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BLUE SKY

FUTURE DIRECTIONS
IN COPYRIGHT LAW

Friday, 25 February 2011


The Bathers' Pavilion, Balmoral, Sydney
BE SOCIAL—Share the Blue Sky short link, http://bit.ly/
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via @ipkceQUT and #blueskycr.

WELCOME
The Blue Sky conference is an initiative of the ARC Centre
of Excellence for Creative Industries and Innovation and
the QUT Faculty of Law’s Intellectual Property: Knowledge, Culture,
Economy research program. It is convened by Professor Brian
Fitzgerald and Ben Atkinson.
8.30 am Welcome to Country
Michael West
Metropolitan Local Aboriginal Land Council

8.35 am Conference Welcome


Professor Brian Fitzgerald
Queensland University of Technology

8.40 am Opening Address


The Hon Robert McClelland
Commonwealth Attorney-General

SESSION 1: PROPOSALS

9.00 am The Future of Copyright


Dr Francis Gurry
Director General of World Intellectual Property Organization

9.20 am The Challenge of Something New: Are Copyright


Lawyers up to it?
The Hon Michael Kirby

9.40 am Copyright in the Third Millennium: Two Crucial


Issues and the Need for a Cosmic Copyright System
Professor Adrian Sterling
University of London

10.00 am A Copyright Law Review?


Professor Brian Fitzgerald

10.15 am Audience questions

10.35 am Morning tea

SESSION 2: POLICY

11.00 am Information Flow and Innovation


Dr Terry Cutler
Cutler & Co

11.20 am Public Sector Copyright


Professor Anne Fitzgerald
Queensland University of Technology

11.35 am Free Trade Agreements and the ACTA


Professor Susy Frankel
Victoria University of Wellington, New Zealand

11.50 pm Collective Administration and the Rights of the Public


Professor Graham Greenleaf
University of New South Wales

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12.00 pm Revising the Three-Step Test: Desirable and/or Feasible?
Professor Sam Ricketson
University of Melbourne

12.15 pm Roman Law, Private Property and the Public Domain:


Lessons for Copyright Policy
The Hon Justice Arthur Emmett
Federal Court of Australia
PROGRAM
12.30 pm Audience questions

12.40 pm Lunch
In Honour of Professor Adrian Sterling
Master of Ceremonies: The Hon Greg James

SESSION 3: PERSPECTIVES

2.15 pm Native Title and Cultural Property


Maroochy Barambah
Turrbul/Dippil People

Ade Kukoyi
Daki Budtcha Records

2.30 pm The Development Agenda


Rami Olman
Queensland University of Technology

2.40 pm History, Policy and the Educational Statutory Licence


Ben Atkinson
Queensland University of Technology

2.55 pm PANEL – Born Digital: Which Way Now?


Liam Wyatt
Wikimedia Australia

Liam James
Copyright Researcher

3.25 pm Perspectives From China


Professor Gao Fuping
East China University of Political Science and Law, Shanghai, PRC

Professor Zhang Ping


Peking University, Beijing, PRC

3.45 pm What Have We Learnt and What is Possible?


The Hon Michael Kirby

4.00 pm Conference close and afternoon tea

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Professor Brian Fitzgerald
Brian Fitzgerald holds postgraduate degrees in law from Oxford University and
Harvard University and is internationally known in the areas of Intellectual Property
and Internet Law. From 1998-2002 he was Head of the School of Law and Justice at
Southern Cross University in New South Wales, Australia and from January 2002 –
January 2007 was appointed as Head of the School of Law at QUT in Brisbane, Australia.
Brian is currently a specialist Research Professor in Intellectual Property and Innovation
SPEAKERS
at QUT and a Chief Investigator in the ARC Centre of Excellence for Creative Industries
and Innovation. In 2009 Brian was appointed to the Australia Government’s “Government
2.0 Taskforce” and to the Advisory Council on Intellectual Property (ACIP).

The Hon Robert McClelland, MP


Robert McClelland is the Commonwealth Attorney-General and the Member for
Barton, an electorate based in the St George area of Sydney. Robert was first elected
as the Federal Member for Barton in March 1996. In October 1998 he was appointed
Shadow Attorney-General and later served in a range of shadow portfolios including
Workplace Relations, Justice, Homeland Security, Defence and Foreign Affairs.
Following the election of the Labor Government in November 2007, Robert was
appointed Australia’s 33rd Attorney-General. He has a Bachelor of Law degree from
the University of NSW and a Master of Law from the University of Sydney. Before
entering Federal Parliament he was a partner in the Sydney law firm Turner Freeman
where he specialised in labour and sporting law.

