1. Make Decisions in a Legal Context Part 2 (Lecture 9 to 17)
Diploma of Financial Services (Banking)
FNSACCT404B
Make Decisions in a Legal Context
Part 2 (Lecture 9 to 17)

2. Lecture 9 Workplace Relations Employment Contracts
Workplace Relation Law
Hand out presentations for Week 12

3. Workplace Relations System & Law
State responsibility as per Constitution;
Fair Work Act (SA) 1994;
Since Workplace Relations Amendment (Work Choices) Act ‘Constitutional Corporation’ (trading, financial);
Distinguish partnerships, un-incorporated associations, sole trader, incorporate assoc (non substantial trading or financial) – state laws apply
State laws re OH&S, workers comp & long service leave not affected;

4. Examples: Public hospitals
The Royal Prince Alfred Hospital, Sydney, provided medical and surgical services for fees (approximately $14 million in the relevant year) and earned an amount for ‘business activities’ (approximately $4 million). This was despite the fact that it was incorporated under a statute to perform public functions and that its income from these sources was dwarfed by its income from public funding (approximately $112 million).

5. Charitable institutions - the Australian Red Cross
The Australian Red Cross Society and the NSW Division of the Australian Red Cross Society earned considerable sums of money from the sale of goods (over $2 million dollars in ). It did not matter that the trading activities were not motivated by the hope of private gain but were directed at earning revenue for charitable activities.

6. AWARDS Federal or State
Set out minimum wages and employment conditions eg:-
Min rates of pay;
Allowances;
Hours of work;
Leave provisions;
Overtime, shift penalty;
Redundancy;
Dispute settlement procedures

7. Federal Awards Link between disputes & awards
AIRC could only set a national award through registration of dispute by union & employer eg Aust Hotels Assoc
Employer & Union register dispute
Union set out claim for pay & conditions (log of claims);
Employer rejected – counter offer;
Above = ‘dispute’

8. Federal Awards
Apply to named employer or if member of federally registered employer organisation named (eg Australian Hotels Association);
Also cover employees of above, those in Vic, NT & ACT & const corps (if no collective or individual agreement)
Pre Workchoices
Cwlth Constitutional power re intervention in ‘interstate disputes’

9. Employment Agreements (Award free workplace)
Employer & Union, Employer and employees;
Applies to industry not occupation;
Checked by Workplace Authority
EBA to be certified with AIRC or SAIRC;
EBA prevails over award (inconsistency);
Nominal expiry date of up to 5 years

10. Collective Agreement
A Collective Agreement passes the NDT if the Workplace Authority is satisfied that the agreement does not result, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees who are subject to the agreement under any reference instrument relating to one or more of the employees.

11. AWA – Individual Agreements
Between employer & employee duration 5 years;
As of March 2008 no new AWAs;
Existing expire in 2012;
Can offer ITEA – new employers & existing AWAs (2 yr period);
‘no disadvantage’ test applies

12. ITEAs new type of agreement as of 28 March 2008
Individual agreement subject to the NDT
Nominal expiry date of 31 December 2009
Can only be made by employers who, as at 1 December 2007, were employing at least one staff member under an AWA, a preserved state agreement of Victorian employment agreement.
ITEAs for new employees may be used from date of lodgement with Workplace Authority.
ITEAs for existing staff may be used from the date seven days after notification is received from the Workplace Authority that the agreement has passed the NDT.

13. Australian Fair Pay & Conditions Standard
The Australian Fair Pay and Conditions Standard (the Standard) is a legislative safety net of minimum wages and
conditions of employment.
Employers making new workplace agreements must provide entitlements which are equal to or more favourable than the Standard.

14. Australian Fair Pay & Condition Standard
annual leave four weeks, pro rata and cumulative, additional week for shift workers — possible to cash out two weeks at employee’s request
personal/carer’s leave (including sick leave) 10 days pro rata and cumulative, plus additional two days of unpaid carer’s leave, and two days of paid compassionate leave
parental leave one year unpaid
maximum ordinary working week of 38 hours
minimum wage rates as determined by the AFPC.(Source:

15. Key components
10 legislated National Employment Standards for all employees
a modern, simple award system
an enterprise-level collective bargaining system
Changes to unfair dismissal laws
Creation of Fair Work Australia

16. Fair Work Australia
Fair Work Australia will be fully operational by 1January 2010 and will replace the following Australian Government agencies:
Australian Industrial Relations Commission
• Australian Industrial Registry
• Australian Fair Pay Commission
• Australian Fair Pay Commission Secretariat
• Workplace Authority
• Workplace Ombudsman
• Australian Building and Construction Commission (from 1 February 2010)

