artists, TV producers or viewers: copyright was designed to nurture creativity, not stifle it.

Four stories about copyright law and appropriation art

This article considers copyright law and the art of appropriation in an Australian context. It tells four stories about Australian artists - Imants Tillers, Gordon Bennett, Juan Davila and Tracey Moffatt. The stories examine the postmodern critique of copyright law, indigenous copyright and self-determination, the introduction of moral rights, and copyright, photography and film. The article concludes that the work of such contemporary artists has practical implications for the reform of copyright law.

The Trans-Pacific Partnership: Copyright Law, the Creative Industries, and Internet Freedom

The Trans-Pacific Partnership (TPP) is a highly secretive trade agreement being negotiated between the US and eleven Pacific Rim countries, including Australia. Having obtained a fast-track authority from the United States Congress, US President Barack Obama is keen to finalise the deal. However, he was unable to achieve a resolution of the deal at recent talks in Hawaii on the TPP. A number of chapters of the TPP will affect the creative artists, cultural industries and internet freedom — including the intellectual property chapter, the investment chapter, and the electronic commerce chapter. Legacy copyright industries have pushed for longer and stronger copyright protection throughout the Pacific Rim. In the wake of the Hawaii talks, Knowledge Ecology International leaked the latest version of the intellectual property chapter of the TPP. Jamie Love of Knowledge Ecology International commented upon the leaked text about copyright law: ‘In many sections of the text, the TPP would change global norms, restrict access to knowledge, create significant financial risks for persons using and sharing information, and, in some cases, impose new costs on persons producing new knowledge goods.’ The recent leaked text reveals a philosophical debate about the nature of intellectual property law. There are mixed messages in respect of the treatment of the public domain under copyright law. In one part of the agreement on internet service providers, there is text that says that the parties recognise the need for ‘promoting innovation and creativity,’ ‘facilitating the diffusion of information, knowledge, technology, culture, and the arts’, and ‘foster competition and open and efficient markets.’ A number of countries suggested ‘acknowledging the importance of the public domain.’ The United States and Japan opposed the recognition of the public domain in this text.

Australian Consumer Law Commentary and Materials [5th Ed.]

"The Australian Consumer Law came into operation on 1 January 2011 as a single national law. It replaced 17 different pieces of Commonwealth, State and Territory legislation relating to consumer protection. Its introduction meant that for the first time, consumers throughout Australia had the same rights and remedies and correspondingly, businesses had the same obligations and responsibilities towards consumers without the barrier of confusing and expensive local variations in the law. Australian Consumer Law: Commentary and Materials contains up-to-date material on the Australian Consumer Law, and in particular the fifth edition incorporates: a revised treatment of unconscionability, taking account of the changes to Part 2-2 of the ACL that became effective in 2012; other State and Federal provisions relating to unfair terms and cases such as Kakavas v Crown Melbourne, ACCC v Lux Distributors, Director of Consumer Affairs v Scully and PT Ltd v Spuds Surf; a comprehensive treatment of the impact of Google v ACCC, Forrest v ASIC and ACCC v TPG – the trilogy of decisions that provide the most recent insights into the High Court’s thinking on aspects of the prohibitions of misleading conduct in the ACL and the Corporations Act 2001; numerous decisions of note; and the possible impact of the Harper Review."--publisher website

Phoenix activity: Regulatory challenges and the law

Remedying the mischief of phoenix activity is of practical importance. The benefits include continued confidence in our economy, law that inspires best practice among directors, and law that is articulated in a manner such that penalties act as a sufficient deterrent and the regulatory system is able to detect offenders and bring them to account. Any further reforms must accommodate and tolerate legal phoenix activity. Phoenix activity pushes tolerance of entrepreneurial activity to its absolute limits. The wisest approach would be to front end the reforms so as to alleviate the considerable detection and enforcement burden upon regulatory bodies. There is little doubt that breach of the existing law is difficult and expensive to detect; and this is a significant burden when regulators have shrinking budgets and are rapidly losing feet on the ground. This front end approach may need to include restrictions on access to limited liability. The more limited liability is misused, the stronger the argument to limit access to limited liability. This paper proposes that such an approach is a legitimate next step for a robust and mature capitalist economy.

