Dissertationen zum Thema „Intellectual property Australia“

The thesis is an exploration of how indigenous knowledge has emerged as a subject within Australian intellectual property law. It uses the context of copyright law to illustrate this development. The work presents an analysis of the political, social and cultural intersections that influence legal possibilities and effect practical expectations of the law in this area. The dilemma of protecting indigenous knowledge resonates with tensions that characterise intellectual property as a whole. The metaphysical dimensions of intellectual property have always been insecure but these difficulties come to the fore with the identification of boundaries and markers that establish property in indigenous subject matter. While intellectual property law is always managing difference, the politics of law are more transparent when managing indigenous concerns. Rather than assume the naturalness of the category of indigenous knowledge within law, this work interrogates the politics of its construction precisely as a ???special??? category. Employing a multidisciplinary methodology, engaging theories of governmental rationality that draws upon the scholarship of Michel Foucault to appreciate strategies of managing and directing knowledge, the thesis considers how the politics of law is infused by cultural, political, bureaucratic and individual factors. Key elements in Australia that have pushed the law to consider expressions of indigenous knowledge in intellectual property can be located in changing political environments, governmental intervention through strategic reports, cultural sensitivity articulated in case law and innovative instances of individual agency. The intersection of these elements reveals a dynamic that exerts influence in the shape the law takes.

Available via the Australian National University Library Electronic Pre and Post Print Repository. Title from title screen (viewed Mar. 28, 2003) Includes bibliographical references. Mode of access: World Wide Web.

This thesis examines the development of copyright and patent protection in the United States, United Kingdom and Australia and proposes that intellectual property is not the correct mechanism for protecting computer software. Both copyright and patent protection are evaluated in relation to their application to protecting the various elements of software. The increased desire for patent protection of software in the United States has recently impacted the debate over the correct regime for intellectual property protection. There has also been a corresponding restriction in the application of copyright protection by the courts. Combined with an undercurrent of sui generis software legislation being advocated by academia this has lead to the situation where there is continuing uncertainty over which method of protection should be provided for software. It will be shown that copyright is inadequate for the protection of computer software and that it does not address the correct element requiring protection. Patents, by corollary, provide protection that is excessive. The socio-economic effects of patent protection will be shown to demonstrate that it is not a worthy successor or adjunct to copyright. While copyright has attempted to protect one aspect (source code) patents have attempted to protect another (functionality). The thesis identifies the fundamental flaws in the protection offered by both regimes and proposes that they are equally unsuitable for the protection of software. Software will be shown to possess a diverse array of elements that are largely indivisible if adequate protection is to be provided. It is proposed that software be considered as a new form of property, referred to as Binary property, which covers informational and information processing entities. Further, the existing common law principles should be applied to the aspects that are at the heart of the intellectual property protection dilemma. In reality the elements requiring protection in software are activities that wrongfully duplicate a work or replicate it to create clones. It will be shown that the common law principles of theft, trespass, breach of contract and passing-off are suitable for protecting developers from these infringements. It will also be contended that any legislative intervention should be limited so that a certain degree of replication is allowable where there is a benefit to society through technological advancement or enhancement through standardisation. As such the application of common law principles are applied in a minimalist legalistic environment. The minimalist approach takes the position that there should be minimal legislative intervention in the computer industry. It proposes that there should be legislative intervention to enable the existing common law to take account of computer technology and provide for its continuing impact on society that will accelerate into the next millennium. It further shows that the continuing development of computer technology will outpace intellectual property necessitating the recognition of computer software as a unique form of new property in existing jurisprudence. The application of existing common law principles of property and the reduction in the monopolistic nature of intellectual property will not only benefit the highly dynamic and creative international computer industry but it will also be in the best interests of the Australian software development industry.