Dr Francis Gurry
Francis Gurry was appointed Director General of the World Intellectual Property
Organization (WIPO) and Secretary-General of the International Union for the
Protection of New Varieties of Plants (UPOV) on October 30, 2008. Francis Gurry
began his WIPO career in 1985, initially in the Development Cooperation and External
Relations Bureau for Asia and the Pacific. He was instrumental in establishing the
WIPO Arbitration and Mediation Center in 1994 and subsequently in developing the
highly successful Uniform Domain Name Dispute Resolution Policy. He served on
the WIPO top management team from 1997, initially as Assistant Director General,
then from 2003 as Deputy Director General with responsibility for patents and the
PCT system, the Arbitration and Mediation Center, traditional knowledge, traditional
cultural expressions and genetic resources. Before joining WIPO, Francis Gurry
practiced as an attorney in Australia, and taught law at the University of Melbourne,
Australia. He holds law degrees from the University of Melbourne and a Ph.D from
the University of Cambridge, UK. He is the author of numerous publications and
articles on intellectual property issues in international journals. An Australian national,
Francis Gurry speaks fluent English and French.

The Hon Michael Kirby AC CMG


When he retired from the High Court of Australia on 2 February 2009, Michael Kirby
was Australia’s longest serving judge. He was first appointed in 1975 as a Deputy
President of the Australian Conciliation & Arbitration Commission. Soon after, he
was seconded as inaugural Chairman of the Australian Law Reform Commission
(1975-84). Later, he was appointed a judge of the Federal Court of Australia,
President of the New South Wales Court of Appeal and, concurrently, the Court of
Appeal of Solomon Islands. His appointment to the High Court came in 1996 and he
served thirteen years. In later years, he was Acting Chief Justice of Australia twice.

BLUE SKY FUTURE DIRECTIONS IN COPYRIGHT LAW 3


In addition to his judicial duties, Michael Kirby served on three university governing
bodies being elected Chancellor of Macquarie University in Sydney (1984-93). He
also served on many national and international bodies. Amongst the latter have been
service as a member of the World Health Organisation’s Global Commission on AIDS
(1988-92); President of the International Commission of Jurists, Geneva (1995-
8); as UN Special Representative Human Rights in Cambodia (1993-6); a member
SPEAKERS
of the UNESCO International Bioethics Committee (1995-2005); a member of
the High Commissioner for Human Rights’ Judicial Reference Group (2007-) and a
member of the UNAIDS Reference Group on HIV and Human Rights (2004-).

Dr Terry Cutler
Dr Terry Cutler is an industry consultant and strategy advisor in the information
and communications technology sector. He has authored numerous influential
reports and papers on the Digital Economy and innovation. During 2008 he chaired
the Australian Government’s Review of the National Innovation System which
culminated in the Report, Venturous Australia. He is Deputy Chairman of CSIRO.

Dr Cutler received his Bachelor of Arts with Honours from the University of
Melbourne, Australia, in 1970 and his doctorate from the University of New South
Wales, Australia, in 1976. In 2002, he was awarded an Honorary Doctorate by the
Queensland University of Technology, Australia, and in 2003 a Centenary Medal.
Dr Cutler worked for Telecom Australia from 1975 to 1990, holding the position of
Executive Director Corporate Strategy from 1988 to 1990.

Professor Anne Fitzgerald


Anne Fitzgerald is a Professor of Law at QUT and holds a JSD degree from Columbia
University, New York (2002) a LLM degree from Columbia University (1992) and a LLM
(International Business Law) from the University of London (1989). She has extensive
experience in in the areas of Intellectual Property Law, Internet and E-commerce Law,
International Trade Law and Natural Resources Law. Anne has also served terms as a
member of the Advisory Council on Intellectual Property (ACIP) (1996 to 1999) and
the Copyright Law Review Committee’s Expert Advisory Group (1995 to 1998).

Professor Susy Frankel


Susy Frankel is a Professor of Law at Victoria University of Wellington, New
Zealand and Chair of the New Zealand Copyright Tribunal. Susy’s main research
and teaching interests are intellectual property law and international trade law. She
also teaches the law of contract. She is co-director of the New Zealand Centre of
International Economic Law and is a member of the editorial board of the Journal of
World Intellectual Property Law.

