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<title>Kimberlee G Weatherall</title>
<copyright>Copyright (c) 2012  All rights reserved.</copyright>
<link>http://works.bepress.com/kimweatherall</link>
<description>Recent documents in Kimberlee G Weatherall</description>
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<title>Submission to the Joint Standing Committee on Treaties Inquiry into the Anti-Counterfeiting Trade Agreement</title>
<link>http://works.bepress.com/kimweatherall/26</link>
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<pubDate>Thu, 26 Jan 2012 21:14:08 PST</pubDate>
<description>
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	<p>Independent submission to JSCOT Inquiry into ACTA.  Considers whether Australia should ratify ACTA, and in the process considers problems with ACTA.</p>

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<author>Kimberlee G. Weatherall</author>


<category>Intellectual Property and International Trade</category>

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<title>Providing Services to Copyright Infringers: Roadshow Films Pty Ltd v iiNet Ltd</title>
<link>http://works.bepress.com/kimweatherall/25</link>
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<pubDate>Tue, 22 Nov 2011 12:41:32 PST</pubDate>
<description>
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	<p>In Roadshow Films v iiNet the Australian High Court will consider whether an Internet Service Provider (ISP) can be held liable for authorising copyright infringements committed by its subscribers. The case has significant ramifications for the regulation of the internet in Australia and may colour international debates about the responsibility of ISPs towards copyright owners. The legal issues at stake are, however, relatively self-contained and the authors argue that it would be inappropriate for the High Court to seek to draw on broader issues of policy when arriving at its decision. The authors argue that the Full Federal Court erred in building its reasoning on authorisation around the expectation that termination of user accounts was required. On the contrary, iiNet was not required to suspend or terminate accounts in order to avoid liability. iiNet was, prima facie, required to pass on copyright warning notices generated by the applicants to its subscribers. However, despite having failed to take even this limited step, iiNet avoid liability thanks to the operation of s 112E of the Copyright Act 1968 (Aust.), which deems certain conduct not to constitute authorisation of infringement</p>

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<author>Kimberlee G. Weatherall et al.</author>


<category>Copyright</category>

<category>Law and the Internet</category>

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<title>Intellectual Property in ACTA and the TPP: Lessons Not Learned</title>
<link>http://works.bepress.com/kimweatherall/24</link>
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<pubDate>Tue, 18 Oct 2011 21:59:07 PDT</pubDate>
<description>
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	<p>In this paper I am interested in what ACTA as it emerged from the negotiating process has to teach us about the negotiation of international agreements in IP, and in whether we can see any evidence that those lessons have been learned or are being applied to the TPP negotiations. As I will show below, the ACTA text that emerged from several years’ controversial negotiations was a quite different beast from the original aspirations of the negotiating parties. ACTA as it was finalised retreated significantly from earlier proposals: it contains more safeguards, and less detailed and stringent provisions, than was feared or expected by many commentators. This suggests that even in negotiations among ‘IP-enthusiast’ countries there are limits to the consensus on the appropriate scope of IP-protective measures. ACTA, therefore, as the closest thing we have to a ‘high protection consensus’, ought to be seen as a kind of ceiling to what is possible or desirable for the present. As I will further show, however, this is far from the approach being adopted by the US in the TPP negotiations. The US’ apparent determination to treat its existing FTAs, and ACTA, as a floor, rather than a ceiling, may well undermine the whole purpose of the TPP negotiations.</p>

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</description>

<author>Kimberlee G. Weatherall</author>


<category>Intellectual Property and International Trade</category>

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<title>Submission to the ALRC National Classification Review</title>
<link>http://works.bepress.com/kimweatherall/23</link>
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<pubDate>Thu, 21 Jul 2011 23:00:27 PDT</pubDate>
<description>
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	<p>This submission addresses online censorship in Australia. It was made to the Australian Law Reform Commission (ALRC) in response to its Issues Paper in the National Classification Review.</p>

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<author>Kimberlee G. Weatherall</author>


<category>Law and the Internet</category>

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<title>An Australian Analysis of the February 2011 Leaked US TPPA IP Chapter Text - copyright and enforcement</title>
<link>http://works.bepress.com/kimweatherall/22</link>
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<pubDate>Wed, 20 Jul 2011 01:52:29 PDT</pubDate>
<description>
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	<p>This document is a summary table of the copyright and enforcement provisions of the (leaked) US February 2011 proposals for the IP chapter of the Trans-Pacific Partnership Agreement (TPPA), and their impact on Australian law. The table includes comments, not only for the benefit of an Australian audience, but also for the benefit of countries not presently party to a US FTA. The latter countries might learn something from Australia’s experience to date.</p>

