Serena Nath is an IPilogue Writer and a 2L JD candidate at Osgoode Hall Law School.

The Australian government announced that, , the Australia Council of the Arts is renamed “Creative Australia.” The Council of the Arts is the government’s primary arts investment and advisory body. As part of this rebranding, the Australian government also announced, on January 30, 2023, its new five-year cultural policy, Revive Strategy, which focuses on establishing four new federal bodies within Creative Australia. One of these bodies will be a First Nations-led body to support Indigenous Australians in their creative endeavours. The aim is for this board July 1, 2024, and the goal of this body is to “.”

Included in the Revive Strategy, the Australian government also announced additional measures targeted at Indigenous communities, including $13.4 million for legislation protecting indigenous intellectual property (IP). This legislation will focus on blocking the sale of fake indigenous art, including art typically sold as souvenirs. Additionally, the government announced measures targeted at protecting Indigenous IP and culture, including $11 million for a First Nations Languages Policy Partnership between governments and First Nations representatives, a First Nations creative workforce strategy, and a National Aboriginal Art Gallery in Alice Springs and an Aboriginal Cultural Centre in Perth.

Inauthentic Indigenous art is Harmful

First and foremost, selling inauthentic indigenous art and souvenirs disrespects the heritage and culture of indigenous communities. A in 2022 by the Productivity Commission on Aboriginal and Torres Strait Islander visual arts and crafts confirmed that fake indigenous art harms indigenous culture. However, this is not a newfound issue. Aboriginal Elder Gawirrin Gumana (Yolngu) in 1996: “When that [white] man does that it is like cutting off our skin”, where “it” refers to the practice of selling fake indigenous art. Other indigenous artists about instances where their culture and IP have been appropriated for profit. For example, many indigenous artists have been tricked into exploitive licensing agreements where non-indigenous companies make large profits by selling indigenous art commissioned by indigenous artists for a low price. This kind of uncertainty in the law has led to many indigenous artists asking for greater legal support for IP.

Regarding fake indigenous art sold as souvenirs in Australia, the report by the Productivity Commission showed international tourists on indigenous-style artwork in 2019-2020. However, approximately 75% of indigenous-style art sold is not made by Indigenous people from tourists who are unwilling to pay the price for authentic indigenous art. Thus, selling inauthentic indigenous art and souvenirs undercuts indigenous businesses and harms indigenous livelihood. ��

Protecting Indigenous IP Rights in Australia

In the past, any national licensing or production legislation to protect Indigenous IP and culture. In response to their 2022 report, the Productivity Commission that fake indigenous art should be labelled as “inauthentic” to protect true indigenous art. However, many believe that this type of labelling would be a start to the protection of Indigenous IP. Hopefully, the new measures instituted by the First Nations-led body and the legislation introduced by the Australian federal government will be a good first step in protecting Indigenous IP rights in Australia.

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Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

The Australian government recently raised the alarm after noticing an , particularly driven by traffic to websites offering Japanese manga. The issue of most notably made headlines back in 2021 — manga piracy had surged by over 26 times, resulting in a in the same year. In Australia, unlicensed television shows, films, and music have seen a general decline since 2017, causing some to wonder why manga could be an exception. According to intellectual property experts, consumer convenience is likely driving these trends.

The recent explosion of streaming services has enabled widespread access to shows, films and music, whereas there appears to be an ongoing lack of legal access to manga. Even though streaming services come with a cost, many offer a wide range of plans at reasonable rates, and some even offer free trials. Moreover, more individuals appear to be willing to pay the fee rather than potentially expose their devices to malware — consumers who engage in private downloads were found to be 28 times more with malware. Blocked piracy sites were also found to be an effective deterrent to some of the less persistent individuals trying to access unlicensed content. The Australian government is currently in response to the need for an effective copyright system that takes into account shifting technological landscapes.

