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Part 1 Justifications and Preliminaries1

Chapter 1 The Concept of Intellectual Property: Why have Intellectual Property Rights?3

The Problem Stated3

Definition5

Providing for Intellectual Property Rights6

Policy Considerations9

Chapter 2 Intellectual Property Rights in Australia21

Introd uction21

Constitutional Responsibility for Intellectual Property Rights in Australia21

Administration and Law Reform26

Courts and Judicial Processes29

Jurisdiction and appeals29

Remedies31

Judicial Law-Making37

The Literature of Australian Intellectual Property42

Law reports and other primary materials42

Texts and monographs43

Looseleaf services and annual publications44

Journals45

Current materials45

Part 2 Copyright and Related Rights49

Chapter 3 Copyright: Origins, Rationale and Basic Principles49

Introduction49

Origins of Copyright49

Introduction49

The invention of printing and the roles of the Crown and the Stationers' Company50

The first copyright statute: the 'Act of Anne'52

Developments after the Act of Anne54

Subsequent copyright legislation in the United Kingdom57

The development of copyright law in Australia60

Rationales for Copyright Protection62

The Practical Significance of Copyright69

Basic Principles of Copyright Protection71

The distinction between rights of property and copyright in an object72

Copyright © 2025  最新更新

Some illustrations75

Copyright © 2025  最新更新

Chapter 4 The Framework of Copyright Protection: Conditions, Subject Matter and Duration82

The Conditions for Copyright Protection82

What connection is required? Connecting factors or points of attachment82

Connecting factors84

Works and subject matter made or published before the commencement of the Copyright Act 1968 (Cth)86

Works and subject matter of foreign origin88

The concept of 'publication'88

The making of the work or subject matter92

Subject Matter Protected96

Works and the requirement of originality96

Original literary works97

Original dramatic and musical works154

Original artistic works161

Works of artistic craftsmanship189

Unprotected works202

Derivative works and adaptations202

Material which itself infringes copyright203

Subject matter other than works205

Published editions of works228

Performers' protection231

Redefining the categories232

Duration of Protection238

Some further reflections239

Chapter 5 Exclusive Rights and Their Infringement: The Economic Rights243

Introduction243

The Exclusive Rights243

Works243

Subject matter other than works246

Performers246

Direct and Indirect Infringement246

The 'Substantial Part' Requirement247

How much is 'substantial'? -- quality rather than quantity248

The importance or 'essentiality' of what is taken: substantiality and originality252

Taking part of the underlying structure of a work265

The purpose of the taking: transformative uses267

Direct Infringement of Works272

The exclusive reproduction right272

The need for a causal connection272

The need for resemblance or objective similarity: the idea/expression dichotomy281

Use of common materials: historical and factual sources293

A further note on animus furandi306

Indirect reproduction -- intervening links in the chain of causation334

Reproduction in a completely different medium345

Temporary reproduction in RAM/running a computer program348

The exclusive right of publication353

Adaptations354

Arrangements for commercial rental356

The exclusive rights of public performance and communication to the public358

Who is the maker of a communication?363

Changing technologies and keeping apace of these developments: the Singtel Optus v National Rugby League litigation376

Direct Infringement of Subject Matter Other than Works382

In general382

Sound recordings382

Cinematograph films383

Television and sound broadcasts385

Published editions389

Performers' rights391

Intermediary Liability: Authorisation of Infringement of Copyright391

In Works and Other Subject Matter391

Liability for infringement --in general391

The doctrine of authorisation in the online environment -- further and wider issues409

Indirect or Secondary Infringements of Copyright414

Importation and commercial dealings with infringing copies414

The knowledge requirement419

The adverse effects of parallel importation controls421

Allowing performance of works in a place of public entertainment424

Chapter 6 Further Rights of Authors, Exceptions to Infringement and Other Protections for Copyright Owners425

