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This issue of the Australian Intellectual Property Journal (Volume 32 Part 2) contains the following material:

EDITORIALGeneral Editor: David Lindsay

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OBITUARY

  • Vale Peter Heerey

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Articles

Saving Your Games: A Case for the Copyright Protection of Gameplay – Joseph Lau Chin Yang

Video games are popular and profitable, tempting competitors to “free ride” on the success of popular titles by duplicating them wholesale or in part and marketing the result as their own game. Especially worrying is the practice of “cloning”, where competitors copy gameplay, which is not one of the categories of material protected under the Copyright Act 1968 (Cth). Developers face an uphill battle trying to remedy this deficiency by establishing that copyright, in the form of one of the existing categories of material protected under the Copyright Act, subsists in gameplay or other constituent elements of games related to it and that cloning infringes said copyright. To resolve this difficulty, the Copyright Act should be amended to protect gameplay directly, as a new type of “original work” under that Act.

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Does s 122A of the Trade Marks Act Achieve the Australian Government’s Policy Goal of Allowing for the Parallel Importation of Genuine Goods? – Omid Komeili

The Australian Government’s policy goal is to allow for the parallel importation of genuine goods. Section 122A of the Trade Marks Act 1995 (Cth) purported to rectify the unsatisfactory operation of the now-repealed s 123(1) defence, which was intended to operate as a defence to trade mark infringement when the goods being imported were genuine. The s 123 defence remains in force in relation to services. This article begins by exploring the arguments on both sides of the parallel importation debate, the history of s 123(1) and the likely effectiveness of s 122A. It argues the new defence reduces the risk of parallel importers infringing the relevant trade mark. It then demonstrates how trade mark owners and licensees could nonetheless implement and enforce contractual devices that restrict parallel import activity. This in turn leads to a call for further law reform. This article proposes explicitly prohibiting restrictions on parallel import activity and introducing proactive safety laws to address some concerns trade mark owners and licensees have regarding the safety of parallel imports. Finally, this article suggests measures to limit the detrimental effect parallel imports may have on brand reputation.

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Joint Authorship and the Contribution of Ideas: English Lessons in Kogan – Claire Roberts

Whether someone who contributes ideas – but not ink – to a creative work deserves recognition as a joint author is a difficult question. The challenge is made even greater by new and emerging technologies that enhance collaborative possibilities. This article argues that a recent English decision – Kogan v Martin (Kogan) – contains valuable reflection on the general concept of joint authorship and the specific question of what amounts to sufficient contribution. In that decision England and Wales moved towards a more “fluid” approach to what joint authorship is – a course Australian courts might consider. This article then argues that both the post-Kogan English approach, and the arguably more “rigid” Australian approach, are both preferable to the intentionality approach adopted in the United States.

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For the PDF version of the table of contents, click here: Westlaw AU – AIPJ Vol 32 No 2 Contents or here:  New Westlaw Australia – AIPJ Vol 32 No 2 Contents.

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