INTELLECTUAL PROPERTY CASES MATERIALS AND COMMENTARYPDF电子书下载

Part 1 Justifications and Preliminaries 1

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

The Problem Stated 3

Definition 5

Providing for Intellectual Property Rights 6

Policy Considerations 9

Chapter 2 Intellectual Property Rights in Australia 21

Introd uction 21

Constitutional Responsibility for Intellectual Property Rights in Australia 21

Administration and Law Reform 26

Courts and Judicial Processes 29

Jurisdiction and appeals 29

Remedies 31

Judicial Law-Making 37

The Literature of Australian Intellectual Property 42

Law reports and other primary materials 42

Texts and monographs 43

Looseleaf services and annual publications 44

Journals 45

Current materials 45

Part 2 Copyright and Related Rights 49

Chapter 3 Copyright: Origins, Rationale and Basic Principles 49

Introduction 49

Origins of Copyright 49

Introduction 49

The invention of printing and the roles of the Crown and the Stationers' Company 50

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

Developments after the Act of Anne 54

Subsequent copyright legislation in the United Kingdom 57

The development of copyright law in Australia 60

Rationales for Copyright Protection 62

The Practical Significance of Copyright 69

Basic Principles of Copyright Protection 71

The distinction between rights of property and copyright in an object 72

Copyright protects only the form in which ideas and information are expressed 74

Some illustrations 75

Copyright as a right of derivation 79

Chapter 4 The Framework of Copyright Protection: Conditions, Subject Matter and Duration 82

The Conditions for Copyright Protection 82

What connection is required? Connecting factors or points of attachment 82

Connecting factors 84

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

Works and subject matter of foreign origin 88

The concept of 'publication' 88

The making of the work or subject matter 92

Subject Matter Protected 96

Works and the requirement of originality 96

Original literary works 97

Original dramatic and musical works 154

Original artistic works 161

Works of artistic craftsmanship 189

Unprotected works 202

Derivative works and adaptations 202

Material which itself infringes copyright 203

Subject matter other than works 205

Published editions of works 228

Performers' protection 231

Redefining the categories 232

Duration of Protection 238

Some further reflections 239

Chapter 5 Exclusive Rights and Their Infringement: The Economic Rights 243

Introduction 243

The Exclusive Rights 243

Works 243

Subject matter other than works 246

Performers 246

Direct and Indirect Infringement 246

The 'Substantial Part' Requirement 247

How much is 'substantial'? -- quality rather than quantity 248

The importance or 'essentiality' of what is taken: substantiality and originality 252

Taking part of the underlying structure of a work 265

The purpose of the taking: transformative uses 267

Direct Infringement of Works 272

The exclusive reproduction right 272

The need for a causal connection 272

The need for resemblance or objective similarity: the idea/expression dichotomy 281

Use of common materials: historical and factual sources 293

A further note on animus furandi 306

Indirect reproduction -- intervening links in the chain of causation 334

Reproduction in a completely different medium 345

Temporary reproduction in RAM/running a computer program 348

The exclusive right of publication 353

Adaptations 354

Arrangements for commercial rental 356

The exclusive rights of public performance and communication to the public 358

Who is the maker of a communication? 363

Changing technologies and keeping apace of these developments: the Singtel Optus v National Rugby League litigation 376

Direct Infringement of Subject Matter Other than Works 382

In general 382

Sound recordings 382

Cinematograph films 383

Television and sound broadcasts 385

Published editions 389

Performers' rights 391

Intermediary Liability: Authorisation of Infringement of Copyright 391

In Works and Other Subject Matter 391

Liability for infringement --in general 391

The doctrine of authorisation in the online environment -- further and wider issues 409

Indirect or Secondary Infringements of Copyright 414

Importation and commercial dealings with infringing copies 414

The knowledge requirement 419

The adverse effects of parallel importation controls 421

Allowing performance of works in a place of public entertainment 424

Chapter 6 Further Rights of Authors, Exceptions to Infringement and Other Protections for Copyright Owners 425

