Caslon Analytics elephant logo title for Intellectual Property guide
home | about | site use | resources | publications | timeline   spacer graphic   Ketupa

overview

tensions

IP history

Australia

global law

other countries

resources

advocacy

patents

designs

trademarks

links & tags

ECMS

fair use

Indigenous

geopolitics

P2P

plagiarism

moral rights

duration

email & news

academia

museums

government

the arts

publicity

piracy


open


orphans

EULAs


dollars
 









related pages icon
related
Guides:


Economy

Governance

related pages icon
related
Profiles:


IPR societies

Trademarks

IPR
chronology


Indigenous
Marks

section heading icon     Australian law and agencies

This page deals with the Australian intellectual property regime, which in recent years has undergone major changes to address the challenges of new technologies. It also highlights Australian government agencies.

It covers

This page is supported by a supplementary profile that identifies major copyright law rulings by Australian courts and tribunals, along with pointers to selected academic studies. There is also supplementary multi-page chronology about Australian copyright developments.

subsection heading icon     context

Intellectual property protection in Australia, as in all advanced economies, reflects international agreements such as the Berne Convention that establish basic standards for IP protection and seek to harmonise the legal regimes of individual countries.

There is an exploration of the international agreements, and developments within particular countries such as the US and Canada, in the following two pages of this guide.

None of the advanced economies have recently developed intellectual property legislation "from scratch", although as we note in the next part of this guide some critics have suggested such an approach or even the abandonment of copyright. Copyright reform in Australia, as elsewhere, has been slow and often painful, with ongoing amendment of legislation that essentially dates back to the first years of Federation or beyond.

subsection heading icon     history

To adapt Sam Ricketson's 2000 Intellectual Property Administration & Policy in Australia: An Examination of the Australian Situation, Past and Present, and Recommendations for Future Change (PDF) , the history of intellectual property law in Australia involves five phases:

1   uncritical adoption of UK statutory models (1901-30)
2   modification of UK models for local conditions (1935-55)
3   more autonomous policy and legislation (1956-84)
4   the immediate past (1984-96)
5   the digital era (1997- )

The initial federal intellectual property legislation - the Patents Act 1903, the Trade Marks Act 1905 and the Designs Act 1906 were modeled on the UK Patents, Designs & Trade Marks Act 1883. The 1905 Copyright Act represented what Ricketson describes as "a succinct and elegant codification of copyright law that was markedly superior to the inconsistent and complex body of copyright acts then in force in the UK".

However, it was superseded in 1912 when federal Parliament declared the UK Copyright Act 1911 was in force throughout Australia. The few substantive differences between Australian and UK law were driven by Australia's membership of the Berne and Paris Conventions.

From 1935 onwards adoption of British legislative models was less automatic - although there was an emphasis on a "close correspondence" between Australian and UK law - and involved assessment by technically expert committees such the Knowles Committee (1935-39) and Dean Committee (1951-54) that led to the Patents Act 1952 and Trade Marks Act 1955.

Establishment in 1959 of a committee of review (headed by Sir John Spicer, a former Commonwealth Attorney General) about new copyright legislation was a landmark. Its recommendations resulted in the 1968 Copyright Act, which provided the copyright framework for the rest of the century and in the short term resulted in the establishment of a range of collective rights management bodies.

Spicer reflected obligations under the 1948 revision of the Berne Convention, the 1956 UK Copyright Act and claims of special Australian circumstances. The 1973 Franki Committee on industrial property represented further emancipation from UK models. A decade later, after the 1979 Patents Amendment Act, work by the Industrial Property Advisory Committee from 1980 to 1984 led to the Patents Act 1990.

The significance of intellectual property in the 'new economy', the pace of international legal developments, changing perceptions of rights and responsibilities, and technological advances were reflected in a speeding up of legislative change from the mid 1990s onwards. The decade from the mid-1980s for example saw more federal government studies of intellectual property than in the preceding eighty years and culminated in the major Digital Agenda copyright reforms (discussed below).

The Copyright Law Review Committee (CLRC) was established in 1983 as an advisory body concerned with copyright reform and operating in tandem with the Australian Law Reform Commission (ALRC). It produced a range of recommendations (for example on computer software protection), some not to the government's liking, and was restructured to report on simplification of the Copyright Act 1968.