However, declining piracy trends in Australia may be unique. According to , a data company that measures global piracy to drive content protection, . With 17.4 billion visits, the United States had the most visits to pirate sites per country, followed by Russia and India. While Canada was not listed in the top ten, it may be too soon to breathe a sigh of relief, as developments in the streaming market may create conditions that will predictably lead to an uptick in demand for unlicensed content. Streaming services implementing new , increasing costs, or tightening the grip on may seem like a huge inconvenience to many, which can result in some consumers feeling like the legal avenues for accessing content are no longer worth it.

Moreover, the fragmentation of streaming services has been frustrating consumers. With over 50 video streaming services in North America alone, consumers find themselves subscribing to multiples services in order to watch their desired content. , the average streamer uses approximately 4 subscription services and desire “managed and consolidated services” to streamline their streaming experiences.

Overall, it is beneficial to investigate piracy trends, especially as we see significant changes in how we consume content. The rising demand for unlicensed manga suggests that there is a need to assess consumer access to legal content in order to prevent a slew of other piracy issues in the future.

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Serena Nath is an IPilogue Writer and a 2L JD candidate at Osgoode Hall Law School.

According to a published in UNSW Law Journal, feminized names are less likely to be granted a patent in Australia. The study investigated female patenting rates in Australia over a period of 15 years. Although similar studies ��have been conducted in Europe and the United States, such a study had not been done in Australia. However, recent advances in computing technology and open data polices allowed the study to be done. Furthermore, studies performed by the US Patent and Trademarks Office typically analyzed patents from a majority of US residents. However, this Australian study better reflects worldwide applications because most Australian patent applications are from international inventors who have filed patents in several jurisdictions.

In order to investigate gender bias, analyzed 309,544 patent applications from 2001-2015 and then categorized approximately one million inventor names based on whether they sounded female or male. The study revealed that male sounding names were much more likely to have their patents granted. Additionally, having an number of male sounding names listed on the team inventors correlated with an increased likelihood of having the patent granted. Patent applications with an increased number of female-sounding names listed on the team of inventors did not significantly correlate with a change in success of patents granted.

The study postulated as to why this gender bias may exist. Researchers considered that women were working in technical fields that typically have a lower patent success rate, such as life sciences. Their investigation found that a majority (greater than 60%) of female inventors were working in life sciences. In particular, women were concentrated in four technical fields: chemistry, biotechnology, pharmaceuticals and medical technology. However, once the data was statistically controlled to account for the effect of the patents being in a less patentable field, it was determined that inventors with male-sounding names were still more successful in obtaining patents than those with female sounding names.

This study demonstrated that despite the advances women have made in obtaining positions and credit in STEM fields, there is still a gender bias against women in obtaining patents. have hypothesized that a major reason for this disparity lies with the patent examiners and that they are biased against women, and thus suggest that the patent prosecution process should name-blind applications to hide the gender identity of the inventors. ��However, some feminist legal scholars believe that the reasons for this disparity go deeper. argue that certain intellectual property agreements, such as TRIPS, exclude domains of female inventorship by focusing on “mechanical, technical, and industrial aspects” of “products and processes.” Other scholars that female patentees have less funds, stamina and mentoring to deal with objections from the patent office, which may result in abandonment of a patent application and thus less accepted applications overall.

Several studies and real life experiences attest to the fact that the gender bias still exists in academia and life science disciplines. Overall, ��gender bias observed in the patent landscape appears to be at least partially a downstream effect of the institutional bias in STEM.

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Photo by (depositphotos)

Emily Xiang is an IPilogue Writer, the President of the Intellectual Property Society of Osgoode, and a 2L JD Candidate at Osgoode Hall Law School.

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The emergence and rapid development of highly advanced technologies affects virtually every aspect of our day-to-day lives, and in the absence of more explicit legislative authority, the time has finally come for judiciaries to wrestle with the subject matter.

