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TechLaw is the new name we have given the Norman Waterhouse specialist practice group that deals in information, communications and intellectual property.
As we have done in the past we continue to provide specialist transactional and strategic advice in copyright and moral rights, trade marks, biotechnology, patents, business and domain names, indigenous heritage rights, joint ventures, collaborative R&D, confidential information, e-commerce, trade secrets and know-how, data integrity and security, privacy and internet law.
We provide assistance in both the public and private sectors to education bodies, defence, health, manufacturing, business developers and incubators, start-ups and spin offs, software vendors, internet service providers, web site designers hosts and resellers, research institutes, universities, graphic designers, musicians, film makers, entertainers, CRC's, and multi-media groups, web developers, business consultants and knowledge managers, and government.
The global move towards hi tech, fast tech, innovative tech and every other kind of tech has been the catalyst for us giving ourselves a "fresh look" with a new name. Our commitment to our clients and our service style and culture remains the same: committed to continuous improvement. We understand law and the technology that is driving it and are proactive in anticipating legal and business issues and how they impact on you.
Our national team members in the Adelaide office are Celine McInerney, Robert Chalmers, David Waugh, Bill Morrow and we welcome new TechLaw member, Guy Betar, as partner in our Sydney office. The expansion of TechLaw to Sydney reflects our commitment to our clients as their businesses become more global.
Guy has 20 years corporate and commercial experience, having specialised in technology, intellectual property and information technology for most of that time.
Apart from his legal experience he has spent 8 years in management of commercial organisations, including as deputy managing director and corporate counsel of a software development joint venture company. He has broad ranging specialist IT experience covering areas from the internet and open networks, through computers and software generally, to trade marks, copyright in general, and high level technology research and development and exploitation ventures.
This experience and expertise has been developed through transactions both Australia wide and internationally, including Europe, USA, Japan and S.E. Asia. He has also been involved in US litigation and disputes relating to intellectual property and corporate structuring and acquisitions.
Guy is a recognised authority in his areas of practice. He was the Legal Columnist for Corporate IT magazine (formerly LAN magazine) and has presented a variety of papers at public seminars on topics relating to data, protection of IP, privacy, the Internet and others.
Guy has a unique perception and understanding of the commercial and legal issues involved in transactions and disputes in these areas.
For many of you, your first introduction to him is through the following article which will be followed up in next month's issue with a sequel: stay tuned.
Memories are short in the computer world. Ancient history in software and hardware terms is measured in months, not in years, and the workplace without computers is to many buried in the mists of time. A curious by-product of this very short memory perspective is the facility for re-invention and re-vitalisation of good and bad ideas that did not quite make notoriety the first time round.
Businesses can be built on a well-fashioned new "idiom", and there are few industries where "looking under the bonnet" is more essential than with IT. "Intranets" and "Extranets" are very much in vogue, and whilst they are not seen as completely new, many would be surprised to know how long both the concept and the basic technology have been with us.
In May 1995 Forrester Research indicated that 16% of the Fortune 1,000 had an intranet, and that 50% were considering one. One year later a repeat survey showed 64% of that group had implemented an intranet and a further 32% were building one. Significant advantages have been recognised as available to organisations through intranets, including dramatically increased dissemination of information at much reduced cost, virtually instantaneous communication, and more recently, the facility for developing an information repository. Contemporary enthusiasm for intranets is focusing on them as knowledge management systems. An array of information and knowledge assets can be stored in a corporate intranet, making them readily available and in theory at least, able to be better managed and updated. The web interface components of intranets means organisations with offices around the world can have standardised information available to everyone, and the entire organisation can take advantage of information retained in the intranet.
At first glance, there seems to be little basis for concern over the legal implications of an intranet. It is not (in contrast to extranets) accessible by organisations outside of the corporate group and should therefore not have the potential for any legal liabilities. Unfortunately this is not the case. The traffic through an intranet can be of huge volume and extremely diverse in content – including everything from joke emails to sensitive management documents. Copyright materials of various kinds can find their way into the traffic stream, and particularly into the knowledge base system. These could include graphic images and photos, sound clips, video clips, and text material, as well as software. The content of material could be defamatory, or might be subject to confidential obligations. It might be racist or amount to harassment, or both.