17. Fair Work Australia
Fair Work Australia will be a ‘one stop shop’ to provide practical information, advice and assistance to deal with workplace issues and to ensure compliance with workplace laws.
Independent Umpire - Fair Work Australia will be run independent of unions, business and government

18. Employment Agreements (Award free workplace)
State
Enterprise Agreements (EBA)
Approved by majority of affected employees
AWA – employer and employee individually
Legally binding (see workbook update)

19. Federal Agreements Pre WC Post WC Certified (collective) & individual;
Still operate if made prior to WC
Standard does not apply because of previous ‘no disadvantage’ test
Post WC
Standard applies (4 min legislated conditions + relevant min rate of pay);
Subject to ‘fairness test’;
Can remove/modify 7 of 15 current ‘Protected Award Conditions’ – no compensating benefits

20. Australian Fair Pay & Condition Standard
annual leave four weeks, pro rata and cumulative, additional week for shift workers — possible to cash out two weeks at employee’s request
personal/carer’s leave (including sick leave) 10 days pro rata and cumulative, plus additional two days of unpaid carer’s leave, and two days of paid compassionate leave
parental leave one year unpaid
maximum ordinary working week of 38 hours
minimum wage rates as determined by the AFPC.(Source:

21. Greenfields Agreements
Employer alone
New venture, no employees;
Employment conditions already in place;
Made up to 12 months
Assistance from Office of Employment Advocate
Union
Employer & union
Made up to five years

22. Lecture 10 & 11 Sale of Goods Act Consumer Protection
Consumer Protection Legislation
Consumer Protection Acts
Fair Trading Acts
Trade Practices Act
Goods v Services
Ownership
Transfer of Title
Delivery
Implied Conditions
Implied Warranties

23. Consumer Protection Legislation
Why do we need consumer protection laws?
Consumer Protection reforms - changes to existing Common Law (tort and contract law) principles due to:
mass consumption,
marketing,
new technologies and information systems,
new and complex products,
Changes to demand,
International factors.

24. Consumer Protection Historical approach
Laissez-faire approach - no restriction or control by government on individuals transactions, especially trade.
All individuals should be free to contract.
Caveat emptor - "let the buyer beware"
Rely on the ‘ethics’ of sellers

25. Consumer Protection Consumer Protection
Legislation – rights and responsibilities
Consumer groups
Product testing
Advisory functions (product contents)
Information and assistance

26. Legislation Sale of Goods Acts (States and Territories)
Consumer Transaction Acts (States and Territories)
Fair Trading Acts (States and Territories)
Trade Practices Act (Federal)

27. Sale of Goods Act
Section 1 - "a contract whereby the seller transfers or agrees to transfer the property in goods for a money consideration called the price".

28. Sale of Goods Act Application
SOGA – only applies to goods (tangible personal property)
Must be valid contract;
Monetary consideration only (not barter);
Applies to:-
Sale (ownership transferred at time contract made);
Agreement to sell (ownership passes at some future time)
Property – ownership of title not just transfer of possession only

29. Goods v Services SOGA – only goods (furniture, cars, clothes etc);
Ascertain substance of contract
Transfer of ownership for goods or services?
If predominantly for skill (goods secondary) then SOGA not applicable;
Robinson v Graves; Aristoc Industries Pty Ltd v Wenham; Toby Constructions (p167)

30. Transfer of Ownership Types of goods recognised under SOGA:-
Specific or ascertained goods
clearly identified, agreed on when contract made eg CD;
Unascertained goods
described in contract in general terms, but not specifically identified and agreed at time of contract
eg order of rubble from building site
Future goods
sellers will manufacture after entering into contract with buyer eg lounge manufacturer

31. When does ownership pass from seller to buyer?
Important to ascertain who bears risk;
General rules as to when title of goods passes:-
Specific Goods:-
Title usually transferred by contract of sale (specific goods);
Unascertained and Future Goods:-
When identified and set aside (‘unconditionally appropriated’) see Warder’s Import v Norwood (p558 V & P)

32. Specific rules as to when title of goods passes
Unconditional contract for the sale of specific goods in a deliverable state
Property passes to the buyer when the contract is made.
Regardless of whether the time of payment, or time of delivery, or both have been postponed.
eg bicycle bought and paid for but collect at later date – owner bears risk

33. (2) Goods in a non deliverable state
Specific goods in a non-deliverable state: - seller needs to act in some manner to put goods into a deliverable state
- Property does not pass until goods are in a deliverable state and buyer has been notified.
- eg car purchased but air conditioner to be fixed

34. (3) Specific Goods needing to be priced
Seller needs to weigh, measure, test or do something else with the goods in order to determine the price
Property does not pass until price is determined and the buyer is notified.
eg carpet

35. (4) Goods ‘on approval’ or ‘sale or return
Property passes to the buyer when the buyer signifies approval or acceptance to the seller
If no communication from buyer and no notice of rejection:-
If time for acceptance specified, property passes on expiration;
No time fixed then passes with ‘reasonable time’?

