Law Articles - February 2010

The following articles were gratefully supplied by Dilanchian Lawyers and Consultants - Intellectual Property and Innovation Professionals.

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9 game changers in IT, law and business in 2010

In 2010 major trends in IT, law and business intersect in nine postulations or game changers. Readers who find them cryptic can use the tags or search facility on the Dilanchian website, or see the reading list at the end of the article.

Research improves IP & IT law deliverables

I'm always researching. It's essential for business lawyers, especially for IP law, and even more IT law. IT lawyers must be proficient in digital media and technology, business considerations and yes the law too.

During the Summer holidays I read Chris Andersen's 2009 Free book twice. It was a very useful muse. Then I read a few more books, which included The Google Story by David A. Vise. Since then I've monitored my usual daily fix of e-newsletters and weekly RSS feed, which includes about 130 blogs and websites. From all this some working postulations have emerged about were things are heading. I'll write about that in the next Lightbulb article.

iiNet's copyright victory in round one cost $5.7 million

In February 2010 there have been two significant copyright decisions. The first is Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24. This first instance Federal Court of Australia decision went against the copyright claimants, 34 companies involved largely in film production funding and distribution.

In November 2008 they sued iiNet Ltd which claims the third largest number of clients for ISP services after Telstra and Optus. This followed a five month investigation by Australian Federation Against Copyright Theft ("AFACT") which was the lead representative for the 34 applicants. The round one hearing ran for 20 days.

At this time no appeal has been filed, but one is likely. That will be round two. [Update 25 Feb: An appeal has now been filed.]

Trade mark distinctive brands, save legal costs

After a 10 year gap in trade mark cases, the High Court of Australia delivered two trade mark decisions in December 2009. Both involved applications for removal of trade marks from the trade marks register. The cases provide technical legal guidance and valuable practical lessons.

Privacy law in 100 words or less

Australian privacy law applies to personal information such as a person's name, address and phone number. There is no general “right to privacy” in Australia.

Instead, the Privacy Act 1998 (Cth) imposes various obligations on those collecting, using or dealing with someone’s personal information. Certain businesses must comply with such law, though it's a good idea for all businesses to do so. For most businesses it's about developing and following a privacy policy. Here's ours.

Affected businesses must follow the National Privacy Principles. These NPPs were first developed by the OECD. This has helped harmonise privacy law across many jurisdictions. Special considerations apply for niche areas such as health and finance. Privacy law complaints may be made to the privacy commissioner - http://www.privacy.gov.au/.

Electronic publishing in 2010, same same but different

In 1994 I attended a summit on electronic publishing and wrote the article referred to. Re-reading, it I searched for whether the issues for publishers have changed.

Today the buzz is about mobile, cloud and tablet technologies. But I concluded that from a practical and legal perspective, remarkably little has changed. The short proof is the checklist at the end of the article. Read it first.

"My words fly up but my thoughts remain below. Words without thoughts never to heaven go." Claudius' famous lament was echoed in numerous comments made during the Electronic Publishing Summit held in Sydney on 5 September 1994. It was jointly convened by the Australian Book Publishers Association [Ed - now Australian Publishers Association] and the CSIRO with the aim of reaching consensus as to recommendations. Instead many questions flew up, few were answered definitively.

Phone directories appeal to avoid copyright wipeout

News Corp sources indicate that Telstra and Sensis have obtained leave to appeal Justice Gordon's judgment to the full bench of the Federal Court. No comment appears so far from the websites of Telstra or the About Us section of Sensis.

The full court judgment may arrive in 2010, or later, there are many variables in this case.

Whatever the outcome is in this case there are practical, serious and urgent priorities for owners of directories and databases who claim copyright.

Telstra loses as copyright blowback continues

Yet another Australian copyright decision, this one handed down on 10 February, has gone against the pro-copyright owner trend of recent decades. Telstra and Sensis have lost in the Federal Court of Australia before Justice Michelle Gordon in seeking to protect claimed copyright in White Pages and Yellow Pages.

The defendants were Phone Directories Company Pty Ltd, its directors and others. The company has been competing against Telstra/Sensis since the mid-1990s. Cleverly, at least initially the business of Phone Directories Company Pty Ltd produced directories for regional areas, places where Telstra was not active or not greatly.

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