Trade marks at the boundaries: current interdisciplinary and empirical research in trade mark law

20 February | Melbourne Law School

This workshop was supported by ARC Linkage Grant No. 120100249, Testing Trade Mark Law’s Image of the Consumer (CIs Weatherall, Humphreys, Burt, Kelly, Richardson, PI Burrell). The investigators acknowledge the support of the Australian Research Council and our partners, IP Australia, the Federal Court, Treasury Wine Estates and Carlton & United Breweries.

Reshaping IP’s Fabric: Privatisation Versus Public Domain in the Era of Artificial Intelligence

Dr Ana Ramalho Assistant Professor of Intellectual Property Law
University of Maastricht

Chair Michael Pattison, Principal Michael R Pattison, Australian Lawyer
Discussant Associate Professor Kwanghui Lim

1 March | Melbourne Business School

This workshop addressed the challenges that artificial intelligent systems (AIS) might pose to traditional concepts of copyright authorship.

In many jurisdictions – including Europe and Australia - authorship seems to be somewhat connected to the conditions for protection, which might imply that, absent a human author, a work will not be original and therefore not copyrightable. This may leave many works that would otherwise be copyrightable without protection, thereby causing legal uncertainty; but it also raises questions about whether protection should at all be available, and about whether copyright is fit for purpose in face of technological progress in the area of AIS.

The workshop explored whether the current legal framework can accommodate AIS as creators for purposes of copyright protection, and then considered the more normative question of whether AIS’ creations should be copyright protected, or rather belong in the public domain. It concluded with a suggested model for the legal regime of works created by AIS.

The EU Centre on Shared Complex Challenges is co-funded by the European Commission and The University of Melbourne

IP Developments in Europe | Melbourne & Sydney Seminars

Dr Ana Ramalho Assistant Professor of Intellectual Property Law
University of Maastricht
2 March | King & Wood Mallesons, Melbourne
13 March | King & Wood Mallesons, Sydney

Host: Matthew Swinn Partner at King & Wood Mallesons, Melbourne; Cate Nagy Partner at King & Wood Mallesons, Sydney

These seminars provided an overview of recent IP developments in Europe, namely the state-of-play of the unitary patent (especially considering the imminent Brexit); the Trade Secrets Directive; the new Trademark Regulation; and the proposed Directive on copyright in the Digital Single Market.

Specific IP issues will be discussed in more detail and include:
The ground for refusal of registration due to functionality of the sign (based on both the new Trademark Regulation and the recent Rubik's cube case);
Articles 11 and 13 of the proposed Directive on copyright in the Digital Single Market (which refer to a new exclusive right for press publishers and to the use of protected content by information society service providers, respectively); and
The right of communication to the public as interpreted by the Court of Justice of the European Union in relation to hyperlinking (especially in cases Svensson and GS Media).

The EU Centre on Shared Complex Challenges is co-funded by the European Commission and The University of Melbourne

Privacy’s Blueprint: The Battle to Control the Design of New Technologies

Professor Woodrow Hartzog
Samford University Cumberland School of Law
15 March | Melbourne Law School

Synopsis: “Technological design that affects our privacy is now so pervasive, we hardly even notice it.  Every day the devices and software we use-social media, mobile apps, databases and smart phones-are built to give away our stories. And the law barely cares. In this talk based on his forthcoming book, Professor Woodrow Hartzog will argue that the law must address technological design and proposes how to do so in a way that is flexible and not unduly constraining. We must ask and answer hard questions like should the law prohibit malicious interfaces designed to trick us into personal disclosure?  Should designers be forced to build backdoors into encryption for the government? Should there be minimum data security standards for technologies in order to keep our information safe from hackers?  Privacy law must take design more seriously. To get it right, we need a blueprint.”

