The art of writing is the art of discovering what you believe.
Gustave Flaubert

Monday, 21 September 2015

Innovation patent (Australia)

The Dictionary contains a brief definition of  'innovation patent', a form of utility-model protection (or petty patent) known to Australian law. Now, following a report by the Advisory Council on Intellectual Property (ACIP) in May 2015 recommending that the government consider abolishing it altogether, IP Australia is seeking public submissions on the recommendation. ACIP had spent three years on its report before finding itself unable to come down in favour or against innovation patents, but it seems like an unloved intellectual property right which will have few supporters when the consultation closes (28 September). Having written that, I will probably be proved completely wrong.

Saturday, 27 June 2015

Panoramic Freedom

The freedom to take photographs and make other images of buildings, sculptures and other features of the man-made landscape that may be protected by copyright. The 1709 Blog reports that the right is more liberally granted in the common law copyright countries than in the civil law world.

'via Blog this'

Friday, 19 June 2015

Innovation patent (Australia)

I included a short definition of "innovation patent" (basically, Australian for "petty patent") in the Dictionary. Now Warwick Rothnie's excellent Patentology blog reveals that the Advisory Council on Intellectual Property has suggested that the law on the subject be repealed.

Tuesday, 21 April 2015

Reversion, reversionary rights

It is common for copyright assignments, so as not to be unreasonably in restraint of trade, to be subject to statutory provisions cutting them short during the post-mortem term of protection. In UK copyright law (strictly speaking, in Imperial copyright) the Copyright Act 1911 dealt with the reversion of copyright in the proviso to section 5(2):
(2) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations to any particular country, and either for the whole term of the copyright or for any part thereof, and may grant any interest in the right by licence, but no such assignment or grant shall be valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by his duly authorised agent
Provided that where the author of a work is the first owner of the copyright therein, no assignment of the copyright, and no grant of any interest therein, made by him otherwise than by will after the passing of this Act, shall be operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of twenty-five years from the death of the author, and the reversionary interest in the copyright expectant on the termination of that period shall on the death of the author, notwithstanding any agreement to the contrary, devolve on his legal personal representatives as part of his estate, and any agreement entered into by him as to the disposition of such reversionary interest shall be null and void.
This was tied up with the extension of copyright protection to 50 years post mortem auctoris in the 1911 Act. Under the 1842 Act it had been seven years PMA, or a maximum of 42 from first publication. Paragraoh 28(3) of Schedule 7 to the 1956 Act preserved the proviso, for certain types of assignment made before 1 June 1957 (when the 1956 Act came into operation). In Redwood Music v Francis Day & Hunter [1978] RPC 429 Goff J (at 434) noted that Parliament had not thought fit to continue with the proviso in the 1956 Act. Paragraph 27(1) of Schedule 1 to the 1988 Act again preserved the proviso, which was far from being a dead letter: an assignment made as recently as 31 May 1957 would have been prevented from dealing with the second half of the 50 year post mortem period of protection, so the proviso retains some potency even now. However, it is now settled that the proviso does not apply to post-1 June 1957 assignments: Novello & Company v Keith Prowse Music Publishing Co Ltd [2004] EWHC 766 (Ch). There, the parties both claimed copyright in various works by the celebrated English composer, Richard Addinsell (1904-1977), most famous for his "Warsaw Concerto", from the music to the 1941 film Dangerous Moonlight (known much less romantically in the United States, at whom as propaganda it was clearly aimed - just look at the clip to which I gave you the link above - as Suicide Squadron). Novello claimed under an assignment made in 2000, which would have been ineffective if earlier assignments dating from the 1940s and 1973 had dealt with the reversionary rights. The earlier assignments could not have included the reversion, but the 1973 instrument, Patten J held, did (and it is worth noting that it expressly mentioned that it was intended to ensure that the assignment of rights was dealt with under the 1956 Act).

In the United States, which is perhaps the only country which still retains reversionary rights for contemporary works and assignments, the rights revert after 35 years (with no consideration of whether the post mortem term has begun).

Tuesday, 27 January 2015


A clever way of manipulating the priority system in international trade mark law. Described by Tim Satzmann in the Duets blog here.

Monday, 26 January 2015


What's the point of writing something when it has already been said so well by someone else? This paragraph (there is more that you can read there) is reposted with his kind permission from Howard Knopf's Excess Copyright blog:
The hyphenated spelling of “trade-mark” had become something of an – ahem – trade-mark for Canada. It was a bold proclamation of independence and innovative thinking when Bob Kelly - an arcane and erudite veteran of the Department of Justice from a bygone era – came up with this bright idea. That hyphen was inserted in 1993 and served a useful purpose, since many people were confused between the American/WIPO spelling ("trademark") and the British spelling ("trade mark"), which the Brits still use. After all, isn’t the purpose of trade-marks law to avoid confusion? Canada had earlier used the British spelling. So - we are now following the American lead...Hopefully, this capitulation will appease the Americans and they will back down on term extension, prevention of parallel imports, repealing fair dealing, jail terms for petty infringers, ACTA implementation, the TPP and other aggressive efforts. As if!
Once upon a time, I was persuaded by a friend that the UK should move to making 'trade mark' a single word, drawing an analogy with the way 'copy-right' had gone. The relentless incoming tide of American cultural imperialism has since caused me greatly to regret ever entertaining such a view, and that Canada should have succumbed (even if the prizes mentioned in Howard's final sentence above might provide some justification) is most regrettable.

Wednesday, 12 November 2014


User-generated content: material created by users of an online service and uploaded to (for example) a website. An increasingly important class of material that may be protected by copyright.