InLandmarks in Australian Intellectual Property Law, the editors Andrew T. Kenyon, Megan Richardson and Sam Ricketson set out to uncover the stories behind fifteen leading Australian cases, and to explore their significance for the field of intellectual property law more generally. They have produced a book which is both engaging and erudite. Its contributors are drawn from academia, practice and the bench and the result is a book which will stimulate, entertain and inform students, researchers, teachers and practising members of the legal profession in Australia with an interest in all areas of intellectual property law. It covers cases involving copyright law (UNSW v. Moorhouse, Schott Musik International v. Colossal Records of Australia, Bulun Bulun v. R&T Textiles, TCN Channel Nine v. Network Ten), patents (Potter v. Broken Hill, National Phonographic Company of Australia v. Menck, National Research Development Corporation v. Commissioner of Patents), design law (Firmagroup Australia v. Byrne & Davidson Doors (Vic)), trade marks (Attorney-General of NSW v. Brewery Employees' Union (Union Label case), Lomas v. Winton Shire Council), passing off (Cadbury Schweppes v. Pub Squash, Pacific Dunlop v. Hogan), confidential information (Foster v. Mountford), geographical indications (Beringer Blass v. Geographical Indications Committee) and the multi-category Victoria Park Racing and Recreation Grounds Company v. Taylor.
There is a distinctively Australian character to many of the stories told here. While this is perhaps unsurprising, it does emphasise the intimate links between culture and intellectual property. These are stories involving such national “icons” as the song “Waltzing Matilda”, the personality Paul Hogan of Crocodile Dundee fame and aboriginal paintings, as well as the invocation in advertising of rugged masculinity and sporting prowess, fondly held in (some elements of) the national imagination to be key characteristics of Australian males. A theme linking these case narratives then is the commodification of national culture, and the role played by intellectual property in that process. Other stories in this collection involve such crucial economic activities as mining and agriculture, and such popular pastimes as horse-racing, while some more modern aspects of Australian culture finding themselves the subject of litigation include the growing wine industry and techno dance music.
The social, political and economic context of the cases explored is an overarching theme which links the various chapters and discussions. As Matthew Rimmer points out in his contribution, “in the field of new historicism, the use of anecdotes – petite histoire – has been seen as a useful way of challenging grand historical narratives.” (p. 212) In this sense, these case studies tell not only the story of intellectual property law in Australia, but also shed light on various aspects of Australian social and political history. Sam Ricketson's fascinating account of the Union Label case not only rescues it from antiquarian status imposed by subsequent legal developments, but situates it in the context of fiercely fought-over political beliefs, telling us something not only of the law but of the history of union power in Australia. Likewise, Megan Richardson's lively discussion of Pacific Dunlop v. Hogan illuminates aspects of the Australian film industry, its treatment of its “stars” and the Australian public's relationship to them, as well as the emergence of film merchandising and attitudes towards it.
Another chapter worthy of mention in this respect is Matthew Rimmer's own account of the Coonawarra dispute, which interweaves discussion of intellectual property issues with the role played by cartography in forming, or supporting, culture and identity, particularly in relation to indigenous rights. Leanne Wiseman and Matthew Hall, in the course of their study of the Waltzing Matilda case, point out that, while there is little of doctrinal interest in the story, it does provide “insights both into the legal and political processes that regulate the use of signs, words and images, as well as how intellectual property law deals with objects of cultural heritage more generally” (p. 243). Asking why the name Donald Bradman was singled out for legal protection, while “Waltzing Matilda” is given no such special treatment, is not just of interest to trade mark lawyers, but might also tell us something about Australian society more generally.
This book thus successfully transcends the two limiting elements of its title: “Intellectual Property Law” and “Australia”. The former because, as just mentioned, the case stories also provide micro-narratives of aspects of Australian history viewed through the focussing lens of legal disputation. In addition, many of the cases considered share boundaries with, or raise, other areas of law, such as the constitutional powers of the Commonwealth Parliament (Union Label case), competition law and retail price maintenance (Menck), real property rights (Victoria Park Racing) and privacy (Victoria Park Racing). The book can also be read to reveal broader themes of judicial development. As the editors point out, the chronological structure of the book allows the reader to perceive a growing tendency of Australian courts to become “more openly socially aware in their decisions” (p. xix).
Despite, or perhaps ironically because of, its strong Australian flavour, the book also deserves attention from a wider international audience. Several of the cases discussed have bequeathed an enduring legacy to the common law more generally: Victoria Park Racing continues to provide a focal point for discussions as to the appropriate scope of intellectual property rights and their intersection with unfair competition, while UNSW v. Moorhouse's finding on authorisation finds a renewed relevance in cases involving peer-to-peer file sharing. More broadly still, detailed examination of each of these cases serves to emphasise that laws, whether produced by parliaments or courts, are always still more fundamentally the product of the social, political and economic circumstances, whether as reactions to or confirmations of prevailing conditions. Nor can they be disconnected from the humans involved, as Melissa de Zwart's notable account of Kerry Packer's involvement in The Panel litigation makes clear. Of course, once they become “precedents”, these cases go on to have a life above and beyond the conditions they produced them, sometimes with unfortunate consequences, as with Potter v. Broken Hill. The book also illustrates another universal theme: that the borders of intellectual property law are constantly under attack by litigants seeking their expansion to cover different types of interest, whether economic (horse-racing) or cultural (aboriginal art). The merging of historical context, biographical detail and amusing anecdote in this book results not just in fascinating insights into the various cases discussed, but also in a deeper and richer account of intellectual property law in Australia and beyond.
