14 December 2020:
This year has seen quite a lot of activity in intellectual property law in Australia. To round out the year, I’ll be posting a series of 10 posts discussing what I think are the top 10 things in intellectual property law in Australia from 2020, and what those things might mean for 2021.
I’ll start posting on Monday, 14 December 2020, with a post per day leading up until Christmas. The posts are not a ranking, just 10 topics from 2020 that I feel are significant.
Top 10 of Intellectual Property in 2020
- 10. The neoprene tote bag case - Post 10 in our Top 10 of 2020. A new case about neoprene tote bags illustrates how high the threshold is for articles (not only things in the fashion world) to be recognised as "works of artistic craftsmanship", no matter how much love, care or artistry went into their creation. This leaves them open to being copied, and with new technologies such as 3D printing, all the more easily. The answer - register a design!
- 9. Manner of manufacture cases - Post 9 in our Top 10 of 2020. As automation technologies advance, there have been increasing number of cases involving patent claims over computerised processes or automated schemes. This year saw two more examples, one of which failed and the other succeeded (on this point). The Statute of Monopolies of 1623 continues to be relevant in determining manner of manufacture in a digital world.
- 8. Changes to auDA .com.au eligibility policy - Post 8 in our Top 10 of 2020. Upcoming changes to the .com.au and .net.au eligibility policies mean that some domain name registrants may need to reconsider their Australian domain name strategies, particularly if they do not have a local presence and rely on an Australian registered trade mark to underpin their eligibility.
- 7. Expanding protection of geographic indications? - Post 7 in our Top 10 of 2020. It seems almost certain that more general protection of geographic indications will be required in Australia if there is to be a concluded Australia-European Union Free Trade Agreement. If so, only products that actually hail from relevant regions or places will be able to use those names. This is sure to stir local debate about what counts as Feta cheese, similar to past debates about use of the name “Champagne”.
- 6. Indigenous cultural and intellectual property developments - Post 6 in our Top 10 of 2020. Australia may be taking its first steps on a long pathway toward broad protection of Indigenous cultural expression and traditional knowledge, which would be a huge step. More immediately, we’ve seen attempts to pass legislation aimed at preventing the sale of “fake art”, and controversy over copyright ownership in the Aboriginal flag.
- 5. The Peanut Butter Case - Post 5 in our Top 10 of 2020. A big case about humble peanut butter packaging reminded us that unregistered trade marks (in this case well-known get up or trade dress) cannot be assigned in the absence of also assigning the goodwill of the business.
- 4. Copyright access reforms - Post 4 in our Top 10 of 2020. Creators will have more freedom to quote and use others' copyright works. Announced reforms to the Copyright Act will see a new scheme for using "orphan works", and fair dealing defences for the non-commercial quotation of other works, and others in the education sector. Draft legislation likely in 2021.
- 3. The printer cartridge case - Post 3 in our Top 10 of 2020. The "exhaustion of rights" doctrine means that patent owners will no longer be able to use their patent to control the use of a patented product post-purchase. Will these see right of repair advocates happier, or will patentees instead hire out patented products to retain control of them?
- 2. Updates to Design Act - Post 2 in our Top 10 of 2020. Amendments to the Designs Act will introduce more flexibility in the early life cycle of designs, including a 12 month grace period to apply for registration after publishing or using a design.
- 1. Digital platforms code of conduct - Post 1 in our Top 10 of 2020. Australia is set for new laws requiring digital platforms to remunerate news businesses for "making news available" on their platforms - which will include mere hyperlinking. This has been making headlines throughout 2020, and is legally novel by taking a non-copyright approach to the monetisation of content. Will the Digital Platforms Code of Conduct be legally enforceable?