Page:JT International SA v Commonwealth of Australia.pdf/25

French CJ

"the exclusive right to invention, trade marks, designs, trade name and reputation are dealt with in English law as special heads of protected interests and not under a wide generalisation."

It is a common feature of the statutory rights asserted in these proceedings that they are negative in character. As Laddie, Prescott and Vitoria observed :

"Intellectual property is … a purely negative right, and this concept is very important. Thus, if someone owns the copyright in a film he can stop others from showing it in public but it does not in the least follow that he has the positive right to show it himself."

In Pacific Film Laboratories Pty Ltd v Federal Commissioner of Taxation, Windeyer J spoke of the essential nature of a copyright:

"It is not a right in an existing physical thing. It is a negative right, as it has been called, a power to prevent the making of a physical thing by copying."

To similar effect, in relation to patents, was the observation of Lord Herschell LC in Steers v Rogers, quoted with approval by the plurality in The Grain Pool of Western Australia v The Commonwealth :

"The truth is that letters patent do not give the patentee any right to use the invention—they do not confer upon him a right to manufacture according to his invention. That is a right which he would have equally effectually if there were no letters patent at all; only in that case all the world would equally have the right. What the letters patent confer is the right to exclude others from manufacturing in a particular way, and using a particular invention."

The Commonwealth submitted that the property rights associated with the registered trade marks, design, patents and copyright asserted by JTI and BAT