36. (5) Unascertained or future goods
Ownership passes when the seller unconditionally puts aside or appropriates the goods to the contract.
Goods are received by buyer when delivered to buyer (by seller), or when transferred to an independent delivery driver / carrier.
Warder’s (Import and Export Co) v Norwood

37. Sale of Goods Act Rules as to Delivery of Goods Section 27
It is the duty of the seller to "deliver" the goods in accordance with the contract.
It is the duty of the buyer to accept the goods and pay for them.

38. Sale of Goods Act Rules as to Delivery of Goods Section 29
S 29(1) - The place of delivery is the seller's place of business or, if none, the seller's place of residence
 S 29(2) - Delivery within a reasonable time
S 29(4) - Delivery must be at a reasonable hour
S 29(5) - Delivery expenses are the cost of the seller

39. Sale of Goods Act Delivery of Wrong Quantities Section 30
S 30(1) - Buyer receives less than contract amount of goods:
buyer can reject all the goods;
if buyer accepts the goods, the buyer must pay for the goods at the rate set out in the contract.

40. Sale of Goods Act Delivery of Wrong Quantities
S 30(2) - Buyer receives more than contract amount of goods:
buyer can reject all the goods;
if buyer accepts all the goods, they all must be paid for at the contract price, or
buyer may accept the amount contracted for and reject the rest.

41. Sale of Goods Act Delivery of Wrong Quantities
S 30(3) - buyer receives contract order mixed with unordered goods:
buyer can reject all the goods;
buyer may accept the contracted order and reject the rest.

42. Sale of Goods Act Delivery to a Distant Place Section 33
Where the seller agrees to deliver goods at his / her own risk to a place other than from where the goods are sold
The buyer takes the risk that the goods may deteriorate in transit.

43. Title of Transferee Estoppel Sale by Mercantile Agent
Sale under Voidable Title
Sales by buyer or seller in possession after sale
Sale under statutory power
Sale in market overt

44. Sale of Goods Act Implied Conditions and Warranties
SOGA implied terms v express terms.
Express terms will prevail, therefore unlike other consumer protection legislation - the terms of the SOGA can be excluded by agreement.

45. Sale of Goods Act Implied Conditions as to Title – s12(1)
That seller has right to sell the goods
If this condition is breached, the buyer is entitled to reject the goods and claim a full refund.

46. Sale of Goods Act Implied Conditions
Correspondence with Description - S13
Where goods are sold by description the goods must correspond with that description.
Eg seen in catalogue
See Ashton Piggeries and Moore & Co v Landaver & Co (p160)

47. Sale of Goods Act Implied Conditions Merchantable Quality - S14(2)
Goods should be of such quality that a buyer fully acquainted with the quality of the goods, and therefore being aware of any hidden defects would buy
David Jones Ltd v Willis (p167)

48. Sale of Goods Act Implied Conditions Fitness for Purpose - S14
4 elements as follows:-
Buyer expressly or by implication informs the seller of the purpose to which the goods are to be put
Buyer relies upon the seller's skill and judgement
Goods must be in the course of the seller's business to supply
Goods must be reasonably fit for that purpose
Frost v Aylesbury Dairy Co Ltd

49. Sale of Goods Act Implied Conditions Sale by Sample - S15
A sample of the goods was shown to the buyer before she/he agreed to buy them
The quantity of the bulk of the goods should correspond with the sample;

50. Sale of Goods Act Implied Conditions Sale by Sample - S15
the buyer should have a reasonable opportunity to compare the bulk goods with the sample;
the goods should be free from any defect making them unmerchantable which would not be apparent on reasonable inspection of the sample.
(each condition independent of the other)

51. Sale of Goods Act Implied Warranties Quiet Possession - S12(II)
The buyer shall have and enjoy quiet possession of the goods.

52. Sale of Goods Act Implied Warranties
Free From Charge or Encumbrance - S12(III)
The goods shall be free from any charge or encumbrance in favour of any other party, not declared by the seller to the buyer at or before the time the contact was made.

