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Issue 96 Contents Journal of The Intellectual Property Society of Australia and New Zealand Inc. March 2014 Intellectual Property Forum Editor Christopher Sexton Editorial • Profile – In Conversation with The Honourable Michael Kirby AC, CMG • Articles • Are Techlaw Principles in the Ascendency? • Sale of Issue 96 Contents Goods and Intellectual Property: Problems with Ownership • Can Europe INTELLECTUAL PROPERTY FORUM Learn from US E-discovery? • Ratemylegalrisk.com – The Legality of Online Rating Sites Relating to Individuals in Data Protection Law • Current Developments • Australia • New Zealand • Asia • WIPO • Europe • South Africa • Canada • United States • Reports from IPSANZ Local Organisations The Intellectual Property Society Intellectual Property Forum of Australia and New Zealand Inc The Journal of The Intellectual Property Society of Contributions to the Journal Trans Tasman National Committee of Management Australia and New Zealand Inc ABN 056 252 558 Contributions to Intellectual Property Forum are invited on intellectual President: Andrew Goatcher property subjects and related issues dealing with commercial law, trade Editor practices, licensing, innovation and technology transfer. Prospective Vice Presidents: Luke Merrick and contributors should write to: The Editor, Intellectual Property Forum, Liam Nankervis Christopher Sexton Intellectual Property Society of Australia and New Zealand Inc. Secretary: Clare Cunliffe Editorial Board Christopher Sexton c/- National Secretariat Treasurer: Rosemary Wallis The Honourable Justice Annabelle Bennett AO, The Intellectual Property Society of Australia and New Zealand Inc Federal Court of Australia GPO Box 2491 Members Ms Angela Bowne SC, Melbourne Victoria 3001 Australia Barrister, Sydney Telephone: (+61 3) 97612833 Victoria Bell, Philippa Bergin-Fisher, *Fiona Brittain, *Sarah Chapman, Luke Dale, Shelley Einfeld, Brian Professor Kathy Bowrey, Elkington, Jonathan Gottschall, Natalie Hazel, Ian Horak, Justin Lambert, Susan McMaster, *Matt Murphy, Faculty of Law, University of New South Wales Contributor’s Guidelines Helen Rofe, *Madeleen Rousseau, Robynne Sanders, Natalie Shoolman, *Kellie Stonier, Paul Sumpter, Cathryn Mr Andrew Brown QC, Articles published in Intellectual Property Forum, including Editorials, are Warburton, Sheana Wheeldon and *Chris Williams Barrister, Auckland, New Zealand critically appraised or reviewed by an academic or professional peer of the The Honourable Justice Brendan Brown, author. High Court of New Zealand Contributors grant to the Intellectual Property Society of Australia and Past President New Zealand Inc a non-exclusive, irrevocable, perpetual licence to publish Mr Julian Burnside AO, QC, Clive Elliott QC Barrister, Melbourne their articles on-line in the form as published in the Journal, for services, including but not limited to libraries and educational institutions, as The Honourable Justice Susan Crennan AC, approved by the Society from time to time. High Court of Australia Victorian Committee The Honourable W M C Gummow AC, QC, Chairperson: Fiona Brittain Former Justice of the High Court of Australia, Contributors, in preparing articles for publication in the Journal are required to note the following: Dr Francis Gurry, Director General, Peter Creighton-Selvay, Craig Douglas, Kadri Elcoat, David Franklin, Melissa Marcus, Thomas Reid, Robynne WIPO, Geneva Sanders, Gina Tresidder, Kerryn Underwood, Belinda Wadeson and Mark Williams Dr Christopher N Kendall, 1. Articles written for Intellectual Property Forum are to be Barrister, Perth approximately 5,000-10,000 words, typed in double space with footnotes at the end of the article. The Honourable Justice Susan Kenny, New South Wales Committee Federal Court of Australia 2. The article is submitted by a contributor for publication on the basis that: Chairperson: Chris Williams The Honourable Michael Kirby AC, CMG, a. the article has not been previously published Former Justice of the High Court of Australia b. the article is an original work of the contributor. Alison Beaumer, Mandy Chapman, Megan Edwards, Shelley Einfeld, Alison Jones, Joanna Jones, David Lee, Professor James Lahore, Faculty of Law, 3. The contributor is responsible for the accuracy of the article Georgia Marshall, John O’Shannassy, Simon Reynolds, Michael Sutton and Gillian Woon University of Melbourne including citations and references. The Honourable Dr Kevin Lindgren AM, QC, 4. The following information must be included with the article: Former Justice of the Federal Court of Australia a. the contributor’s name, title, contact details: address, facsimile, South Australia Committee The Honourable Justice John Middleton, telephone and/or e-mail details Federal Court of Australia b. a summary of the article (50-100 words). Chairperson: Matt Murphy Professor Sam Ricketson, Faculty of Law, 5. The article is to be supplied in electronic form. Niomi Abeywardena, Nicola Brown, Christopher Bruce, Alastair Donaldson, Louise Emmett, Lisa Jarrett, University of Melbourne 6. Extracts from the article may be reproduced on the Society’s website. Duncan Longstaff, Martin Pannall, Devita Pathi, **Adam Rosser and Josh Simons Ms Helen Rofe, 7. In consideration of the Society publishing the article in the Journal, Barrister, Melbourne the contributor agrees that any proceeds for such publication Mr Christopher Sexton, received from the Copyright Agency Limited (CAL) by the Society Western Australian Committee Editor may be retained by and vest in the Intellectual Property Society of The Honourable Justice David Yates, Australia and New Zealand. Chairperson: Madeleen Rousseau Federal Court of Australia Submission Dates for Contributions: David Benson, David Cox, Alastair Lagrange, Mary Turonek and David Yates Subscriptions to Journal Journal Issue Submission Dates Four issues of the Journal are published annually. Membership of the June 2014 before 1 May 2014 Queensland Committee Society entitles you to receive the Journal. September 2014 before 1 August 2014 Subscriptions to the Journal can be purchased from the Society. Contact December 2014 before 1 November 2014 Chairperson: Kellie Stonier the Society for subscription and membership information: March 2015 before 1 February 2015 c/- National Secretariat Julia Connelly, Joshua Henderson, Danielle Jepson, Scott Kiel-Chisholm, Ben McEniery, Mark Metzeling, The Intellectual Property Society of Australia and New Zealand Inc Nicole Murdoch, Linh Nguyen. Cathryn Warburton and Mark Warburton GPO Box 2491 Melbourne Victoria 3001 Australia New Zealand Committee Telephone: (+61 3) 9761 2833 Facsimile: (+61 3) 9761 2899 Chairperson: Sarah Chapman Email Address: [email protected] Website: www.ipsanz.com.au Andrew Brown QC, Rachel Colley, Katrina Crooks, Rachel Dawson, Kate Duckworth, Kevin Glover, Kate McHaffie, Paul Sumpter, Richard Watts, Sheana Wheeldon and Garry Williams The Intellectual Property Society of Australia and New Zealand Inc is an independent society whose principal objectives are to provide a forum for the Administrator dissemination and discussion of intellectual property matters. ©2014 The Intellectual Property Society of Australia and New Zealand Inc. All rights reserved. ISSN 0815-2098 Caroline Reznik The views expressed are those of the authors and contributors to this Journal and are not necessarily those of the Society or its members. *State Chairperson ** Meetings Convenor No claims are made by the Society as to the accuracy or authenticity of material published and it is the responsibility of readers to avail themselves of the latest information or advice in respect of matters reported or discussed in the Journal. Contents 2 Editorial – The Vexed Issue of Trading Off IP Rights in International Free Trade Agreements: The Proposed Trans-Pacific Trade Agreement Christopher Sexton 8 Profile In Conversation with The Honourable Michael Kirby AC, CMG Christopher Sexton 18 Articles Are Techlaw Principles in the Ascendency? Graham Smith 25 Sale of Goods and Intellectual Property: Problems with Ownership Dr Sean Thomas 44 Can Europe Learn from US E-discovery? Dr Giacomo Pailli 55 Ratemylegalrisk.com – The Legality of Online Rating Sites Relating to Individuals in Data Protection Law Dr Andreas Rühmkorf 70 Current Developments 70 Australia 79 New Zealand 89 Asia Hong Kong and China, Singapore, Japan 96 WIPO 99 Europe France, United Kingdom 106 South Africa 109 Canada 111 United States 114 Reports from IPSANZ Local Organisations 1 General Editorial – The Vexed Issue of Trading Off IP Rights in International Free Trade Agreements: The Proposed Trans-Pacific Trade Agreement Background he Trans-Pacific Partnership (TPP) negotiations, now involving 12 nations, are aimed – in principle – at lowering trade barriers across a wide range of sectors in 12 Pacific Rim countries, extend Tfrom the US to Australia, from Japan to Chile. However, the aim of the treaty is not simply to eradicate tariffs on goods and services, but to cover wide-ranging areas including labour and the environment, intellectual property, government procurement and state-owned enterprises. The genesis of the proposed Trans-Pacific Trade Agreement (TPPA) can be traced to a trade pact originally envisaged by Brunei, Chile, New Zealand and Singapore. This was transformed when, in 2008, Christopher Sexton the US expressed its interest to become a party. Since then, the TPP has expanded to 12 members, including Australia, Canada, Malaysia, Mexico, Peru and Vietnam. Japan joined the negotiations last year, and South Korea is
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