Copyright
Legislation
Significant changes to the Copyright Act have been proposed in two separate Bills introduced into Parliament. Neither Bill has yet been passed, and both may yet be the subject of amendment. However, if the Bills are passed in their present form, copyright owners will see their rights diminished in a number of areas. The major changes are:
Parallel Importation
There are two important amendments relating to parallel importation.
The first removes a copyright owner's power to block the parallel importation of products on the basis of copyright in packaging, labels, or accompanying manuals. In the past, copyright owners have often been able to object to the unauthorised importation of goods on the basis that they bear a label, or are accompanied by packaging or a manual, that is the subject of copyright. They will no longer be able to do so. The Bill defines such items as 'accessories' and provides that 'accessories' made with the authority of the copyright owner in a WTO country are 'non-infringing accessories'. Copyright will not be infringed by the importation of 'non-infringing accessories'. The provisions do not apply to manuals that accompany software products, which have been specifically excluded from the definition of 'accessories'.
The second amendment removes a copyright owner's power to block the parallel importation of sound recordings. This is probably the most controversial amendment that has been proposed, and one that may lead to a trade dispute between Australia and the USA under the US "Special 301" legislation. Under the present Australian Copyright Act, the owner of copyright in a sound recording is able to prevent the unauthorised importation of copies of sound recordings. Under the amending legislation he will no longer be able to do so, because the importation of non-infringing copies, (i.e. copies that were made with the consent of the owner of copyright and did not infringe copyright in the country where they were made), will not infringe copyright. In an attempt to ensure that there is no increase in piracy, the Bill goes on to provide that imported copies will be treated as infringing copies until the defendant proves otherwise. The Bill also increases significantly the criminal penalties for infringement.
Introduction of Moral Rights
Moral rights will be introduced into Australian law for the first time, giving the creators of works and films a right of attribution, a right not to have their work falsely attributed, and a right not to have the work or film subjected to derogatory treatment.
There has been considerable debate about certain aspects of the proposed legislation; in particular, the fact that moral rights in relation to films have been granted to producers but not to script writers, and the fact that, although they cannot be assigned, moral rights can be waived. Many people consider that, because of the unequal bargaining power that exists between creators and users, creators will, in practice, be denied the benefit of the right.
Cases
Two of the most interesting cases deal with copyright in "music on hold" and in computer software.
The effect of the decision in the "music on hold" case, APRA v Telstra, is to make telecommunications carriers and internet service providers potentially liable to copyright owners for the transmission of material, even though they have no control over the content of that material. In this case, the court held that the playing of "music on hold" on fixed line and mobile telephones, amounted to an infringement of copyright on the part of telecommunications carrier.
The decision of the Full Court of the Federal Court of Australia in Powerflex Services Pty Ltd v Data Access Corporation brings Australia back into line with the developments elsewhere, in providing, in effect, that there will be no infringement unless the code has been copied. The full court overturned a ruling that copyright subsisted in the names of a computer program's commands. That ruling had not surprisingly, been the subject of extensive industry criticism.
Patents
Protection for Lower Level Inventions
The Government has announced plans to replace the current petty patent system with an innovation patent system which will introduce a second tier patent protection for lower level inventions, and bring Australia into line with many other industrialised countries that already offer property rights for smaller and lower cost inventions.
Extension of term for pharmaceutical patents
The Intellectual Property Laws Amendment Bill 1998 contains provisions for the extension of pharmaceutical patents for up to five years. This will be an important provision both for the owners of relevant patents and the manufacturers of generic pharmaceuticals.
Use of geographical names on wines
One of the first decisions under the Australian Wine and Brandy Corporation Act 1980 was handed down by the Federal Court late last year. Whatever its shortcomings, the decision provides a useful reminder that the European geographical indications listed in the Annexure to the EC/Australia Wine Treaty are protected in Australia, and that, provided the necessary knowledge can be demonstrated, the Act will provide a simpler and less expensive remedy than would otherwise be available for misuse of those names.
Pamela Moray Nase is an Australian solicitor working in Rouse & Co International's London office.
The content of this article is to provide only a general information on the subject. Legal advice should be sought for any specific circumstances.
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