53. Lecture 12 & 13 Business and e-Commerce Transactions
ACCC
Un-conscionable Conduct
False & Misleading Representations
Pyramid Selling
Implied Conditions
Implied Warranty
Manufacturers Liability
Product Safety
Competition
Remedies
Price Fixing
Secondary Boycotts & Industrial Action
Market Power
Predatory Behaviour
Resale Price Maintenance
Mergers
Statutory Exemptions
Authorisations
Notification
Business and e-Commerce Transactions
Restrictive Trade Practices

54. E-Commerce Transactions and Law
B2C – Business to Consumer – guidelines
Contractual negotiations
Defamation
Intellectual property protection
Electronic Transactions Act
SPAM Act 2003

55. Trade Practices Act (TPA)
Parallel provisions - Fair Trading Acts
Corporations
Interstate trade
Use of post, telephone, radio, television or other like services
Supply Commonwealth government
Intellectual Property
Professional Businesses

56. Trade Practices Act create a competitive and efficient economy;
limit the growth of monopolies;
protect the consumer;
regulate business and trade practices.

57. Australian Competition and Consumer Commission (ACCC)
To take action against corporations and persons who breach the TPA
Authorise conduct that would be prohibited as a restrictive trade practice, but which is of benefit to the public
to hold hearings and / or order people to give evidence and supply relevant documents
to carry out research and to provide information to consumers and businesses

58. ACT / Federal Court The Australian Competition Tribunal
May review the decisions of the ACCC and has the power to confirm, vary or void those decisions
Federal Court
The Federal Court may hear appeals from the ACCC and the ACT, and has the power to interpret the TPA and punish breaches of its provisions

59. TPA - Section 51AA, 51AB and 51AC
UNCONSCIONABLE CONDUCT
51AA – General duty to treat consumers fairly
51AB – Prohibition of unconscionable conduct
51AC – Unconscionable conduct against small business

60. TPA - Section 52 – Corporations
Misleading and Deceptive Conduct
Mislead – lead astray / lead into error
(not actual but could)
Deceive – to cause a belief which is false

61. TPA - Section 52 The ACCC will consider:
the type of person to whom the representation is addressed
the meaning of the words
whether the statement is ambiguous
whether false tests and surveys have been used as a basis of advertising

62. TPA - Section 52 misleading packaging and labelling
Special offers which do not eventuate and are not true
Failure of advertisements to disclose hidden charges
Inaccurate sizes and dimensions
Country of origin of goods
Age of the goods
NO FINE IMPOSED

63. TPA – Specific Banned Unfair Conduct Section 53
False or Misleading Representations
(a) the standard, quality, grade, composition, style, model or history or particular previous use of goods
(aa) The standard, quality, value or grade of services

64. TPA - Section 53 (b) Whether the goods are new
(bb) A particular person having agreed to acquire the goods
(c) The sponsorship, approval, performance characteristics, accessories, uses or benefits of goods and services

65. TPA - Section 53
(d) The sponsorship, approval or affiliation of the corporation
(e) The price of goods or services
(ea) The availability of repair facilities or spare parts
(eb) Country of origin

66. TPA - Section 53 (f) The buyer’s need for goods or services
(g) The existence, exclusion or effect of any condition, warranty, guarantee, right, or remedy

67. TPA - Section 53C Not specifying the Full Cash Price
- Advertising part of the price e.g. deposit

68. TPA - Section 54 Falsely offering gifts or prizes
Not enough information re terms
Gifts or prizes differ to those advertised

69. TPA - Section 55 and 55A Misleading conduct regarding services
Nature, characteristics, suitability for purpose, or quality of services

70. TPA - Section 56 Bait advertising
Advertising goods at a specified price, where the business will not be able to offer goods at that price
“Reasonable” quantity or “reasonable” period of time

71. TPA - Section 57
Referral Selling
Note ‘Spotter’s fees’

72. TPA - Section 60 Harassment or Coercion
Which element of the contract is missing?

73. TPA - Section 61
Pyramid Selling

74. TPA - Section 63A Unsolicited Credit or Debit Cards
What would happen to Australia’s bankruptcy rate?

75. TPA - Section 64 and 65 S64 - Unordered Goods or Services
S65 – Liability of Receipt of Unsolicited Goods
3 months after delivery
Notice – One month

76. TPA - Penalties / Civil Remedies
Fine up to $1,100,000 corporation
Fine up to $220,000 individual
Damages
Other orders

