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Digital Technology Law Journal |
Mike Willis
Asia Pacific Intellectual Property Law Institute
Murdoch
University
mwillis@central.murdoch.edu.au
[1] This writer has commented elsewhere[1] that the task of writing a general text intended to cover all areas of intellectual property law has the potential to resemble a cat chasing its tail. Just as one seems to reach a point where it looks safe to pause for breath from the hectic pace of having to make, or at least consider, suitable reforms in the law, along comes the need to do more of the same.
[2] Such action appears driven in large part by the relentless pace of technological developments. The applications of communications and digital technology, and biotechnology serve as good examples. However, it is also driven by an increasingly globalised approach to intellectual property law and initiatives consequential upon that trend. This approach is one in which trade concerns are paramount.
[3] The authors of Intellectual Property are not unaware of this. They make mention of the frenetic pace at which the world of intellectual property has developed since the appearance of a first edition of Intellectual Property in 1994. They acknowledge that the first edition is now rather dated and in need of revision. They talk of the fast moving nature of this area of law and the impossibility of remaining completely up to date at any given time.
[4] In reminding us of their efforts to ensure, within this new edition, the currency of developments within the law, the authors emphasise to their student and teacher readers the continuing need to update and revise the material. The sweetener for readers who might object to the price tag of $110.00 for a text which the authors themselves believe may well be in need of revision fairly quickly is that the authors think this will be a relatively minor task, at least for the next several years.
[5] The publisher's introduction informs us that the text provides students with a comprehensive collection of cases and materials including extracts from articles and reports which are not otherwise readily available. It adds that policy issues are examined and discussed while questions appear throughout the text designed to assimilate and apply the principles embodied in the cases and materials.
[6] In excess of 1050 pages, Intellectual Property has tome-like proportions and appears to fall into the category of a materials and commentary book sitting astride the divide between a standard casebook and a more conventional text.
[7] For the purposes of the exercise one might usefully characterise the standard casebook as one in which extracts predominate with just a small commentary and the conventional legal text as one with large amounts of text interspersed with a modicum of extracts. However, where the balance of one attribute to the other falls within the text under review appears to vary from one intellectual property topic to another.
[8] Within the section on Patents, out of a total of 200+ pages, extracts comprise about 60% of the total. For the section on Copyright, out of a total of close to 350 pages, extracts amount to a little under 50%. For the smaller section on Registered Designs, the figure falls to 40%. For the smaller section still that examines the impact of new technologies, the proportion is up around 60% again.
[9] While it is almost certainly the case that there is no 'right' figure by way of proportion of extract to commentary, one might safely hazard a guess that a 50:50 ratio amounts to a comfortable range and high proportions either way might seem excessive. This is of course for a text deliberately designated as a materials and commentary text. In which case, the figures of 40% and 60% in a couple of the sections within the text here may not qualify for the high end of the spectrum although probably heading in that direction.
[10] Nevertheless, the reproduction of 5-6 pages from fairly recent cases or 6-7 pages of extract from recent government reports seems, to this writer, somewhat excessive. This is particularly so where a not insignificant portion of extracted material in the text is almost certainly readily available in the libraries of the institutions that the target audience of undergraduates attends. Of course, more and more material is also becoming electronically available.
[11] That said, the range of material presented is impressive and the 'notes and questions' approach to commentary is stimulating and challenging. The only reservation with such an approach may lie in the implicit assumption that sufficient time will be allocated to discussion and that ultimately there is a resolution of competing arguments. Useful, up to date suggestions for further reading also lay the groundwork for even more depth should the student wish to do so.
[12] Befitting a text pitched primarily at undergraduate students, all aspects of intellectual property law are covered. Schematically, the text consists of four Parts commencing with a comprehensive introduction which sets out a justification for intellectual property law and provides background to the development of the law in Australia. Part II examines copyright, designs and the protection given to circuit layouts. The material on copyright is the most substantial of the text, very comprehensive and as up to date as the authors were able to be. Needless to say, and conscious of the fact that the text became available in March of last year, copyright is an area of the law that continues to develop rapidly and the cautionary words by the authors for students to update and revise are especially pertinent. Next comes an exploration of the protection of ideas and inventions incorporating predominantly patents but also confidential information and a very small section on plant breeders rights. The final section, Part IV, examines the protection of business goodwill against misappropriation with most attention on trademarks law.
[13] The publisher's note draws our attention to the fact that the text also examines the impact of new technologies, including the ramifications of the networked environment, the development of sui generis regimes, and the international aspects of intellectual property protection. However, readers hoping to find the same level of detailed analysis and discussion of these aspects as with the more conventional aspects may be a little disappointed.
[14] To be sure, attention is given to recent case law on matters concerning communications technologies and a proposal for a new communication right. Material also covers the protection of computer programs and computer generated works. However, the detail concerning protection issues posed by digitisation and interactive multimedia is generally quite limited. The same applies to the implications of biotechnology, including gene technology and biodiversity, over the domains of science, medicine and agriculture. Examination of international aspects of intellectual property modestly covers some thirty odd pages in total across all the various categories of intellectual property law.
[15] Yet it is the interrelationship between intellectual property and the new technologies which forms much of the intellectual property discourse today. And it is in the international sphere where the pressure for adaptation and reforms to intellectual property law is most unrelenting. To be fair to the authors, all of these aspects get some attention but if, on the basis of the publisher's note, readers are anticipating the same comprehensive and detailed approach to these matters as for others, then they may need to search out supplementary material.
[16] A large part of this review has been spent describing the rapid pace of change characterising much of intellectual property law developments. The task becomes an enormous one if the intention is to produce a comprehensive materials and commentary text, one which does justice to all aspects of the law yet meets the test of retaining sufficient currency over a reasonable period. That benchmark becomes a high standard for any text to meet. On balance, it is a standard which has probably been met by the text under review with the one qualification that materials relating to the impact of new technologies and the influence of international developments in the law will require supplementation.
[17] This brings one to pose the question of whether the notion of the all encompassing text of both extract and commentary which sets itself the aim of covering the broadest possible canvass - or is represented as such - is merely being overly ambitious or is it perhaps no longer a relevant vehicle for written material on intellectual property law?
Intellectual Property retails at $110 00 and is published by Butterworths.
1 Willis, M J, 'Review of Jill McKeough and Andrew Stewart Intellectual Property in Australia, 2nd Edition, (Sydney: Butterworths, 1997)', (1998) 5(1) E Law-Murdoch University Electronic Journal of Law, [Internet] URL: http://www.murdoch.edu.au/elaw