29 June, 2013

Happy Birthday to Us All? The Challenge Over the Well-Known Birthday Song

If there ever has been a song that most people on Earth have heard, it's the one sang in celebration of one's birthday; Happy Birthday to You. The copyright owners of the song, Warner/Chappell Music, have kept the rights in a tight grip, charging as much as $1500 dollars for a single use of the song, but recently the rights to the song have come into question.

In a recent court filing, Jennifer Nelson, an American film-maker, is seeking for the song to be declared to being in the public domain (and having been there since the 1920s) as opposed to under the ownership of Warner/Chappell. If the song were to be declared to being in the public domain, anyone and everyone could be free to use it as they wish.

Birthdays aren't always so happy
The song's origin is in the old folk song of 'Good Morning to All', published as far back as 1893.The rights were subsequently bought by several entities, originally from the authors Patty and Mildred Hill, ending up with Warner/Chappell in 1988. The song brings in 2 million dollars per year for the owners through licensing fees.

Should the courts not make the declaration being sought, the copyright for the song should end sometime in 2016 in Europe, due to the passing of Patty Hill in 1946 and copyright terms extending to 70 years after the death of the last author of the work. Should a European nation have a longer period, the changes made under European Union legislation will not affect that period and the song will enjoy copyright protection for that extended period. In the United States the song's copyright should have expired in 1991, however the period was extended twice; initially by the Copyright Act of 1976 and further by the Copyright Term Extension Act and protection should therefore extend till 2030.

What Jennifer Nelson is arguing in her case is that the song belongs to everyone, and should not be owned by any entity. When thinking of the important role the song plays in a very simple event, the celebration of someone's birthday and the commonality of the song's use, she could have a solid case. Unlike trade marks, copyright doesn't face the effects of genericization, where the trade mark has become eponymous with the product it represents - in other words the name has become intrinsically what most products in that category are called. Even if a song is deemed to being incredibly common or 'everyone's', it is still protected by copyright.

With the great extensions of American copyright terms and the strict nature of copyright as a means to protect your intellectual property, I have my doubts about the song being in the public domain. Albeit not the exact same case, the popularity or commonality of a book doesn't automatically place it out of strict protection and into the free use of the public, so what would make a song any different?

Source: Thomson Reuters

26 June, 2013

Chinese Intellectual Property Law (Part 2) - Trademarks

(Part 1 discussing copyright law in China can be found here, Part 3 discussing Patents here)

This second part of my short introduction to intellectual property in China, previously having discussed copyright and the challenges China has faced in the field, will now turn to trademarks. Often thought of as a country mostly dealing in knock-offs of well-known brands, trademarks are an important issue that the law has to take into account and protect. As said, this will be an overview of what the current legislation attempts to do in China and aim to point out some issues with it as it stands.

The current legislation in force in China is the Trademark Law of the People's Republic of China (English translation can be found here, Chinese here) enacted in 1982. The latest amendments to the legislation having been made in 2001, coming in the wake of China becoming a member of the WTO.

Much like with copyright the legislation sets out very clearly what it aims to achieve:
"This Law is enacted for the purpose of improving the administration of trademarks, protecting the exclusive right to the use of a trademark, and encouraging producers and dealers to guarantee the quality of their goods and services and preserve the credibility of trademarks, so as to protect the interests of consumers, producers and dealers and promote the development of the socialist market economy."
One has to note a similar approach by the Chinese legislature to what has been established very well here in the common law; a trademark is an indicator of the "place of origin of goods", the 'badge of origin', separating other similar goods or services from those of the ones being sold under a particular trademark. Trademarks are sought from the Chinese Trademark Office and are registrable by any legal person, natural person or organization.

Exhibit A
The Chinese law permits the registration of a sign, including "...any work, design, letter of the alphabet, numeral, three-dimensional symbol and color combination, or any combination of the above", with the list being non-exhaustive. When compared to the allowed marks for example in Australia or the UK, the Chinese legislature has left the express types of signs very short (bearing a close resemblance to those allowed in the latter), however as all legislatures allow for the expansion of the types of marks which can be a trademark, one can't make direct comparisons. The Chinese law also sets a strict list of non-registrable marks, including the Chinese flag and other national symbols. 

