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Cite as: (2003) 77(6) LIJ, p.70

Intellectual property, racial vilification laws, the law of secrets and legal techniques are the subjects of this month’s reviews.

Intellectual property, racial vilification laws, the law of secrets and legal techniques are the subjects of this month’s reviews.


Intellectual Property: Commentary and materials

J McKeough, K Bowrey and P Griffith, Intellectual Property: Commentary and materials (3rd edn), 2002, Lawbook Co, paperback $114.35.

The rapid development in new technologies such as the Internet and biotechnology has had significant impact on the traditional scope of intellectual property law and the release of a new commentary and casebook detailing the recent developments in the area is welcome.

This is the third edition of this casebook and it generally follows the format of the previous editions. It provides a commentary and a set of case extract materials on the traditional areas of intellectual property such as copyright, patents and trade marks, as well as other areas such as confidential information and protection of business reputation (via the Trade Practices Act). Commentary on each area is followed by extracts of important cases that place the general principles into context. It has been 10 years since the publication of the second edition and the authors have introduced a significant number of new cases and an expanded commentary.

The text provides a good overview of copyright with detailed chapters on the historical and conceptual issues, subsistence of copyright, ownership, exploitation and infringement.

The coverage of patent law includes a solid theoretical introduction. It is pleasing to see a brief outline of the procedure for obtaining a patent, which will provide students and practitioners who are new to the area with a good overview. It is also good to see a detailed discussion of the new innovation patent and the requirement for an innovative step.

I recommend this text to those who are interested in pursuing intellectual property studies. Those who have some experience in the area but do not necessarily have the time to keep up to date with the recent developments will also find the text a useful refresher.

Ian Horak
Phillips Ormonde & Fitzpatrick Lawyers


Regulating Racism: Racial vilification laws in Australia

L McNamara, Regulating Racism: Racial vilification laws in Australia, 2002, The Federation Press, paperback $44.

For a country born, shaped and identified largely by its multiculturalism, it may come as something of a shock to many that it was not until 1989 that New South Wales became the first Australian state to outlaw racial vilification. It would take until 2001 before similar laws were passed in Victoria.

Regulating Racism explores the issues and complexities surrounding the introduction of our nation’s first racial vilification laws. When vilification laws were first tabled in the commonwealth Parliament in 1974, debate was fierce. Proponents of free speech, led predominantly by the Liberal Party, argued strongly against the Bill in its tabled form on the basis of its perceived threat to the right to free speech. As a result, the Bill was passed in a highly diluted form which only allowed conciliation-based redress through the Human Rights and Equal Opportunity Commission. The criminal sanctions which had appeared in the draft Bill were deleted.

By contrast, the passage of the Anti-Discrimination Act through the New South Wales Parliament, which included criminalisation of racial vilification, was largely without significant incident or debate. This Act introduced a two-pronged approach to racial vilification by allowing a conciliation-based resolution mechanism through the Anti-Discrimination Board of New South Wales but also introduced criminal sanctions. However, as Luke McNamara explains, the wording of the Bill retained shortcomings reflective of underlying concerns for freedom of speech.

For example, racial vilification itself is not criminalised under the New South Wales Act as was initially proposed under the draft commonwealth Bill in 1974. Rather, only serious racial vilification which is aggravated by threats of, or incitement to cause, more serious personal harms invokes the criminal sanctions.

Regulating Racism provides a comprehensive and insightful analysis of the Australian racial vilification law framework, together with an in-depth summary of the relevant Australian Acts. McNamara critiques the content of the laws and the manner by which the laws have since been implemented and used.

The book avoids a detailed discussion of the racial vilification versus freedom of speech debate; however, an explanation of the competing arguments is provided. Furthermore, McNamara contributes his own views on the need for freedom of speech to be moderated in the interests of preserving and respecting minority rights within our multicultural society.

A thought-provoking and informative critique of Australia’s racial vilification laws, Regulating Racism avoids an overly legalistic approach. The book combines detailed information with ideological debate, within a broader social analysis of the need for racial vilification laws in a multicultural society.

