Intellectual Property Policy Reform
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Intellectual Property Policy Reform

Fostering Innovation and Development

Edited by Christopher Arup and William van Caenegem

This state-of-the-art study argues that reforms to intellectual property (IP) should be based on the ways IP is interacting with new technologies, business models, work patterns and social mores. It identifies emerging IP reform proposals and experiments, indicating first how more rigor and independence can be built into the grant of IP rights so that genuine innovations are recognized. The original contributions then show how IP rights can be utilised, through open source licensing systems and private transfers, to disseminate knowledge. Reforms are recommended. The discussion takes in patents, copyright, trade secrets and relational obligations, considering the design of legislative directives, default principles, administrative practices, contractual terms and licence specifications.
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Chapter 13: Commodifying Sheer Talent: Perverse Developments in the Law’s Enforcement of Restrictive Covenants

Joellen Riley


Joellen Riley I. INTRODUCTION Earlier chapters in this book have examined ways in which law creates and protects certain intellectual property rights, with a view to proposing law reform that would promote innovation. This chapter shares the concern that law should support (and certainly not suppress) human ingenuity and thereby foster economic growth and development, in the broad interest of public welfare. The focus in this chapter, however, is not traditional ‘intellectual property’ law but the law of contract. More particularly, the concern here is with law relating to restrictive covenants in employment and service contracts. The claim in this chapter is not that the law itself needs to be reformed, but that the practice of law should return to the doctrinal purity of the past. This chapter argues that the law concerning the enforceability of restrictive covenants in employment contracts has slipped into serious error. In Australia at least, the enforcement of restrictive covenants is a matter of private contract law, so disputes are dealt with by the ordinary courts, exercising common law jurisdiction. Restrictive covenants in services and employment contracts are expressly excluded from federal competition laws in Part IV of the Trade Practices Act 1974 (Cth) by s. 51(2). There are only limited opportunities for review of contracts on the basis that they contain ‘unfair terms’ in Australia1 so that, by and large, arguments over the enforcement of restrictive covenants are litigated in the Supreme Courts of the States. It is to those courts that the...

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