Much akin to what was discussed in the Australian case of Phillips v Remington, with regards to three-dimensional marks the Chinese law prevents the registration of those marks "...where the sign merely indicates the shape inherent in the nature of the goods concerned, or it is only dictated by the need to achieve technical effects or the need to give the goods substantive value". Although the provision does not mention any patents relating to those marks, one can easily make the connection between marks that "achieve a technical effect" or "give the goods substantive value" as being a link to patented parts in to the goods.

In their assessment of an application for a trademark, the Trademark Office assesses the mark's degree of public recognition; the duration of its use; the duration and extent of any advertisement of that product; the records of protection it has gained as a well-known trademark; and other factors making that mark well-known. Immediately this drew my mind to the tort of passing off (separate in itself from trademarks per say), and the factor of 'good will'. At common law there is no requirement for the mark to be "well-known", however it does have to distinguish the goods or services in question from others, which could be understood as a requirement for it to be well-known in a sense. 

Exhibit B
But even when the Chinese legislation bears resemblance to the laws of other nations, there are still some problems which plague trademarks in China. Jeroen Lallemand explained some practical issues which affect the registrations of marks: Due to the complexity of the language, companies have to register three different variants of their mark; the original brand, the 'sound-alike' of that brand, and the brand's definition in Mandarin. Without the registration of all three variants, the brand name could be used through another completely legally. Also as China has a 'first come first served' approach to trademarks and should you be late to register your trademark, it could be registered by another entity entirely. A good example of this was the problems faced by Apple with the iPad trademark some time ago.

Another issue, much like when dealing with copyright, is the lack of enforcement in the protection of intellectual property. The US has brought this issue up in WTO dispute settlement proceedings only three years ago, clearly demonstrating that there is still much to improve on that front. A lack of enforcement is illustrated by the existence of fake stores in China, portraying themselves as well-known brands selling knock-off goods under their trademark. 

At their core trademarks are treated similarly in China, and on the face of it, are offered equal protection. Even with the close resemblance of laws in China and common law countries, the lack of enforcement doesn't showcase the protection of trademarks well. Between 2008 and 2010 the Chinese customs seized counterfeit goods for a total value of roughly 160 million dollars, with an arguably much larger amount going past customs to the world market, highlighting this issue even more. Where the Chinese legislature will take trademarks remains to be see. With no amendments in the better part of a decade, one could argue that this would be the time to possibly take a look at better enforcement standards or to even widen protection to linguistically similar brands. Abuses of pre-existing brands should also be something to be looked at, as blatantly trading under a well-known western name clearly is a clash of interests.

23 June, 2013

The United Kingdom Looking Ahead with new Copyright Exceptions

In a recent blog post I talked about the possible direction where Australian copyright was heading based on a Discussion Paper released by the Australian Law Review Commission. Well, it seems like the old motherland has awoken from its copyright hibernation in the wake of Australia's steps forward. In an effort to modernize copyright, the UK Intellectual Property Office is seeking opinions based on new potential exceptions which are under consideration: an exception for private copyingparody and quotations. I think each of these potential categories merits examination as to what their current formulation is, and where they could be headed.