Consequently, the free flow of information and the stimulation of growth to an intranet knowledge base, must be tempered with controls and safety checks to minimise the possibility of breaches of law or third party rights. The executive management of a company ought to consider a brief checklist in assessing the potential for legal exposure through its intranet, and minimising that exposure:
There are clearly practical difficulties in effectively vetting and monitoring the content of the corporate knowledge base and the communication traffic within an organisation. Notwithstanding such difficulties, the consequences of breaches of statutory obligations and third party rights make it essential that corporate management recognise and act to minimise such exposures through carefully structured policies and content management processes.
For further information about issues covered in this article, please contact Guy Betar on + 61 9 9023 0118 or E-mail gbetar@normans.com.au.
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd
A decision of the High Court of Australia 15 November 2001.
This decision of the High Court centred upon a film made after unlawful entry and secret surveillance at the premises of Lenah Game Meats in Tasmania where brush tail possum processing operations were carried on. The film was passed to the ABC which proposed to broadcast it and Lenah Game Meats sought an injunction to restrain the ABC from broadcasting.
The ABC was not implicated in any trespass and what had been filmed was not secret, or confidential. No claim in copyright was argued.
There was no suggestion that the activities of Lenah Game Meats were unlawful but one of its directors had this to say about the film and the effect broadcasting would have:
"It shows possums being stunned and then having their throats cut. It is likely to arouse public disquiet, perhaps even anger, at the way in which (Lenah Game Meats) conducts its lawful business. This is no different from any animal slaughtering operation in Australia, which is normally hidden from public view."
The High Court refused to grant an injunction.
The majority of the judges (Gleeson, Gummow, Hayne), were of the view that an injunction cannot be granted unless the party seeking it can show that it has some legal or equitable interest. That will either be:
As copyright had not been argued in the case, the majority of the court were unable to find a legal or equitable basis justifying the grant of an injunction.
The court considered the 1986 case of Lincoln Hunt Australia Pty Ltd v Willesee in which a television crew had intrusively entered commercial premises while filming. No injunction was granted in that case, the judge noting that damages, including exemplary damages, would be available to the plaintiff.
Gummow and Hayne JJ in a joint judgement said:
"A cinematograph film may have been made, as in Lincoln Hunt, in circumstances involving the invasion of the legal or equitable rights of the plaintiff or a breach of the obligations of the maker to the plaintiff. It may then be inequitable and against good conscience for the maker to assert ownership of the copyright against the plaintiff and to broadcast the film. The maker may be regarded as a constructive trustee of an item of personal (albeit intangible) property, namely the copyright conferred by s 98 of the Copyright Act. In such circumstances, the plaintiff may obtain a declaration as to the subsistence of the trust and a mandatory order requiring an assignment by the defendant of the legal (i.e. statutory) title to the intellectual property rights in question. . . . In the meantime, the making of any broadcast would be subject to interlocutory restraint, as an invasion of the equitable interest in the copyright of the plaintiff."
Callinan, J, although writing a dissenting judgement, did agree with Gummow and Hayne JJ on this issue. Chief Justice Gleeson merely noted that copyright was not argued and expressed no view on the point.
Kirby, J, in the minority, was of the view that it was not essential that a cause of action be established before an injunction could be granted. He did not therefore, address the issue of copyright.
Even where a legal or equitable basis can be identified justifying the grant of an injunction, it is still at the discretion of the judge whether an injunction is granted. The exercise of that discretion is largely a matter of considering competing interests.
Both Kirby, J and Callinan, J noted that there has been a tradition of judicial restraint in granting injunctions to restrain broadcasts. Kirby, J noted that courts have proceeded with care "balancing protection of the individual against the public interest in freedom of speech."
Callinan, J was "unconvinced" of the need to continue such restraint and saw no need to apply it in this case. He was, however, the only High Court judge prepared to grant an injunction in this case and he expressed concern that failure to grant an injunction would "send a clear signal that so long as a publisher does not itself personally soil its hands by committing a crime, or by otherwise acting illegally to obtain what it considers newsworthy, the publisher will be free to publish the matter as it sees fit."
It is clear from this case that the tradition of judicial restraint will continue even when there has been unlawful surreptitious filming or photography.
It is also clear that in future copyright ownership will be argued in such cases, with the property owner claiming that the photographer or filmmaker is a constructive trustee of copyright in the film.
For further information about issues covered in this article, please contact Bill Morrow on + 61 8 8210 1212 or E-mail bmorrow@normans.com.au. We produce the following Briefly editions:
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