Thesis (LLM)--Stellenbosch University, 2012.
Includes bibliography
ENGLISH ABSTRACT: This thesis analyses current South African copyright law to ascertain the proper interpretation and application of the fair dealing provisions contained in the Copyright Act 98 of 1978. Copyright law ensures that authors’ works are not used without their consent, which they can grant subject to compensation or conditions attached to the use. Fair dealing exceptions allow the general public to use copyright works for certain purposes without the copyright owner’s consent and without paying compensation. These provisions are intended to balance copyright owners’ interests with the interest that members of the public have in using copyright works for socially beneficial purposes. These provisions typically allow the use of a copyright work for the purposes of research or private study, personal or private use, criticism and review, and news reporting. Unfortunately there is no South African case law concerning the fair dealing provisions, and the application of these exceptions remains unclear. This study aims to clarify the extent of application of the fair dealing exceptions to copyright infringement so that courts may be more willing to consider foreign and international law and in doing so develop South African intellectual property law. The social and economic policy considerations underlying the fair dealing exceptions are considered to determine their function. International conventions relating to copyright and neighbouring rights are examined, specifically the provisions allowing exceptions to copyright. The legislation and case law of Australia and the United Kingdom are analysed to determine the proper interpretation and application of these statutory defences. This knowledge is then used to inform South African law. The Copyright Act 98 of 1978 does not contain a fair dealing exception for parody and satire. Australian legislation does contain such an exception, and it is analysed in that context. An exception for parody is proposed for South African law, and the need for and application of this provision is considered. The constitutionality of the proposed exception is evaluated in terms of its impact on the constitutional property rights of copyright owners.
AFRIKAANSE OPSOMMING: Hierdie tesis ondersoek Suid-Afrikaanse outeursreg om die behoorlike uitleg en toepassing van die “billike gebruik”-bepalings in die Wet op Outeursreg 98 van 1978 te bepaal. Outeursreg beskerm die werk van ʼn outeur teen ongemagtigde gebruik van haar intellektuele eiendom. Gebruik kan deur die outeur gemagtig word, òf teen vergoeding òf onderhewig aan bepaalde voorwaardes. Artikels 12-19B (die billike gebruik-bepalings) van die Wet op Outeursreg laat ander toe om sekere werke te gebruik sonder die toestemming van die eienaar van die werk en sonder om vergoeding te betaal. Die bepalings streef om ʼn balans te tref tussen die belange van die outeur en die belange van die publiek. ʼn Werk mag volgens hierdie bepalings tipies gebruik word vir die doeleindes van navorsing of private studie, persoonlike of private gebruik, beoordeling of resensie, of om nuus te rapporteer. Daar is tans geen Suid-Afrikaanse regspraak rakende hierdie uitsonderings nie, en hul toepassing is dus onseker. Hierdie tesis beoog om die werking van die billike gebruik-bepalings duidelik uiteen te sit om hoër gewilligheid in howe te skep om internasionale en buitelandse reg toe te pas, en sodoende Suid-Afrikaanse immateriële goederereg te ontwikkel. Die sosiale en ekonomiese beleidsoorwegings wat die bepalings ondersteun word geanaliseer om die doel daarvan te bepaal. Internasionale outeursreg-verdragte word bespreek om ʼn raamwerk vir die uitsonderings te skep. Wetgewing en regspraak van Australië en die Verenigde Koninkryk word ondersoek, en die kennis wat daar opgedoen word, word toegepas op die Suid-Afrikaanse bepalings. Die Wet op Outeursreg 98 van 1978 bevat geen uitsondering vir die doeleindes van parodie en satire nie. Die Australiese Wet op Outeursreg 63 van 1968 bevat wel so ʼn uitsondering, en dit word in hierdie verband beoordeel. ʼn Uitsondering vir parodie en satire word voorgestel en oorweeg in die konteks van Suid-Afrikaanse outeursreg. Die grondwetlikheid van die voorgestelde uitsondering word bepaal na aanleiding van die impak wat dit sal hê op outeurs se eiendomsreg.

This thesis investigates the problems associated with the development of Spatial Data Infrastructures (SDIs). The results of this investigation are used as input for the development of new spatial data policy strategies for individual organisations to enable an improved better facilitation of SDIs. Policy issues that need to be considered by an organisation when developing spatial data policies, were identified as being: SDI requirements; organisational issues; technical issues; Governmental/organisational duties; ownership/custodianship; privacy and confidentiality; legal liability, contracts and licences; Intellectual Property Law; economic analysis; data management; outreach, cooperation and political mandate; and users' choices, rights and obligations. In order to gain an understanding of current spatial data policy practices and to device new policy strategies a spatial data survey was conducted. This survey addressed the identified SDI problem areas. Some 6630 questionnaires were mailed out with more than 400 responses returned. These were reduced to 379 useful responses. Once analysed, the results were compared with the findings of the SDI investigation and used throughout the thesis. The results of the analysis to the spatial data survey are displayed in tables and graphs throughout Chapters 3, 4, 5 and 6 and in Appendix 2. The tables and graphs show the answers to the questions asked in the questionnaire as a percentage of the total number of respondents. The survey discovered that many organisations had no spatial data policies, nor individual policies on spatial data pricing and/or intellectual property protection. This thesis established that SDI requirements are not being met by many spatial data policies used by individual organisations. Hence, the thesis studied the spatial data policy issues that are involved when an organisation develops new policies with the aim to aid the development of SDIs. It uniquely established current Australian spatial data policy practices in the areas of spatial data quality, access, pricing, and legal issues to form the basis for future strategies. It reviewed the current knowledge of intellectual property law applied to spatial data and devised new approaches to deal with all the identified policy issues. Finally, the thesis defines spatial data policies that facilitate SDI development.