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<author>Kimberlee G. Weatherall</author>


<category>Intellectual Property and International Trade</category>

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<title>ACTA - Australian Section by Section Analysis</title>
<link>http://works.bepress.com/kimweatherall/21</link>
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<pubDate>Mon, 03 May 2010 22:49:38 PDT</pubDate>
<description>
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	<p>A section-by-section analysis of the April Draft of the Anti-Counterfeiting Trade Agreement from an Australian perspective, pointing out how Australian law may have to change under an ACTA, and how ACTA creates obligations and procedures more onerous for Australians than for people in other countries.</p>

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</description>

<author>Kimberlee G. Weatherall</author>


<category>Intellectual Property and International Trade</category>

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<title>ACTA April 2010 - Analysis of Provisions</title>
<link>http://works.bepress.com/kimweatherall/20</link>
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<pubDate>Thu, 08 Apr 2010 13:00:02 PDT</pubDate>
<description>
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	<p>This paper analyses the potential impact of the proposed ACTA (January 2010 leaked text) on Australian law.</p>

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</description>

<author>Kimberlee G. Weatherall</author>


<category>Intellectual Property and International Trade</category>

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<title>The Anti-Counterfeiting Trade Agreement: An updated analysis</title>
<link>http://works.bepress.com/kimweatherall/19</link>
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<pubDate>Tue, 17 Nov 2009 15:01:57 PST</pubDate>
<description>
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	<p>This paper provides an updated analysis of the issues posed by negotiations for the ACTA, as at November 2009.</p>

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</description>

<author>Kimberlee G. Weatherall</author>


<category>Intellectual Property and International Trade</category>

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<title>The Anti-Counterfeiting Trade Agreement: What&apos;s It All About?</title>
<link>http://works.bepress.com/kimweatherall/18</link>
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<pubDate>Thu, 19 Jun 2008 18:00:06 PDT</pubDate>
<description>
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	<p>This paper evaluates the current state of play on negotiations for an Anti-Counterfeiting Trade Agreement (‘ACTA’). Relatively little that is concrete is known about the negotiations, which are being conducted behind closed doors: a fact which is tending to fuel wild speculations regarding the possible content of the Agreement, the timetable for its negotiation, and its future envisaged use. This short paper outlines what is publicly known about the negotiations, the purpose of the agreement, and the potential scope of the agreement, in order to provide information for interested members of the public, particularly Australians.</p>

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</description>

<author>Kimberlee G. Weatherall</author>


<category>Intellectual Property and International Trade</category>

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<title>Of Copyright Bureaucracies and Incoherence: Stepping Back from Australia&apos;s Recent Copyright Reforms</title>
<link>http://works.bepress.com/kimweatherall/17</link>
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<pubDate>Thu, 07 Feb 2008 14:02:36 PST</pubDate>
<description>
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	<p>Australia's recent copyright reforms show a marked 'bureaucratic' tendency. In this article, the author seeks to give both a comprehensive history of the period just past, and a bird's-eye view of the resulting reforms - highlighting the hitherto unremarked way in which they affected the many institutions which manage copyright. In short, recent copyright reforms have a peculiarly 'bureaucratic' bent. In many areas the government created detailed rules capable of objective application - rules ideally tailored, perhaps, to the many organisations that participated in the development of copyright policy over the period. In addition, the new copyright laws almost across the board reserve significant policy-making discretion to the executive: from the Attorney-General to agencies such as the Australian Competition and Consumer Commission and the Australian Communications and Media Authority. Whether or not this bureaucratic tendency in copyright marks a shift in focus, or simply a continuation of past trends, it certainly warrants closer attention.</p>

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<author>Kimberlee G. Weatherall</author>


<category>Copyright</category>

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<title>The Impact of Copyright Treaties on Broadcast Policy</title>
<link>http://works.bepress.com/kimweatherall/16</link>
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<pubDate>Wed, 31 Oct 2007 18:22:00 PDT</pubDate>
<description>
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	<p>Broadcast copyright. Even the name suggests the tension: between a medium which of its nature is ‘out there’—broadly cast, quite literally—and a set of laws designed to provide creators with exclusive rights and long-lasting control. Nevertheless, television broadcasters claim to “own” their broadcasts; in many countries, including Australia, they do.  While recent efforts in WIPO to negotiate a treaty on IP-style protection for broadcasters appear to have failed, this chapter argues that the growth in other – including bilateral – copyright treaties has already changed the environment for broadcast policymaking. Historically broadcast regulators have been able to tailor broadcasters’ rights according to the demands of broadcast policy. As this chapter shows, it will be much more difficult to adopt this course in the future. From now on, it is going to be copyright first, broadcast policy later: and this could have some rather interesting effects in forthcoming debates over technology. Along the way, it considers the various arguments for and against protection for broadcasters, and the reasons why treaty-making in this area has been so difficult.  The chapter is not online, but copies are available on request.</p>