77. TPA - Implied Conditions
Title (Section 69 (1))
Correspondence with Description (Section 70)
Merchantable Quality (Section 71 (1))
Fitness for Purpose (Section 71 (2))
Sale by Sample (Section 72)

78. TPA - Implied Warranties
Quiet Possession (Section 69 (1) (b))
Free from Charge or Encumbrance (Section 69 (1) (c))
Services rendered with due care s74(1)
Services fit for purpose s74(2)

79. TPA - Product Information
Part V Division 1A
Warning notices
Banning goods
Compliance standards
Recalls
Compulsory
Voluntary

80. Manufacturers Liability
South Australian
Manufacturer’s Warranties Act 1974
Merchantable quality
Fit for purpose normally used

81. Product Safety Food Act Controlled Substances Act Food Standards
Trade Standards Act

82. Restrictive Practices
Part IV TPA is to encourage, support and strengthen competition or rivalry in the market place
Competition – rivalry in the marketplace
Should be:-
Several suppliers for comparable goods & services;
Complete freedom to select and change suppliers so that the influence of dominant suppliers can be influential but not restricting;
Accurate information freely available to all operators so that informed decisions possible;
No bar to entry for competitors

83. Competition & Breach
when concept of competition must be addressed to see if a breach has occurred the relevant steps are as follows:-
Define nature and extent of market;
Assess probable nature and extent of competition which would exist but for the conduct in question;
Examine the existing state of competition in the market;
Establish the lessening of competition if any, by comparing point (2) above with point (3)

84. Market See Queensland Cooperative Milling Assoc (p227);
Market & Competition
Determine whether corporations are competing with each other in same market and consider:-
Number, size and distribution of independent sellers and in particular degree of market concentration;
How difficult it is to enter the market (eg barriers);
Influence of promotion and extreme difference in products;
Character of vertical relationships with customers and with suppliers;
Nature of any formal, stable arrangements between suppliers which restrict their ability to function as independent entities

85. Specific Restrictive Trade Practices - Section 45
General prohibition against anticompetitive agreements;
Contracts, arrangements or understandings which have the purpose of or likely to substantially lessen competition

86. Prohibited Practices
Agreements to share markets with other traders by dividing up customers, territories or markets between them;
Agreements to regulate the supply of goods to a market to keep demand price high;
Exclusionary provisions or primary boycotts (forbidden whether or not reduction in competition), no authorisation

87. Penalties / Civil Remedies
Fine up to 10 million corporation
Fine up to $500,000 individual
Damages and Injunction

88. Section 45A Price Fixing – ‘meeting of minds’ Horizontal price fixing
Prohibited outright – not necessary to show that likely to lessen competition
Distinction between parallel pricing
Exceptions
Joint venture pricing
Recommended price agreements
Collective buying

89. Section 45D and E Secondary Boycotts
2 persons collude to damage a fourth party by exerting pressure on a third party to prevent or hinder the supply of goods or services to the fourth party
Fines up to $750,000

90. Secondary Boycotts & Industrial Action
Not prohibited if dominant purpose relates to:-
Employment matters;
Environmental protection;
Consumer protection
Industrial action is prohibited however

91. Section 46 Misuse of Market Power No authorisation available
Prohibition of corporation with a substantial degree of power in a market from taking advantage of its power for purpose of:-
Eliminating or damaging a competitor in that market;
Preventing a competitor from entering that or any other market, or;
Deterring someone from being competitive in that or any other market
No authorisation available

92. ‘Substantial degree of market power’
Determined by nature of market;
Need not be major corporation eg Telstra;
Any corporation which can substantially influence the supply of goods or services in a specific market;
If market so big such that conduct unable to substantially lessen then no misuse;

93. ‘Market power’
Ability of firm to raise prices above supply cost without rivals attracting customers;
Market share of firm;
Extent to which firm’s conduct in market is constrained by that of competitors or potential competitors;
Extent to which new entrants have access

94. Conduct in Breach Plaintiff must prove:-
Pl and defendant suppliers of goods in the market for those goods or services;
Def has substantial degree of power in market;
Plaintiff is competitor of the defendant in that or any other market;
Defendant has taken advantage of that power for the purpose of preventing the plaintiff from entering that or any other market;

95. Particular prohibitive conduct
Predatory pricing;
Exclusive dealing arrangements and requirement contracts;
Withdrawal of supply to customers who deal with competitors;

96. TPA - s46AA Predatory ‘below cost’ pricing; Small business ‘victory’;
Woolworth controversy (p240 workbook);
Rudd government proposed reforms (p637 V & P)