In July 2021, the Federal Court of Australia affirmed in that artificial intelligence (AI) systems may be deemed “inventors” under Australian patent law. Since this decision, numerous scholars have questioned the validity of the Court’s reasons, including researchers at the Max Planck Institute for Innovation and Competition. In their position statement entitled , Dr. Daria Kim, Dr. Josef Drexl, Dr. Reto M. Hilty, and Peter R. Slowinski expound on the evolving case-law in this subject area. They identify some of the assumptions made by the Federal Court of Australia regarding the technical capabilities of AI systems and question the potential consequences of attributing ownership rights to non-human entities in the absence of a more comprehensive analysis.

The principal question at hand is whether non-human entities, such as AI systems, should have legal capacity. Employing a social welfare perspective in their position statement, Kim et al. contend that, since patent protection imposes welfare costs, such a finding of entitlement to legal rights can only be justified by benefits that, in the absence of legal protection, would not occur. The authors also propose a number of counter-arguments against the reasoning of Beach J., found in paragraph 10 of the Thaler decision:

“First, an inventor is an agent noun; an agent can be a person or thing that invents. Second, so to hold reflects the reality in terms of many otherwise patentable inventions where it cannot sensibly be said that a human is the inventor. Third, nothing in the Act dictates the contrary conclusion.”

Firstly, Kim et al. argue that classifying “inventor” as an “agent noun” is insufficient to conclude that non-human entities can be considered inventors under patent law. Instead, highly advanced AI systems can only reasonably be thought of as “tools” that carefully adhere to algorithmic instructions and computational techniques in order to achieve certain ends, and such adherence should not be equated with the act of inventing. The Court fails to understand that, in most cases, AI systems require the application of meticulous adjustments and human decision-making.

In paragraph 126 of the Thaler decision, the Court notes that “machines have been autonomously or semi-autonomously generating patentable results for some time now”, and that by according AI the label of ‘inventor’, one is simply “recognizing the reality” of the state of the art. However, Kim et al. point out that it has not yet been proven that AI systems can act and invent “autonomously”, and that the Court in this case made an unfounded assumption. As one noted, “the current state of AI technology is not sufficiently advanced at this time and in the foreseeable future so as to completely exclude the role of a human inventor in the development of AI inventions”. Moreover, there is also the danger that such a finding regarding autonomous or semi-autonomous inventing on the part of AI might promote public misinformation about the current state of AI technology.

Kim et al. explain that the silence of Australian patent law (and other jurisdictional patent frameworks) on the subject of non-human inventors cannot be interpreted as implicit recognition, and that such an attribution could contribute to legal uncertainty. After all, it only invites further questions regarding how and when the Australian patent system must now recognize AI systems as having “autonomously” invented, as opposed to where AI techniques are being employed as mere tools to achieve a certain end.

Finally, Beach J. in paragraph 56 of the Thaler decision justifies the Court’s broader view of the concept of “inventor” by stating that to do otherwise would “inhibit innovation not just in the field of computer science but all other scientific fields which may benefit from the output of an [AI] system”. However, it is important to note that surges of patenting activity involving AI techniques and application have been occurring even in the absence of such recognition, and that taking patent protections away from human inventors may in fact disincentivize the filing of AI-related patent applications.

Legal frameworks globally remain ambivalent on the status of AI as inventors. For instance, the US District Court for the Eastern District of Virginia recently opined in that AI machines cannot be considered “inventors” under the US Patent Act. However, as cutting-edge technology continues to develop at alarming rates, courts around the world should expect to further engage with and clarify the law in this area.

The post “Artificial Intelligence Systems as Inventors?” – The Max Planck Institute on Machine Autonomy and AI Patent Rights appeared first on IPOsgoode.

The Background
In late 2017, an by the Australian Consumer and Competition Commission (ACCC) found a where large digital platforms have “substantial market power” in online advertising. The report indicated that digital platforms use outsourced news to gain “consumer attention and consumer data in order to sell advertising opportunities.” In 2020, on the Australian Government’s behest, the ACCC the draft Code for public consultation.

The Code
proposed changes to Australia’s Competition and Consumer Act 2010 provisions which affect digital platforms. The Code requires digital platforms to enter commercial agreements with news companies before sharing their news items online and resolve any impasse through arbitration. Section 52S of the Code requires digital platforms to notify news companies in advance about changes to their news referral algorithm. Non-compliance would invite penalties up to $10 million.

