This year marks the 25th anniversary of the founding of the Australian Intellectual Property Journal (AIPJ), Australia’s foremost specialised intellectual property law journal.
Associate Professor David Lindsay*, is the fourth person to hold the general editorship in the 25 years in which the journal has been published. David took over the role of General Editor in September 2012 from Dr David Brennan, now of Federation University, who served as General Editor from 2007 to 2012. Before that, the founding General Editor of the journal, Ann Dufty, held the role for an astonishing 15 years, from 1990 until 2005; with Professor James Lahore, a founder of Australian intellectual property law as an academic discipline, acting in the role in 2006.
While each of the editors of the AIPJ has left their mark on the journal, there have been some continuing themes. First and foremost, the journal has been a forum for informed commentary on, and analysis of, intellectual property law and policy, especially from an Australian perspective. As such, it has served as a bridge between academia and the profession; an important role, given the very different pressures that apply to those working at universities, on the one hand, and in professional practice, on the other. Throughout its lifespan, the journal has promoted high quality articles and strongly supported the work of new and emerging intellectual property scholars. This has been reinforced in recent years with the introduction of the annual AIPJ essay prize. It is therefore appropriate that the first issue of the 25th anniversary year features articles by the joint winners of the 2013 AIPJ essay competition.
The past quarter century has been a period of unprecedented growth in both the importance of intellectual property law and in the scale and scope of intellectual property laws. Given the significance of technological innovation as a driver of the economy, it is hardly surprising that intellectual property laws have been the focus of increased attention by policy-makers, industry and scholars. While the period has witnessed an increasingly sophisticated understanding of the role of intellectual property, it has also seen a politicisation of the field. This has been accompanied by a polarisation of views between those who champion strong intellectual property laws as essential to innovation and those who point out that over-strong laws may inhibit innovation and harm consumers. In this context, the journal has sought to promote reasoned discussion and analysis from all points of view, but with a focus on the practical consequences of legal issues.
In reading editorials from the last 25 years, a consistent theme has been the importance of law reform that promotes clear, certain and better intellectual property laws. A good example of this is a magisterial editorial from the founding editor, Ann Dufty, from Volume 4(3), published in 1993. As the editorial points out:
Intellectual property is an intensely complex area of law and the rights which are created and protected by it are of great national importance. It is therefore crucial that the law, whether it be that relating to copyright, patents or one of the other areas encompassed by the term, should be as clear, precise and cheap to administer as we can make it.
Unfortunately, Australia’s intellectual property laws fall well short of these desired objectives. The main theme of the editorial is the problems that may arise from fashions in legislative drafting, such as the “plain English” movement, when these are not adequately anchored by clear thinking and good drafting. The editorial does not hold back observing, in relation to the then recently introduced Patents Act:
The Patents Act 1990, claimed by those responsible for its introduction to be a model of plain English drafting, is so badly drafted in parts that it is impossible for those working in the field to advise their clients with confidence.
Neither does the editorial confine itself to poorly-drafted statutes; it is equally blunt about some of the judicial practices that have, at times, characterised our highest court:
The insistence of members of the High Court on the need for each judge to deliver his or her judgment, apparently with little concern for what other members of the Court might have decided, has meant that in recent years the law is often less certain after the High Court has handed down its decision than it was before.
The frustrations expressed with the law-making process in this early editorial have contemporary resonance. In July of this year, the Government released an Online Copyright Infringement Discussion Paper, which outlined proposals for amending authorisation liability. The Discussion Paper produced the singular outcome of near universal opposition, both from those in favour of strong laws against online infringements and those opposed to such laws. The poorly-drafted proposal seems to have been devised in almost complete ignorance of the difficult law relating to authorisation liability, and certainly with insufficient understanding of the High Court decision in Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42. In that case, the High Court clearly changed the law, but in ways that significantly increased legal uncertainty about what is meant by authorising an infringement. One reason for this was the delivery of two judgments that concurred in the outcome, but each of which failed to engage with the reasoning in the other judgment. Other decisions in recent years, such as the judgments delivered by the Court in IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458, have tended to follow the pattern identified in the 1993 editorial.
Although the problems identified back in 1993 clearly remain, there are welcome counter-examples of positive law reforms and clearly reasoned judgments. In this, the articles published by the AIPJ have sometimes played a role in identifying and clarifying legal issues. A good recent example of this important function of law journal articles is the judgment of Dodds-Streeton J in Seafolly Pty Ltd v Fewstone Pty Ltd  FCA 321, which raised issues relating to the difficult copyright/designs overlap provisions of Australia’s intellectual property laws. At key points in the judgment, Dodds-Streeton J referred extensively to two articles published in the AIPJ, by Janice Luck of Melbourne Law School ((2013) 23 Australian Intellectual Property Journal 68) and by Jani McCutcheon of the University Of WA ((2009) 20 Australian Intellectual Property Journal 39). The journal is proud of the contributions its published authors, which have included most of Australia’s prominent intellectual property academics, have made both to technical legal issues and broader policy debates.
While predicting the path of Australia’s intellectual property laws for the future is hazardous, it is safe to say that intellectual property laws will continue to be both highly significant and controversial. There will continue to be difficult and complex legal disputes, as well as hard policy decisions that must be made to ensure that we appropriately reap the benefits of the innovation and creativity of Australians.
On the AIPJ’s 25th anniversary, it is important to acknowledge the work of all those who have contributed to the journal’s success, especially the founding General Editor, Ann Dufty, and long-serving editor, David Brennan; as well as the dedicated editorial staff at Thomson Reuters. As those immersed in intellectual property issues know only too well, the commercial publishing industry faces complex challenges in adapting and surviving in the world of instantaneous digital content. That the AIPJ has not only survived, but continues to thrive, is evidence of the need for a high-quality specialised Australian intellectual property journal, but also of the commitment and hard work of those involved with publishing the journal. The strong reputation established by the journal over the past quarter century means that the AIPJ is well-placed to continue the tradition of contributing to the development of Australian intellectual property law for the next 25 years.
– Associate Professor David Lindsay, General Editor
*General Editor, David Lindsay, is an expert in information technology law at Monash Law School, where he teaches copyright, cyberlaw and trusts. In the recent past, he has been a member of the Australian Copyright Council’s expert group and the Australian Law Reform Commission’s expert advisory committee for its reference on copyright and the digital economy. David is currently a member of the Media and Communications sub-committee of the Law Council of Australia and a board member of the Australian Privacy Foundation.