Copyright law and mash-ups: A policy paper

This report provides an analysis of the cultural, policy and legal implications of ‘mash-ups’. This study provides a short history of mash-ups, explaining how the current ‘remix culture’ builds upon a range of creative antecedents and cultural traditions, which valorised appropriation, quotation, and transformation. It provides modern examples of mash-ups, such as sound recordings, musical works, film and artistic works, focusing on works seen on You Tube and other online applications. In particular, it considers - * Literary mash-ups of canonical texts, including Pride and Prejudice and Zombies, The Wind Done Gone, After the Rain, and 60 Years Later; * Artistic mash-ups, highlighting the Obama Hope poster, the ‘Column’ case, and the competition for extending famous album covers; * Geographical mash-ups, most notably, the Google Australia bushfires map; * Musical mash-ups, such as The Grey Album and the work of Girl Talk; * Cinematic mash-ups, including remixes of There Will Be Blood and The Downfall; and This survey provides an analysis of why mash-up culture is valuable. It highlights the range of aesthetic, political, comic, and commercial impulses behind the creation and the dissemination of mash-ups. This report highlights the tensions between copyright law and mash-ups in particular cultural sectors. Second, this report emphasizes the importance of civil society institutions in promoting and defending mash-ups in both copyright litigation and policy debates. It provides a study of key organisations – including: * The Fair Use Project; * The Organization for Transformative Works; * Public Knowledge; * The Electronic Frontier Foundation; and * The Chilling Effects Clearinghouse This report suggests that much can be learnt from this network of organisations in the United States. There is a dearth of comparable legal clinics, advocacy groups, and creative institutions in Australia. As a result, the public interest values of copyright law have only received weak, incidental support from defendant companies – such as Network Ten and IceTV – with other copyright agendas. Third, this report canvasses a succinct model for legislative reform in respect of copyright law and mash-ups. It highlights: * The extent to which mash-ups are ‘tolerated uses’; * The conflicting judicial precedents on substantiality in Australia and the United States; * The debate over copyright exceptions relating to mash-ups and remixes; * The use of the take-down and notice system under the safe harbours regime by copyright owners in respect of mash-ups; * The impact of technological protection measures on mash-ups and remixes; * The possibility of statutory licensing in respect of mash-ups; * The use of Creative Commons licences; * The impact of moral rights protection upon mash-ups; * The interaction between economic and moral rights under copyright law; and * Questions of copyright law, freedom of expression, and political mash-ups.

Climate change and human rights: Intellectual property challenges and opportunities

Mitigating and adapting to the effects of climate change will require innovation and the development of new technologies. Intellectual property laws have a key part to play in the global transfer of climate technologies. However, failures to properly utilize flexibilities in intellectual property regimes or comply with technology transfer obligations under international climate change agreements calls for a human rights based analysis of climate technology transfer. Climate change is an unprecedented challenge and requires unprecedented strategies. Given the substantial impact of climate change on all of humanity and the ethical imperative to act, a complete rethink of traditional intellectual property approaches is warranted. This report proposes a series of intellectual property law policy options, through a human rights framework, aimed at promoting access to technologies to reduce the human suffering caused by climate change.

Owning the new economy: A guide to intellectual property management for Australia's clean technology sector