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<author>Kimberlee G. Weatherall</author>


<category>Copyright</category>

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<title>Filing and Settlement of Patent Disputes in the Australian Federal Court, 1995-2005</title>
<link>http://works.bepress.com/kimweatherall/15</link>
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<pubDate>Thu, 04 Oct 2007 23:24:11 PDT</pubDate>
<description>
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	<p>This article explores the filing and settlement of patent cases in Australia.   Patent litigation is a subject which attracts constant discussion and debate. Until recently, Australian courts were perceived as 'anti patent'. Now there seems to be some concern that Australian patent litigation is slower, and more expensive, than other analogous jurisdictions. However, in general, few statistics on patent litigation have been available and most previous work on the topic has focused on the small proportion of cases which proceed to trial. Using data obtained from Federal Court records, this article presents a set of descriptive statistics relating to the filing and settlement of patent disputes in the Federal Court from 1995 to 2005. Our analysis indicates that, as in other countries, settlement rates in Australia are high, yet the average time to settlement, and judgment, is longer in Australia. However, there is some evidence that parties are in part responsible for the length of patent proceedings by requesting long delays between court events.</p>

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<author>Kimberlee G. Weatherall et al.</author>


<category>Patent</category>

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<title>Submission: Draft Guidelines on the Infringement Notices and Forfeiture of Infringing Copies and Devices Scheme, Copyright Amendment Regulations 2006</title>
<link>http://works.bepress.com/kimweatherall/14</link>
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<pubDate>Thu, 04 Oct 2007 18:33:27 PDT</pubDate>
<description>
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	<p>Submission on the Draft Guidelines for the infringement Notices and Forfeiture of Infringing Copies and Devices Scheme produced by the Australian Attorney-General's Department.  The submission deals with the scope of the scheme, the need for more case studies, issues of forfeiture, multiple offences, record-keeping, the appropriate individuals against whom notices should be issued, defences, factors relevant to the exercise of officers' discretion or the withdrawal of notices, and the standard of information provided to the public.</p>

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</description>

<author>Kimberlee G. Weatherall</author>


<category>Copyright</category>

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<title>In the Shadow of the China–Australia FTA Negotiations: What Australian Business Thinks about IP</title>
<link>http://works.bepress.com/kimweatherall/13</link>
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<pubDate>Wed, 03 Oct 2007 20:38:24 PDT</pubDate>
<description>
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	<p>This study collated responses from a survey of over 2,100 businesses across Australia to assess the extent of both their business dealings with China and their commercial interest in IP. The survey results reveal that among Australian businesses which have direct business dealings with China, IP issues (registration, examination and enforcement) are of less concern than Chinese regulations and legal transparency. Among the IP issues covered in the survey, IP enforcement poses the greatest problem for Australian businesses.</p>

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<author>Anne  Leahy et al.</author>


<category>Intellectual Property and International Trade</category>

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<title>Exporting Controversy? Reactions to the Copyright Provisions of the US-Australia Free Trade Agreement: Lessons for US Trade Policy</title>
<link>http://works.bepress.com/kimweatherall/11</link>
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<pubDate>Thu, 30 Aug 2007 16:09:16 PDT</pubDate>
<description>
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	<p>This paper uses a case study to argue that US bilateral trade policy is failing to secure either good relations with partners, or US economic interests.</p>
<p>The wisdom of current US trade policy has not passed entirely unchallenged. Some commentators have argued that free trade agreements have hidden political costs insofar as they breed resentment in countries not invited to sign such agreements. Others have demanded that future agreements incorporate higher labour and environmental standards. Left unchallenged, however, is the assumption that current policy promotes good relations with partner countries. It is this assumption that we seek to question, by taking as a case study the Australian reaction to the detailed copyright provisions of the US-Australia free trade agreement. These provisions gave rise to extreme and sustained controversy, so much so that it can fairly be said that the copyright provisions – more than any other single part of the agreement – helped to generate a climate of suspicion and concern about the United States' intentions. As a consequence, far from promoting the United States' political interests, the US-Australia free trade agreement has fed anti-American sentiment in a traditionally friendly country.</p>
<p>Equally importantly, we show that US copyright owners gained little from the agreement: something that is likely to surprise supporters and critics of US copyright policy alike. Consequently our analysis reveals, first, that the conclusion of a free trade agreement may produce net political costs for the US even within partner countries; and second, that these costs are not offset by economic benefits, at least in the copyright sphere. Whilst this does not demonstrate conclusively that the bilateral route needs to be abandoned, it does lend support to the argument that there needs to be a fundamental reassessment of current US trade strategy.</p>