A plant breeder's rights scheme was introduced in 1987 under the Plant Variety Rights Act 1987, with a Circuit Layouts Act in 1989. The Stopping the Rip-Offs: Intellectual Property Protection for Aboriginal & Torres Strait Islander Peoples issues paper was released in 1994, a year that saw the Australian Bureau of Industry Economics report on The Economics of the Patents System, followed by The Economics of Intellectual Property Rights for Design and The Economics of Intellectual Property.

The Trade Marks Act 1995 repealed the 1955 Act and reflected the 1994 World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The 1994 Copyright Convergence Group report highlighted issues regarding satellite broadcasting, new media and information networks. It was followed by the 1995 Simpson Review of Australian Collecting Societies, a report by Bently & Sherman on Performers Rights, the Our Culture, Our Future report on Indigenous intellectual property issues, proposals for strengthened protection for the moral rights of creators, changes to restrictions on the parallel import of copyright works and government support for the establishment of the Viscopy visual arts collecting society.

Within the copyright community attention centred on moves towards the so-called digital agenda reforms, addressing international requirements, court decisions such as that in the 'Music On Hold' case and adoption of technologies such as the net that eroded several features of the 1968 legislation.

subsection heading icon     the Digital Agenda reforms

The Australian Copyright Amendment (Digital Agenda) Act 2000 came into effect on 4 March 2001. It updates the 1968 Copyright Act, itself an update of legislation from the 1950s and earlier that was modelled on UK enactments.

A RTF version of the full text of the Bill is available on the Australian Digital Alliance (ADA) site. It features in Rhys Bollen's 2001 eLaw paper Copyright in the digital domain. The legislation is examined in Maree Sainsbury's Annotated Copyright Act (Sydney: Lawbook Co 2004).

The 'Digital Agenda', like the Digital Millennium Copyright Act in the US and similar legislation in Canada and other countries, resulted from a succession of official discussion papers and representations by stakeholders such as libraries, publishers, artists and software developers. 

Aspects of the legislation will, we are sure, be disputed and ongoing tinkering seems inevitable. However, the new Act will address most of the challenges posed by the web and other digital technologies.

subsection heading icon     other copyright changes

Associated draft legislation on Performers' Rights and Indigenous IP protection is moving through the legislative pipeline. 

The Copyright Amendment (Moral Rights) Act came into effect on 21 December 2000 and is explored in Maree Sainsbury's Moral Rights & their Application in Australia (Leichhardt: Federation Press 2003). More information about the legislation and moral rights regimes in other countries is here

A range of national reviews are underway. 

The Copyright Law Review Committee (CLRC), a specialist advisory body that the Government seems delighted to ignore, investigates particular issues from a legal perspective. Its and recommendations on Simplification of the Copyright Act have been contentious.

In October 2002 it released a major report on the relationship between contract and copyright law.The CLRC had earlier reported (PDF) on the operation of the Copyright Tribunal, a specialist arm of the Federal Court, and

The Intellectual Property & Competition Review Committee (IPCR), established as part of the National Competition Policy, presented its final report at the beginning of December 2000.  

The Committee explored competition aspects of copyright, patents, trademarks, designs and circuit layouts legislation. It had previously released an issues paper, criticised by some as over-impressed by the rights of users at the expense of creators and investors, and a preliminary report calling for fewer restrictions on parallel imports of copyright works.

subsection heading icon     industrial property

Australian legislation regarding industrial property reflects practice in other advanced economies, with elaboration of enactments regarding trademarks and addition of enactments concerned with new areas of activity such as plant breeders rights (PBR).

The major 'marks' legislation is -

1995 Trade Marks Act (here), providing protection for the words, symbols, pictures, sounds, smells (or a combination of these) used to distinguish goods and services of one trader from those of another. Trade marks are discussed briefly later in this guide and in a multi-page note.

1984 Advance Australia Logo Protection Act (here), protecting the 'Advance Australia' logo

1987 Olympic Insignia Protection Act (here) and associated Sydney 2000 Games (Indicia & Images) Protection Act 1996 (here), restricting use of Olympics insignia such as the 'rings' and 'torch' design

Those enactments are supplemented by peculiarities, such as protection (under the War Precautions Repeal Act 1920) for the word ANZAC and the Scout Association Act 1924 (here) that restricts use of the name 'Scout Association' and registration of the uniforms and insignia.