Moral Rights 425

Origins and significance 425

Moral rights for performers 431

Indigenous communal moral rights 432

Droit De Suite 433

The droit de suite, or art resales right 433

Exceptions and Limitations on Protection 436

In general 436

Fair dealing: ss 40-42 443

The 2006 amendments 456

Remedial limitations with respect to carriage service providers 460

Other defences and the scope for simplification -- the wider question 463

Statutory defences and the problem of contractual overrides 466

Non-statutory defences 470

Compulsory or statutory licences 471

Statutory licence schemes -- common features 475

Levies on blank tapes and equipment 475

Remedies for Infringement of Copyright 477

Remedies generally 477

Damages under s 115 477

Damages for conversion or detention under s 116 485

Other Protections for Copyright Owners 493

Infringement Proceedings: Courts and Parties 502

Reformulating Exclusive Rights 502

Chapter 7 Ownership and Exploitation of Copyright 504

Ownership 504

The basic rule 504

Co-ownership 504

Commissioned works and subject matter 507

Journalists' copyright 507

Employee authors 510

Other provisions affecting ownership of copyright 517

Transmission of Copyright 519

Assignments 519

Equitable entitlements to copyright—commissioning arrangements 521

Other transmissions of copyright 524

Licensing of Copyright 525

Implied licences 526

Collective Administration of Rights 537

Collecting societies 537

The Copyright Tribunal 542

Chapter 8 International Copyright Arrangements and New Developments 543

In General 543

The Berne Convention for the Protection of Literary and Artistic Works 544

Development and scope 544

The principle of national treatment 544

Independence of protection and lack of formalities 545

Works and rights protected 545

Application of the Berne Convention in Australian domestic law 546

Revising Berne—The 1996 Internet Treaties 547

The WIPO Copyright Treaty, Geneva 1996 550

The WIPO Performances and Phonograms Treaty, Geneva 1996 555

Other WIPO treaty proposals 556

Intellectual Property Rights and Trade 557

Other Relevant Conventions 562

Bilateralism Returns—The New Wave of Free 564

Trade Agreements 564

Generally 564

The Australia-United States Free Trade Agreement 2004 565

Wipo, Human Rights and the Development Agenda 565

Private International Law Aspects of Copyright Protection and Exploitation 569

Part 3 Protection at the Borderline of Copyright and Patents 575

Chapter 9 The Registered Designs System 577

The Object of Designs Protection 577

Origins of the Australian Designs System 579

The Meaning of 'Design' 581

Definition 581

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

Functionality 590

Other Requirements for Registrability: Novelty and Distinctiveness 592

Section 15 requirement 592

The prior art base 592

'New' and 'distinctive' 596

Earlier use or publication of a design as an artistic work 609

Designs excluded from registration 612

The Process of Registration 613

The Designs Office and the Register 613

Ownership of unregistered designs 614

Applications for registration 615

Examination: formal and substantive 617

Registration, ownership and duration 622

Infringement of Registered Designs 623

Infringement 623

Other matters relating to infringement 627

Final note on transitional provisions 629

International Arrangements 629

Paris Convention for the Protection of Industrial Property 629

Hague Agreement Concerning the International Deposit of Industrial Designs 1925 630

