William Van Caenegem

Le systeme politico-juridique Australien (The Australian legal system)

William Van Caenegem — Wed, 23 Nov 2011 22:05:17 PST

This paper explains some of the fundamental characteristics of the Australian legal system, from representative government to federalism. It considers historical aspects of the development of law and legal institutions, with reference to the English origins of the common law and the adversarial approach to litigation and fact finding. It also explains some current issues and debates in Australian law, such as the trend towards federal uniform legislation, and the constitutional question: monarchy (as at present) versus republic (for the future?). The paper is intended as an introduction to the Australian legal system for civil lawyers, in particular from France, and therefore also contains some comparative references.

The mobility of creative individuals trade secrets and restraints of trade

William van Caenegem — Thu, 15 Sep 2011 18:40:04 PDT

Extract:

Organizations provide the context, structures and complementary resources that allow creativity to thrive2. Organizations also absorb and spread the uncertainty, costs and risks inherent in creative activity. But no matter how efficiently organizations are structured for creative activity, only individuals actually create new things. Individuals make connections, understand and overcome problems, have intuition and new ideas: no innovation in technology, no creativity in the arts can exist without a human mind at work. That is as inescapably true in the current age of organized, collaborative and systematic creative pursuit as it was in the age of heroic invention and creative genius3.

Intellectual property policy reform: Fostering innovation and development

Christopher Arup et al. — Wed, 14 Sep 2011 21:56:42 PDT

This state-of-the-art study argues that reforms to intellectual property (IP) should be based on the ways IP is interacting with new technologies, business models, work patterns and social mores. It identifies emerging IP reform proposals and experiments, indicating first how more rigor and independence can be built into the grant of IP rights so that genuine innovations are recognized.

The original contributions illustrate how IP rights can be utilised, through open source licensing systems and private transfers, to disseminate knowledge. Reforms are recommended. The discussion takes in patents, copyright, trade secrets and relational obligations, considering the design of legislative directives, default principles, administrative practices, contractual terms and license specifications.

Providing contemporary empirical studies and covering public administration, collective and open approaches, and regulation of private transactions, this comprehensive book will prove a stimulating read for academics and students of law, business and management and development studies. Government policy makers and regulators as well as IP managers and advocates will also find much to provoke thought.

The internationalisation of law: Legislating, decision-making, practice and education

Mary Hiscock et al. — Wed, 14 Sep 2011 21:48:36 PDT

This insightful book explores the acute challenges presented by the ‘internationalisation’ of law, a trend that has been accelerated by the growing requirement for academics and practitioners to work and research across countries and regions with differing legal traditions.

The authors have all confronted these challenges of internationalisation through their extensive knowledge and experience in civil law, common law and mixed jurisdictions around the globe. Their analysis of the implications for researchers and teachers, as well as practitioners, law-makers and reformers is original and their different proposals for dealing with the challenges are both practical and at times, radical.

This book is a must-read for those exposed to the internationalisation of law, be they academics, cross border practitioners, judges, arbitrators, or those engaged in legal reform and policy.

VUT v Wilson, UWA v Gray and university intellectual property policies

William van Caenegem — Wed, 14 Sep 2011 19:22:05 PDT

In Wilson and Gray the respective university intellectual property policies were held to be ineffective. The Federal Court therefore had to examine the default law concerning academic ownership of inventions. The trial judge in Wilson accepted that inventions that were a normal incident of the kind of research a particular academic was engaged to perform may belong to the employing university. However, French J and the Full Court in Gray emphasised that academic autonomy, duty to publish and freedom to collaborate with outsiders set academics apart. Employer ownership of inventions is therefore not to be implied into standard academic employment contracts, which are of a separate kind. A duty to research does not equate to a duty to further the university's commercial interests by pursuing patentable inventions, as is by contrast required of researchers in industry. This article examines the rulings in Wilson and Gray and explores what they mean for the structure and terms of university intellectual property policies in the future.

Latest developments in the Napster saga

William Van Caenegem — Tue, 06 Sep 2011 15:54:29 PDT

Extract:

The injunction granted against Napster by judge Marilyn Platel late last year was stayed until the hearing of an appeal. Napster was unsuccessful in the appeal. While upholding the substance of her decision in favour of the RIAA, the Appeals Court has directed judge Platel to rewrite the injunction. Will she shut down Napster or allow it to operate on a new feepaying basis? Meanwhile, she has appointed a former federal judge, Eugene Lynch, to mediate between the parties

Epilogue

Mary E. Hiscock et al. — Tue, 06 Sep 2011 15:54:25 PDT

Two events were selected by the faculty of law at Bond University to celebrate its twentieth birthday. The first in time was a Symposium on Internationalisation of Law in June 2009, and the second was an invitation to the last Law Man of the Wardaman People, an indigenous clan, to visit the Law School as Artist-in-Residence in September 2009 to depict his Law in a painting, and to explain its significance to the academic and the wider community. The painting will then remain at the Law School.

