The Minister for Justice and Customs has released the Copyright Law
Review Committee’s report, Crown Copyright Report, following the Committee’s
inquiry into Crown copyright.

The report follows an ongoing discussion about whether the Crown has unfairly obtained copyright over a wide range of research and reports and whether anyone even knows what the Crown has copyright over.

The key findings include:

"An important impetus for this inquiry was the Ergas Committee’s comments on section 176 of the Copyright Act 1968 (the Copyright Act), which gives the Commonwealth and States ownership of copyright in works made by them or under their direction or control. The Ergas Committee argued that this provision places government in a privileged position compared with other contractors or employers, and that this situation was inconsistent with the principle of competitive neutrality.

The Committee has concluded that the special Crown subsistence and ownership provisions should be repealed for several reasons. First, the subsistence provisions are not clearly drafted and it is difficult to envisage situations where they would be relied upon today. Second, the ambit of the
ownership provisions is uncertain and the Committee considers there is no justification for government to have a privileged position compared with other copyright owners. In particular, the Committee considers that the term ‘direction or control’ is potentially far too broad. Ownership of copyright in works commissioned by government from independent parties should not be determined by default provisions that alter the usual copyright ownership rules. Not only do these provisions give government a negotiating advantage, but the Committee also heard evidence that many creators have been unaware that in the absence of a written contractual provision with government, they have lost copyright in their creations.

Recommendation 4: The Committee recommends that copyright in certain materials produced by the judicial, legislative and executive arms of government be abolished. Those materials are:
• bills, statutes, regulations, ordinances, by-laws and proclamations, and explanatory memoranda or explanatory statements relating to those materials;
• judgments, orders and awards of any court or tribunal;
• official records of parliamentary debates and reports of parliament, including reports of parliamentary committees;
• reports of commissions of inquiry, including royal commissions and ministerial and statutory inquiries; and
• other categories of material prescribed by regulation.

Recommendation 5: The Committee recommends that the Commonwealth, States and Territories be under a statutory duty to disseminate legislation and judgments.

One of the critical parts of a business acquisition is ensuring that the purchaser actually gets all the essential elements of what makes up the business, eg the name, the staff, the equipment, the customers, and the IP.

In Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 (22 March 2005) (reference via Kim Weatherall) the Federal Court dealt with a trade mark infringement claim by Pacific Brands.

The claim was complicated because the original proprietor of the
trade marks "King Gee" and "Stubbies", Saramar LLC, a United States corporation, granted a licence to use
the marks to Sara Lee Apparel (Australasia) Pty Ltd, a related company.  In turn
Sara Lee granted Underworks a sub-licence to use the marks.  In due course Sara
Lee’s rights under the sub-licence were assigned to Pacific Brands (as a result of 2 business sales). Underworks refused to sign a direct licence unless some terms were changed.

What relationship did Pacific Brands have with Underworks? Could it terminate the sub-licence even if there were grounds?

Judge Finkelstein rejected Pacific Brands claim:

Pacific Brands’ case is that the sub-licence was assigned to it and
as a consequence it stood in the shoes of Sara Lee.  Plainly this is incorrect.
In the absence of novation it is not possible to bring about a substitution of
parties to a contract…

whether there is a novation depends upon it being
established that there was an agreement between Sara Lee and Underworks to
discharge the sub-licence and a further agreement between Underworks and Pacific
Brands on the same terms as the sub-licence, perhaps with necessary
modifications in point of detail.  In relation to any agreement between
Underworks and Sara Lee its existence depends upon the intention of the parties:
Vickery v Woods (1952) 85 CLR 336, 345.  In this regard there is
simply no evidence upon which to base a finding that either Underworks or Sara
Lee intended (by inference) to release each other from their obligations under
the sub-licence.

Although the Judge found it was not necessary to decide on whether there were grounds for termination, he found there were none.
   

A new information guide has been published by IP Australia for any person seeking to apply for the removal of protection
for a trade mark that has not been used.

This removal or cessation of protection application is relevant for a person wishing to register a trade mark which is owned by another party who has not used it in the course of trade or assigned it to be used.

The guide also provides information to the owner of a trade mark facing a removal or cessation of protection application who would like to oppose that action.

Generally, an application for removal of a trade mark can be used if  there was no intention in good faith that it be used or authorised it to be used or to assign it as at the date of application for registration or, once it is registered, it is not used for 3 years.