Episode 121      34 min 56 sec
Intellectual property: A guide for the rest of us

Law Professor Andrew Christie gives a primer on the complex world of laws pertaining to creations of the mind -- why they are there and how theyíre sometimes misunderstood. With host Eric van Bemmel.

"In most of those countries, where it's said that patents are stopping the drugs getting to the sick individuals, there are no patents. It's not patents stopping the drugs getting to sick individuals, it's other things." -- Professor Andrew Christie




           



Professor Andrew Christie
Professor Andrew Christie

Andrew Christie was appointed as the first Davies Collison Cave Professor of Intellectual Property in 2002. From March 2002 to June 2008 he was the founding Director of the Intellectual Property Research Institute of Australia (IPRIA), a national centre for multi-disciplinary research on the law, economics and management of intellectual property. IPRIA is based at the University of Melbourne, and is a joint enterprise of the Faculty of Law, the Faculty of Economics and Commerce, and the Melbourne Business School.

Professor Christie is admitted to legal practice in Australia and the United Kingdom, and worked for many years in the intellectual property departments of law firms in Melbourne and London. He has particular expertise in the application of copyright, patent and trade mark law to the digital environment, and in patent protection for biotechnological innovations. He is a former member of the Copyright Law Review Committee appointed by the federal Attorney-General, and is a current member of the Advisory Council on Intellectual Property appointed by the federal Minister for Industry, Tourism and Resources.

In July 2005 Professor Christie was identified by the leading international magazine Managing IP as one of the world's 50 most influential people in intellectual property.

Credits

Host: Eric van Bemmel
Producers: Kelvin Param, Eric van Bemmel
Series Creators: Eric van Bemmel and Kelvin Param
Audio Engineers: Gavin Nebauer
Voiceover: Nerissa Hannink
Transcription: Andy Fuller

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Intellectual property: A guide for the rest of us

VOICEOVER
Welcome to Up Close, the research, opinion and analysis podcast from the University of Melbourne, Australia.

ERIC VAN BEMMEL
I'm Eric van Bemmel. Thanks for joining us. The manufactured environments in which most of us live, the vehicles we drive and other devices we touch and the various media that we consume, all of these had their origins in creations of the mind. Intangible ideas and processes thought up by individuals or organisations. Intellectual property or IP is the term often used when we're speaking about rights that guide the use of these original concepts, inventions and artistic works that find their expression our physical and intellectual world.
Intellectual property is a wide ranging legal area that impacts on our lives in obvious and not so obvious ways. Patents, trademarks, copyright, these are words that many of associate with restrictions. But while IP rights can impose constraints, they also promote creativity and economic growth and they're vital in lending consumers confidence in what they buying.
Joining us to untangle the often complex area of intellectual property is Professor Andrew Christie, who is the Davies Collison Cave Chair of Intellectual Property in the Melbourne Law School, here at the University of Melbourne. Andrew founded the Intellectual Property Research Institute of Australia and has practised intellectual property law in both Australia and the United Kingdom.
Andrew, thanks for coming along to Up Close today.

ANDREW CHRISTIE
You’re welcome.

ERIC VAN BEMMELL
Andrew, let's begin by talking a bit about the different types of intellectual property. Those words I mentioned in the introduction, patents, copyright, trademarks and so on, everyone's heard them and yet I suspect not every person on the street or in the academy or in the boardroom, for that matter, can claim a clear understanding of. So I thought, let's look at patents first. I say, patent, you might say patent, I'm assuming we're speaking about the same thing. What are they and where are we likely to find them?

ANDREW CHRISTIE
Okay, patents are granted to inventions and let me give you an example or two of inventions that are subject to patents which your listeners may not have realised. Many of your listeners would have downloaded this podcast to their computer using a wireless network. In fact, there are many patents over the concept of Wi Fi and they're worth an extremely large sum of money. It happens to be an invention that was made in Australia but it's used around the world. That invention is subject to exclusive rights [scanned] by the governments around the world that let the company that made the invention have the exclusive rights to sell that invention. Not all patents are for high tech inventions though. For example, not only do I have a WiFi network at home, I actually have a particular type of corkscrew that gets the cork out of my wine bottle. For many, many years, corkscrews were very simple devices, you twisted it into the bottle and then you pulled the cork out using the handle. In the 1990s, a very new way of taking corks out of bottles using a corkscrew was invented. It actually involved putting Teflon, a non stick coating, on the screw because the inventor had worked out if you make the screw long enough and you make it as frictionless as possible, you just keep turning the corkscrew in, when it reaches the cork, keep turning and the cork will come up the corkscrew. So patents are for inventions whether they be very high tech or very low tech and there's many, many of them around.