The Digital Map: Copyrightability of Spatial Data

Dr. Marlena Jankowska
Assistant Professor, Faculty of Law and Administration, University of Silesia, Katowice, Poland

Synopsis: “Significant changes in the nature of Spatial Data Infrastructure (SDI) have created new legal uncertainties that have not yet received sufficient attention from the legal profession in Europe. The practice of using SDI has nevertheless shown that there are many legal issues worth noting, especially concerning intellectual property rights. On that subject, what we have to confront in the doctrine of copyright law is the balance between the competing principles of accessibility of public information against the principles of copyright protection. At the same time, the technological challenge stimulates doubts about copyright protection even more, as it is not certain whether SDIs are copyrightable at all. As there are many standpoints in that matter, it has to be answered whether U.S. and European legal regulations, as well as the technical framework of creating the digital data and databases (e.g. the ISO standards), can strip away the creative element from the work. It should also be noted that the current legal standpoint on maps is a vague one that leaves many unanswered questions. Should we, for example, assume that an idea may only be copyrightable if it is individualized, creative and has been articulated in some form? Do we need to re-imagine the relationship between factual content (e.g.  geographical information) and a creative form of expression (e.g. a cartographic map)? Additional challenges emerge when we consider the relationship of the above to space law.”

OAIC & University of Melbourne - Privacy Event

Timothy Pilgrim PSM Australian Information Commissioner and Australian Privacy Commissioner
Dr Monika Zalnieriute Melbourne Law School Postdoctoral Fellow
James Horton Datanomics

Chair Professor Megan Richardson Melbourne Law School

28 March | University of Melbourne

The Australian Information and Privacy Commissioner, Timothy Pilgrim, lead a legal, social policy and rights panel at the University of Melbourne. Commissioner Pilgrim will be joined by human rights scholar and advocate, Dr. Monika Zalnieriute, and technology advisor, James Horton. The free event was hosted by the Office of the Australian Information Commissioner (OAIC) and the University of Melbourne.

University of Melbourne’s privacy law expert, Professor Megan Richardson, MC'd the interactive panel and took questions from the floor and from the live Twitter feed #ppnMelbourne. Privacy professionals, academics and students with an interest in privacy rights were encouraged to attend and join in the discussion.

Algorithmic Regulation

11 April | Melbourne Law School

A joint event with the Centre for Coporate Law and Securities Regulation

In this seminar, Yeung offered a descriptive analysis of algorithmic regulation, classifying these decision-making systems as either reactive or pre-emptive, and offered a taxonomy that identified 8 different forms of algorithmic regulation based on their configuration at each of the three stages of the cybernetic process: notably, at the level of standard setting (variable vs fixed behavioural standards); information-gathering and monitoring (historic data vs predictions based on inferred data) and at the level of sanction and behavioural change (automatic execution vs recommender systems).

Yeung mapped the contours of several emerging debates surrounding algorithmic regulation, drawing upon insights from regulatory governance studies, legal critiques and selective insights from surveillance studies to highlight various concerns about the legitimacy of algorithmic regulation.

Website blocking injunctions: lessons from the UK and EU

Dr Jaani Riordan
12 April | Melbourne Law School

As Australian courts begin to apply s 115A of the Copyright Act 1968 (Cth), it is timely to consider the experience of the English and European courts in relation to website blocking injunctions.

This presentation will consider the evolution of blocking remedies in the European Union, including:
emerging practices in relation to jurisdiction, discretion, costs, and safeguards;
the extension of blocking remedies to new categories of wrongdoing under the courts’ inherent jurisdiction;
the new phenomenon of ‘live’ blocking orders which target infringing transmissions of live sports broadcasts; and
practice and procedure in blocking applications.

Copyright and The Cost of Imagination Foregone

Professor Pat Aufderheide
26 April | Melbourne Law School

As Australian policymakers enter the third decade of grappling with the challenge of adapting copyright law to the modern era, they enter a polarized, unproductive debate that pits tech innovation interests against the interests of creators invested in their copyrights. In reality, creators have at least as much interest in user rights (exception and limitations) as they do in copyright monopoly rights. Aufderheide discussed her research, primarily from the U.S. but with some data from ongoing research in Australia, with creative organizations and creators on their use of copyright exceptions and limitations. The U.S. research demonstrates the difference in creative potential and productivity when creators are able to access functional exceptions.

