Editorials
- News from the SCRIPTed Offices
Shawn H. E. Harmon, pp.194-196
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- National and Global Dimensions of Public Rights in Copyright
Graham Greenleaf and David Vaile, pp.197-200
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- The Lessons of the Past: C Subramania Bharati and the Nationalisation of Copyright
Mira T. Sundara Rajan, pp.201-206
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Reviewed Articles
- The Software Patent Thicket: A Matter Of Disclosure
Rosa Maria Ballardini, pp.207-233
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The high complexity of software products, as well as the increased number of intellectual property rights in the field, has created a dense thicket of overlapping patent claims that companies must navigate in order to operate in the sector. The lack of relevant prior art and the abstract nature of the software patent claims are the major causes of overlapping patents in the field. However, efforts have thus far been concentrated merely in improving the prior art repositories. The abstract nature of the patent claims and the disclosure concerns deriving from that have, however, not yet received sufficient attention. This article pursues this subject, first by investigating the reasons for, and consequences of, overlapping IP rights in software-related patents. This analysis suggests that overlapping problems and, thus, the software patent thicket, cannot be effectively reduced unless issues related to abstraction and disclosure are addressed. On the basis of this, a more detailed description of the programme – including flowcharts, pseudocodes and, when necessary, parts of the source code – might be an essential requirement to be added to the description of the invention in natural language.
- Open Access to Journal Content as a Case Study in Unlocking IP
Roger Clarke and Danny Kingsley, pp.234-258
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The Internet has brought with it both means to disseminate and access content, and an enhanced expectation that content will generally be readily accessible. This has threatened entrenched for-profit activities, which have long prospered on closed, proprietary approaches to publishing, facilitated by anti-consumer provisions in copyright laws. The ePrints and Open Access (OA) movements have been complemented by the emergence of electronic repositories in which authors can deposit copies of their works. The accessibility of refereed papers published in journals represents a litmus test of the extent to which openness is being achieved in the face of the power of corporations whose business model is dependent on the exploitation of intellectual property (IP). A specification of the requirements for “Unlocking IP” in refereed papers is presented and applied, leading to the conclusion that a great deal of progress appears to have been made. The copyright arrangements applied by most publishers enable authors to self-deposit PrePrints of their papers on their own web-sites and in open repositories; and in many cases authors can also self-deposit the PostPrint, i.e. the author’s copy of the final version.
The theoretical success of the OA, ePrints and repositories movements has not – or at least not yet – resulted in success in practice. This is because only a small proportion of papers are actually self-deposited, and a large proportion of refereed papers continue to be accessible only through highly-expensive subscriptions to journals and journal-collections controlled by for-profit publishers. The unlocking of IP in refereed papers is therefore still very much a work-in-progress. Moreover, the gains may be ceded back to the for-profit publishing industry, unless concerted efforts are made within academe.
[This article was presented at the ‘Unlocking IP’ conference held in New South Wales on 16-17 April 2009.]
- National and International Dimensions of Copyright’s Public Domain (An Australian Case Study)
Graham Greenleaf, pp.259-340
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Many examples of innovation in relation to information goods involve works in which various parties have proprietary (copyright) interests, but also involve the public having rights to use those works in ways that involve some of the exclusive rights of the copyright owner. They involve copyright’s “public domain” in the expanded sense of all “public rights”: those aspects of copyright law and practice that are important in determining the ability of the public to use works without obtaining a licence on terms set (and changeable) by the copyright owner. The Creative Commons slogan “Some Rights Reserved” sums up rather well the way in which intellectual goods combine proprietary and non-proprietary elements. However, most examples of this broader public domain do not involve the use of Creative Commons licences. The theme of this article is what these examples have in common, how Australia’s copyright law and the institutions that support innovation have paid insufficient attention to what they have in common, and how – in Australia at least – we need to have a law reform review that will have these common elements (the copyright “public domain”) as its focus. Eight examples of where Australia’s copyright public domain is in need of reform are considered, as are some of the interconnections between them. Along the way, consideration is given to how the public domain in any particular country comprises both “global” and “national” elements, with examples of what makes Australia’s public domain distinctive.
- Internet Content Regulation and the World Health Organization Framework Convention on Tobacco Control
Andrew T Kenyon, pp.341-354
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The World Health Organization’s Framework Convention on Tobacco Control aims to control tobacco advertising, promotion and sponsorship across varied media and communication platforms. In its approach to internet content, the Framework Convention offers a useful case study of internet regulation and unveils the WHO as an emerging source of international policy on internet content. This article outlines key aspects of the Framework Convention, and highlights its method for articulating agreement about internet content control and the way in which it underscores the central role of intermediaries in such control. With regard to agreement, The Framework Convention’s method is not to seek harmonisation of national laws alone. Rather, it uses a set of agreed national obligations about controlling internet content, while making allowances for national constitutional variations — variations which may temper the implementation of the obligations. This approach, which is coupled with a focus on domestic intermediaries such as internet service providers, offers a potential response to the challenging problems surrounding international enforcement of internet content regulation. It is a response which will be tested as the obligations under the Framework Convention are implemented in domestic law.