Exception for Private Copying

In their plans, the UK Government plans to introduce "...a narrow private copying exception which will allow an individual to copy content they own, and which they acquired lawfully, to another medium or device for their own personal use". What this clearly is is an equivalent for something Australia has already had for some years; format shifting. Provisions such as this will allow you to copy your lawfully bought content, such as music or movies, to a different format - often from a CD onto your MP3 player for example. There is a distinct difference to what the UK approach, at least for now, is when compared to the Australian one. In further expanding on how the copying will extend, the IPO says that "...it would not allow them to make copies of their CDs and give them to other people". If this were to be looked at from a literal perspective, should you make a copy of a CD for your kids to listen to on their iPods, or give a copy of a DVD for your cousin to watch on a Saturday night, you would be infringing copyright. The Australian provision allows for copies to be given to family or people living in your household, but on the condition that those copies are of a temporary nature and not given to keep. If the IPO would only permit the copying for personal use in excluding family they would go against the very principle why they're enacting these additions to begin with: "The exception aims to align the law with behaviour most people consider to be reasonable, to remove unnecessary regulation, and to help build confidence in and respect for copyright"
Steve hasn't quite gotten the hang of "private copying"

Arguably the exception should be shaped to be similar to that of Australia's approach. The Canadian provision only allows for the copying for the individual, much like the potential UK provision, so the direction where this could head is unclear. One could easily predict that the courts could potentially extend the provision to apply to family, but that would remain to be seen. A draft of the section can be found in the document discussing the exception. 

Exception for Parody

An exception that the UK has needed for the past several years, yet again lagging behind its Australian cousins, is the exception to allow for the use of works for parody, caricature or pastiche. As the IPO explained, this would "...give people in the UK’s creative industries greater freedom to use others’ works". If introduced the provision would be included with other fair dealing provisions, so the use would have to be 'fair', preventing the use of works in the veil of parody to purely abuse it for personal gain. A draft of the possible provision can be read in the IPO's documentation as well.

Exception for Quotation

The final exception being introduced is one which would amend the current exception for criticism and review to one allowing for the quotation of material, not merely restricting it to those uses. Broadening the existing fair dealing exception seems like a perfectly sensible option, and in the words of the IPO: "ensure[s] that copyright does not unduly restrict the use of quotations for reasonable purposes that cause minimal harm to copyright owners, such as academic citation or hyperlinking"Should the provision be enacted it would be the first of its kind, as both in Australia and Canada similar provisions relating to criticism and review, on the face of the provisions, would be much more restrictive.

Source: IP-Watch

18 June, 2013

The US Supreme Court: Human DNA cannot be Patented

The long road of litigation has finally come to an end at the Supreme Court regarding the patentability of human genes. The Court was unanimous in its decision in the case (with Justice Scalia concurring in part but still agreeing with the decision), which came to a slightly surprising outcome, at least to this writer. The discussion on the possible outcome of the case based on the oral arguments a month or so ago on this blog can be found here.

The subject of patent desires
For those who haven't been fully introduced to the facts of the case, the Association of Molecular Pathology v Myriad Genetics dealt with patents relating to certain genomes; BRCA1 and BRCA2. These genes were patented by Myriad Genetics some 15 years ago, and they specifically relate to the identification of a potential heightened risk of getting breast or ovarian cancer for women. Analysis of the genes is used to identify potential mutations in those genes, causing the increased risk, and the only way to identify that potential mutation was controlled by Myriad. The Association of Molecular Pathology and others subsequently challenged the patentability of human genes.

The argument on the Association's part hinged on 35 USC § 101 which defines what subject matter can or cannot be patented. The Supreme Court's standing on what is excluded under section 101 was well stated in the case of Mayo Collaborative Services v Prometheus Labratories: "...laws of nature, natural phenomena, and abstract ideas". Whether the isolated genes could be seen as something that is not a natural phenomenon, they could be patented. A similar decision to the US Court of Appeals position prior to the Supreme Court have was handed down in Australia  (pending appeal to the Full Federal Court this Autumn), where the isolation of a human gene has been seen as a unnatural phenomenon, due to the isolation creating an artificial state of affairs. Myriad's contention to the appeal remained in that the locating and isolation of the gene (separating it from its natural state) from the human cell was enough to make that particular gene something which does not exist in nature by itself, attaining patentability.

