Remember to express your IP licences clearly!

Posted on by influence legal.

The recent decision in Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39 overturned a significant copyright ruling and has potential for significant flow-on effects for photographers and other content creators.

Background

House for sale
Real estate photographers will need to adjust how they do business after this decision.

Hardingham, an independent real estate photographer, took photos of properties for real estate agents under oral contracts. The agents uploaded the photos to realestate.com.au (REA). REA then provided the photos to RP Data, a service that allows real estate agencies to use photos for property marketing campaigns.

When agents uploaded the photos to REA, they accepted clickwrap terms which gave REA “an irrevocble and perpetual licence to use the content … for any purpose related to our business”. RP Data argued that this licence meant it was able to use the photos once permitted to do so by REA. Hardingham contended that the licence had to be subject to a limitation so that it ended once the property was sold or leased.

At first instance Thawley J found that the sub-licence from REA to RP Data should be permitted because it was inferred from the parties’ conduct and should be implied to give business efficacy to the arrangements. It was not subject to any time limit.

On appeal to the Federal Court, the Full Court found that they were not satisfied that the terms should be implied or inferred, and that any implied licence did not extend beyond the property marketing campaign.

High Court

In December, the High Court overturned the Federal Court’s decision. The question, in this case, was what a reasonable person would consider, based on the parties’ words and conduct.

The Court found that there was nothing in the oral contracts, between Hardingham and the original real estate agencies, to suggest that the photos could not be used after the campaign. They all knew that the photos uploaded to REA and RP Data remained there after the completion of the campaign and on a history tab for the property. That had been the case for a number of years.

So, the real estate agencies were capable of licensing the photos to REA on its standard terms, and REA was capable of licensing them to RP Data. Accordingly, RP Data did not infringe Hardingham’s copyright.

Action

This case has important implications for photographers and other content creators, and is an important reminder to put clear, written agreements in place when licensing copyright and other IP. You can exclude implied terms and make sure that the parties’ expectations match. If you would like assistance with documenting your copyright agreements, contact us.

Author: Ashna Govil, paralegal.

NAIDOC Week and the recognition of Indigenous Cultural & Intellectual Property (ICIP)

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This year we are celebrating NAIDOC Week from 8 – 15 November 2020. NAIDOC Week was once a day celebrated by Aboriginal and Torres Strait Islander peoples but has now become an important week for all Australians to celebrate and appreciate Aboriginal and Torres Strait Islander people, history and culture.

2020 National NAIDOC logo
2020 National NAIDOC logo

The NAIDOC Week theme for this year is ‘Always Was, Always Will Be’ which focuses on Aboriginal and Torres Strait Islander peoples’ continuous connection to country and culture. The richness and survival of Aboriginal and Torres Strait Islander culture is essential. However, Australian law fails to recognise properly the importance of Aboriginal and Torres Strait Islander culture and Aboriginal and Torres Strait Islander peoples’ rights to protect their intellectual property, which is also known as Indigenous Cultural and Intellectual Property (ICIP).

ICIP encompasses different aspects of Indigenous culture, including, stories, symbols, sacred sites, dances, ceremonies etc. While you could write a story and it would fall under copyright, if it meets the specific requirements under the Copyright Act 1968 (Cth), there are roadblocks which prohibit ICIP from being protected by copyright. In particular, the requirements of ‘material form’ (e.g. written down or recorded) and there being an ‘author’ poses problems as Aboriginal and Torres Strait Islander stories are told orally, and a community may be the owner of a story rather than a person. The duration of copyright which can last for 25, 50 or 70 years after the creator’s death, the first year of publication/broadcast, since being made or made public, depending on the work is also problematic for ICIP. We know that Aboriginal and Torres Strait Islander people and culture have been around for more than 65,000 years, which means that particular ICIP may be older than the current duration period of copyright.

