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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.
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.
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However, it was superseded in 1912 when federal Parliament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.
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.
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 1998
and 1999
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.
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
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.
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 (CLRC)
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.
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.
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