Both sides
The Australian Government wants to balance the traditional news media’s “” with digital platforms and loss of advertising revenue. In 2019, . The Australian Government believes that digital platforms have built their advertising market power by using outsourced news items on their websites.

In response, while Facebook to block its news viewing and sharing service, Google ran a against the draft Code and issued an about “supporting Australian journalism”. Their surround the risk that sharing algorithm changes with the news publishers could allow some entities “to appear higher in rankings… disadvantaging all other creators.” They also complained about possible disproportionate revenue sharing demands from news organizations and claim that the Code is at odds with the principle of “free and open web”, risking freedom of information.

Cutting through the Clutter
As digital platforms speed up the digitization of news content and increase its accessibility, users are increasingly using services like Facebook Newsfeed to access news articles from traditional media companies. While some platforms, like YouTube, offer revenue sharing arrangements with video content creators, articles from news publishers’ websites have no such system. Online platforms use these articles to collect viewership data for targeted advertising. Critics have raised concerns about Facebook and Google monopolizing digital advertising to preferentially promote and advertise their own products and services.

Nevertheless, the Code’s ability to resolve the advertising revenue gap and monopoly of digital platforms remains unclear. ��Advertisers prefer online promotions, especially on big social media platforms, because of their high viewership. The argument that Google and Facebook’s large userbase and consequent online advertisement income is only from sharing news items from other media organizations seems untenable. Both companies attract viewership using various internet-related services, such as social networking, private messaging, personal content sharing, web searches, and cloud storage, which make them desirable for advertising.

The Code is currently silent about calculating the quantum of financial payment to news companies during negotiations. Would they receive a percentage of online advertising revenue or a fixed rate for each click on their articles? Without clear standards for calculating revenue sharing, digital platforms can justify unfair pay structures. If a stalemate goes to arbitration, only then would an arbitrator, under , apply specific criteria: namely, the ways in which digital platforms benefit from making content from news companies available, the reasonable costs which news companies and digital platforms incur, and preventing an undue burden on digital platforms.

Current Status
The Australian Parliament tabled the in December 2020 and, after both Houses considered the Bill, Parliament passed it on February 25, 2021. Facebook, in protest, its news sharing services. Facebook later restored its news pages upon reaching an with the Australian Government that included giving digital platforms two months to negotiate a deal with news companies before triggering mandatory arbitration.

Ripples in other countries, including Canada
Digital platforms are anxious about other countries introducing similar regulations. Facebook already ��pays licensing fees to news outlets in the and recently agreed to do the same in the . The report remarks that “the digital duopolies’ [read Facebook and Google] combined share of the online advertising market reached 80%.” Steven Guilbeault, , recently opined that Canada should introduce similar regulations. Facebook responded sharply, with its Canada Public Policy Head, , saying “…we’re unable to accommodate” such payments.

Looking Forward
Undoubtedly, digital platforms imminently need to maintain fair competition, advertisement verification, unbiased news feed algorithms, journalistic support and independence, and equal online advertising opportunities. While digital platforms should not monopolize internet freedom and access to information, or avoid paying news creators their fair share, they need clear revenue-sharing and anti-competition standards. No government can correct the disquietude on Facebook and Google’s rising monopoly or strong market control by forcing commercial, revenue-sharing deals with news outlets. Counterintuitively, increased regulation, such as this Code, would create entry barriers for nascent digital news-sharing platforms who might lack the fiscal bandwidth to enter commercial arrangements with large news publishers. Governments should also focus on promoting competition by supporting agile, smaller digital service providers and social media companies.

Gurbir Sidhu is an IPilogue Contributing Editor and LLM candidate at Osgoode Professional Development.

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The applications cover a wide range of goods and services, including printed matter such as educational materials and activity books, clothing, campaigning, charitable fund raising, education, training and sporting activities, and social care services including emotional support groups.

