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There has recently been considerable discussion of the law concerning parallel importing of copyright materials. Yet the legality of parallel importing of trade marked products has still to be decided at an appellate level in Australia despite a number of Australian single judge decisions2 on the issue.
The term ‘parallel importing’ can be applied to a number of different activities. However, it usually involves the application in an overseas country of an Australian trade mark (Australian in the sense of being physically identical to the Australian mark) to products manufactured overseas. The application of the mark and the subsequent sale of the product in the overseas country is undoubtedly lawful but some of the marked products are then imported into Australia without the express consent3 of the Australian registered proprietor. This importation in competition with the Australian registered proprietor is parallel importing.
The legislative prohibitions on the parallel importation of copyright material should not survive the new technological developments in the transmission of that material. Australian copyright law should come to grips with that reality and remove the existing prohibitions. Yet the adoption of current proposals for the amendment of copyright law may lead to a situation in which copyright owners could effectively prevent parallel importing. This could be done by copyright owners even if the existing statutory provisions specifically aimed at preventing parallel importing were repealed.
This article looks at the justifications for prohibiting parallel importing and the strength of those justifications in the light of new or developing means of distributing copyright material. Those justifications have been seriouslr questioned in recent years by a series of reports of the Prices Surveillance Authority (PSA) which has criticised the continuing prohibition of parallel importing. The criticisms in these reports have not made any detailed reference to the effects that changes in technology will have on the means of distributing copyright material. Those criticisms, combined with the impact of new technology, tip the balance of the debate concerning parallel importing in favour of permitting parallel importing.
The industrialisation of Western food systems has reduced the regular consumption of lacto-fermented vegetables (LFV). Consuming LFV may exert health benefits through the alteration of the gut microbiome, but the mechanisms involved remain unclear. To start understanding the possible benefits of LFV, we compared faecal microbial diversity and composition, as well as dietary habits between individuals who regularly consume LFV (n = 23) and those who do not (n = 24). We utilised microbial DNA amplicon sequencing (16S rRNA and ITS2) and untargeted metabolomics (LC–MS) to analyse stool samples. Study participants also provided three consecutive days of dietary data. Results show minor effects on microbiome composition; with the enrichment of a few microorganisms potentially associated with vegetable ferments, such as Leuconostoc mesenteroides and Rhodotorula mucilaginosa (P < 0.05), in LFV consumers. However, LFV consumption had greater effects on the faecal metabolome, with higher abundances of butyrate, acetate, and valerate (P < 0.05) and significantly greater metabolome diversity (P < 0.001). Overall, the observations of minor changes in the faecal microbiome and greater effects on the faecal metabolome from LFV consumption warrant further investigations on the health significance of LFV as regular components of the daily diet in humans.
The fourth edition of Australian Intellectual Property Law provides a detailed and comprehensive, yet concise and accessible discussion of intellectual property law in Australia. This edition has been thoroughly revised to cover the most recent developments in intellectual property law, including significant case law and discussion of the proposed and enacted amendments to the Copyright Act 1968 (Cth), the Patents Act 1990 (Cth) and the Plant Breeder's Rights Act 1994 (Cth). The text has been restructured, but continues to provide a complete discussion of the black-letter aspects of the law. Commencing with copyright, then followed by design law, confidential information, patents, plant breeder's rights, then finally trade marks. The work ends with a chapter on enforcing legal rights and civil remedies. Written by highly-respected intellectual property law researchers this text is an invaluable resource for both undergraduate and postgraduate students, academics and other professionals working with intellectual property.
Most modern laws that protect new plant varieties derive from the 1961 International Convention for the Protection of New Varieties of Plants (UPOV), which was subsequently revised in 1972, 1978 and 1991. The UPOV Conventions provide a system that enables breeders to recoup some of the associated costs of bringing a plant into cultivation through the grant of exclusive rights in the reproductive and propagating material of a new plant variety. By way of balance, others can use protected varieties for further breeding of new varieties. This regime provides additional benefits for contracting states: the ability to control the reproduction and maintenance of their own plant varieties as well as the improvement of access to new varieties from other countries. Following an extensive debate, Australia adopted the minimum standards in UPOV 1978 and enacted them in the form of the Plant Variety Rights Act 1987 (Cth). Some years later, Australia adopted and implemented the provisions of the 1991 revision of the Convention (UPOV 1991) in the Plant Breeder’s Rights Act 1994 (Cth) (PBRA). The Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 (Cth) made both substantive and procedural amendments to the PBRA, all of which are in effect at the date of publication. The principal substantive reforms relate to essentially derived varieties, unjustified threats of infringement, and discretion to award additional damages. The text below presents the law following these amendments. IP Australia is responsible for the administration of the PBRA.
The rights of an owner of a registered trade mark are stated in s 20(1) to be the exclusive right to use the trade mark and to authorise other persons to use the trade mark in relation to goods and/or services in respect of which the trade mark is registered. This general commercial freedom of the owner to use a trade mark is subject to government restrictions on that use. In addition, s 20(2) provides that the registered owner has the right to obtain relief under the Act if the trade mark has been infringed.
The registration of trade marks was a reasonably natural development beyond the law of passing off. While passing off or its statutory equivalents have and still have numerous advantages, they are inadequate in some respects as a means of facilitating the exploitation of signs used to indicate the origin of goods or services or as a means of defining and regulating property rights.
This chapter examines some of the rights that are closely associated with but not usually seen as part of copyright law. The first section examines the moral rights that are given to creators upon creation of a copyright work. Moral rights are independent of copyright but arise where copyright subsists in a work, and continue to exist even though the creator may have sold (assigned) their copyright in the work. This is followed by an examination of the protection given to performers under the Copyright Act 1968 (Cth). The law in this area has undergone a number of recent changes, principally as a result of the Australia–US Free Trade Agreement 2004 (AUSFTA), which extended the protection to include control over authorised sound recordings of performances, as well as providing moral rights for certain types of performances. Later sections of this chapter consider resale royalty rights, circuit layout rights, and the public and educational lending rights schemes.