Law Articles & Essays

The Willing Licensee and the Willing Licensor – a Sound Imagination and the Broad Axe

The Australian Approach

How does one go about determining fair remuneration for damages for infringement of copyright?

One of the important issues raised by the question goes to the very nature of the asset sought to be protected. It is intangible. It may have a trading history (in the form of licensing whether by private contract or on a compulsory basis (such as in the case of music)). It may have an esteemed value in the eyes of the author, but little to show by way of monetary value as such.


Combatting Fake Indigenous Art

Birubi Art Fake Trisha Mason Advertisement

Fakery and Indigenous art can, and does regrettably, take many forms. It is one of the sad predicaments that such vulnerable people are subject to so many challenges to the integrity of their cultural property.

First, there is the fakery of the alleged Indigenous creation of works which are made by non-Indigenous people. Secondly, there is the unauthorised reproduction of genuine works of Indigenous art – copyright infringement. Thirdly, there are works which are falsely attributed to Indigenous artists. Fourthly, though no readily attributed as fakery, there are works which are distorted in their presentation without authorial approval.


A win for Namatjira

Albert Namatjira -  photograph by Pastor S.O. Gross

Aboriginal and Torres Strait Islander readers should be aware that this commentary contains images or names of people who have since passed away.

Following a concerted media and legal campaign, the Namatjira Legacy Trust has succeeded in securing the ownership of the copyright of Albert Namatjira following a recent resolution of claims made by the Trust against the long-time copyright owner Legend Press.


The Copyright of Albert Namatjira

Albert Namatjira 200

You see them driving from Kings Canyon to Alice Springs, the majestic ghost white river gums depicted so faithfully in the paintings of Albert Namatjira. You would think you were looking at a Namatjira painting. And then there is the vista of the craggy hills of the West McDonnell Ranges in their mysterious blue hue – a signature feature of Namatjira’s art.


Aboriginal Australia - A Personal Story

Aboriginal Artwork

My journey into Aboriginal Australia started almost by complete accident.

I was completing my reading period for the Victorian Bar, having made the transition from solicitor to barrister, and had no idea how or if I was going to get any work. By chance, I heard a radio program on the ABC AM morning show about the need for new laws to protect Aboriginal artworks from unauthorised reproduction.


Managing IP Disputes

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Scope of rights

A key starting point in managing IP disputes is an understanding of the scope and limitations of IP protection – having regard to the available term of a right, the ambit of any monopoly and the defences which might be available.

A brief survey of some recent IP cases shows the breadth of the range of IP disputes and the way in which Courts are dealing with contemporary rights management issues.


Dealing with barristers - A symbiotic relationship

Dealing with barristers

Illustration, Nigel Buchanan

For many solicitors, dealing with barristers must be frustrating. You spend time preparing a case, which is taken from you, and possibly run in ways you had not imagined. Why would you do this to yourself?

The idea of solicitors retaining barristers to argue their clients’ cases might initially at least seem perverse. However there are a number of practical reasons for doing this. 

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Copyright and the Internet

The new electronic order

If developments in relation to music and the Internet are any guide, writers and publishers will increasingly be addressing the opportunities for self-management on the Internet. For writers, there is a well-established path for sharing copyright works without charge.

Originally published in May 2011 edition of the Australian Book Review.