Private Power Online: how does EU law fare?

Dr Angela Daly
3 May | Melbourne Law School

The emergence of very large transnational private companies which provide critical Internet infrastructure and services has brought with it corresponding concerns about the power of these companies to control, surveil and otherwise influence our communications. Many of these companies also gather vast amounts of data by and about their users – a bank of data which has proved attractive to the public power of nation-states’ security and law enforcement agencies, which have accessed it in less than transparent and legitimate ways, as Edward Snowden’s revelations from 2013 attest.

Against this backdrop, and adopting a socio-legal methodology, this presentation considered some key topics, such as net neutrality, the Commission investigations into Google and the emergence of cloud computing, and considered how well existing EU legal and regulatory frameworks are able to protect individual Internet users’ interests vis-à-vis private power online.

This presentation was based on her book, Private Power, Online Information Flows and EU Law, which has just been published by Hart.

Look what they've done to my data: issues in privacy, security and data protection

10 May | Melbourne Law School

David Watts Commissioner for Privacy and Data Protection, Victoria
Abigail Payne Director and Ronald Henderson Professor, Melbourne Institute of Applied Economic and Social Research, Faculty of Business and Economics, University of Melbourne
Vanessa Teague Senior Lecturer, Department of Computing and Information Systems, University of Melbourne
Pompeu Casanovas Universitat Autònoma de Barcelona (UAB), Director of Advanced Research, former Director of the Institute of Law and Technology, and Professor of Philosophy and Sociology of Law at the UAB Law School

This panel discussion with the Victorian Privacy and Data Protection Commissioner David Watts took place at the University of Melbourne. Commissioner Watts was joined by big data, information security and artificial intelligence experts Abigail Payne, Vanessa Teague, and Pompeau Cassanovas. The free event was be hosted by the Victorian Office of Commissioner for Privacy and Data Protection and the University of Melbourne.

The Future of Patent Law

The Honourable Randall Rader
16 May | King & Wood Mallesons

The Honourable Randall Rader, formerly Chief Judge of the US Court of Appeals for the Federal Circuit, spoke on The Future of Patent Law in Melbourne on 16 May 2017.

In a world where IP doctrines and policies are changing rapidly in the two leading economic markets -- China and the US -- intellectual property retains a prominent component of market success.  Thus learning the future of patent law changes may have important implications for businesses and law firms alike.

The Honourable Randall Rader was appointed to the United States Court of Federal Claims in 1988.  In 1990, he was nominated to a seat on the United States Court of Appeals for the Federal Circuit.  In 2010, he became Chief Judge of the Federal Circuit.  In 2014, he retired.

Intellectual Property, Climate Change and Technology: must national creativity bring investor-state dispute risk?

Dr Abbe E. L. Brown University of Aberdeen

Convened by Professor Tania Voon Melbourne Law School
7 August | Melbourne Law School

Climate change has been recognised through international action, most recently the Paris Agreement, as a key problem of contemporary society. Technology and its dissemination and sharing is one (although not the only) means of addressing this, as can be seen from the increasing importance accorded to the United Nations Framework on Climate Change’s Technology Mechanism. Yet technologies which could be important to states’ obligations to reduce their greenhouse gas emissions may be the subject of intellectual property rights - held by private entities who have no obligations under international treaties to share them.

Under this international umbrella, this paper forms part of a book project exploring how conflicts between intellectual property and climate change are developing at national level, taking the UK jurisdictions as an example. Reference was made to UK intellectual property legislation, climate change legislation from Westminster and from Holyrood, and to hypothetical case studies drawing on a combination of actual developments. When pathways to court exist for these conflicts to be explored, the book will argue for new and legitimate approaches to statutory interpretation and decision making to deliver a more integrated approach to intellectual property, climate change and technology.  The book will also argue for new pathways to court, for when the quite different structures of intellectual property and climate change legislation and adjudication mean that a concerning lacuna can exist.