Professor Graham Greenleaf


Graham Greenleaf is a Professor of Law and Information Systems at the University
of New South Wales and Academic Director of the Cyberspace Law & Policy Centre.
He was instrumental in the creation of AustLII, the world-leading legal research
database, and continues to play a guiding role in AustLII’s continuing development.
He teaches and researches in the areas of cyberspace law, privacy, computerisation
of law and intellectual property. Current areas of research focus are Asian data
protection and privacy laws, public rights in copyright, and the globalization of free
Internet access to legal information.

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Professor Sam Ricketson
Sam Ricketson holds degrees from the Universities of Melbourne and London, and is a Fellow
of the Academy of Social Sciences of Australia. Prior to his appointment to the University of
Melbourne in November 2000, Sam was the Sir Keith Aickin Professor of Commercial Law at
Monash University. Before this, he had held positions at the University of Melbourne (1977 to
1991) and in the Centre for Commercial Law Studies, Queen Mary & Westfield College, London
(1984-1986). Sam has written, taught and advised widely in all areas of intellectual property law
(copyright and designs, patents, trade marks and unfair competition, and breach of confidence),
conflicts of law, trade practices and corporate law. He has also held various professional as well
as governmental appointments in the intellectual property area, including membership of the
Commonwealth Copyright Tribunal. He is currently a panel member of the World Intellectual
Property Organisation’s dispute resolution body in relation to domain names and is a member of
the Victorian Law Reform Commission. He also practises part-time at the Victorian Bar.

The Hon Justice Arthur Emmett


Justice Emmett was appointed to the Federal Court of Australia in December 1996 with effect
from 3 February 1997. In 1967 Justice Emmett was admitted as a solicitor in New South Wales.
He was admitted to the Bar of New South Wales in 1978 and was subsequently admitted in
ACT, Western Australia, Victoria and South Australia. Justice Emmett was appointed Queen’s
Counsel in New South Wales in 1985 and in other jurisdictions soon after. He appeared on
many occasions in the High Court and also appeared in the last appeal from Australia to the Privy
Council. Justice Emmett served on several committees of the NSW Bar Association and was a
member of the Legal Services Tribunal. He also served as a director and chairman of Counsels
Chambers Limited. Justice Emmett was a Deputy President of the Copyright Tribunal of Australia
from April 2001 to October 2007, when he was appointed President of the Copyright Tribunal.
He is a member of the corporations, patent, admiralty and taxation panels of the Federal Court’s
NSW registry. For several years Justice Emmett was tutor and lecturer in Real Property for the
Law Extension Committee of the University of Sydney and was also examiner in that subject.
He has taught Roman Law at the University of Sydney since 1978 and has been Challis Lecturer
in Roman Law since 1990. In May 2009 the University of Sydney conferred on Justice Emmett
the degree of Doctor of Laws (Honoris Causa).

Maroochy Barambah
Maroochy, of the Turrbul/Dippil ancestry was born on Cherbourg Aboriginal Reserve in
Queensland. She is the Songwoman and Law-woman of the Turrbal People – the Traditional
Owners of Brisbane. At the age of 12 she was taken from her family and fostered out to a family
in Melbourne. Maroochy later attended the Melba Conservatorium of Music in Melbourne and
Victorian College of the Arts where she graduated in Dramatic Arts in 1979. Over the years,
Maroochy has acted in such television series as “The Flying Doctors”, “Winner Take All” and
“Women of the Sun”. She has performed in numerous concerts and once had her own jazz/
reggae band. She was an integral part of the show “A Fruitcake of Australian Stories” which
toured Victoria extensively between 1983 and 1984.

Maroochy has also had an extensive community involvement over many years working with the
younger generation of Indigenous Australians in the arts industry. She has delivered several
lectures on Aboriginal culture in various institutions and was a keynote speaker at the Australian
Reconciliation Convention in Melbourne in May 1997. When Maroochy made her operatic debut
in “Black River” in October 1989, she became the first Aborigine to perform on the Australian
operatic stage. She was the first Australian to perform at the United Nations in New York in
honour of the International Year for the World’s Indigenous Peoples in 1993. In November 1995,
Maroochy starred in the American opera Porgy & Bess and became the first Indigenous Australian
to perform in an opera at the Sydney Opera House. She hopes to continue to work in this area of
the performing arts, while at the same time engender better understanding of Aboriginal culture.

BLUE SKY FUTURE DIRECTIONS IN COPYRIGHT LAW 5


Ade Kukoyi
Ade Kukoyi is the founding President of the Australia-Nigeria Business Council
(ANC). Ade has academic qualifications in accounting (Charles Sturt University, 1981),
corporate management, law and an MBA (Banking/Finance) from the University of
Technology, Sydney. Ade has over 30 years of management experience (in corporate,
small business and the performing arts) in Australia and Nigeria in various professional
SPEAKERS
capacities and has been actively engaged in strengthening the links between Australia
and Africa in these sectors.