- Law in the Last Mile: Sharing Internet Access Through WiFi
Daithí Mac Síthigh, pp.355-376
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Access to the Internet through wireless access points (typically wifi routers) is both simple and common. In this paper, the legal restrictions on “sharing” an Internet connection in this way are assessed. Criminal offences that could apply to the use of open networks, such as dishonest use of a communications service or unauthorised access to a computer, are considered, as are issues of criminal and civil liability and terms of use affecting the owner of the router. It is suggested that there are advantages to sharing and that these provisions unnecessarily restrict the development of what would be of benefit to society. Furthermore, the problems encountered by proponents of municipal and community networks based on a collection of wireless access points, in terms of competition law but also other matters, are summarised. The paper concludes with an assessment of the links between the various aspects of wireless Internet policy, suggesting that it is necessary to recast relevant legal provisions so as to avoid granting disproportionate protection to Internet service providers (ISPs).
[This article was presented at the SCRIPTed ‘Governance of New Technologies’ conference held in Edinburgh on 29-31 March 2009.]
- Googling the Archives: Ideas from the Google Books Settlement on Solving Orphan Works Issues in Digital Access Projects
Sally McCausland, pp.377-393
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Many large scale digital archive access projects, whether undertaken by libraries, cultural institutions, commercial enterprises, research institutions or interest groups, struggle with orphan works and other copyright clearance issues. Under the default “opt-in” system prevailing under the Berne copyright treaty framework, each copyright owner must be located and give permission before their material can be digitised and made available for online uses. This imposes significant transaction costs and legal risks, and the public interest in access to cultural material is compromised. Various legislative solutions have been proposed, particularly in relation to orphan works, but no comprehensive solution has emerged. Legal developments around Google’s activities in pursuit of its “Library Project” now offer new ideas. The Google Books Settlement is the provisional settlement of copyright infringement action brought against Google by the American Authors Guild and the Association of American Publishers. The case concerned the legality of the Library Project through which Google has digitised millions of “archival”, or out of print, books and made them searchable online. Google’s controversial defence to copyright infringement is that its actions constitute fair use under US copyright law. The settlement is not yet judicially approved and fairness hearings are set for October 2009. However, if approved, it will be groundbreaking. It achieves, via class action rules, a rule switch from opt-in to opt-out – creating a unique safe harbour for Google to commercially exploit millions of books without first searching for owners and seeking their individual permissions. In practical terms, it will vastly increase digital access to in-copyright, out of print books. This paper considers whether legislative reform based roughly on this model could be applied to other digital access projects seeking to unlock cultural archival material.
[This article was presented at the ‘Unlocking IP’ conference held in New South Wales on 16-17 April 2009.]
- The Role of Patent Law in Regulating and Restricting Access to Medicines
Luigi Palombi, pp.394-410
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Even with the uniform patent protection and enforcement provided by TRIPS and the WTO, there is now a growing body of evidence showing that both the rate of drug innovation and pharmaceutical company profits are falling. History shows that patents are not the promoters of innovation, unlike the pharmaceutical industry would like us to believe. The overwhelming evidence appears to confirm that, rather than improving access to medicines, the patent system actually encourages research and investment into medicines that produce the greatest profit for the least cost – but not necessarily medicines that will alleviate human suffering, especially in developing countries.
[This article was presented at the ‘Unlocking IP’ conference held in New South Wales on 16-17 April 2009.]
- Extension of Legal Deposit: Recording Australia’s Online Cultural Heritage
Abi Paramaguru and Sophia Christou, pp.411-432
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In 2007 the Government commenced a review into the feasibility of extending the legal deposit scheme to include audiovisual and electronic material – submissions closed in May, 2008. In this paper we examine the history and significance of legal deposit as well as the relationship between legal deposit and cultural and technological change. We focus on the importance of integrating electronic, and specifically online, materials into the national legal deposit system. The current Australian legal deposit scheme is discussed with reference to the 2007 review and subsequent submissions to the review. The relationship between legal deposit and the public domain is analysed, highlighting the ways in which effective deposit schemes can enhance the national public domain. The importance of a flexible and considered approach to developing an appropriate threshold for inclusion of online materials in an extended legal deposit scheme is discussed. Finally, we make some suggestions for ways of implementing an efficient and effective legal deposit scheme that can encompass online materials of cultural value.
[This article was presented at the ‘Unlocking IP’ conference held in New South Wales on 16-17 April 2009.]