Since officially stepping down from their Royal duties last month, the couple has been working on branding themselves outside of their royal appearances. In addition to the international trademark applications, the couple has also recently launched an and . However, alongside the opportunities that may be available for the Royal couple, Harry and Meghan may face difficulties in successfully registering these marks and protecting their brand.��

An was filed with the European Union Intellectual Property Office to trademark a number of goods, including toiletries, jewellery, luggage, sporting articles, beer, and alcoholic beverages, using the mark SUSSEX ROYAL. The applicant, Ui Phoenix Kerbl, appears to be an Italian designer based out of Bolzano, Italy. Since the Royal couple’s international filings, have been filed and made available on WIPO, seemingly unrelated to the Royal couple and their brand.

In addition to the growing number of individuals applying for registration of the SUSSEX ROYAL mark and the potential for oppositions to the couple’s applications, Harry and Meghan seem to have filed their WIPO applications past the . Given that both international applications claim priority to the UK applications from June 21, 2019, Harry and Meghan had six months, until December 21 2019, to file their applications with WIPO. If questions do arise with respect to the date of the international filing, further difficulties may present themselves given the number of individuals who have filed a national trademark application with their respective jurisdiction.

In seeking to protect their brand, the Royal couple is working towards remaining members of the Royal family while having financial independence. If the applied-for marks are successful, it is estimated that Harry and Meghan could make as much as in their first year by tapping into the profitable North American market. Further, it is suggested that the use of the SUSSEX ROYAL mark on various products could “

Written by Alessia Monastero, IPilogue editor and articling student at Deeth Williams Wall LLP.

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In August, the (ACCC) started proceedings against software company for its refusal to provide refunds to customers purchasing video games through its Steam online store and distribution platform. The ACCC claims that by refusing to refund in all circumstances and stating that it was excluded from statutory consumer guarantees, Valve is making misleading representations: Australian consumer protection legislation����that cannot be restricted by contract.�� Similar immutable implied guarantees can be found in consumer legislation in many Commonwealth jurisdictions, .

This is not the first time that Valve has run afoul of consumer protection groups – German consumer protection group VZBW recently brought Valve to court over users’ right to resell games purchased through Steam. , but the case illustrates the ongoing struggle between consumers and distributors of digital entertainment over rights to online purchase.��Moreover, VZBW was not a government entity, whereas the ACCC is; a regulatory agency taking action against Valve could be indicative of an increased commitment to enforcing compliance with consumer protection law.

If the ACCC prevails in court, the consequences will be felt in Canada, as Canadian courts often find Commonwealth jurisprudence persuasive in forming their opinions. The applicability of any Australian decision is likely to be further enhanced by the close similarity between the relevant Australian and Canadian consumer protection statutes. While wording of the statutory guarantees differs slightly, with the Australia Consumer Law (ACL) section 54 using "acceptable quality" and the British Columbia Sale of Good Act (SOGA) section 18(b) using "merchantable quality", both statutes include guarantees that the goods be fit for disclosed purposes. The ACL's guarantees seem to be slightly broader than those provided in the BC SOGA: under the ACL, in addition to being fit for any purpose disclosed by the purchaser, section 55 states the goods must also be fit for any purpose for which "goods of that kind are commonly supplied". Moreover, in the BC SOGA section 18(b), if the consumer is allowed to examine the goods before purchase, there is no implied condition with regard to defects that the examination would have revealed. Conversely, the ACL's section 54(4)(b)��requires that any such defects be "drawn to the consumer's attention", placing the burden on the vendor rather than the purchaser.

However, though the ACL was enacted with the intention of protecting purchasers of goods, game buyers may be less than pleased if Valve raises its famously discounted prices or introduces region-specific retail practices as a measure against financial losses incurred through refunding purchases. In the end, even if an ACCC victory in court brings about increased vigilance over online consumer protection, Valve is likely not going to be subjected to a deluge of refund requests under consumer protection legislation. Such laws only guarantee "acceptable quality" or its equivalent, which have not been defined in the context of a computer game, but likely include guarantees that the game runs on the computer systems it is made for and is free of glitches that render it unplayable. Furthermore, the actual logistics of returning a digital copy of a game complicate matters. Steam can run in an "offline mode", allowing games to be played without an internet connection. If a customer were to purchase a game, install it, then return it, he or she could potentially use offline mode or an analogous feature on another platform to continue playing the game despite having received a refund.