Western intellectual property frameworks have at least one feature in common: performers are less protected than authors. This situation knows many justifications, although all but one have been dismissed by the literature: performers are simply less creative than authors. As a result, the legal protection covering their work has been proportionally reduced compared to that of their authorial peers. This thesis investigates this phenomenon that it calls the 'author-performer divide'. It uncovers the culturally-rooted principles and legal reasoning that policy-makers and judges of Australia, France, the United Kingdom and the United States have developed to create in the legal narrative a hierarchy between authors and performers. It reveals that those intellectual property systems, though continuously reformed, still contain outdated conceptions of creativity based on the belief in ex nihilo creation and over-intellectualised representations of the creative process. Those two precepts combined have led legal discourse to portray performers as their authors' puppets, thus underserving of authorship themselves. This thesis reviews arguments raised against improving the performers' regime to challenge the preconception of performers as uncreative agents and questions the divide it supports. To this end, it seeks to update the representations of creativity currently conveyed in the law by drawing on the findings of other academic disciplines such as creativity research, performance theories as well as music, theatre and dance studies. This comparative inter-disciplinary study aims to move current legal debates on performers' rights away from the recurring themes and repeated arguments in the scholarship such as issues of fixation or of competing claims, all of which have made conversations stagnate. By including disciplines beyond the law, this analysis seeks to advance the legal literature on the question of performers' intellectual property protection and shift thinking about performative forms of creativity.

The diploma thesis concentrates on legal protection of indigenous peoples in Australia. The topic itself is too wide, therefore it was shortened to predominantly concentrate on analysis of two up-to-date topics. These were, firstly, legal protection of indigenous peoples in relation to media and then, secondly, legal protection of indigenous peoples in relation to intellectual property rights. The paper is divided into three main chapters. The first chapter's goal is to introduce some parts of Australian history that are connected with Aboriginals to Czech readers. The topics discussed are, for example, colonization of Australia, genocide as perceived by international community, policy of assimilation, era of Stolen Generations etc. This chapter highlights a necessity of always dealing with current issues in proper historical context and, as it is found in the second chapter, also with deeper understanding of differences of indigenous culture. The second chapter is an outcome of the author's study stay at University of Queensland where she conducted a research on two topics connected with legal protection of indigenous peoples that were being currently discussed. The first topic was legal protection of indigenous peoples in relation to media connected with a discussion about The Freedom of Speech Bill 2014....

The majority of wheat research in the world and in Canada is conducted by the public sector. The government of Canada has introduced legislation to update its plant breeder’s rights (PBR) legislation, making Canada compliant with the International Union for the Protection of New Varieties of Plants (UPOV) 91 convention, with the goal to stimulate private investment in wheat variety research. International experience with UPOV 91 reveals a wide range of outcomes depending on the specific royalty setting mechanisms allowed within their domestic legislation. This thesis compares Canada’s existing policy to three very different international examples (France, United Kingdom, and Australia) of UPOV 91 compliant royalty collection systems for wheat. The model presented is one of a monopolistic competitive wheat-breeding industry with the introduction of a new certified seed variety. Farmers have the option to use farm saved seed (FSS) or certified seed on their farm. The additional economic benefit created from the innovation and its distribution is analyzed and interpreted for both, farmers (social benefit) and breeders (private benefit). The results of the analysis show that while each UPOV 91 compliant model generates more revenue for farmers and breeders than Canada’s current policy, they tend to generate less than expected revenue in the short-run. If a country has strong intellectual property rights (IPRs), it will attract some domestic and foreign investment and possibly a beneficial collaboration between the public, private, and producer sector, also known as P4 (public-private-producer-partnerships).

A patent is often characterized as a bargain between an inventor and society. Generally, for a patent to be considered valid, an invention must satisfy three broad criteria: it must be new, useful, and non-obvious. This paper focuses on the requirement of non-obviousness. It explores the criterion from inception to its current state and suggests a potential refinement. A multi-jurisdictional snap-shot is presented focusing on the United Kingdom, Australia, the United States, and Canada. It is submitted that the non-obvious prerequisite contains a problematic level of uncertainty. The law of obviousness lacks a baseline standard. To achieve certainty, it is suggested that the law adopt the principles pertaining to patenting combinations and aggregates. Ultimately the law of patents, inclusive of the doctrine of obviousness, must be fashioned and administered in a manner that respects the quid pro quo that has guided the law for many years.