Moral Rights425

Origins and significance425

Moral rights for performers431

Indigenous communal moral rights432

Droit De Suite433

The droit de suite, or art resales right433

Exceptions and Limitations on Protection436

In general436

Fair dealing: ss 40-42443

The 2006 amendments456

Remedial limitations with respect to carriage service providers460

Other defences and the scope for simplification -- the wider question463

Statutory defences and the problem of contractual overrides466

Non-statutory defences470

Compulsory or statutory licences471

Statutory licence schemes -- common features475

Levies on blank tapes and equipment475

Remedies for Infringement of Copyright477

Remedies generally477

Damages under s 115477

Damages for conversion or detention under s 116485

Other Protections for Copyright Owners493

Infringement Proceedings: Courts and Parties502

Reformulating Exclusive Rights502

Chapter 7 Ownership and Exploitation of Copyright504

Ownership504

The basic rule504

Co-ownership504

Commissioned works and subject matter507

Journalists' copyright507

Employee authors510

Other provisions affecting ownership of copyright517

Transmission of Copyright519

Assignments519

Equitable entitlements to copyright—commissioning arrangements521

Other transmissions of copyright524

Licensing of Copyright525

Implied licences526

Collective Administration of Rights537

Collecting societies537

The Copyright Tribunal542

Chapter 8 International Copyright Arrangements and New Developments543

In General543

The Berne Convention for the Protection of Literary and Artistic Works544

Development and scope544

The principle of national treatment544

Independence of protection and lack of formalities545

Works and rights protected545

Application of the Berne Convention in Australian domestic law546

Revising Berne—The 1996 Internet Treaties547

The WIPO Copyright Treaty, Geneva 1996550

The WIPO Performances and Phonograms Treaty, Geneva 1996555

Other WIPO treaty proposals556

Intellectual Property Rights and Trade557

Other Relevant Conventions562

Bilateralism Returns—The New Wave of Free564

Trade Agreements564

Generally564

The Australia-United States Free Trade Agreement 2004565

Wipo, Human Rights and the Development Agenda565

Private International Law Aspects of Copyright Protection and Exploitation569

Part 3 Protection at the Borderline of Copyright and Patents575

Chapter 9 The Registered Designs System577

The Object of Designs Protection577

Origins of the Australian Designs System579

The Meaning of 'Design'581

Definition581

How are 'visual features' to be assessed? Whose 'eye' is relevant?589

Functionality590

Other Requirements for Registrability: Novelty and Distinctiveness592

Section 15 requirement592

The prior art base592

'New' and 'distinctive'596

Earlier use or publication of a design as an artistic work609

Designs excluded from registration612

The Process of Registration613

The Designs Office and the Register613

Ownership of unregistered designs614

Applications for registration615

Examination: formal and substantive617

Registration, ownership and duration622

Infringement of Registered Designs623

Infringement623

Other matters relating to infringement627

Final note on transitional provisions629

International Arrangements629

Paris Convention for the Protection of Industrial Property629

Hague Agreement Concerning the International Deposit of Industrial Designs 1925630

The Locarno Agreement and the TRIPS Agreement630

The Question of Dual Protection631

Artistic copyright protection and industrial design631

Arguments for and against dual protection631

Pre-1 May 1969 works633

Post-1 May 1969 works prior to 1 October 1990633

The position from 1 October 1990634

The tortured path of reform638

The United Kingdom (and EC) position649

Some Sample Registered Designs: See for Yourself!651

Chapter 10 The Protection of Confidential Information652

Introduction652

Origins of the Equitable Action654

Elements of the Modern Action657

Confidentiality and the Public Domain665

Third Party Rights and Obligations668

Contractual Provisions About Confidentiality670

Limitations and Defences676

Reverse engineering a product on the market676

The 'public interest defence'677

Remedies679

Part 4 Patents for Inventions and Allied Rights683

Chapter 11 The Patent System: Origins and Rationale685

Origins685

The early period: before 1850686

The establishment of the modern system693

The development of patent law in Australia696

Rationale and Objects of the Patent System697

Should Australia have a patent system?697

Patents as prospects704

The time between first patenting and a commercial product705

Patents and Trade Secrets Protection708

Patentees and prior secret uses710

Chapter 12 The Concept of Invention711

Introduction711

Patents Act 1990 (Cth)711

The requirements for a 'patentable invention'711

Manner of manufacture requirement712

Invention in general713

A note on claims and specifications 714

The Modern Starting Point in Defining 'Invention'—The Nrdc Case (and What Went Before)714