The Locarno Agreement and the TRIPS Agreement 630

The Question of Dual Protection 631

Artistic copyright protection and industrial design 631

Arguments for and against dual protection 631

Pre-1 May 1969 works 633

Post-1 May 1969 works prior to 1 October 1990 633

The position from 1 October 1990 634

The tortured path of reform 638

The United Kingdom (and EC) position 649

Some Sample Registered Designs: See for Yourself! 651

Chapter 10 The Protection of Confidential Information 652

Introduction 652

Origins of the Equitable Action 654

Elements of the Modern Action 657

Confidentiality and the Public Domain 665

Third Party Rights and Obligations 668

Contractual Provisions About Confidentiality 670

Limitations and Defences 676

Reverse engineering a product on the market 676

The 'public interest defence' 677

Remedies 679

Part 4 Patents for Inventions and Allied Rights 683

Chapter 11 The Patent System: Origins and Rationale 685

Origins 685

The early period: before 1850 686

The establishment of the modern system 693

The development of patent law in Australia 696

Rationale and Objects of the Patent System 697

Should Australia have a patent system? 697

Patents as prospects 704

The time between first patenting and a commercial product 705

Patents and Trade Secrets Protection 708

Patentees and prior secret uses 710

Chapter 12 The Concept of Invention 711

Introduction 711

Patents Act 1990 (Cth) 711

The requirements for a 'patentable invention' 711

Manner of manufacture requirement 712

Invention in general 713

A note on claims and specifications 714

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

Particular Cases 725

The human treatment exception 725

Agricultural and horticultural processes 731

Schemes, methods and systems 732

Business systems 734

Computer software 745

Living organisms and developments in biotechnology 749

The broader policy issues involved in gene patenting 755

Some more recent developments concerning gene patents 763

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

The provisos to s 6 of the Statute of Monopolies 778

A New Definition of 'Invention' 780

The ACIP recommendations 782

Chapter 13 Patent Validity and the Application Process 785

General Requirements for Patent Validity 75

Novelty 785

Quantum of disclosure and the scope for making mosaics 789

Made publicly available 805

Distinguishing between disclosure through prior use and prior use alone 808

Qualifications as to certain kinds of prior use or publication 812

Novelty by way of selection 816

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

Novelty: concluding remarks 821

Inventive Step 822

When is something 'obvious'? 823

The relevant prior art knowledge base: common general knowledge 861

Utility 864

Secret Use 872

Other Requirements 875

'Internal' objections 875

Disclosure of the invention and best method 876

Disclosure versus description —the RTBA changes 880

Ambiguity of claims 883

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

Other grounds of invalidity 897

The Application Process 898

The role of patent attorneys 898

The Patent Office 901

The basic steps in getting and maintaining a patent 901

Standard and innovation patents 904

Persons entitled to be granted a patent 904

Joint inventors 905

The application 916

Priority dates 917

Request for examination 917

Examination 918

Acceptance 918

Publication 919

Opposition 919

Grant and term of patents 920

Further matters 920

Judicial supervision of the system 922

Chapter 14 Exploitation of Patents 923

The Exclusive Rights Conferred by a Patent 923

The rights of the patentee versus the rights of purchasers of patented articles 924

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

The doctrine of infringing importation 935

Authorising another to exploit the invention/contributory infringement 940

The Construction of Claims 953

The 'Improver'questions in Australian law 966

A broader overview of construction issues -- Kirin-Amgen 967

Infringement Proceedings and Exemptions 975

In general 975

Other defences to infringement -- research and experimentation 977

Remedies 979

Assessing damages for patent infringement 980

Relief available to other parties vis-a-vis the patentee 983

Ownership and Exploitation of Patents 984

Exclusive licensees 984

Conditions in contracts relating to patents 984

Employee inventions 984

The position of academic inventors 990

International Arrangements 1002

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

Regional and international developments- the European Patent Convention and WIPO 1004

The Patent Co-operation Treaty 1005

The Strasbourg Agreement Concerning the International Patent Classification 1006

The TRIPS Agreement 1006

Innovation Patents 1007

Chapter 15 Interlude: Sui Generis Schemes 1012

Introduction 1012

Circuit Layouts 1012

The fons et origio of circuit layouts protection 1012

Nature and scope of eligible layout rights and infringement 1015

Plant Breeder's Rights 1022

In general 1022

Part 5 Trade Marks and Commercial Indicators 1031

Chapter 16 Passing Off and Related Actions 1033

Introduction 1033

Origins and Elements of Passing Off 1035

Origins of passing off 1035

The elements of the modern action 1037

Reputation and the public domain 1058

The act of passing off: character merchandising, image association and product simulation 1067

Defences to passing off 1072

Related Statutory Actions 1073

Remedies 1084

Other Restrictions on the Use of Names 1085

Chapter 17 The Registered Trade Mark System: Origins and Rationale 1096

Introd uction 1096

Origins of the Registered Trade Mark System 1098

The early Acts 1099

Later developments 1101

Major changes under the 1995 Act 1102

Trade Marks Under the 1995 Act 1103

The Modern Registration System 1112

Trade marks on the register 1113

The process of registration 1114

The Madrid Protocol 1116

Chapter 18 Registration of Trade Marks 1117

Introduction 1117

Capability to Distinguish 1118

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 Other 1142

Kinds of Likely Deception or Confusion 1142

Confusing connotations: s 43 1144

Conflicting trade marks under s 44 1145

Conflicting trade marks under s 60 1153

Ownership and Intention to Use 1157

Ownership 1157

Intention to use 1166

Other Restrictions on Registration 1167

Chapter 19 Rights Given by Trade Mark Registration 1169

Rights Given by Registration 1169

Infringement of a Registered Trade Mark 1169

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 conduct 1197

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

Criminal sanctions against counterfeiting 1200

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

Other Grounds for Rectification of the Register 1212

Assignment 1219

Appendix 1221

Index 1229