Aboriginal and Torres Strait Islander people and various organisations have advocated for the recognition of ICIP in Australia. Dr Terri Janke and Company have done great work to educate people about the importance of recognising and respecting ICIP as well as protocols to follow regarding the use of ICIP. Also, in 2016, the Arts Law Centre of Australia, Indigenous Art Code and Copyright Agency started the ‘Fake Arts Harms Culture campaign’, which highlighted issues with fake Aboriginal and Torres Strait Islander art and the lack of protection of ICIP. In September 2020, the ‘Australian Government response to the House of Representatives Standing Committee on Indigenous Affairs—Report on the impact of inauthentic art and craft in the style of First Nations peoples’ recognised the problems with current intellectual property laws and the need start looking into the development of ICIP legislation. While the Government has said this will be a long process, hopefully, we will see the introduction of ICIP laws sooner rather than later.

Author: Sharna White, Graduate Lawyer

influence legal acknowledges the Traditional Custodians of Country across Australia. We recognise the strength, resilience and capacity of Aboriginal and Torres Strait Islander Peoples and pay respect to Elders past and present.

When the copyright owner can’t be found

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Whether it is a photograph you would like to use on your website, or an artwork you wish to print onto merchandise, it’s always best practice to seek permission from the copyright owner to use their work. What happens when you want to use a work protected by copyright and cannot find the copyright owner, even after making every effort to find them? These are known as orphan works.

Orphan works and how the Copyright Act deals with them

influence legal book search
What happens when you can’t find the copyright owner?

Currently, the Copyright Act does not provide any specific protection for those using orphan works. If a copyright owner turns up even after the user has made reasonable efforts to find them, then the user is at risk of an infringement claim.

This issue has been reviewed in several enquiries, including the Australian Law Reform Commission Inquiry into Copyright and the Digital Economy and Productivity Commission Inquiry into Intellectual Property Arrangements.

The Federal Government’s Copyright Access Reforms – what does this mean?

On 13 August 2020, the Federal Government announced that one of their five reforms to the Copyright Act is the establishment of “a limited liability scheme for use of orphan works”.

The Government indicated that the scheme will benefit the copyright owner and the person using an orphan work. The proposed amendment will allow orphan works to be used without the risk of copyright infringement provided that the person intending to use the work conducts “a reasonably diligent search” and attributes the creator “as far as reasonably possible”.

If the copyright owner does appear then the person using the orphan work will be entitled to use the work, if both parties can agree on “reasonable terms”. If this cannot be achieved, the copyright owner can apply for an injunction to prevent future use of the work.

These reforms will be an area to watch this year, as the Government anticipates the release of an exposure draft bill later this year. It will be interesting to see if and how “a reasonably diligent search” is defined, as they have suggested that specific sectors and industries develop policies about a “diligent search”.

Author: Sharna White, Graduate Lawyer

Update – control of online content

Posted on by influence legal.

Our last article looked at the issue of control of copyright on social media platforms following the recent case, Sinclair v Mashable.

Only 2 months after the Sinclair decision, the U.S. District Court for the Southern District of New York has revised its position in a new case, McGucken v Newsweek.

A tale of two cases

In very similar conditions to Sinclair, Newsweek had published an article featuring an embedded Instagram post of photographer, Elliot McGucken, without his permission.

Instagram embed
Instagram has released a statement on its embeds API

Relying on the ruling in Sinclair, Newsweek argued that because the image was posted to McGucken’s ‘public’ profile, it could rely upon Instagram’s terms of service.

However, despite the Sinclair decision, the court refused to dismiss McGucken’s case. While the court did accept that Instagram has the right to sublicense publicly posted photographs to other users, it concluded that there was insufficient evidence to prove that Instagram had sub-licensed the photo to Newsweek.

Instagram weighs in

Instagram has released a statement clarifying its position on the issue, stating:

“While our terms allow us to grant a sub-license, we do not grant one for our embeds API… Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law.”

So, the court’s decision combined with Instagram’s statement on the issue has now emphatically altered the legal position set out in Sinclair.