The Supreme Court found against Myriad Genetics, and in a unanimous decision seems to have put this issue to bed with a firm stance. What was key in the Court's argument should be highlighted in itself to better appreciate why human genes, in this instance, couldn't be patented:
"It is undisputed that Myriad did not create or alter any of the genetic information encoded in the BRCA1 and BRCA2 genes. The location and order of the nucleotides existed in nature before Myriad found them.  Nor did Myriad create or alter the genetic structure of DNA."
In locating and isolating the genes Myriad hadn't created anything new, or altered the existing genes in any way. The mere process of taking those genes out of the cell, although it did alter the physical space where the genes resided, didn't in itself change those genes enough for them to be patentable. Should Myriad have altered the genes some way in their structure for example, the genes could have potentially been a patentable subject matter. If simply looked at within the cell, after being located, the genes themselves would exist as exactly the same as the ones isolated from the cell. The Court did leave cDNA patentable, as it is an artificially created from RNA and therefor doesn't exist naturally.

So what does this mean in practice? Myriad Genetic's patents were both roughly 15 years old, with the patent term in the US being 20 years. With the patents being close to their terms' end, their financial value in them is probably very minimal. The appeal can largely be understood as one of principle, setting a precedent preventing future patenting of human genes by companies. As said, the decision doesn't outright prevent the patenting of genes, so should sufficient changes be made to the genes rendering them something that doesn't appear in nature, they potentially could be patented. Whether the decision will affect other jurisdictions such as Australia will remain to be seen, as US precedent is not binding on Australian courts. It would be incomprehensible that the case would not have any weight, so this writer will await the Australian decision with excitement.

14 June, 2013

Domain Change

IP Iustitia has entered the real world of the Internet and now occupies the domain www.ipiustitia.com! Should you have the website bookmarked, both the old address ipiustitia.blogspot.com.au and the new one will work just fine, the old one will just redirect to the new address. If there are any issues with older content or links not functioning, please email me and the problem will be fixed posthaste.

This is the only change, so the content and ownership of the blog still remain the same.

13 June, 2013

Retrospective - Linking to Trouble

In the days prior to BitTorrent technology, the primary source for any endeavoring online 'pirate' seeking to get their mitts on copyrighted content, was through direct links on websites leading to copies of any specific materials. Before the discussions over the possible liability of Internet Service Providers here in Australia, the issue of whether a website owner sharing links to infringing material (such as songs) would be authorizing the acts of copying that content by posting those links ended up in the Full Federal Court in late 2006.

An imagining of a potential MP3s4Free user
The case of Cooper v Universal Music Australia dealt with the website owned and operated by Mr. Cooper, aptly named "MP3s4Free.com". The site itself didn't host or contain any infringing materials, such as sound recordings, but did however have direct links (hyperlinks) to other sites providing those copies. The file was automatically downloaded to the user's computer once they had clicked the link on Mr. Cooper's site, transferring it from a different server. Although some of the content linked to on the site was legitimate, however overwhelmingly the content was illegal one way or another. Subsequently a number of record companies, including Universal Music, sued Mr. Cooper under the Copyright Act 1968 for the authorization of copyright infringement

The provision for the authorization of infringement hinges on whether the operator (Mr. Cooper in this case) has any power in preventing the infringement; the nature of the relationship between the two parties (Mr. Cooper and the user); and whether the operator (Mr. Cooper) took reasonable steps to prevent or avoid the infringement through his service. 

In deciding whether Mr. Cooper had the power to prevent any infringing acts through his website, the Court saw that he indeed did have the power to do so. The Court reached this conclusion in deciding that a person could be deemed to have had the power to prevent the act should they have had the ability to merely not do what was in their power or abilities to do (the posting or allowing the posting of links for example), yet instead did so through some calculated technical measures. What this means is that Mr. Cooper, in actively linking to infringing content, chose to do so and had the power to simply not to post those links on his site. The Court's reasoning is sound, even in its simplicity. If you have a choice between the knowing facilitation of potentially infringing acts, should you choose to do so, you clearly possess a power to prevent any acts occurring from your actions, yet ignore that ability. The intent and capabilities of the operator are imperative.