ERIC VAN BEMMEL
And patents are actually issued for the intangible creation, not the actual tangible manifestation of the actual object?

ANDREW CHRISTIE
That's correct. Patents are granted for the very idea, the very innovation that they represent. Then somebody can and will embody that idea in various ways. So the corkscrew, I talked about, can actually be purchased in four or five different forms but they all use the same concept of the frictionless screw that allows the cork to travel up the screw rather than you have to pull it out of the bottle.

ERIC VAN BEMMEL    
So someone or some organisation invented that, they had to apply for a patent and it was granted by the national government, is that right?
ANDREW CHRISTIE
That's right, in fact it was granted by lots and lots of national governments. So patents are granted, country by country, you gain a patent by lodging an application with a national patent office. That application has to say what the invention is, how it differs from other things like it in the past, what's called the prior art. That application is evaluated by patent examiners and they check whether or not your invention is new, inventive, et cetera. If it is, they'll grant you a patent. It lasts for 20 years and you get one of those for each country you apply in. Now with the globalised economy, inventors, if they have something that's going to be sold in many countries around the world, will want to get a patent in all those countries and they'll have to make application in all the different countries.

ERIC VAN BEMMEL
That sounds like a very long process.

ANDREW CHRISTIE
It can be. The longest part of the process is actually where the government examiner has to examine the application. It's very long for two reasons. One is they need to give a lot of care to this, they have to search to see what other corkscrews existed up to this point in time, for example, to determine if this corkscrew is new and inventive. But it's also a long period of time because there's a vast number of applications that are made every year. I think you and your listeners would be surprised to know that even just a couple of major patent offices have in the vicinity of many hundreds of thousands of applications per year and there's a very big backlog of patent applications waiting for examiners to examine.

ERIC VAN BEMMEL
Patents, they are considered by some to be negative rights because they have a right to exclude others from exploiting them, is that correct?

ANDREW CHRISTIE
That's correct, yes. In fact, a patent doesn't give you any right other than the entitlement to say to somebody else, get off my territory. It isn't a mandate from the government that you're allowed to go and do anything with the invention. If your invention is contrary to laws, you're still contrary to those laws.

ERIC VAN BEMMEL
That's patents, let's move on to trademarks. How are trademarks different from patents?

ANDREW CHRISTIE
They're different in a couple of respects. Firstly, what a trademark really protects is not an invention, as such. It protects a bade of origin, a mark, that in trade shows where this product or service comes from. Now they can be words, classically, or they can be symbols, they can be shapes, they can be sounds, they can even be smells. But there have to be some distinctive indicium, and indicium, a badge that says, this product or service is connected with the person who owns this trademark, so that if you buy this product or service, you will know what you're getting. You won't be getting a product or service from someone else because they won't be allowed to use the trademark of a person who owns the trademark.

ERIC VAN BEMMEL
This is where IP sort of gives the consumer confidence about what they're buying?
ANDREW CHRISTIE
Absolutely, that's correct.

ERIC VAN BEMMEL
If I have a product and I want a trademark associated with it, what do I do?

ANDREW CHRISTIE
Here it's similar to patents, you have to apply to a government office to get a registration, if you want a registered trademark and the valuable trademarks are always invariably registered. The Nikes, the Apple, the Louis Vuitton, the brands of champagne, all the very, very valuable marks that we, in a sort of consumerist world, know well, they will be registered and they'll be registered like patents are in countries all around the world. The application process doesn't take quite so long. You don't have to search the prior art in the way you do with a patent application. But you do still have to check that the trademark for which someone is seeking the exclusive right is not one that's already held by someone else.