In the end, whether Valve wins or loses in court, the ACCC's action is yet another wake-up call to software companies and consumer protection watchdogs. As entertainment media drifts ever further from its roots in physical artifacts like CDs and cassettes, consumer protection regimes ought to evolve as well to ensure that the public is protected regardless of whether the goods they purchase are tangible or not.��The application of laws governing physical, tangible goods to digital, virtual online products will continue to be a hot topic in courts worldwide, as previously discussed in the ,��and by the ACCC��showcasing the difficulties in applying a legal paradigm of property developed for an offline world to a globally connected Internet.

Adam Chan is an IPilogue Editor and a graduate of the University of British Columbia Faculty of Law.

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Patents granted under the Australian innovation patent system deviate from standard patents in a number of significant ways. For example, the invention to have an “innovative step”, a lower threshold than the “inventive step” required for standard patents. In other words, an innovation patent is not required to be non-obvious, but rather must simply differ from the prior art base in a way that makes a “substantial contribution” to the working of the invention.

Other features unique to innovation patents : (i) it is usually granted within 1 to 3 months; (ii) it may be obtained for almost all the same subject matter as standard patents, except for inventions related to plants, animals and the biological processes for their generation; (iii) preparation and application costs are usually lower than for standard patents; (iv) the grant process does not involve pre-grant opposition; (v) both filing and patentability requirements are less stringent; (vi) examination and certification for meeting all requirements of the Patent Act are optional before grant but are required for enforcement purposes and attracting the same rights and remedies as standard patents.

Lastly, innovation patents can be converted to standard patent applications or can be filed as divisional of standard patent applications, thereby providing inventors with strategic advantages in enforcement or litigation. Innovation patents may however include only up to 5 claims and provide eight years of protection, compared to 20 years for standard patents.

Despite these strategic advantages, one wonders whether an innovation patent system would play a significant role in driving innovation and growth for SMEs in Canada. that second-tier or utility model patents “stimulate innovation and growth in developing countries and in industries that are technologically lagging”. Developed countries such as Australia if they are large net importers of new technology.

Thus, one would therefore first have to identify whether Canada fits those criteria or not. Even if it does, of over 500 innovation patent holders in Australia showed that 40% of the inventions protected by innovation patents failed to be commercialized due to the time required to find applications of new technologies and lack of finance. Patent protection by itself clearly does not guarantee commercialization and economic growth for SMEs. Further, given that these patents are not examined before grant, their value may be undermined. confirms that “there is only minor use of innovation patents for strategic uses such as building a patent thicket”.

An innovation patent system might also be abused by certain industries or larger corporations. For example, the pharmaceutical industry might use the system to protect higher-level innovation for tactical or evergreening purposes, e.g., by extending the monopoly by applying for secondary patents over related products. The system’s less stringent requirements may lead to many weak patents and invalidating them would involve costly litigation, thus sometimes hindering SME growth.

Such concerns have led the Australian government to conduct a to reassess the effectiveness of the system. The Advisory Council on Intellectual Property (ACIP) reforms, such as raising the threshold of the innovation requirement, reducing the remedies available, changing the grant process, and limiting the monopoly and scope of, and access to, the system. If Canada were to consider adopting an innovation patent system to promote SMEs, it should first consider ACIP’s proposals, and further ensure that the system would not be capable of abuse and that its transaction costs did not have the reverse effect of stunting innovation for SMEs.

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The criticisms from Australia concerning the patenting of genes echo those expressed throughout the North American battle. The primary attack on assigning patents of genetic materials to a company surrounds the invention component of the patent. Australian patent lawyer and proponent for ‘free trade’ of genetic materials, , likens companies such as Myriad to ‘cartels’, emphasizing that the genes are not something that anyone has invented. that allowing gene patents will permit patents on any biological materials that are artificial, irrespective of their source.