- Legal Aspects of Nanobiotechnology Inventions: An Indian Perspective
Kanika Sharma and Archana Chugh, pp.433-448
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Nanobiotechnology results from the convergence of nanotechnology and biotechnology. It has a remarkable potential to abate problems and provide efficient solutions related to medicine, the environment, agriculture etc. Nanobiotechnology applications have had a remarkable global impact, especially in European countries and the United States of America. In India, the field holds immense importance particularly in the nanomedicine sector. The arrival of nanobiotechnology in India has raised a series of questions and challenges in terms of intellectual property protection. Therefore, it is of immense significance to analyse critically whether the Indian patent regime provides a proper environment for suitable intellectual property protection and commercialisation of nanobiotechnology in India.
[This article was presented at the SCRIPTed ‘Governance of New Technologies’ conference held in Edinburgh on 29-31 March 2009.]
Analysis
- Educational Use and the Internet – Does Australian Copyright Law Work in the Web Environment?
Delia Browne, pp.449-466
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Australia is unique in the way it deals with the copying of copyright material by educational institutions. Australian copyright legislation contains compulsory licences for educational copying. It recently introduced a new flexible dealing-exception for educational instruction for works not covered by the statutory licences. As educational use of free and publicly available Internet material is increasing, the Australian Education Sector is questioning whether the current statutory licence scheme is appropriate for the educational use of free and publicly available Internet material. It has asked the Australian Government to review the scope of the statutory licences. In particular, it has asked for a new exception for the educational use of free and publicly available Internet material. This article explains the proposed reform and the rationale behind it.
[This article was presented at the ‘Unlocking IP’ conference held in New South Wales on 16-17 April 2009.]
- Moving Towards Open Standards
Anne Fitzgerald and Kylie Pappalardo, pp.467-483
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Standards are designed to promote the interoperability of products and systems by enabling different parties to develop technologies that can be used together. There is an increasing expectation in many technical communities, including open source communities, that standards will be ‘open’. However, standards are subject to legal rights which impact upon, not only their development, but also their implementation. Of central importance are intellectual property rights: technical standards may incorporate patented technologies, while the specification documents of standards are protected by copyright. This article provides an overview of the processes by which standards are developed and considers the concept of ‘interoperability’, the meaning of the term ‘open standard’ and how open standards contribute to interoperability. It explains how intellectual property rights operate in relation to standards and how they can be managed to create standards that are open, not only during their development, but also in implementation.
[This article was presented at the ‘Unlocking IP’ conference held in New South Wales on 16-17 April 2009.]
- The Consumers International IP Watch List 2009
Jeremy Malcolm, pp.484-495
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The Consumers International (CI) IP Watch List is a global survey that rates national copyright laws and enforcement practices from the perspective of how well they promote access to knowledge for consumers, by allowing them fair access to the fruits of their society’s culture and science. The IP Watch List is based on research conducted by CIi members and partners worldwide, using a set of criteria developed by an external advisory group of experts. Amongst the sixteen countries studied, those whose IP policies and practices are most harmful to consumers are identified. A range of best practices of fairness and balance in copyright law are also highlighted.
[This article was presented at the ‘Unlocking IP’ conference held in New South Wales on 16-17 April 2009.]
- Sydney University Press: A Model for Combining Open Access with Sales
Susan Murray-Smith , pp.496-503
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Sydney University Press was restarted in 2003 to provide print-on-demand books from the University Library’s digital collections. Since 2005, it has also been publishing new research titles. Through its co-location with the University’s repository, it has begun to explore Open Access in conjunction with commercial publication. A number of SUP titles are freely available chapter-by-chapter in the University repository, with a link to purchase the printed volume. This paper explores some of the issues around scholarly publishing in the digital age: exposure, expertise and reputation vs commercial imperatives; digital production and flexible uses, and the role of the scholarly publisher.
[This article was presented at the ‘Unlocking IP’ conference held in New South Wales on 16-17 April 2009.]
- The Internet Bill of Rights: A Way to Reconcile Natural Freedoms and Regulatory Needs?
Francesca Musiani, pp.504-515
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Within broad debates on freedom, security and human rights on the Internet – carried on during recent years in national and international fora – the proposal for the creation and adoption of a Bill of Rights for the Internet has been the subject of uneven attention and mixed reviews. Taking stock of the renewed interest in the proposal showed by the Committee on Civil Liberties of the European Parliament, this article analyses the current state of the Internet Bill of Rights (IBR) project. The analysis briefly retraces the history and main promoters of the IBR proposal, outlines the rationale and perspectives behind it, and debates its promises, limits and future challenges.
Reports
- The Ethox Centre
Michael Parker, pp.516-520
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Book Reviews
- Law And The Human Body: Property Rights, Ownership And Control
By Rohan Hardcastle
Reviewed by Renate Gertz, pp.521-523
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- The Trials Of Art
By Daniel McClean (Editor)
Reviewed by Jordan Hatcher, pp.524-526
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- Notes On The Underground: An Essay On Technology, Society, And The Imagination
By Rosalind Williams
Reviewed by Jan-Eerik Leppänen, pp.527-529
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- Paul Janssen: Pioneer In Pharma & In China
By Geerdt Magiels
Reviewed by Margaret Sleeboom-Faulkner, pp.530-533
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