ERIC VAN BEMMEL
Now patents last 20 years, but what about trademarks?

ANDREW CHRISTIE
Trademarks last indefinitely. They can last for eternity, as long as you keep paying the registration fee and as long as your trademark doesn't become generic, you can keep your trademark registration forever. One way you can lose your trademark registration, or the main way you can lose your trademark registration, is if the mark becomes generic. If I say the word, zipper, to you. You'd probably look down between your legs and observe that clothing fastener that we have on today. Originally that was the trademark of the Goodrich Company to describe it's clothing fastener but it became so well known that we all nowadays talk about zips and zippers and that is no longer a registered trademark for clothing fasteners, it's become the general word to describe them.

ERIC VAN BEMMEL
Is that what's called trademark dilution?

ANDREW CHRISTIE
No, trademark dilution is separate. That is where a trademark owner is very worried about any use of their trademark even in respect of products or services for which the mark isn't registered. So I just need to make this quite clear, when you register a trademark, you don't register it for everything, you register it for specific goods or services. Zipper for clothing fasteners, for example. Hoover for vacuum cleaners. That registration doesn't stop other people using Hoover, for example, in relation to casinos, drinks, food items, et cetera. But brand owners, trademark owners who have very valuable brands, are very worried when their trademark is used on other people's goods or services, even where the goods or services bear no relation to their own. So, for example, Rolls Royce, no doubt is very worried when people use it on things that have no connection to motor vehicles or engines. They would like to be able to stop all use of those trademarks. And they say that if they're not allowed to stop it, they're trademark is diluted in value and they've lost something and they should not have to lose that.

ERIC VAN BEMMEL
Just one more example, Google, the word Google, has become a verb and it's now found in the dictionary. I suspect that Google Corporation is probably not complaining because it somehow just spreads their name around even more so. That's not dilution either, that's more it becoming a generic, yes?

ANDREW CHRISTIE
That's correct, yes. We tend to think of becoming generic as a very bad thing but it depends on your business model. I think your observation about Google could well be sound, it could well be in their interest to have the word Google generic, just to mean to search, and everybody knows that they were the first to do it. They'll rely, not on the word so much, but on, say, those coloured letters because trademarks aren't just words, they can be pictures, shapes, et cetera. So they might like the word to become generic but they don't want that colouring of their lower case spelling to become generic. They want to keep that for themselves.

ERIC VAN BEMMEL
So marketing slogans, as well, are trademarks. If I think of Toyota's Oh What a Feeling, that's a trademark, is it not?

ANDREW CHRISTIE
I believe so. Marketing slogans certainly can be trademarks. It may be appropriate to note that you can have a trademark without it being registered. There are such things as unregistered marks. They have slightly less value because the owner has to prove a little bit more in court if they want to sue against them. But they perform essentially the same function. So it's not essential that you register your trademark before you get rights. It's just very helpful if you do.

ERIC VAN BEMMEL
A national flag probably would not be registered as a trademark, and yet it's a virtual trademark for the rest of us.
ANDREW CHRISTIE
Well, there are certain things that trademark legislation around the world says can't be trademarks and you've actually alighted on one of the very few in that category. Things like country names and national flags and symbols are precluded from registration more because they are things that should not be owned by anybody but should be allowed to perform their function without any commercial exclusivity.

ERIC VAN BEMMEL
I'm Eric van Bemmel, and on Up Close this episode, we're speaking with Professor Andrew Christie of the Melbourne Law School about intellectual property law. Now Andrew, a third major category in intellectual property is copyright. What is copyright and in what situations does it typically apply?

ANDREW CHRISTIE
Copyright applies just about everywhere. That's one of the very interesting things about this intellectual property regime. It applies to subject matter that has been created, so classically writings, drawings, pictures. So literary works, books, paintings, music, et cetera, films, television shows and the like. The reason why it covers so much is unlike patents and trademarks, there is no need to register copyright. Copyright comes into existence automatically upon the creation of subject matter. So as soon as you write down a couple of sentences or a paragraph or at least a page of text, you've got copyright over it. You don't need to put c in the circle or anything like that. You have copyright over it and that copyright is a very powerful regime.