In an extremely accessible and , the Court surveyed the biological principles necessary to consider gene patents (this comprises more than half of the decision, and I strongly recommend it to anyone without a strong background in biological or medical sciences). The Court accepted the arguments of Myriad’s Australian lawyers, who leaned heavily on the arguments put forward by Myriad in the (although it noted that due to differences in the patent legislation and jurisprudence the American case itself was neutral, benefitting neither party). It was held that:

(1)�� because the genes are not naturally occurring DNA or RNA as they exist within the cells of the human body (which are not patentable, per ), they are not precluded from being the subject of a valid patent, and

(2)�� the patent claims to the genes are indeed to a manner of manufacture as required by .

With respect to (1) above, the Court was very conscious of the legislative intentions in drafting s. 18 of the Patents Act. In para 112 of the decision, it was acknowledged that a proposal was brought and subsequently rejected that would have included isolated DNA and RNA in the s. 18(2) provision. As such, it was left to the Courts to deal with the issue of gene patenting by establishing jurisprudence.

The Court found that because the patented nucleic acid sequences for BRCA1 and BRCA2 are independent and isolated for native DNA, it is patentable. Furthermore, because the sequences could not exist in isolation without human intervention, the patented matter consists of “an artificial state of affairs” (see paras 101-110), a necessary condition for invention in the Australian legislation. Even if it has been removed from a biological cell, the Court held that it is reasonable to deem the isolation ‘artificial’, emphasizing the process of isolation rather than the extracted material.�� Addressing broader concerns, Myriad’s counsel also emphasized that��the screening process of the patent, which includes the diagnostic component of comparing normal and mutated genes, could not be used .�� However, in my opinion, this does not address the important issues of access to medicine and the potential detriment that the patents pose to scientific progress.

The present case was in the form of a lawsuit brought by a national organization representing cancer patients, , and a Brisbane cancer survivor concerned with the impact that the gene patents will have on breast cancer diagnosis and treatment. I share these concerns. Indeed, I have about Myriad’s monopolization of the market and the conflation of trade secrets and patents, so I would direct your attention there for this discussion. However, for those opposed to the patenting of genetic codes and the processes for isolating genes, this Australian decision certainly gives reason for concern. That said, Myriad’s victory down under may be short-lived, as Cancer Voices Australia announced on March 3, 2013 that they to the decision of the Federal Court.��

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

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Living up to its tough-on-tar��, the Australian government passed the����(TPPA) in December 2011, a result of not finding pre-existing measures as effective as desired in lowering smoking rates. By December 1, 2012, all cigarette packaging in the country will be identical in unembellished, legislated size, shape, and colour (the������). An equally unsightly health warning will cover three-quarters of the front panel, while additional warnings and a quitting hotline claim 90 per cent of the sides and back. Brand, company, and associated names, the only distinguishing feature allowed, will shed their unique typographies for a��, no bigger than point-size 14,����makeover.

Lighting Up: The Constitutional Challenge

Needless to say, the tobacco industry got rather����over the new law. JT International (JTI) and three arms of British American Tobacco (BAT), supported by brethren tobacco-purveying intervenors,����that the��TPPA��mandates amounted to “acquisition of property��from [them] otherwise than on just terms”.����of the Constitution provided grounds for the challenge: as it grants Parliament power to acquire property “on just terms”, courts interpret the provision to mean citizens may challenge any acquisition on terms less than or other than just.

More specifically, the tobacco companies accused the government of unjustly acquiring their intellectual property, in the form of trade-marks, patents,��, literary and artistic works, registered design, trade dress, and goodwill associated with all of the above. The High Court thus faced two issues:

1. Does intellectual property such as trade-marks and goodwill constitute “property” under s. 51(xxxi) of the Constitution?
2. If yes, did the Australian government, via��TPPA��provisions, in fact acquire said property, on other than just terms?

