Copyright Publications

Here are my recent publications on copyright law – you can download a copy by clicking on the title.

A Comparative Analysis of the Three-Step Tests in International Treaties IIC - International Review of Intellectual Property and Competition Law, Vol. 45, No. 4 (2014). This article undertakes a detailed comparison of each element of each step of the three-step test, across all implementations of the test.  It shows that each version of the test contains differences in meaning, and that these differences often have practical significance.  As a result, it provides additional support for the view that there is no such thing as the three-step test – rather, there are eight three-steps tests, each of which is uniquely different.

Making it Simple: How Copyright Legislation can be Simplified New Zealand Intellectual Property Journal, Vol. 6, No. 5 (2011). This article continues my exploration, commenced more than a decade ago, of how copyright legislation can be simplified. It begins by considering the nature and purpose of complexity in copyright legislation, and the reasons for simplification of copyright legislation. Approaches to simplification are illustrated through application to actual legislation (in this case, the New Zealand Copyright Act 1994). Simplifications are proposed for the categories of protected subject matters, for the exclusive rights that are granted to those protected subject matters, and for the exceptions that apply to those exclusive rights.

Maximising Permissible Exceptions to Intellectual Property Rights Chapter 7 in Kur A. and Mizaras V. (eds), The Structure of Intellectual Property Law: Can One Size Fit All?, Edward Elgar (2011). This chapter offers an insight into how, in a practical manner, a national legislature can maximise the scope of permissible activities in respect of IP rights while remaining compliant with the international constraints on exceptions to IP rights.

“Cultural Institutions, Digitisation and Copyright Reform Media & Arts Law Review, Vol. 12, No. 3 (2007). This article considers the way in which copyright law should be reformed so as to permit cultural institutions to take advantage of the opportunities provided by digital technology.

“Canada’s private copying levy – does it comply with Canada’s international treaty obligations?” Intellectual Property Journal, Vol. 20, No. 1 (2006). This article examines whether the operation of Canada’s private copying levy in relation to foreign performers and sound recording makers is consistent with the requirement of ‘national treatment’ pursuant to Canada’s international copyright obligations, current and future.

“The New Right of Communication in Australia” Sydney Law Review, Vol. 27, No. 2 (2005). A new right of communication to the public was introduced into Australian copyright law in 2000, to implement Article 8 of the WIPO Copyright Treaty. This paper provides a detailed conceptualisation of this new right and the Treaty article on which it is based, and answers questions about when, where and by whom a communication to the public occurs in the context of transmission of a copyright work over the Internet.

Principle or Compromise?: Understanding the Original Thinking behind Statutory Licence and Levy Schemes for Private Copying Intellectual Property Quarterly, Vol.4 (2004). This paper examines the history of, as well as the rationales and the principles behind, the first statutory licence and levy scheme for private copying – the German scheme of 1965. It illustrates that the very principled German conception of copyright law reconciles strong protection of authors’ moral rights with what appears to the common law world to be a very pragmatic solution.

A Negotiated Solution to Audio Home Recording?: Lessons from the US Audio Home Recording Act of 1992 University of New South Wales Law Journal, Vol. 27, no. 1 (2004). This article critically examines the US Audio Home Recording Act, in order to determine whether Australia should consider enacting a similar scheme. Included is a discussion of the process of negotiated compromise when applied to the Australian context.

A Proposal for Simplifying UK Copyright Law European Intellectual Property Review, Vol. 23, no. 1 (2001).  This article argues that a simplification of the UK copyright legislation along lines similar to that proposed for Australia is both possible and desirable.

Spoken Words and Copyright Subsistence in Anglo-American Law Intellectual Property Quarterly, no. 4 (2000). This article argues that there is nothing inherent in the policy of copyright law which makes a material form requirement a necessary precondition for copyright subsistence. Indeed, the material form requirement, at least as it applies in relation to spoken words, may lead to outcomes inconsistent with copyright law’s objectives.

Simplifying Australian Copyright Law – the Why and the How Australian Intellectual Property Journal, Vol. 11 (2000).  In this article it is argued that the current copyright legislation is unnecessarily complex, unjustifiably discriminatory and technologically challenged.  Principles for simplification of the law are proposed, and an illustration of how those principles could be implemented is provided.