ERIC VAN BEMMEL
But isn't proving it the hard part? One hears stories about plagiarism of songs, passages in books, et cetera. What's to say these people haven't created these ideas in parallel, they didn't actually register the copyright but they could claim, well, it’s mine.

ANDREW CHRISTIE
Yeah, there's probably two issues wrapped up in that observation. One is proving that you, yourself, created the work, so that you, yourself, get rights and that can be a difficult matter of proof. But there's a second, and I think a more complex but much more important issue, and it highlights another difference between copyright and, say, patents. That you only infringe a copyright work if you copy it. That's why it's called copyright. And “copy it” means you observe it and you create something that embraces a lot of it that's very similar to it. Now contrast that with patents and trademarks. You can infringe a patent and a trademark, even if you don't copy them. If you independently come up with the same invention, the same way of taking corks out of bottles, for example, or the same or very similar name or logo to someone else who has it as a trademark, you infringe. You don't need to copy, just independent creation after someone else has rights is enough to infringe. But copyright is quite different. I only infringe copyright if I copy and proving that someone had access to the copyright work and then proving similarity is usually enough for the court to join the dots and say, well, if you had access to the subject matter and it's very similar, we suspect you copied rather than independently created.

ERIC VAN BEMMEL
What is a moral right assigned to a work?

ANDREW CHRISTIE
Moral right is an aspect of copyright which is very different from the other intellectual property regimes. It's the right of the creator, say the author, to control how that work is or is not changed. Now copyright has two rights to it, an economic right and a moral right. The economic right is like the rights we talked about with patents, to stop someone else accessing and in this case copying your work. The moral right is to stop them making changes to it. The changes that they can stop are from taking your name off the work, so removing you as being the author, adding someone else's name to the work as author or changing it in a way that hurts the feelings of the author. Now that sounds a strange thing, law doesn't normally worry about hurt feelings, et cetera, but it's thought that authors can and often do have a very great personal connection of their works. They don't want to see it bastardised, for example, they don't want to see it changed or modified in ways they don't approve of. They don't want to see a moustache painted on the Mona Lisa, if they're the painter of the Mona Lisa. Painting a moustache on the Mona Lisa is not an infringement of any copyright, it's not copying the work, but it's an infringement of the moral right that is associated with the copyright.

ERIC VAN BEMMEL
Speaking of the Mona Lisa, I mean, it probably goes back and it's probably passed copyright, you talked about patents being 20 years old. Trademarks, sort of going on as long as the registration continues. What about copyright?

ANDREW CHRISTIE
Copyright is somewhere in between. It's a set period of time but it's a very long set period of time. Yes, we can be confident that Da Vinci isn't able to exercise copyright in the Mona Lisa anymore because he's been dead for more than 70 years. The standard period of copyright protection around the world is the life of the creator and an additional 70 years. Now if you think about, that's actually a very long period of time. If you're creating a work at the age of 20 and you live to the age of 90 and then 70 more years on top of that, gives you the 140 years of protection.

ERIC VAN BEMMEL
You mentioned copyright is basically the lifetime of the author plus 70 years after the death of the author, for a particular work. I know that that number has changed over time, going back a dozen years or so ago, the US Congress passed what's called the copyright term extension act. More often, pejoratively referred to as the Mickey Mouse protection act because it tends to benefit the ageing copyrighted works of such as the Walt Disney Corporation but extended it from, I think, lifetime plus 50 years to lifetime plus 70. Now why was this controversial?

ANDREW CHRISTIE
It's controversial because most people can't see that increasing the term of protection as being justified by either of the justifications for copyright existing in the first place. If you think about it, the reasons for copyright are, one, to give the economic incentive to creators to create, so they know they have a period of exclusivity to recoup their investment. And, two, to allow them to protect their feelings, to control the moral aspects of their work. Now, life plus 50 years which was the period of protection that applied in the US until that legislation was considered to be more than enough to do both. Certainly more than enough to provide an incentive to create in the first place. So Nobel Prize winning economists made a submission to the Supreme Court challenging that legislation, saying, that there is no way adding an additional 20 years will lead to anymore works being created. It's famously said, dead men don't write more poetry. Once you're dead, having an extra 20 years of protection is not going to incentivise you at all. Even when you're alive, thinking about it, saying, well, I'll have exclusive rights for the rest of my life plus 50 years, will I create, when I create, oh, if only it was an extra 20 years, I would, just doesn't make sense.