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</description>

<author>Kimberlee G. Weatherall et al.</author>


<category>Copyright</category>

<category>Intellectual Property and International Trade</category>

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<title>Submission to the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the Copyright Amendment Bill 2006</title>
<link>http://works.bepress.com/kimweatherall/10</link>
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<pubDate>Sun, 08 Jul 2007 21:24:02 PDT</pubDate>
<description>
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	<p>This Senate Inquiry submission addresses the expansion of criminal liability for copyright infringement and the narrowing of copyright exceptions, brought about by the Copyright Amendment Bill 2006 (Australia).</p>

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</description>

<author>Kimberlee G. Weatherall</author>


<category>Copyright</category>

<category>Law and the Internet</category>

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<title>Can Substantive Law Harmonisation and Technology Provide Genuine Alternatives to Conflicts Rules in Intellectual Property?</title>
<link>http://works.bepress.com/kimweatherall/9</link>
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<pubDate>Tue, 23 Jan 2007 14:48:22 PST</pubDate>
<description>
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	<p>This article investigates whether there could be practical alternatives to relying on private international law to solve legal boundary issues in cross-border communications contexts, especially those involving IP rights. It points out that certain developments would seem to be tending in this direction — first, with significant moves to remove the legal boundaries (or make them undetectable) through harmonisation of IP law; second, with advancements in technology that seek to ‘reimpose' geographic borders. Developments in both fields proceed apace, and it is worthwhile to explore what difference, if any, they will make. The conclusion is that, although both contribute at some level, perhaps unsurprisingly, neither provides a complete response.</p>

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<author>Kimberlee G. Weatherall</author>


<category>Law and the Internet</category>

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<title>Submission to House of Representatives Legal and Constitutional Affairs Committee Inquiry into TPM Exceptions</title>
<link>http://works.bepress.com/kimweatherall/8</link>
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<pubDate>Thu, 23 Nov 2006 14:48:58 PST</pubDate>
<description>
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	<p>This submission addresses the drafting of Australia's new anti-circumvention laws, required by the free trade agreement with the US.  It explains how anti-circumvention law works, considers how the committee should approach the exceptions, and proposes a number of areas where exceptions might be needed.</p>

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</description>

<author>Kimberlee G. Weatherall</author>


<category>Copyright</category>

<category>Intellectual Property and International Trade</category>

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<title>&apos;Pretend-y Rights.&apos; On the Insanely Complicated New Regime for Performers&apos; Rights in Australia, and how Australian Performers Lost Out</title>
<link>http://works.bepress.com/kimweatherall/7</link>
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<pubDate>Thu, 23 Nov 2006 01:26:35 PST</pubDate>
<description>
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	<p>From 1 January 2005, over eight years after the WIPO Performances and Phonograms Treaty (WPPT) was concluded, and not far shy of 10 years after performers obtained economic and moral rights in the UK, Australia was finally dragged kicking and screaming to the performers' rights party.  Although the issue had long been on the government's copyright agenda, the final impetus for the adoption of performers' moral and economic rights was not a local policy decision but a provision of the Free Trade Agreement between Australia and the United States of America ('AUSFTA'). It is perhaps significant that the aim of promoting performers' interests appears in neither the Explanatory Memorandum nor the Second Reading Speech of the legislation which implemented that treaty.  This chapter considers the history of Australia's new performers' rights regime, and examines the rights performers obtained, concluding that performers in fact gained very little.  The law stands testament to the absence of a public policy justification, and the unintended consequences that can result from highly specific IP treaty provisions.</p>

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<author>Kimberlee G. Weatherall</author>


<category>Intellectual Property and International Trade</category>

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<title>Response to the Issues Paper: Fair Use and Other Copyright Exceptions in the Digital Age</title>
<link>http://works.bepress.com/kimweatherall/6</link>
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<pubDate>Thu, 23 Nov 2006 01:19:21 PST</pubDate>
<description>
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	<p>This law reform submission, directed to the Australian Attorney-General's Department, responds to the question whether Australia should introduce a 'fair use' exception in copyright law, and whether the Australian exceptions regime has other problems with it.  Specifically it considers questions of private copying, parody, and copyright exceptions for libraries and archives in a digital environment.</p>

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<author>Kimberlee G. Weatherall et al.</author>


<category>Copyright</category>

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