Intellectual property law in Australia

William Van Caenegem — Tue, 28 Sep 2010 22:55:28 PDT

Derived from the renowned multi-volume International Encyclopaedia of Laws, this monograph provides a survey and analysis of the rules concerning intellectual property rights in Australia. It covers every type of intellectual property right in depth – copyright and neighbouring rights, patents, utility models, trademarks, trade names, industrial designs, plant variety protection, chip protection, trade secrets, and confidential information. Particular attention is paid throughout to recent developments and trends. The analysis approaches each right in terms of its sources in law and in legislation, and proceeds to such legal issues as subject matter of:

* protection,
* conditions of protection,
* ownership,
* transfer of rights,
* licences,
* scope of exclusive rights,
* limitations,
* exemptions,
* duration of protection,
* infringement,
* available remedies,
* and overlapping with other intellectual property rights.

The book provides a clear overview of intellectual property legislation and policy, and at the same time offers practical guidance on which sound preliminary decisions may be based. Lawyers representing parties with interests in Australia will welcome this very useful guide, and academics and researchers will appreciate its value in the study of comparative intellectual property law.

Intellectual and industrial property law

William Van Caenegem — Mon, 26 Jul 2010 22:52:34 PDT

Comprehensive and up-to-date textbook on all aspects of intellectual and industrial property. Intellectual and Industrial Property in Australia is a new text that provides a comprehensive and up-to-date account of all aspects of intellectual and industrial property law in Australia.

Important Features:
* Introductory chapter with references to policy and theory.
* Clear explanation of the concepts and principles that apply across the varied regimes.
* A multitude of case law, both long standing precedent and more recent illustrative cases, provide examples of how the law has been applied.

Pervasive incentives, disparate innovation and intellectual property

William Van Caenegem — Mon, 26 Jul 2010 22:52:34 PDT

Extract:
Current interest in patent policy reaches beyond the academic community, as two recent newspaper articles demonstrate: one concerned how 'a new technique for creating embryo-free human stem cells sidesteps a controversial US patent that has slowed the pace of scientific discovery worldwide.' James Thomson of the University of Wisconsin generated the patent but also the breakthrough which circumvents it. Since another group simultaneously reported the technique no 'one team can control it', according to the author. The other article related to the Australian National University (ANU), which was told by the Australian Universities Quality Audit (AUQA) to, 'better promote the intellectual property attached to its research to raise its profile'. AUQA stressed that even if the ANU was not set to make much money from exploiting intellectual property (IP), at least exploitation 'could raise ANU's standing in the global community'.

Themes and prospects for intellectual property law reform

Christopher Arup et al. — Mon, 26 Jul 2010 22:52:33 PDT

Copyright liability for the playing of 'music on hold': Telstra Corporation Ltd v Australasian Performing Right Association Ltd

William van Caenegem — Mon, 11 Jan 2010 17:15:11 PST

Extract:

This is a test case brought by the Australasian Performing Rights Association (APRA), the assignee of copyright in musical and literary works for the purpose of the public performance rights (both live and mechanical), the right of transmission to subscribers to a diffusion service (the diffusion right) and the broadcast right. The question to be determined is whether Telstra (or Telecom as it was called at the outset of proceedings) by providing certain music on hold services, is liable to APRA because of a breach of their diffusion and/or broadcast rights under the Copyright Act 1968 (Cth). APRA sought declaratory and injunctive relief to restrain Telstra from performing or authorizing the performance in public of certain works in which it owned (by partial assignment) the copyright, as well as from broadcasting them or transmitting them by cable to any subscriber to a telecommunications service provided by Telstra, and from authorizing or permitting any person to connect to the telecommunications network any equipment capable of transmitting the works to Telstra subscribers.

Data Access v PowerFlex

William Van Caenegem — Mon, 11 Jan 2010 17:15:10 PST

Extract:

The issue in this case is relatively straightforward: does a single word in the DataFlex language amount to 'a set of instructions' in the sense of that expression in the definition of 'computer program' in s 10 of the Copyright Act 1968 (Cth)? In answering this question, we enter a well-worn and complex debate about protecting the rights of authors and subsequent owners of computer programs by classifying the latter as "literary works" in Part III of the Copyright Act 1968. [2]

[2] See note in article.