ERIC VAN BEMMEL
It doesn't sound like it. So we've spoken of trademark, copyright and patents as separate entities but in the real world, I suppose they typically apply in combination for various products?

ANDREW CHRISTIE
That's absolutely correct. I mean, you just have to look at a very popular electronic gadget of the moment, the Apple iPhone, to see an example of that. The Apple iPhone, we call it Apple because it comes from the Apple Corporation, there'll be the Apple symbol on that product, that's a trademark, that's a registered trademark. The shape of the phone itself is very distinctive and stylish and that will have design protection and IP protection we haven't yet talked about. But that is similar to copyright and to patents somewhere in between. Apple, itself, has patented a number of the apps that it has developed for that product itself. You can go and search the US patent and trademark office database and find that they've sought to patent applications to do with having the phone to automatically tell somebody you've arrived in a destination when you turn it back on after having turned it off before you went away. Also, the various software that the phone runs on, like all software, is capable of copyright protection. The reason software is capable of copyright protection is because it gets written down and anything written down, be it a work of great literature or a work of very mundane note jotting or a very technical work like a computer program, they're all treated as literary works by copyright and protected.

ERIC VAN BEMMEL
That iPhone may contain both Apple copyrighted material and also third party. In this package in one's hand is all these aspects of IP. Just to zoom out a bit from those specifics, what's the history and the philosophical underpinnings of intellectual property.

ANDREW CHRISTIE
Well, intellectual property is a very old system of law. A lot of people say to me, oh, intellectual property, that's new, isn't it? I say, no, it's not. It's been going for many hundreds of years. We can trace the first intellectual property statute in the English language back about 400 years. But even before then, the laws of countries tended to recognise it's not appropriate for one person to steal another person's ideas. The philosophical underpinnings are always up for grabs and for debate. It's probably easier to say one of the ones that are used today to justify the existence of IP laws and for most of the IP laws, it's the economic justification. It goes like this. We need to give the exclusive rights that we talked about earlier to the owner of this intellectual subject matter, this idea, because if we don't they'll get ripped off and if they get ripped off, they won't create any more and we'll be the worse for it. The actual term, intellectual property, some people criticise, but I actually think it's highly descriptive. It tells you the two things you need to know. The intellectual refers to the fact that the thing protected is intangible, you can't touch it. You can't touch an idea. You can't touch an invention, believe it or not, you can't touch a work of literature or a work of art. You can touch the thing on which it's produced in the final form, you can touch the canvas, but you can't touch the artistic work that copyright protects. Secondly, the word property tells us that what the law is trying to do is to give the exclusive rights to the owner in the way we give it to people who own tangible products, like land. If you own a piece of property, you can stop someone coming on that property. You can do it without using the law, you can put up tall fences or you can use the law if you need to. With intangible subject matters, with ideas, you can't put up fences, physical fences. The only fences you can put up are legal fences and that's what intellectual property rights are. Legal fences to keep other people out from your intangible idea.

ERIC VAN BEMMEL
This is Up Close coming to you from the University of Melbourne, Australia. I'm Eric van Bemmel. Our guest today is law professor Andrew Christie and we're talking about various aspects of intellectual property. Andrew, I'm interested in the rights that are sort of not covered by laws around IP, in other words, for those of us who don't hold IP rights but want to, say, use or exploit products or works, what's allowed for us?

