Law Articles & Essays

Design/Copyright Overlap Issues - do we actually need a Designs Act?

Powerpoint based on a talk given to AIPPI (The International Association for the Protection of Intellectual Property), Australian Group, September 2020.

Copyright and the ‘Profession’ of Authorship

Victor Hugo, the creative colossus of the nineteenth century, was one of the great champions of the rights of the author. Speaking in 1878, Hugo
said: 'All the old monarchical laws denied and still deny literary property. For what purpose? For the purpose of control. The writer-owner is a free writer. To take his property is to take away his independence.'1 Hugo's involvement in the discussions leading to the first international copyright convention is the stuff of legend. His focus on the rights of the author shaped the drafting of the Berne Convention, the subject of such considerable scholarship of Sam Ricketson.2

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Where we come from

george helen and colin golvan 200

The Bar is obviously a place of privilege and opportunity. We practise our craft with considerable independence, and with special access to the inner workings of justice. It is at the opposite corner of experience to the subjugated circumstances of the refugee.

My parents arrived in Australia in 1951 as stateless Jewish refugees from Poland. Opportunity fell the way of their sons, who both ended up at the Bar.

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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.

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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.

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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.

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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.

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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.

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