97. TPA - Section 47 Prohibits exclusive Dealings - vertical restraints
Manufacturer (X) supplies goods to wholesaler (Y) on condition that Y does not purchase goods from a competitor
Or limits resupply of goods/services to particular persons or geographic location
Requires effect or purpose of substantially lessening competition

98. Third Line Forcing
Supply of goods/services on condition that purchaser will not acquire from unrelated supplier or third party;
Absolutely prohibited - does not require establishment of reduction of competition

99. TPA - Section 48 Resale Price Maintenance Vertical price fixing
Specification of minimum price below which goods/services cannot be sold
May a supplier recommend a price?

100. TPA - Section 50
Mergers
Acquiring shares to lessen competition in the market
ACCC automatically investigates merger negotiations that could create a company with:-
A market share of more than 40%, or;
Where the market share is more than 15% and the remaining 85% share is held by less than 4 competitors

101. TPA - Section 50A
Acquisitions outside Australia

102. TPA - Statutory Exemptions
conduct specifically authorised;
Restraint of trade clauses;
Agreements between professionals;
Boycotts by consumers against suppliers and retailers

103. TPA - Authorisations
For all restrictive trade practices except s46 – misuse of market power
ACCC to apply one of two tests:-
Public benefit test vs competition test– does this exceed the reduction in competition which will result?
Applies to anticompetitive arrangements, price fixing and exclusive dealing
Public benefit test
Applies to prim & sec boycotts, third line forcing, resale price maintenance and mergers;
Does the benefit to the public that will result justify the practice?

104. TPA - Notification Exclusive dealing
Immediate & automatic immunity upon ACCC notification;
Can be revoked
Conduct substantially lessens competition and any public benefit flowing from conduct outweighed by lessening of competition
Third line forcing
Immunity at the end of prescribed period from notification;
Revoked if public benefit does not out-weigh public detriment

105. Lecture 14 Intellectual Property Copyright Author Qualified
Literary Works
Dramatic Works
Artistic Works
Musical Works
Ownership
Duration
Infringement
Exceptions
Remedies
Design
Registration
Patent
Trademarks
Confidential Information
Intellectual Property

106. What is Intellectual Property?
Protection for property of the mind – i.e. creativity, inventions, knowledge, and ideas.
IP covers – copyright, patents, trademarks, designs, confidential information / trade secrets, domain names, and plant breeder’s rights.

107. COPYRIGHT Creator assumes rights to work upon creation
Copyright is the right to copy or reproduce a form of expression of an idea or information
The right to prevent others from copying or reproducing a form of expression without the owner’s authority

108. Applicable Law Copyright Act 1968 (Cth) – s51(xviii) Constitution;
April Copyright Amendment Act 2006

109. COPYRIGHT Automatically protected © date and owner’s name
Copyright notice advisable
“This work is copyright. Apart from any use permitted in the Copyright Act, no part may be reproduced by any process, or any other exclusive right exercised, without the permission of (name and address of copyright owner and the year in which the work was made).”
(Extract from “Attorney General’s Department, Copyright Law
in Australia, A Short Guide – January 2000)

110. Scope of Copyright Act 1968 PART III Works Exclusive Rights
Literary, dramatic & artistic works
To reproduce, publish, perform, adapt, broadcast, transmit to subscribers of a diffusion service (eg cable); restrict others from dealing (using) with the work; assign, lease or licence others to deal with the work
Artistic works
As above, except for right to perform or adapt
PART IV WORKS
Films and sound recordings
To copy, broadcast, show to the public and transmit to subscribers of a diffusion service
Broadcasts (TV & radio)
To broadcast, rebroadcast; show to the public
PART XIA LIVE PERFORMANCES
By actors, dancers, singers, buskers and circus performers
To record or broadcast. They automatically co-own copyright in any sound recording of their work under the Australia-US Free Trade Agreement Implementation Act 2004

111. COPYRIGHT – what does it protect?
Protection of unauthorised reproduction by third party;
Part III - original ‘works’
Literary
Dramatic
Musical
Artistic
Only protected if 4 tests satisfied

112. 1. Work ‘made’ or ‘published’
Protection as soon as recorded in some ‘material’ (permanent) form (eg video, writing or drawing);
Eg house plans as soon as sketched or described in written report;
‘Published’ – supplied to public eg report as PDF file downloadable on internet;
Most works made then published
(protection of unpublished work – first creator – copy in sealed envelope by registered post)

