Latest updates to the Law of Intellectual Property: Copyright, Design & Confidential Information
Review of chapter on Original Literary, Dramatic, Musical and Artistic Works completed
The reviewing and updating of the chapter on Original Literary, Dramatic, Musical and Artistic Works (from [7.120]ff) has now been completed.
Particular developments that have been analysed and commented upon here include:
- The extent to which "borrowings" in the case of musical works within a particular musical genre may be accepted, without affecting the question of subsistence of copyright in a later work: see Eight Mile Style, LLC v New Zealand National Party [2017] NZHC 2603; (2017) 127 IPR 318, discussed at [7.300].
- The extent to which the sounds of the lyrics of a musical work are to be considered as part of the overall musical work: Boomerang Investments Pty Ltd v Padgett [2020] FCA 535; (2020) 155 IPR 196, discussed at [7.306].
- The application of the principles in Burge v Swarbrick (2007) 232 CLR 366; 72 IPR 235; [2007] HCA 17 in relation to works of artistic craftsmanship, in particular the treatment of expert evidence: State of Escape Accessories Pty Ltd v Schwartz [2020] FCA 1606; (2020) 156 IPR 199 (Davies J), affirmed on appeal [2022] FCAFC 63, discussed at [7.405].
- The protection of works that are immoral, blasphemous or offensive to public policy: discussed in more detail at [7.430]-[7.440], with reference also to the position under the Berne Convention.
IP Australia's Australian Intellectual Property Report 2022
On 26 April 2022, IP Australia published online its Australian Intellectual Property Report 2022. In strict terms, IP Australia is responsible only for registered IPRs, of which registered designs form a relatively small component, while copyright and circuit layouts (unregistered rights) are the responsibility of the Department of Infrastructure, Transport, Regional Development and Communications. This fragmentation of responsibility has long been a matter for regret as it makes it difficult to have integrated policy making for intellectual property across the board, in particularly in relation to such matters as the design-copyright overlap and the protection of computer software (the impact of artificial intelligence may well be another area requiring an overall policy and legal approach).
So far as registered designs protection is concerned, the 2022 report notes a 13% increase in the number of Australian designs applications during 2021. The Report goes on to note the 2021 amendments to the Designs Act 2003, as well as highlighting the continuing review of designs protection that is being conducted by IP Australia.
In Chapter 6, the 2022 Report goes on to providing a brief overview of copyright law and policy developments. The information in this chapter dealing with such issues as the value of the copyright industries, licensing, collective management of rights, infringements and site-blocking injunctions draws on information provided by the Department of Infrastructure, Transport, Regional Development and Communications and reflects a pleasing degree of liaison between IP Australia and the Department and a timely awareness of the need for there to be an integrated approach to policy making in this area. It will be interesting to see whether, following the May 2022 federal election, there will be a more formal change in administrative arrangements that brings unregistered rights, such as copyright, within the purview of IP Australia.
See [RD.1700].
The Law of Intellectual Property: Copyright, Design and Confidential Information service provides a comprehensive discussion of intellectual property rights relating to the protection of copyright, designs, confidential information, trade secrets and commercial ideas. It provides coverage of changes to practice that have developed through case law and legislation, particularly on the issues of protection of rights, infringement, regulating and enforcing rights, defences and effective remedies. The commentary is divided into five broad areas: Overarching Themes; Copyright and "Neighbouring Rights"; Other Rights Allied to Copyright; Designs; and Confidential Information and the Protection of Ideas. The service contains all relevant Australian legislative material and pertinent international agreements and some precedents.
The Intellectual Property & Technology Practice Area is a one-stop shop for practitioners containing news, commentary, a journal, cases and precedents. Our premium news service Alert24 provides daily alerts to your inbox – keeping you abreast of legislative, case and news developments. The Intellectual Property & Technology Law Noticeboard is specifically geared for specialists in the area and will deliver news items of interest and significance written and curated by in-house editors. To subscribe to the Intellectual Property & Technology Law Practice Area on Westlaw, contact Thomson Reuters.
Sam Ricketson AM is an Emeritus Professor in the Melbourne Law School who has written widely and taught in all areas of intellectual property (IP) law. Prior to his retirement in April 2019, he was a professor in the Law School, teaching mainly in the Masters programme. He also practised part-time at the Victorian Bar until mid-2015, principally in IP.
Sam Ricketson holds degrees from the Universities of Melbourne and London, and is a Fellow of the Academy of Social Sciences of Australia and of the Australian Academy of Law. Prior to his appointment to the University of Melbourne in November 2000, Sam was the Sir Keith Aickin Professor of Commercial (formerly Corporate) Law at Monash University. Before this, he had held positions at the University of Melbourne (1977 to 1991) and in the Centre for Commercial Law Studies, Queen Mary & Westfield College, London (1984-1986).