ANDREW CHRISTIE
Very difficult question to answer either in the abstract or in the specific. Let me start by this general statement. Once IP rights exist on something, they tend to cut out a very large amount of things you can do with the subject matter. Now patents are a classic example. If you've got a patent over an invention, you can basically stop every utilisation of that invention. Sometimes people say, oh surely they couldn't stop a researcher from doing experimentation on that invention to make another one and I say, well, it's not at all clear whether there's an experimental use defence to patent infringement. Some countries may have, some countries clearly don't have. Copyright, even, is very problematic. Particularly in the digital era, but even before then. There's very few things that you are allowed to do with a copyright subject matter that don't constitute infringement. In fact when I talk to people about this and ask them to come up with some examples, what could you do with something that's copyright that doesn't infringe, about the only one that I can agree to is when I say to them, reading a physical book, reading a book on paper. But reading an eBook on screen involves infringement because anything in a computer has to have been copied to get into the memory of the computer and copyright stops copying. So the short sort of general answer if very little is permitted in relation to things that are protected by intellectual property rights.

ERIC VAN BEMMEL
In the case of the eReaders, as you were mentioning, isn't that a case of the law sort of not catching up to the digital reality?

ANDREW CHRISTIE
Well, the publishers and the authors would say the law has kept pace brilliantly. They would say that we want exclusive right to be able to control who reads their book, when, whether they have to do it by paying a certain amount of money and or whether they can make any changes to do. Copyright law does that brilliantly. The problem becomes when you try to do in the digital world that which you were allowed to do in the physical world but can't and reading is one of those. Now, in other words, if you borrowed somebody's eBook and put it onto your computer to read, you would be infringing copyright because you've made a copy. But if it was a physical book, you borrowed a friend's physical book, you haven't made any copies when you read it. So it's that sort of instance where people get very agitated.

ERIC VAN BEMMEL
The notion of far use in copyright, what is that?

ANDREW CHRISTIE
Fair use is a specific American copyright defence. Some countries have versions of that, that aren't as wide as that, Australian and the United Kingdom and Canada have fair dealing defences, for example. But the American defence of fair use says that a use of a copyright work that satisfies some tests of fairness is permitted even though the copyright owner would object. And those tests for fairness tend to try and get a balance between, do we need to provide exclusivity and stop this use so as to encourage innovation in the future or would it be okay to allow these uses because they go beyond that which the copyright owner should be allowed to claim exclusivity over. So fair use or its equivalence in other countries is a very important sort of pressure release valve. It tries to overcome some of that very strong protection that we talked about a minute ago, that copyright provides to let in some uses that wouldn't be permitted but for the fair use defence. Because they're deemed to be ones that either don't attack the copyright owners' economic interests enough and or don't attack their moral interests at all.

ERIC VAN BEMMEL
Is there sort of an analogue of fair use for patents, and I'm thinking, for example, if I create a new widget and I want to incorporate someone else's - or I need to incorporate - their patented invention for my widget to actually work, what am I meant to do?

ANDREW CHRISTIE
Well, you don't have a fair use defence in patent law and what you're meant to do, says that patent law, is you're meant to get the consent of the patent owner and that would usually mean they'll need to say yes and you have to pay them money for them to say yes. Or they might say no, they might say, sorry, you're not going to incorporate my invention into your invention. Tough. You're just going to have to wait 20 years until the patent over the invention expires.

ERIC VAN BEMMEL
But this is where patent licensing comes in?

ANDREW CHRISTIE
Correct.

ERIC VAN BEMMEL
There's a market, I understand, for patents?

ANDREW CHRISTIE
There certainly is but there's a market for all IP regimes. I mean, there's a big market for copyright as well. But patents can be exercised either through putting the invention into products that are then sold or by licensing other people to put the invention into products that they sell. That's how we classically talk about exploiting or commercialising a patent right.

ERIC VAN BEMMEL
And cross licensing?

ANDREW CHRISTIE
Cross licensing is where one party owns an invention and they give a licence to another party who also happens to own an invention and they give a licence to the first party for theirs. It's often a case where you've got innovation in a high tech field and where the end product needs to embrace both inventions and the only way that either party can make a product embracing both inventions is if each party licenses the other to do so and that's where the cross part of cross licensing comes in.

ERIC VAN BEMMEL
I've also heard the term, patent trolls - people organisations that hold patents for certain technology and they're sort of aggressively enforce the patents against possible infringers, alleged infringers. But they actually have no intention of using the patents to exploit them for commercial gain. In fact, the commercial gain they get is from, I suppose, litigation against people who infringe the patents.