Should the relationship be one which does not seek to benefit the operator one way or another, it is more likely that there's no authorization on the face of things. The nature of the relationship between the operator and the users is one which is hard to specifically identify, however the Court did establish a relationship in its findings. At first instance (initial court proceedings in lower courts) the primary judge found that as Mr. Cooper's website was very "friendly" and allowed for easy access to the music files being downloaded, overall being very attractive to potential or current users. The more important aspect of this was the financial gain incurred by Mr. Cooper through advertisements on his website, giving the site a commercial aspect. The Court concluded that the nature was one where Mr. Cooper endeavored to benefit from the links to infringing material.

Don't click! 
Finally, did Mr. Cooper take any reasonable steps to prevent the infringing acts through his website? At the bottom of each page there was a link to a Disclaimer, stating that "when you download a song, you take full responsibility for doing so. None of the files on this site are stored on our servers. We are just providing links to remote files". Aside from the mentioned disclaimer, Mr. Cooper took no active part in preventing any acts; merely attempted to exonerate himself by passing the responsibility onto the users themselves. Rightfully so, the Court found that this was not adequate and the Disclaimer was merely a cosmetic touch and was not intended to have any real legal effect. Mr. Cooper was therefore held liable through the authorization of the copying of infringing material through his website.

Thinking ahead, how could one avoid liability through hyperlinks? Clearly it boils down to content filtration or other means of active or automatic prevention, and the reason for your linking. Should you not take active steps, such as through moderation, and complacently sit back and wait for your monthly AdSense check to fall through the letter box, you might be liable. Links in themselves are not bad and often websites welcome outside links to their content, but this can change according to the various Terms and Conditions set by each site. In the United States websites can potentially be protected under the Safe Harbor provisions (a nice example of which was discussed on this very blog), albeit for unknowing facilitation and potential activeness in the stopping of such acts when notified.

09 June, 2013

The Future of Copyright in Australia?

With the release of the Australian Law Review Commission's Discussion Paper on Copyright and the Digital Economy just a mere few days ago, I thought it'd be a good vehicle through which to look at the prospects of Australian fair dealing. The Paper is merely a discussion of the points brought up by the ALRC and invites other parties to submit their opinions on the points brought forth, but nonetheless provides some great insight as to the possible changes in the Australian law in the coming years.

The Future of Fair Dealing

The ALRC frames the need for change in fair dealing as a part of the new digital economy, where consumers and companies alike are going progressively more and more digital. People consume less physical goods as opposed to their digital counterparts every year. With improvements in Internet speeds and availability in most countries (notably the NBN here in Australia in coming years), this does make sense. Old laws which applied predominantly to physical goods don't relate to this sphere anymore. Users also want to be able to disseminate that content, and with services like YouTube being an avenue to showcase your creativity to the masses, the law should adapt (a great TED Talk by Lawrence Lessig spoke about this some 6 years ago). The Canadians have shown the way forward, but other nations are still trailing. Even the ALRC admits that "there is now more of an appetite for a broad, flexible exception to copyright".

Fair dealing should be flexible, adaptable and mold according to the needs and wishes of the changing environment we live in. Technology is changing at a hugely rapid rate, and fair dealing has failed to change with it. As many have pointed out in their early submissions to the ALRC, the law should be an open-ended list, not merely a short hand-down list of very specific categorical possibilities with no amount of leeway. As was so eloquently said in the submissions, the law should "respond to future technologies, economies and circumstances that don’t yet exist, or haven’t yet been foreseen". Should Australia go the way of the United States? I wouldn't argue to opt for a carbon copy, but some elements have to be taken from the US approach, possibly allowing for a more open catch-all provision for fair dealing should an act fall outside of the permitted exceptions today. This would allow flexibility, yet still retaining the fair dealing we have today.