Rami Olwan
Rami Olwan is currently completing his PhD at the Queensland University of
Technology. He has previously worked as a researcher and legal consultant on
intellectual property and internet law. He holds degrees in law from Yarmouk
University in Jordan and Columbia University in New York. His main research
interests are copyright issues relating to developing countries.

Benedict Atkinson
Ben Atkinson is author of The True History of Copyright: The Australian Experience
1905-2005 (Sydney University Press 2007) and co-editor of a three volume
collection of essays on the law and history of copyright (Ashgate 2011). He has
worked in legal policy for Commonwealth and State governments. Ben is about
to start a PhD researching the social benefits of, and ways to create, diffusion
of ownership.

Liam James
Liam James recently graduated Arts/Law from Sydney University. His interest in
the interaction of copyright law and the digital environment grew after he attended
QUT’s 2009 Copyright Future, Copyright Freedom conference where Professor
Lawrence Lessig outlined his concerns at copyright law’s criminalisation of younger
generations. In his law degree he focused on intellectual property issues and the
effect of end-user-licence-agreements on the rights balance between content
owners and content consumers. He attended and assisted at the 2010 High Tech
Crime Conference in Sydney organised by the Australian Federal Police, and intends
to continue to work in the development of copyright law and understanding the
interaction between copyright law and rights in the digital world.

Liam Wyatt
Sydney based Liam Wyatt works with galleries, libraries, archives and museums
(GLAM) worldwide as coordinator of Cultural Partnerships at the Wikimedia
Foundation, the free-culture organisation behind Wikipedia. Formerly he has worked
at the British Museum and AustLII. He graduated from Sydney University with First
Class Honours in History and the University Medal.

Professor Gao Fuping


Gao Fuping is a Professor of Law and Dean of the Intellectual Property School at East
China University of Political Science and Law, Shanghai, People’s Republic of China.
Professor Gao is one of the leading academics in China on real property, e-commerce
and intellectual property law. Professor Gao is a member of the E-Commerce
Expert Committee of the Ministry of Foreign Trade and Economic Cooperation
of PRC and a Legislation Consultant for the Shanghai Informatisation Office.

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Professor Zhang Ping
Zhang Ping is a Professor of Law and Executive Dean of the Intellectual Property School at
Peking University, Beijing, People’s Republic of China. Professor Zhang’s primary research
area is intellectual property law and legal issues related to the Internet. Her recent research
outcomes have included “Technological Innovation and National Intellectual Property Strategy”,
“Intellectual Property Protection and Exploitation in the Context of Technological Standards”,
“Commercialisation Model of Universities’ Patents and Policy Issues”, and “Copyright Law in
the Digital Environment”. Professor Zhang has chaired over ten national research projects, and
she was also involved extensively in digital copyright research. In addition, she is the chief editor
of the Internet Law Review and also presides over the Peking University Internet Law Forum.

The Hon Greg James, QC


The Hon Greg James, QC, was one of the youngest Queens Counsel appointed in NSW history,
and a leading advocate in Australian and international courts. He was a judge of the New
South Wales Supreme Court sitting in the Common Law Division and the Court of Criminal
Appeal. He was also a South Australian Royal Commissioner. He is President of the NSW
Mental Health Review Tribunal, which conducts about 10,500 hearings annually. The NSW
Government has responded to his inquiry into the administrative regime applicable to mentally
ill gaol inmates acquitted of charges or declared unfit for trial by introducing the Mental Health
(Forensic Procedure) Bill 2008. The Bill implements the recommendations of Mr James’s
report. Mr James is one of the NSW Law Reform Commissioners engaged in various enquiries
including an enquiry into the law and procedure concerning the treatment in the criminal courts
of those with cognitive deficits or mental disorders, and principles affecting the sentencing of
such people. Mr James is Adjunct Professor at the School of Law Southern Cross University
and Visiting Professor and Chair of the Curriculum Committee at the Law School University of
Western Sydney.

Professor Adrian Sterling


The conference lunch will commemorate Professor Adrian Sterling’s outstanding contribution
to the field of copyright law both in Australia and internationally.