Australia's history of developing and managing the intellectual property rights of domestic innovations is – at best – mixed. The relevant immaturity of Australia's public sector commercialisation infrastructure has, over recent decades, been the subject of both stinging academic commentary and not insubstantial juridical disbelief. That said, improvements have been observed, and increasingly, private sector involvement in public sector innovation has allowed for a deepening refinement of domestic approaches to IP retention and ongoing management. Rather than a bare critique of Australia's IP management track-record, or a call for specific law reform, this manual engages at a more practical level some of the foundational questions that ought be asked by entities involved in the 'cleantech' industries. Beginning simply at what is IP and why it matters, this manual examines the models of IP management available to market participants around the world. The process of IP management is defined and assessed through a commercial lens; assessing the 'pros' and 'cons' of each management choice with a view to equipping the reader to determine which approach may be best adapted to their given clean tech project. The manual concludes with a brief survey of alternative models of Intellectual Property management, including relevant examples from overseas and prominent suggestions arising out of the academic discourse. It appears inevitable that the global warming challenge will prompt specific legislative, regulatory and multi-lateral responses by nation states, however, the ultimate form of any such response remains a highly contested political and social issue. Accordingly, the structure of this manual, and the discussion points raised herein, seek introduce the reader to some of the more contentious debates occurring around the world at the intersection between IP and climate change.

Cross-Border Insolvency Law

This new work provides a comprehensive and theoretically rich discussion of the law on cross-border insolvency. It engages with several current multi-billion dollar insolvencies such as those of Nortel Networks and Lehman Brothers to provide the reader with state of the art knowledge of the complex problems posed by transnational insolvency. As the number of transnational insolvencies grows due to prevailing economic conditions, practitioners are increasingly required to navigate the mass of legal rules applicable to cross-border insolvency situations. The associated challenges are heightened by the diversity of legal structures employed by modern business entities and a patchwork of costly, inefficient, and unpredictable national legal rules. The response has been a proliferation of international legal instruments such as the UNCITRAL Model Law and the the EU Insolvency Regulation, supplemented by judicial practice, adding further layers of complexity. Writing from an Australian perspective, the authors analyse this network of legal rules and subsequent case law. In addition, they explain the theoretical underpinnings of these rules in an accessible manner to build a solid foundation for practice, facilitate advanced reasoning, and enable the development of sophisticated arguments for law reform. Comparative case law from jurisdictions such as the United States and United Kingdom is also included. This book is highly relevant to insolvency practitioners faced with the recovery of assets located in different jurisdictions, transactional lawyers for whom knowledge of potential insolvency pitfalls is essential, and academics. It is invaluable for students at both undergraduate and postgraduate level seeking a sound understanding of this challenging area of law.