Brook Hely
Minter Ellison


The Law of Trade Secrets and Personal Secrets

Dr Robert Dean, The Law of Trade Secrets and Personal Secrets (2nd edn), 2002, Thomson Legal, hardcover $275.

The Law of Trade Secrets and Personal Secrets by Dr Robert Dean is now in its second edition. In the 12 years since the first edition was published, one of the most significant changes in the law of trade secrets and personal secrets has been in the law concerning the protection of an individual’s privacy. The book suggests that this change has occurred as a result of advances in the use of computer technology, the Internet and data by business, media and government which has consequently prompted a desire in individuals to ensure legal protection of their personal information.

The book examines breach of confidence, looking at the categories of confidential information and obligations of confidence. Consideration of the springboard doctrine which applies following publication of confidential information is included. Dr Dean outlines the particular duties of confidentiality flowing from specific relationships, including fiduciary relationships, employer–employee relationships, professional and client relationships. The Law of Trade Secrets and Personal Secrets also considers secondary causes of action that may be invoked to protect confidential information, including an action in trespass or nuisance.

In the commercial context, the book examines restraint of trade covenants and trade secrets.

The protection and disclosure of confidential information in the context of litigation is considered. Specifically the book includes details of Anton Piller orders (including practical guides), prevention of litigation, conduct of litigation and resisting discovery of information.

The book provides a thorough analysis of relevant English and Australian case law and legislation in relation to the law of trade secrets and personal secrets. In addition, it contains as an appendix a useful and practical table containing a characterisation of secret information by subject matter.

Overall, The Law of Trade Secrets and Personal Secrets is a comprehensive, valuable and functional textbook on this area of the law.

Elizabeth Levinson
Freehills


Legal Technique

C Enright, Legal Technique, 2002, The Federation Press, paperback $66.

Can you remember how you learned your law? Was it by trial and error, an inspirational teacher or well-structured articles? The author’s thesis in writing this book as a primer for law students is that:

“[There is] a distinction between implicit and explicit knowledge of a technique. When a person has explicit knowledge, they have the technique in their conscious mind so they are aware of what it is. With implicit knowledge, however, the technique is not in the person’s conscious mind and they are not aware of what it is. Therefore they are not conscious of how to do the task in question.”

This theme of seeking to make everything “explicit” (in the author’s terms) underpins the whole book. Broadly, the topics covered are making, interpreting, using, reading and writing law.

Each chapter sets out in a logical way the analysis of the author’s argument. An example from chapter 27 which deals with “Using law” illustrates the author’s methodology.

In his opinion, there are four steps, namely:

  1. Organising law into checklists of elements and consequences which apply when those elements are satisfied.
  2. Establishing the facts of the matter, because only then can it be ascertained that they are the facts to which the law applies.
  3. Application of the law to the facts.
  4. Interpretation of the law, if it is ambiguous.

All students would be taught to apply this schema to trying to resolve legal problems. No one would have any quarrel with that. The overarching question for this reviewer, however, is whether the author has overstated his thesis. Everyone would acknowledge that each statute, common law doctrine and application of law must be broken down into its component parts and each element of an offence or transaction tested. However, to base an entire introductory legal subject (and a tome of 564 pages) using this approach is tedious and far too narrowly focused.

The most successful section, in this reviewer’s opinion, discusses using law. The subdivisions of dealing with organising law, establishing facts and proving facts with evidence are insightful, as are the accompanying diagrams and schematic representations in the appendices.

The teaching of law, particularly in its early years, should expose the student to a variety of approaches – historical background, social setting and jurisprudential underpinning. To do otherwise is to risk boring the student with an overly formal, pseudo-mathematical, lock-step approach. In conclusion, this book would not be a stimulating vehicle for teaching or practising law. It would make a suitable set of chapters on statutory interpretation in a larger text which drew on a broader canvas.

Alan Ray
Springvale Monash Legal Service Inc


books@liv.asn.au

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