Case Note - Inventiveness in Lockwood No 2

William Van Caenegem — Tue, 11 Aug 2009 18:48:22 PDT

The High Court entertained three appeals concerned with inventiveness after 2000: Firebelt Pty Ltd v Brambles Australia Ltd [2002] HCA 21 (23 May 2002) (relating to a petty patent); Aktiebolaget Hassle v Alphapharm Pty Limited [2002] HCA 59 (12 December 2002) and Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2007] HCA (23 May 2007) . Alphapharm related to the application of the 1952 Patents Act, but both Firebelt and Lockwood No 2 dealt with the threshold test of inventiveness under the 1990 Act, as it stood before the 2001 amendments. Both concerned combination patents, in Firebelt waste removal trucks, and in Lockwood rim-mounted door locks with a new mechanical feature.

Registered Geographical Indications : Between Intellectual Property and Rural Policy – Part I

William van Caenegem — Wed, 18 Feb 2009 11:10:14 PST

The use of geographical terms in association with goods is common. But uses vary in crucial ways. The misuse of geographical terms in trade gives rise to various legal remedies. Crucial to the distinction between misrepresentation and registered trade-mark infringement is the significance consumers attach to the geographical term. The current international debate revolves around the European Union's (EU) proposals for the expansion of a hybrid system, that of “registered geographical indications (GIs)”, which already exists under municipal and EU laws.

Different approaches to the protection of celebrities against unauthorised use of their image in advertising in Australia, the United States and the Federal Republic of Germany

William van Caenegem — Wed, 18 Feb 2009 11:10:14 PST

In today's highly competitive commercial environment, consumers are subjected to an unrelenting stream of advertising. This occurs in every conceivable way and at every possible opportunity, mostly through the mass media. In reality the consumer is often faced with a choice between virtually identical products, as far as quality and price are concerned. To gain a commercial advantage over competitors in this world of "bland' brand names and undistinguished products, advertisers employ different techniques. They can turn to a celebrity for help. Celebrities themselves are products of the mass media: they live through them and by them, so they form a logical target for advertisers.

It can pay to be famous, or to have a public profile of any kind, because using the image of a celebrity in advertising is effective. So the question of protection of the celebrity's entitlements poses itself: should the value of celebrity be protected and how?

Inter-firm migration of tacit knowledge: law and policy

William van Caenegem — Wed, 18 Feb 2009 11:10:13 PST

Much knowledge is diffused by the exchange of property rights in intangibles. But tacit knowledge, not being subject to property rights, is instead diffused by migration of knowledgeable individuals between firms. The law impacts significantly on this diffusion mechanism, in particular those rules that determine the use individuals may make of their tacit knowledge after migration to a different firm. The general principle underlying the relevant law is that individuals are free to migrate with all their tacit knowledge. Nonetheless there are some narrow exceptions to this principle. That these exceptions remain narrow and carefully policed by the courts is important because imposing too many restraints on use of tacit knowledge post-term would have a negative impact on real innovation.

Intellectual property law in Australia

William van Caenegem — Wed, 18 Feb 2009 11:10:13 PST

The International Encyclopaedia of Laws is a unique series of looseleaf publications comprised of 25 distinct reference works. Each of these subsets is itself encyclopaedic in nature, covering a major field of law with penetrating country-by-country monographs that describe how each national legal system governs the relevant field.

The monograph ‘Intellectual property law in Australia’ by William van Caenegem represents Australian law in the field of intellectual property.

Intellectual property cases before the high court 2000 - 2007

William van Caenegem — Wed, 18 Feb 2009 11:10:12 PST

Extract:

This short note provides some statistical background facts relating to the record of the High Court in intellectual property cases from 2000-2007. Brief notes on each case follow, in chronological order. The notes focus on legal issues, and offer a modest critique in some cases. The facts of each case are not restated in detail.

'A Philosophy of Intellectual Property' by Peter Drahos, Applied Legal Philosophy Series, Dartmouth, 1996, 257 Pages.

William van Caenegem — Wed, 18 Feb 2009 11:10:12 PST

This long awaited book by Peter Drahos is quite deliberately entitled 'a' philosophy of intellectual property. It is not simply a history of the philosophy of intellectual property, but presents Drahos' own understanding and model of an underlying philosophical framework. However, Drahos' method is one of frequent reference to, and interaction with, historical schools of thought: his own philosophical contribution is thoroughly contextualised.