Particular Cases725

The human treatment exception725

Agricultural and horticultural processes731

Schemes, methods and systems732

Business systems734

Computer software745

Living organisms and developments in biotechnology749

The broader policy issues involved in gene patenting755

Some more recent developments concerning gene patents763

New use of known products -- a threshold requirement of 'invention'768

The provisos to s 6 of the Statute of Monopolies778

A New Definition of 'Invention'780

The ACIP recommendations782

Chapter 13 Patent Validity and the Application Process785

General Requirements for Patent Validity75

Novelty785

Quantum of disclosure and the scope for making mosaics789

Made publicly available805

Distinguishing between disclosure through prior use and prior use alone808

Qualifications as to certain kinds of prior use or publication812

Novelty by way of selection816

Disclosures in prior patent applications: 'prior claims' and 'whole contents'817

Novelty: concluding remarks821

Inventive Step822

When is something 'obvious'?823

The relevant prior art knowledge base: common general knowledge861

Utility864

Secret Use872

Other Requirements875

'Internal' objections875

Disclosure of the invention and best method876

Disclosure versus description —the RTBA changes880

Ambiguity of claims 883

'Supported by the matter disclosed': 'fair basing' by another name? 893

Other grounds of invalidity897

The Application Process898

The role of patent attorneys898

The Patent Office901

The basic steps in getting and maintaining a patent901

Standard and innovation patents904

Persons entitled to be granted a patent904

Joint inventors905

The application916

Priority dates917

Request for examination917

Examination918

Acceptance918

Publication919

Opposition919

Grant and term of patents920

Further matters920

Judicial supervision of the system922

Chapter 14 Exploitation of Patents923

The Exclusive Rights Conferred by a Patent923

The rights of the patentee versus the rights of purchasers of patented articles924

Meaning of 'exploit' and 'to make and use'928

The doctrine of infringing importation935

Authorising another to exploit the invention/contributory infringement940

The Construction of Claims953

The 'Improver'questions in Australian law966

A broader overview of construction issues -- Kirin-Amgen967

Infringement Proceedings and Exemptions975

In general975

Other defences to infringement -- research and experimentation977

Remedies979

Assessing damages for patent infringement980

Relief available to other parties vis-a-vis the patentee983

Ownership and Exploitation of Patents984

Exclusive licensees984

Conditions in contracts relating to patents984

Employee inventions984

The position of academic inventors990

International Arrangements1002

Paris Convention for the Protection of Industrial Property (Paris Convention)1003

Regional and international developments- the European Patent Convention and WIPO1004

The Patent Co-operation Treaty1005

The Strasbourg Agreement Concerning the International Patent Classification1006

The TRIPS Agreement1006

Innovation Patents1007

Chapter 15 Interlude: Sui Generis Schemes1012

Introduction1012

Circuit Layouts1012

The fons et origio of circuit layouts protection1012

Nature and scope of eligible layout rights and infringement1015

Plant Breeder's Rights1022

In general1022

Part 5 Trade Marks and Commercial Indicators1031

Chapter 16 Passing Off and Related Actions1033

Introduction1033

Origins and Elements of Passing Off1035

Origins of passing off1035

The elements of the modern action1037

Reputation and the public domain1058

The act of passing off: character merchandising, image association and product simulation1067

Defences to passing off1072

Related Statutory Actions1073

Remedies1084

Other Restrictions on the Use of Names1085

Chapter 17 The Registered Trade Mark System: Origins and Rationale1096

Introd uction1096

Origins of the Registered Trade Mark System1098

The early Acts1099

Later developments1101

Major changes under the 1995 Act1102

Trade Marks Under the 1995 Act1103

The Modern Registration System1112

Trade marks on the register1113

The process of registration1114

The Madrid Protocol1116

Chapter 18 Registration of Trade Marks1117

Introduction1117

Capability to Distinguish1118

Trade marks that are inherently adapted to distinguish: s 41(3)1119

Trade marks with some inherent adaptation to distinguish: s 41(5)1131

Acquired distinctiveness under s 41(6)1131

Substantial Identity, Deceptive Similarity and Other1142

Kinds of Likely Deception or Confusion1142

Confusing connotations: s 431144

Conflicting trade marks under s 441145

Conflicting trade marks under s 601153

Ownership and Intention to Use1157

Ownership1157

Intention to use1166

Other Restrictions on Registration1167

Chapter 19 Rights Given by Trade Mark Registration1169

Rights Given by Registration1169

Infringement of a Registered Trade Mark1169

Infringing use in relation to registered goods or services: s 120(1)1170

Infringing use in relation to 'same description' or closely related goods or services: s 120(2)1186

Infringement of well-known trade marks: s 120(3)1195

Non-infringing conduct1197

Other limits to infringement—secondary dealings (including parallel imports)1198

Criminal sanctions against counterfeiting1200

Removal for Non-Use of a Registered Trade Mark, Licensing and Rectification Under S 88(2)(C)1200

Other Grounds for Rectification of the Register1212

Assignment1219

Appendix1221

Index1229