Professor Adrian Sterling LLB (Sydney, 1948); Bar of New South Wales (1949); Bar of England
and Wales (1953) is Professorial Fellow, Queen Mary Intellectual Property Research Institute,
Queen Mary College, University of London, and Visiting Professor, King’s College, University of
London. Professor Sterling’s career spans over six decades. He was the long-serving Deputy
Director General of the International Federation of the Phonographic Industry (1961-73)
and played an active role in the lobbying process that preceded the passage of the Australian
Copyright Act 1968. He attended the Diplomatic Conferences leading to the Rome Convention
1961, the Phonograms Convention 1971, the Berne Convention 1971 Revision and the WIPO
Treaties 1996. He is a Consultant to Lamb Chambers, London and a Vice-President of the
British Copyright Council.

His writings include (with G.E. Hart) Copyright Law in Australia and the Rights of Performers,
Authors and Composers in the Pacific Region (1981); The Data Protection Act 1984 (1985,
2nd ed); (with M.C.L. Carpenter) Copyright Law in the United Kingdom and the Rights of
Performers, Authors and Composers in Europe (1986, Supplement 1987); Intellectual Property
Rights in Sound Recordings, Film and Video (1992, Supplement 1994) and World Copyright
Law (2008, 3rd ed). His studies on Space Copyright Law, the International Copyright Code and
Global Internet Licensing are available online at www.qmipri.org/research.html.

BLUE SKY FUTURE DIRECTIONS IN COPYRIGHT LAW 7


BATHERS ’
PAV I L I O N
4 The Esplanade, Cremorne Point is a great place for a boy to grow up. The Reserve
Balmoral,Sydney contains all an adventurous spirit needs—caves by the water,
swimming pools, rocks with surrounding aquatic life (including,
on occasion, penguin and sea horse) and hidden spots where a
fellow could quietly smoke his pipe after school. Then there is the
everlasting beauty and movement in the Harbour, and at dawn, one
can hear the roaring of the waking lions at Taronga Zoo.
Professor Adrian Sterling on growing up near Cremorne Point,
a few kilometres from Balmoral

Mosman Council commissioned design and construction of the Bathers' Pavilion and the building
opened on 20 February 1929. With its distinct and intriguing Moorish feel and intricate features
such as the many delicate fretwork windows, which had to provide privacy and a great amount
of ventilation for the many people using the changing rooms, the building made an immediate
impression. Alfred Hale’s design made for a stunning and imposing visual adornment to the
beach with what was essentially a large changing shed. (From “Our History”.)

Professor Adrian Sterling, as a boy in the 1930s went to school in Mosman, and used to swim
at Balmoral. He has described some of his experiences then:

We used to go down from Mosman Prep to Cahill's Baths at Balmoral for swimming
on Thursday afternoons, some seventy years ago. In fact it was at Cahill's Baths that
I won the 11 Years Swimming Championship in 1938: I still have the cup presented
to me in 1939 for this signal achievement which marked the beginning and the end
of my sporting career in this area.

At the end of the 1960s, for the first time a restaurant began trading at the Pavilion. Misha’s
made brunch an institution at Balmoral. While the historic building has now left behind its origins
as a complex of changing rooms it remains a vibrant focal point of daily life at Balmoral. As
ever, the visitor to the Pavilion sees the parade of beachgoers and boats sailing in the distance.
And more than once watchers have been graced with the sight of whales and dolphin in full view
of Bathers' Pavilion. (From “Our History”.)

Taken from “Our History” on The Bathers’ Pavilion website, www.batherspavilion.com.au.

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IMAGES Front—“two without clouds” by erin MC hammer, http://flic.kr/59521823@N00/1021646016. Internal background—


“Blue Sky 1” and “Blue Sky 2” by Fabio Marini, http://flic.kr/11247304@N06/1340979055 and http://flic.kr/11247304@
N06/1340979043, “Clouds” by William Warby, http://flic.kr/wwarby/5107361568 and “Clouds In Blue Sky” by Steenbergs,
http://flic.kr/steenbergs/4915770073. Bathers’ Pavilion—Ben Atkinson. Back—“Sea gulls” by joyosity, http://flic.kr/
joyosity/2666592964. Images available under a Creative Commons Attribution 2.0 Generic licence, http://creativecommons.
org/licenses/by/2.0. FONTS Headings—“Arimo“ by Steve Matteson, http://code.google.com/webfonts/family?family=Arimo.
Copy—“Cantarell” by Dave Crossland, http://code.google.com/webfonts/family?family=Cantarell. Fonts available under a SIL Open
Font 1.1 licence, http://scripts.sil.org/OFL.
BLUE SKY
FUTURE DIRECTIONS
IN COPYRIGHT LAW