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)

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

Workplace Relations System & Law State responsibility as per Constitution; Fair Work Act (SA) 1994; Since Workplace Relations Amendment (Work Choices) Act 2005 - ‘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;

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).

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 1984- 85). 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.

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

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’

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’

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

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.

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

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.

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.

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: http://smallbusiness.ninemsn.com.au)

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

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)

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

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)

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

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: http://smallbusiness.ninemsn.com.au)

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

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

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.

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

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

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

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".

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

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)

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

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)

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

(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

(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

(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’?

(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

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.

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

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.

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.

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.

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.

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

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.

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.

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)

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)

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

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;

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)

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

TPA - Section 61 Pyramid Selling

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

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

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

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)

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)

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

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

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

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

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)

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

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

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

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

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

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

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

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

‘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;

‘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

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;

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

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

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

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

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?

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

TPA - Section 50A Acquisitions outside Australia

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

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?

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

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

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.

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

Applicable Law Copyright Act 1968 (Cth) – s51(xviii) Constitution; April 2007 - Copyright Amendment Act 2006

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)

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

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

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)

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

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’

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);

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

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

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

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

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

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

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)

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

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)

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

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

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

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)!

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

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

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

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;

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

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

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)

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

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

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

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

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

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

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

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

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

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

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

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

Recovery of Property Transfer to defeat creditors 5 main powers ( V&P pp532-533):- (6 months) Relation back period Sheriff (ss118-119A); Undue preferences (s122) Within 5 years before bankruptcy Undervalued transactions (s120); Within an unlimited period before bankruptcy Payments or transfers to defeat creditors (s121)

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

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

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