Indigenous Intellectual Property: A Handbook of Contemporary Research

Taking an interdisciplinary approach unmatched by any other book on this topic, this thoughtful Handbook considers the international struggle to provide for proper and just protection of Indigenous intellectual property (IP). In light of the United Nations Declaration on the Rights of Indigenous Peoples 2007, expert contributors assess the legal and policy controversies over Indigenous knowledge in the fields of international law, copyright law, trademark law, patent law, trade secrets law, and cultural heritage. The overarching discussion examines national developments in Indigenous IP in the United States, Canada, South Africa, the European Union, Australia, New Zealand, and Indonesia. The Handbook provides a comprehensive overview of the historical origins of conflict over Indigenous knowledge, and examines new challenges to Indigenous IP from emerging developments in information technology, biotechnology, and climate change. Practitioners and scholars in the field of IP will learn a great deal from this Handbook about the issues and challenges that surround just protection of a variety of forms of IP for Indigenous communities. Preface The Legacy of David Unaipon Matthew Rimmer Introduction: Mapping Indigenous Intellectual Property Matthew Rimmer PART I INTERNATIONAL LAW 1. The United Nations Declaration on the Rights of Indigenous Peoples: A Human Rights Framework for Indigenous Intellectual Property Mauro Barelli 2. The WTO, The TRIPS Agreement and Traditional Knowledge Tania Voon 3. The World Intellectual Property Organization and Traditional Knowledge Sara Bannerman 4. The World Indigenous Network: Rio+20, Intellectual Property, Indigenous Knowledge, and Sustainable Development Matthew Rimmer PART II COPYRIGHT LAW AND RELATED RIGHTS 5. Government Man, Government Painting? David Malangi and the 1966 One-Dollar Note Stephen Gray 6. What Wandjuk Wanted Martin Hardie 7. Avatar Dreaming: Indigenous Cultural Protocols and Making Films Using Indigenous Content Terri Janke 8. The Australian Resale Royalty for Visual Artists: Indigenous Art and Social Justice Robert Dearn and Matthew Rimmer PART III TRADE MARK LAW AND RELATED RIGHTS 9. Indigenous Cultural Expression and Registered Designs Maree Sainsbury 10. The Indian Arts and Crafts Act: The Limits of Trademark Analogies Rebecca Tushnet 11. Protection of Traditional Cultural Expressions within the New Zealand Intellectual Property Framework: A Case Study of the Ka Mate Haka Sarah Rosanowski 12 Geographical Indications and Indigenous Intellectual Property William van Caenegem PART IV PATENT LAW AND RELATED RIGHTS 13. Pressuring ‘Suspect Orthodoxy’: Traditional Knowledge and the Patent System Chidi Oguamanam, 14. The Nagoya Protocol: Unfinished Business Remains Unfinished Achmad Gusman Siswandi 15. Legislating on Biopiracy in Europe: Too Little, too Late? Angela Daly 16. Intellectual Property, Indigenous Knowledge, and Climate Change Matthew Rimmer PART V PRIVACY LAW AND IDENTITY RIGHTS 17. Confidential Information and Anthropology: Indigenous Knowledge and the Digital Economy Sarah Holcombe 18. Indigenous Cultural Heritage in Australia: The Control of Living Heritages Judith Bannister 19. Dignity, Trust and Identity: Private Spheres and Indigenous Intellectual Property Bruce Baer Arnold 20. Racial Discrimination Laws as a Means of Protecting Collective Reputation and Identity David Rolph PART VI INDIGENOUS INTELLECTUAL PROPERTY: REGIONAL PERSPECTIVES 21. Diluted Control: A Critical Analysis of the WAI262 Report on Maori Traditional Knowledge and Culture Fleur Adcock 22. Traditional Knowledge Governance Challenges in Canada Jeremy de Beer and Daniel Dylan 23. Intellectual Property protection of Traditional Knowledge and Access to Knowledge in South Africa Caroline Ncube 24. Traditional Knowledge Sovereignty: The Fundamental Role of Customary Law in Protection of Traditional Knowledge Brendan Tobin Index

Australian Property Institute Inc, Submission to the Productivity Commission on Intellectual Property Arrangements – Issues Paper

This submission responds to the document Intellectual Property Arrangements Issues Paper (Issues Paper) released by the Productivity Commission in October 2015 for public consultation and input by 30 November 2015. The API is grateful for the extension of time granted by the Commission to complete and lodge this submission. The overall need for an inquiry into intellectual property is supported by API. In particular it is noted with approval that the Commission states in its Issues Paper that it is to consider the appropriate balance between “incentives for innovation and investments, and the interests of both individuals and businesses in assessing products”.1 However, API is of the view that intellectual property in the area of real property presents a number of issues which are not fully canvassed in the abovementioned Issues Paper. Intellectual property embedded in valuation and other property-related reports of API members involves the acquisition of information which may possibly be confidential. Yet, when engaged in banks and financial institutions the intellectual property in such valuations and/ or reports is commonly required to be passed to the client bank or financial institution. In the Issues Paper it is proposed that there are seven different forms of intellectual property rights.2 It is the view of API that an eight form exists, namely private agreements. The Issues Paper, however, regards private agreements between firms as alternatives to intellectual property rights. The API considers that “secrecy or confidentiality arrangements”3 as identified in the Issues Paper form a much larger part of the manner in which intellectual property is maintained in Australia for the purposes of trade secrecy or more often, financial confidentiality...

Intellectual Property Chapter in Part 18: Intellectual Property and Communications

This chapter addresses the areas more commonly found in everyday practice (NB circuit layouts and plant breeder's rights are not covered). Importantly, IP law has become very specialised, and as such one for which practitioners will need expertise or access to relevant experts in order to properly provide advice. The following therefore is an overview only of relevant issues.