In this context, this paper explored in particular the extent to which such national judicial creativity could be challenged in an investor-state dispute by a disgruntled intellectual property owner; would it involve expropriation and lack of fair and equitable treatment if this led to a reduction of the power that the intellectual property owner holds in the particular case study?  Risks and opportunities will be discussed, particularly in the light of recent developments regarding plain tobacco packaging disputes and Eli Lilly v Canada, and arguments for a tribunal (or potentially courts?) to look beyond trade and investment question to other legal fields.

A quantum theoretical view of IP:  intellectual property in trade and investment agreements today

Antony Taubman Director, Intellectual Property Division, WTO

Brownbag Seminar w/ GELN
6 September | Melbourne Law School

Antony Taubman has served as Director, Intellectual Property, Government Procurement and Competition Division of the WTO since 2009, dealing with diverse legal and policy issues, policy analysis, technical assistance and multilateral cooperation, and dispute settlement. This work has included extensive cooperation within the multilateral system on public health and access to medicines. Earlier, he was Director, Global Intellectual Property Issues Division of the World Intellectual Property Organization (including the Traditional Knowledge Division and Life Sciences Program), covering programs on intellectual property and genetic resources, traditional knowledge and folklore, the life sciences, and related global issues including the environment, climate change, human rights, food security, bioethics and indigenous issues. A former Australian diplomat and practising patent and trademark attorney, he has authored numerous publications on international intellectual property law and policy.

CMCL & IPRIA ECR Workshop (by application)

Privacy, Politics and Law: in Conversation with Prof. Paul De Hert

Professor Paul De Hert Vrije Universiteit Brussels
2 October | Melbourne Law School

The CMCL, IPRIA and Melbourne Law School is excited that Professor Paul De Hert (Vrije Universiteit Brussels) – a renowned privacy scholar and organizer of the largest privacy conference in the world Computers Privacy and Data Protection  -  conducted an interdisciplinary workshop with PhD candidates and Early Career Researchers from Australia and New Zealand.

Faculty Lunch w/ Professor Paul De Hert Vrije Universiteit Brussels

4 October | Melbourne Law School

This was an opportunity to hear from Paul about his current research at the intersection of privacy/data protection, technology and human rights and also to share information about related research.

Trade Marks & Free Speech: Perspectives on The Slants Case

9 October | Melbourne Law School

Rochelle Dreyfuss Pauline Newman Professor of Law and Co-Director, Engelberg Center on Innovation Law & Policy at New York University School of Law
Susy Frankel Professor of Law and Director of the New Zealand Centre of International Economic Law at Victoria University of Wellington
Vicki Huang Lecturer in IP law at the Faculty of Business and Law, Deakin University
Dan Rosen Professor of Law at Chuo University Law School, Tokyo
The Hon Justice Julie Dodds-Streeton QC Judge in Residence, Melbourne Law School

The US Supreme Court’s decision in Matal v. Tam, 582 U.S. ___ (2017) has been described as rocking the IP world (or alternatively deeply controversial) in holding the Lanham Act’s “disparagement clause” unconstitutional. The unanimous verdict was issued on an application by Simon Tam of the Asian-American rock band The Slants seeking to “reclaim” the derogatory term “The Slants” by registering it as the band’s trade mark. As Justice Alito put it, speech that disparages may be hateful but under the First Amendment judges protect the freedom to express “the thought that we hate.”

In this seminar we heard perspectives from four trade mark academics and a former Australian federal court judge on the meaning, significance and implications of the decision for trade mark, branding and language practices.

CMCL Annual Update & Dinner
Defamation, Contempt & Open Justice

Dr Matt Collins QC Aickin Chambers
Jason Bosland Deputy CMCL Director, Melbourne Law School

Chair and commentary: Professor Andrew Kenyon Melbourne Law School

18 October | University House, Melbourne Law School

This seminar will took the form of an interactive workshop and examined the latest developments in defamation, contempt and open justice. Combining professional and academic expertise, the evening was informative for a wide range of practitioners and was designed to meet the CPD requirements of lawyers.