113. 2. Author qualified 3. ‘Original work’
Residential connection with Australia (eg perm resident or citizen)
3. ‘Original work’
Form of idea but not idea itself (not protected)
Originates from author (produced by or under direction);
Not a copy; and
Some degree of skill, judgment or effort;
Need not be high degree of originality
(see John Fairfax & Sons and Donoghye v Allied Newspaper Ltd p258)
4. Author ‘first’ party to make or publish the work

114. a. Literary Works Not required to be great pieces of literature;
Do require some skill & effort in creation;
Include:-
written table;
compilation;
computer program;
Catalogues, pamphlets;
exam papers;
original adverts;
instructions;
Labelling
NB – single words, slogans, titles not protected as ‘literary works’

115. b. Dramatic Works No statutory definition; Include:-
Theatrical scripts,
Films scripts and scenarios (broad outlines of films)
Must be in material form and intended for performance
Possible overlap eg play (literary & dramatic);

116. c. Artistic Works 2 categories:-
clearly artistic (eg paintings, drawings, sculptures, cartoons, maps);
Artistic craftsmanship (tapestry, jewellery, furniture)
NB - plans and constructions drawings not included – patent law applies

117. d. Musical Works eg score of musical work (from jingle to aria);
Words could be literary work;
Separate copyrights – could involve 2 separate parties
APRA collects royalties on behalf of musicians and songwriters

118. Copyright Ownership Usually creator; Exceptions:-
Employment (employer);
Commissioned work (commissioner) – except if artist informed of purpose, then artist may restrain use for any other purpose;
Photographs – photographer – except those for private or domestic nature then commissioning owner

119. Duration Part III Works
Published works
Life of author plus 70 years
Unpublished, not performed in public, broadcast or sold as recording during lifetime of author
Indefinitely
Posthumously published
Copyright protection expires at end of 70 years after publication

120. Part IV Copyright Covers ‘products’ from ‘commercial’ effort:-
Sound recordings;
Films
Broadcasts
Rights to:-
Copy, broadcast, transmit

121. Owner Part IV Copyright
Sound recording or film = maker
Commissioned sound recordings and films = commissioning party
Duration
Sound recording and films = 70 years from end of 1st year of publication;
If unpublished = indefinite until published;
Radio & TV broadcasts – 70 years from making of broadcast

122. Infringement - has there been substantial copying?
How much of the work was used?
What was the defendant’s purpose?
How much did defendant’s work compete with that of the owner?
See Milpurru v Indofurn Pty Ltd (p258)
Infringement when party exercises owner copyright without authorisation (eg licence)

123. Exceptions to infringement
Balance right of copyright owners with needs to general public:
FAIR DEALING
Research or study;
Criticism or review;
Reporting or news, or
Professional legal advice

124. Exceptions cont….. Other exceptions
Owner of copy of computer program making copy for backup purposes;
Public performance of a literary, dramatic or musical work at guest houses or premises where people reside or sleep;
Reproduction for broadcasting purposes and filming or recording for private domestic uses;
Educational compilations (restrictions)

125. Leibovitz v Paramount, 137 F 3d 109 (1998)

126. Remedies for Infringement (p262)
Injunction
Mareva injunction
Anton Pillar order
Damages
Account of Profits
Delivery of copies

127. DESIGN Designs Act 2003 (Cth)
ss6-7 – anything which has shape, configuration, pattern, ornamentation or other features
ex.shtml
Registration required with IP Australia
acquisition of exclusive rights to apply design to manufactured article and to authorise application upon licence

128. Eligibility for registration
Features must be new and distinctive – s15
No previous public use or publication
Not substantially similar in overall appearance to other designs publicly available
Can be seen on a manufactured or handmade product
Design need not be appealing (eg bottom of toilet pan)!

129. System of Registration
Design owner to file application claiming rights in a design;
Certificate of Examination – confirming ‘new’ and ‘distinctive’
Duration & Benefits
Exclusive rights to apply design to mass produced goods and also to authorise others to do so;
Protection exists for 10 year max

130. Infringement and remedies
Person without authority of registered designer:-
Copies design or makes an obvious imitation or fraudulent imitation; or
Commercially deals with the design; or
Imports the design

131. Co-existence with Copyright
ORIGINAL CHARACTER – protected by copyright
Registered design
Registered design
2 dimensional ‘surface designs’
3 dimensional industrially applied
All rights protected under Design Act no Copyright protection
Copyright and design protection

132. PATENT
A registered patent grants to the owner the exclusive right to exploit an invention (eg improved product or device);
temp monopoly granted to owner in return for disclosure of invention to public;
Patents Act (1990) Cwlth;