Patent and design protection legislation includes -

1990 Patents Act (here), giving the patent owner the exclusive right to commercially exploit the invention (any device, substance, method or process which is "new, inventive and useful") for the life of the patent - discussed in a multi-page note

2003 Designs Act, replacing the Designs Act 2006 (here), protecting the shape or appearance of manufactured goods for industrial or commercial use - discussed in a multi-page note

1987 Plant Variety Rights Act and 1994 Plant Breeder's Rights Act (here), two PBR enactments that provides exclusive commercial rights to market a new variety of plant or its reproductive material

1989 Circuit Layouts Act (here), covering the three-dimensional configuration of electronic circuits in integrated circuit products or layout designs

subsection heading icon     overviews and studies

The Commonwealth Attorney-General's Department Short Guide to Copyright Law in Australia (Short Guide) is conveniently online. 

As yet there is no authoritative one-volume primer for non-specialists in Australia. Anne Fitzgerald's Intellectual Property Law (Sydney: LBC 1999) is a succinct and affordable overview by a leading academic who has worked with the Copyright Law Review Committee. It covers industrial property along with copyright. 

Colin Golvan's An Introduction To Intellectual Property Law (Leichardt: Federation Press 2007) provides a similarly lucid view of the overall regime. Sam Ricketson's two volume The Law Of Intellectual Property (Sydney: LBC 1999) is a much more extensive treatment from the author of the definitive study of the Berne Convention. For patents see in particular Patent Law in Australia (Pyrmont: Lawbook Co 2008) by Colin Bodkin.

Leanne Wiseman's 2001 paper on Digital Copying in the Academy: the New Australian Educational Copying Licence and her 1999 report (PDF) on Copyright in Universities discuss legislation and practice in the education sector. Frances Hanks' 'Intellectual Property Rights and Competition in Australia' appears in The Interface Between Intellectual Property Rights and Competition Policy (Cambridge: Cambridge Uni Press 2007) edited by Steven Anderman.

More detailed pointers to copyright sites, primers and journals are found in the resources and advocacy pages of this guide.

subsection heading icon     government 

Within Australia responsibility for copyright is fought over by the Commonwealth Attorney-General's Department (A-G's) and the Department of Communications, Information Technology & the Arts (DCITA). 

The A-G's IP Branch produces the e-News on Copyright newsletter - valuable for the government legal perspective, weaker for its grasp of practice outside the bureaucracy. The IP Branch in DCITA offers a number of information sheets - many alas well beyond their shelflife - on its page, along with a Copyrites newsletter.

Trademarks, patents, genome rights and designs are dealt with by the confusingly-titled IP Australia. It is the successor to the Australian Industrial Property Office (AIPO), formed through the 1992 amalgamation of the Commissioner of Patents, Registrar of Designs and Registrar of Trade Marks. The organisation's site provides a useful introduction to intellectual property per se.

IP Australia and the Minister are advised by the Advisory Council on Intellectual Property (ACIP), a non-statutory body whose members are appointed by the Minister. The Professional Standards Board for Patent & Trade Marks Attorneys (PSB) is a statutory body concerned with certification of patent attorneys. It operates in conjunction with the Patent Attorneys Disciplinary Tribunal, a statutory body dealing with complaints of unprofessional conduct.

The Department of Foreign Affairs & Trade (DFAT) handles external relations aspects of the Australian intellectual property regime, in particular dealings with the WTO.

The Copyright Law Review Committee () is a specialist legal body advising the Attorney-General. Now that IP is belatedly moving to centre stage in government thinking about the information economy and relations with superpowers such as the US, the CLRC is increasingly competing with the economic rationalist mindset in bodies such as the Department of the Treasury, the Productivity Commission and the IPCR.

subsection heading icon     rights management 

The Australian regime, like that in Canada and the UK, features a range of nonprofit rights administration bodies - copyright collecting societies - that operate on behalf of authors and other rights owners.

Their activity is described in the 1995 report of the Commonwealth Review of Australian Copyright Collecting Societies and other government inquiries.

This site features a detailed profile on the Australian societies (and some overseas counterparts), along with pointers to studies about their shape and operation.






icon for link to next page   next page (global frameworks)



this site
the web

Google

 

 

 

version of July 2008
© Bruce Arnold
caslon.com.au | caslon analytics