Where There's Smoke, There's Not Necessarily Fire: The Decision

In a decision more multihued than the products in question (comprising five shades of concurrence and one contrasting dissent), the court affirmed that (1) the plaintiffs' intellectual property as described above does constitute “property” under s. 51(xxxi), but (2) the government did not acquire said property, under s. 51(xxxi), by enacting the��TPPA. The following will present the court's reasons taken all together.

I. Putting the property in intellectual property

First, the court agreed that intellectual property constitutes “property” under s. 51(xxxi), and is able to make claim to just terms of acquisition. One opinion suggested uncertainty about goodwill because it already operates under restraints from the common law, unlike statutory intellectual property rights.

II. Taking from the rich...

The court also decided that the government's enactment of��TPPA��amounted to “taking” of property. The provisions of the Act, for all intents and purposes, deprived the companies' trade-marks, copyrights, patents, and registered designs of all value and use. One opinion rejected the companies' argument that they were deprived of the “substance” or “reality” of their property rights, indicating that they could still use brand names, which was the essential part of trade-mark “for purposes of distinguishing”. On the way to the final decision, however, another judge noted the words of Justice Brandeis from the U.S. Supreme Court: “restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking.”

III. ...But not acquired by the poor (or government)

What Parliament takes, Parliament does not necessarily acquire; this is the key to the court's reasoning in��JT International SA.��The majority of judges found that that while a “taking” occurred, the��TPPA, even if it “adversely affects or terminates a pre-existing [property] right”, did not amount to the Australian government's “acquisition” of a proprietary interest in a way that engaged s. 51(xxxi). The tobacco companies retained ownership of the intellectual property rights themselves.

The court went on to reason that the ability to control use of the plaintiffs' trade-marks did not constitute a proprietary interest, as the government “accrued no benefit of a proprietary nature”. Essentially, controlling is not the same as owning, nor is it the same as proprietary interest no matter how liberally interpreted. Continuing in this vein, the court deemed the��TPPA��regulatory rather than proprietary; it was merely an extension of what legislation already allowed Parliament to do with respect to mandating health warnings on tobacco products.

The court rejected the plaintiffs' argument that proprietary benefit resided in: saved costs of additional advertising, fulfillment of��, and the potential of Quitline gaining goodwill. Even if considered advantages, they were not proprietary and would only further the purpose of the legislation.

IV. Stepping Out: The Dissent

Heydon J's dissent held that acquisition under s. 51(xxx) only required “some identifable and measurable countervailing benefit or advantage” and that the government acquired such by not compensating the tobacco companies for their restricted rights. He stated that the��TPPA��“deprives the proprietors of their statutory and common law intellectual property rights and their rights to use the surfaces of their own chattels. It gives new, related rights to the Commonwealth [which control the surfaces of said chattels].” The dissent also raised a floodgates concern, in that the majority decision could allow government to apply similar limits to other products or for other legislative objectives in the public interest.

One Last Puff: Analysis

Potentially problematic aspects of the court's decision include (some might argue): the emphasis on the form of intellectual property rights as opposed to the substance (i.e. the distinction between having a right in theory and being able to exercise it in practice); the ethics of allowing a business to register trade-marks and accepting fees for such, then restricting use of those trade-marks; and potential cognitive dissonance in the law of applying such measures to what is, at the end of the day, a legal activity.

The implications of this case are widespread and enormous. Debates abound over the extent of the��,����������; whether it will induce growth of the��; whether a����is what people think it is; whether the floodgates have opened to plain packaging of food and��; and whether this����international World Trade Organization (WTO)��, just to name a few.

Closer to home, Canada has addressed����in����and��, and the United States recently closed off such a possibility in��.��However, all three decisions rested on freedom of expression grounds, and Canadian law does not include constitutional protection of property.��Meanwhile, the United Kingdom, New Zealand, and����have been����to consider Australia a test case for their own initiatives. Whether or not the��TPPA��was a single unlucky strike upon the multinational industry remains to be seen.

Cynthia Khoo is a JD Candidate at the University of Victoria.

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