ANDREW CHRISTIE
That's right. The commercial gain that patent trolls get either from the licence fees that the other parties pay them to be allowed to use the invention or incorporate the invention in some product or service or from a court order of damages if they have to take the other party to court and get the court to stop them and pay them damages for their unauthorised use.

ERIC VAN BEMMEL
That seems to go against the sort of spirit of what patents are really designed to do?

ANDREW CHRISTIE
That's a debatable concept. I can see why some people say that because they would say the spirit of what patents are supposed to do is to encourage new products and processes into the marketplace and if the patent owner isn't bringing the product or process to the marketplace then we're not getting them. But another justification or another aspect of the spirit of patent law is that the inventor discloses the invention to the public and once we know of an invention, we can start thinking of ways to build around it. So one of the things you should be allowed to do, debatable when you can do it exactly, is trying to create a new invention based on an old invention, to work around the old invention to come up with a new product that does the same or to build on the old invention. That's why we need to have things like experimental use defences, debatable whether we do, because if we didn't have those then patents would definitely operate against their spirit because you would find no new products or processes coming to the market necessarily and no ability to build on an innovation to bring an even improved product or process to the market.

ERIC VAN BEMMEL
So, Andrew, I'm just going to hit you with a few quick questions here as we're running out of time. The public domain, what is it and how does it apply to IP?

ANDREW CHRISTIE
I think the best understanding of the public domain is, things that are in the public domain are things to which IP rights don't apply. That could be for one of two reasons. Either because IP rights never applied, the thing wasn't granted a patent because one wasn't sought or because one was sought but it wasn't found to be an invention, for example. Or it could be because IP rights did apply but they've now expired. In the case of patents, 20 years after the grant. In the case of copyright, 70 years after the creator has died. Once that period, short or long, has expired, then the object is no longer the subject of intellectual property rights and you could say it's in the public domain. Meaning, that it's now free for everybody to use in any way they like because IP has now stepped back and said, it's all over to you public.

ERIC VAN BEMMEL
So we can draw that moustache on the Mona Lisa?

ANDREW CHRISTIE
We could. Although I think the Louvre might object.

ERIC VAN BEMMEL
We've established that there are laws on the books to protect the various kinds of IP but how are these laws actually enforced?

ANDREW CHRISTIE
They're enforced in the end by the IP right owner taking action, if necessary, taking legal action. An IP right owner who thinks their right has been infringed will notify the other party and say, hey guys, I've got IP rights here, now stop doing what you're doing. If the other party agrees, well and good, if they don't and you still want to stop them, you would then have to go and get a court order from a court. That is to say, get the court to determine that, yes, you have an IP right. Yes, it's been infringed and if the other party doesn't stop doing what it's doing, it's in big trouble.

ERIC VAN BEMMEL
So, in short, if I'm an infringer of IP, I'm likely to get a letter from a lawyer and not a knock on the door from the police?

ANDREW CHRISTIE
Most of the time, the police won't get involved in IP right infringements. You're absolutely right. Rarely it will and that will happen if you're doing something on a very large commercial scale. For example, if you're making a private copy of a copyright work, the police won't get involved but if you're making lots and lots of copies of a copyright work to sell at a market or sell illegally online, then the police may get involved.

ERIC VAN BEMMEL
I know that there are international bodies and conventions around intellectual property, notably under the United Nations, there's WIPO, the World Intellectual Property Organisation which deals with the Berne Convention which is a treaty of which there are a number of signatory nations. But I suspect though that there are differences if we compare, say, IP concepts and legal practice in Australia versus Germany and the US, would there be little differences there?

ANDREW CHRISTIE
Surprisingly, the differences are very slight. IP law was one of the first areas to become subject of international agreements back in the 19th century. Well before most areas of law became subject of conventions. As a result, IP laws in the 21st century around the world bear enormous resemblance to each other. The differences are in the detail. That's why you do need to have a qualified legal expert in each country tell you about those differences. But the broad principles, the ones we've talked about today, they apply as much in Germany and Kazakhstan as they do in the US, Canada, Australia, Indonesia, Malaysia, et cetera.