Submission also dealt with the possible impact of proper fair dealing provisions and how they would allow for more innovation and create space for creative industries to blossom more. Arguably this is completely true, as the possible use of a few seconds of a film or even a few chords from a song can potentially amount to infringement. The attitude seems to have shifted from a defensive position to an offensive position, changing copyright legislation from a shield to a sword. My argument would be for strong fair dealing provisions, allowing for a balance between creators and rights owners, taking the position back to the legitimate protection of content, not the pure 'cashing-in' on the popularity of something through litigation. Submissions to the ALRC also seem to agree that proper fair dealing provisions "counterbalances what would otherwise be an unreasonably broad grant of rights to authors and unduly narrow set of negotiated exceptions and limitations". 

One has to also point out a disconnect between what consumers think they can do and what they actually can do by law. Also the ambiguity as to the extent of the existing provisions does not aid this. Submissions point out that there is a "growing mismatch between what is allowed under
copyright exceptions, and the reasonable expectations and behaviour of most people as a significant problem". When thinking about this one can understand that the rift between what people want to be able to do with their content and what they can do has been growing for some time. This again is attributed to the inability for the law to change and evolve according to the needs of the people, and due to the pendulum of protection firmly swaying towards the rights owners. In the words of Google's submission: "flexible and technology-neutral exceptions permitting consumers to make personal uses of legitimately purchased content would greatly restore people’s faith that the law makes sense"

As there were calls for the improvement of fair dealing, so were there calls for its adequacy and the lack of a need for change. Some submissions stated that "the existing exceptions are adequate and appropriate... [and] the common law was capable of addressing the needs of promoting innovation". I would personally wholly disagree with this. Current fair dealing provisions do offer ways for the use of copyrighted materials, but their limited scope and the absence of proper user-generated content provisions shows a lack of adaptability to the digital world. Also some submit that it "has not been shown that the Australian common law system is incapable of addressing the needs of promoting innovation through case law development". Again, I would disagree, as this distorts the separation of powers; the courts are there to apply the law, not to make it. It should not be up to judges to have to adapt the law - the law should adapt before for the need for the judiciary to do so through interpretation.

Some submissions also call against more open-ended fair dealing provisions, as through their opinion, this would create expense and uncertainty as to the law through the lack of clear-cut rules or categorized exceptions. I will partially agree with this position, although purely for the possibly ambiguity of the law. More relaxed or undefined fair dealing provisions would initially lead to a lack of clear borders as to their application, but as has been shown by the US, the judiciary will in time set its boundaries and a standard of 'fairness' would be set. What this initial confusion allows for is the better future adaptability of the law, giving the judiciary the power and ability to change existing standards according to new wishes by consumers or technological changes. The costs for possible litigation could potentially go up, but as I personally lack the knowledge in this area I cannot say exactly whether this would hold true.

Proposals for Reform

The ALRC seems to agree with the position that flexibility is desired and that it would assist innovation. A possible "fair use regime will: employ technology neutral legislative drafting; assist predictability in application; minimise unnecessary obstacles to an efficient market; and reduce transaction costs".

The 'fair use' provision suggested by the ALRC would be determined through four factors (however the list of factors would be left open-ended): the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect upon the market for or value of the copyrighted work. These factors would be the same as what is used in the US at the moment, and don't differ much from the existing factors used in Australia (specifically related to research and study). This approach would be substantially very similar to the current standard employed by the Canadians through CCH. Arguably this would be the best position to go from, as standards could be applied through the use of US and Canadian decisions to help establish an Australian standard much quicker, causing less ambiguity in the provision's extent.

The Commission also suggests a non-exhaustive list approach, including current provisions and adding ones dealing with for example non-consumptive uses, quotation and education. Providing a list of possible exceptions would also take some amount of uncertainty away from any fair use provisions as then there would be clear situations when the use would be fair, yet still allowing for that provision to grow and change should it need to. How far should the list go will ultimately be up to the legislature and it will surely develop through the courts once unknown or unforeseen uses arise.