133. Patent protection Regulated through IP Australia Patent Office;
Manner of manufacture
Invention must relate to tangible article;
Discoveries, theories, not patentable
See National Research & Development Corp v The Commissioner of Patents (p265) and Joss v The Commissioner of Patents

134. Novelty Must be new ie: not already known;
Not new if disclosed to public in any form (eg: public use of drilling tool in local factory)
NB ‘Grace Period’
Inventive step
Usefulness
- Must actually work – must be able to perform not whether it will sell

135. PATENT Duration Innovative ‘minor’ inventions – 8 years
Standard ‘major’ inventions – 20 years
Infringement
Acting contrary to owners exclusive right to exploit
Important to define claim for invention accurately – too narrow then slight variation by another allowed
See Rodi & Weinenberger AG v Henri Showell Ltd (p266)

136. Remedies Injunctions; Damages Account of profits
S122 – remedies not available if innocent breach

137. TRADEMARKS Trademarks Act 1995 (Cth)
“ a sign used or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person”
A trademark is a sign which indicates that goods or services originate from a particular trader

138. TRADEMARKS
“Sign”- includes any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent.
Registration required with IP Australia in respect of:-
Goods, services or goods & services
Application to contain representation of TM
Specify goods and/or services in respect of which TM is sought;
34 classes of goods, 8 classes of services (eg food, business, advertising);
Separate class fee charged

139. TRADEMARKS An application will be rejected if it:
contains a sign prohibited by regulation
cannot be represented graphically
does not distinguish the applicant’s goods or services
consists of scandalous or illegal matter
contains matter likely to deceive or cause confusion
is substantially identical or deceptively similar to a trademark registered by another person

140. TRADEMARKS Duration 10 years Unrestricted right of renewal
Infringement
If used in registered form without authorisation, or in form likely to mislead or deceive (eg similar);
No infringement if used comparatively;
Can be cancelled if
not exercised for 3 years;
If term becomes generic – eg cola, escalator, Pyrex, lino

141. PASSING OFF (p268) Common law action
Protection for the goodwill of a business
The defendant seeks to pass their own goods or services off as the product or service of a more successful competitor
See Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd & Hogan v Koala Dundee Pty Ltd
Civil remedies apply

142. CONFIDENTIAL INFORMATION (p268/270)
Common law action - Duty of confidence
Protection gained via contractual obligation or an implied condition of a contract
It may be owed by a present or past employee to an employer, by a vendor of a business to a purchaser of a business or by a professional advisor to a client

143. Lecture 15 Debt Collection and Bankruptcy Creditors
Un-available Property
Recovery of Property
Restrictions
Alternatives

144. Bankruptcy
‘Insolvent’ – unable to pay debts as and when they fall due;
Bankruptcy Act (Cth) 1966;
Administered by ITSA
Automatic discharge 3 years and 1 day after ‘statement of financial affairs’ lodged;
Can be extended to 5 or 8 years;
Permanent record on National Personal Insolvency Index

145. Bankruptcy Advantages & Disadvantages; Debtor petition – ‘voluntary’
Creditor petition – ‘involuntary’
Application to Federal Court for Sequestration order;
Forced bankruptcy;
See V & P p525;
Main act of bankruptcy
Other important acts

146. Creditors Secured & unsecured;
Secured for amount of debt and thereafter ‘unsecured’ for outstanding;
Available property
All owned at commencement of bankruptcy;
All acquired during term;
That able to be ‘clawed’ back

147. Unavailable Property S116(2)(1) Tools of trade – max $3250
Transport – max $6500
life insurance
MVA compensation;

148. Recovery of Property Transfer to defeat creditors
5 main powers ( V&P pp ):-
(6 months)
Relation back period
Sheriff (ss A);
Undue preferences (s122)
Within 5 years before bankruptcy
Undervalued transactions (s120);
Within an unlimited period before bankruptcy
Payments or transfers to defeat creditors (s121)

149. Restrictions Bankrupt must not:-
Become a director or hold political office;
Apply for credit/write cheques for approx $4,620 or more without disclosure;
Carry on a partnership without disclosure;
Travel o/s without permission

150. Bankruptcy Alternatives
In 2004, Part X Agreements replaced by PIAs;
Advantages & Disadvantages (V&P p536);
Part IX Agreements
Reform in 2007

151. Lecture 16 & 17 16 Supervised Assessment 17 Corrections / Resits
Thank you for your attention and participation.