ERIC VAN BEMMEL
But when it comes to the developing world, one regularly sees mention in the press about issues to do with, say, drug patents. There seems to be pressure on pharmaceutical firms in the developed world to make allowances for the developing world in terms of IP, is that right?

ANDREW CHRISTIE
That's right. I mean, we're all very concerned about the inability of certain very poor countries to have drugs to treat diseases of their people and it's easy to blame pharmaceutical companies because they're big and evil looking. It's easy to blame the intellectual property system because it's used by the pharmaceutical companies. But, in fact, with a very contentious issue like that, you need to look very closely. You need to scratch below the surface and what you find, in fact, is in most of those countries, where it's said patents are stopping the drugs getting to the sick individuals, there are no patents. It's not patents stopping the drugs getting to sick individuals, it's other things. It's important that we know that, not so much so we can let IP off the hook but so we can focus on what the real problem is. If it's not intellectual property, then that's one thing crossed out, let's focus on what the real problems are and in those cases, it's often not intellectual property at all.

ERIC VAN BEMMEL
Logistical issues and manufacturing but not IP?

ANDREW CHRISTIE
Yes, but logistical issues of getting drugs to people who need them. Transporting drugs that have to be kept in certain conditions when you don't have transport facilities. Doctors to prescribe them and to administer them when you don't have doctors there. That sort of thing. So in short, the problem with getting drugs to people who need them in poor countries, almost inevitably is not patents.

ERIC VAN BEMMEL
Yes, we see these things in the press fairly regularly, which leads me to ask you, do you think the media, the press, tend to treat issues of intellectual property in their reporting and discussion, do they do it well, do they do it misleadingly?

ANDREW CHRISTIE
No, I think they do it very well actually. What I observe is because this is actually a complex and important issue, the intelligent media treats it very intelligently. It tends to really try hard to understand the issue. Part of a consequence of that might be they don't look at it enough because it's too hard to understand the difficult issue. But when I've observed them doing it, they tend to do it very well. I don't mind the fact that sometimes you read in the paper a throwaway line about “copyrighting a trademark” or “patenting a brand”, all of which is linguistically and legally incorrect. Because that's not important. But when there's important issues to be considered, I tend to find the media have done their hard homework and do it very well.

ERIC VAN BEMMEL
Finally, Andrew, I just want to ask you, what would you imagine a world without legal protection of intellectual property? What would it be like?

ANDREW CHRISTIE
I reckon it would be a world I don't want to live in actually, Eric. I think I'd be confused, bored and unwell. I'd be confused because when I go to buy my latest electronic gadget from Apple, there's no guarantee I'm going to get the real thing and I'd probably get some fake that doesn't have the right stuff inside and I'll be wondering, well, how did that happen. I reckon I might be bored too because without IP right, in particular copyright, there's going to be an underproduction of entertainment, media and the like. Even if you're not a big fan of Hollywood blockbusters and TV shows, which do definitely need copyright as an incentive for creation, there's not going to be much in the way of intellectual reading around either, good novels. Because authors do need to eat and they need to have copyright to get their paycheque, so to speak. And there is that danger that I'll be unhealthy because without patents the pharmaceutical industry just can't keep investing in research development and trialling of new drugs. We will be worse off if we don't have a patent system to give them the incentive they need to come up with the drugs to treat our diseases in the future.

ERIC VAN BEMMEL
Andrew, thanks very much for coming along and giving us a primer on IP concepts and issues. Our guest today has been Professor Andrew Christie, Davies Collison Cave Chair of Intellectual Property of the Melbourne Law School, and once again, Andrew, thanks very much.

ANDREW CHRISTIE
Thank you.

ERIC VAN BEMMEL
Relevant links, a full transcript and more information on this episode can be found on our website at upclose.unimelb.edu.au. Up Close is brought to you by the Marketing and Communications of the University of Melbourne, Australia. This episode was recorded on 27 October 2010 and produced by  Kelvin Param and me, Eric van Bemmel. Audio engineering by Gavin Nebauer. Up Close is created by me and Kelvin Param. Thanks for listening, until next time, good bye.

VOICEOVER
You’ve been listening to Up Close. For more information visit upclose.unimelb.edu.au,. Copyright 2008 University of Melbourne.


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