Should no fair use provision be enacted, the ALRC has submitted that there should be a right for private and domestic use. The current law does allow for format-shifting, time-shifting and space-shifting, however a more open and technology-neutral approach should be taken. Some submit that "expanding the private and domestic use permitted under copyright law would simply legalize what consumers are already doing". One could easily argue that this is both sensible and would reduce the instances of unnecessary litigation. As said, how people use their legally bought content has changed and attitudes towards the use of your own purchased content should change accordingly, with the law reflecting that change. The ALRC argues that "fair use and fair dealing exceptions with fairness factors considered, are likely to be able to better account for the differences in markets and technologies between types of copyright material and different types of uses", and I would personally agree. A wider fair use provision would not only account for existing uses, but would accommodate future uses better such as cloud computing.

The Future?

To conclude, you have to ask the question, what will be the changes implemented, or whether they will be implemented at all. At this point things are uncertain, but the ALRC's work seems to bode well for the potential changes in copyright law and fair dealing. The final draft of the report due to be published at the end of November this year. Whether Parliament takes the initiative and makes changes to the current legislation will remain to be seen, and we shouldn't expect any changes immediately. Calls for change have been loud and abundant, and should the Australian Parliament not act on this, the nation could be held back when compared to the rest of the world. With the implementation of the NBN in the coming years, this would act as even more of an incentive to amend the law before the nation is set to be able to access the Internet through faster and more reliable means. If the law takes the leap before this, Australia would be fully able to utilize this new avenue and take a step forward in the world of copyright.

04 June, 2013

IP Laws Amendment Bill 2013

A new Bill was recently introduced to the Australian Parliament, dubbed the "IP Laws Amendments Bill 2013". The aim of the Bill would be to amend current legislation pertaining to patents and plant breeder's rights, and to introduce some changes to the all-new Intellectual Property Amendments (Raising The Bar) Act 2012 (discussed on this blog some time ago).

The first amendment relates to the Crown's use of patents, further clearing up the existing provisions on the use of patents for services funded by the Federal, State or Territorial Governments of Australia. The aim of this is to reduce uncertainty as to when the power can be used. It also adds more levels of accountability over the use of patents for those purposes, forcing the Government agencies to negotiate with the patent owner prior to invoking the Crown's use on that patent - earlier legislation required absolutely no notice to the patent owner prior to use or negotiation over its use. If the negotiations are unsuccessful, Ministerial authorization can be sought to use this power. The amendments would lastly include proper guidelines as to remuneration over the use of patents by the Crown.

Australian Bills lack the pizzazz of their American cousins
The second amendment would implement the TRIPS protocol into Australian law, which would enable the issuance of compulsory licenses by the Courts for the manufacturing and exportation of patented medication to third-world countries. This would enable the importation of much cheaper drugs to countries suffering from diseases such as HIV, malaria or tuberculosis which would otherwise have very limited resources to attain these drugs.

The third amendment gives owners of Plant Breeder's Rights a course of redress against possible infringers of those rights in the Federal Circuit Court. The aim for this is to allow for a much quicker, more cost-effective and less formal way to handle these disputes when compared to taking it to the Federal Court.

The fourth amendment deals with the creation of a single trans-Tasman (Australia & New Zealand) patent attorney regime, with common qualification requirements, an IP Attorneys Board and a Disciplinary Tribunal. The amendment also creates a single patent application and examination process, lessening the amount of administration in these processes which currently exist.

The other more minor amendments deal with document retention requirements in patents, trade marks and registered designs, removing them completely from all related acts. This brings all document retention requirements under the Archives Act 1983, removing redundant copies. As said above, there are also some amendments dealing with the Raising The Bar Act 2012, fixing some oversights in its drafting.

Overall the Bill does propose some welcome changes, especially relating to the implementation of the TRIPS protocol which Australia accepted in 2007 and the faster and easier way of dealing with possible infringements of PBRs. The Bill has only passed its first reading, so its content is still subject to change over the course of its road to assent, but the given form of the Bill does inspire faith in its efficacy.

The Explanatory Memorandum for the Bill can be found here.