What does this mean for you?

Photographers and other creators wishing to have stronger control over their copyright when sharing their photographs online will welcome this development.

However, this decision also serves as a strong warning to businesses (especially digital media outlets) to ensure they obtain the correct permissions before using or embedding a photographer’s work onto their website.

Highlights of 2019 and areas to watch in 2020

Posted on by influence legal.

 

Looking back on 2019

First major fines under the GDPR

If the introduction of the EU General Data Protection Regulation (GDPR) was the talking point for the world of privacy of 2018, the first rounds of serious fines issued under the regulation were definitely the talk of 2019.

We saw a number of unprecedented fines being given in response to the biggest privacy breaches and data leaks of the year, including:

  • hotel giant Marriott was fined $197 million for an ongoing data breach that exposed 5 million unencrypted passwords, 8 million credit card records, and impacted 30 million EU residents.
  • British Airways faced a record fine of $328 million for cyber-attack on their website which resulted in about 500,000 customer records, including credit card details, names, addresses and email addresses being extracted by the attackers.
  • Google was fined $80 million by France’s data regulator, CNIL, for failing to comply with its GDPR obligations due to a lack of transparency and consent in relation to Google’s advertising personalisation.

The nature and scale of the penalties enforced in 2019 indicate that the risks of non-compliance for international businesses, including Australian businesses, with an EU presence, is only likely to increase in 2020.

Mandatory text for defect warranties

In June 2019, we saw changes to Australian Consumer Law as amendments to the  Competition and Consumer Regulations 2010 (Cth) introduced new mandatory wording to be used by suppliers providing warranties against defects for services (or goods and services together). This amendment expands the scope of defect warranties for consumers as the ACL previously only prescribed mandatory text for warranties relating to goods.

The new mandatory wording can be found on the Australian Competition & Consumer Commission (ACCC) website, here.

Amendments to Whistleblower Legislation

More than two years after its introduction to Parliament, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (the Act) came into effect on 1 July 2019.

The Act made significant amendments to the Corporations Act 2001 (Cth) and Taxation Administration Act 1953 (Cth), increasing both the protections afforded to whistleblowers and providing greater accountability companies to ensure compliance with whistleblowing obligations.

The key features of these amendments included:

  • widening the definitions of ‘eligible whistleblowers’ and ‘eligible recipients’,
  • expanding the range of misconduct,
  • permitting anonymous disclosures,
  • implementing a whistleblower complaint policy for certain entities, and
  • increasing both civil and criminal penalties.

AI in Public Sector

Some significant implications of public sector use of AI and automation technologies were highlighted during the year.

In this case of Pintarich v Deputy Commissioner of Taxation, the Federal Court of Australia found that Mr. Pintarich remained liable for interest charges on a tax liability, even though he received a computer-generated letter remitting his liability from the Deputy Commissioner of Taxation.

Because of the automated nature of the computer-generated letter, the court ruled that there was no mental process involved in reaching the conclusion, and accordingly, Pintarich could not rely upon the letter.

As automation technologies become more widespread in the public sector, and automated programs begin to replace human mental processes in complex decision making, it will be interesting to see the implications of this case on administrative decision-making in 2020 and beyond. Recent developments include an issue, identified in January this year, with inaccurate ATO general interest charge notices.

Areas to watch this year

Government action in response to the ACCC’s Digital Platform Inquiry

In July, the ACCC released its final report for the Digital Platforms Inquiry, providing a number of recommendations concerning the market dominance of large digital platforms – namely, Google and Facebook. These recommendations included wide ranging regulatory changes to multiple areas, including competition and consumer law, privacy, copyright, and media regulation.

In light of the report, the Federal Government has provided its response, supporting 6 of the 23 recommendations made by the ACCC. The response outlines the government’s commitment to:

  • Allocating $26.9million over four years to establish a new special unit in the ACCC to monitor and report on the state of competition and consumer protection in digital platform markets.
  • Tasking the ACCC to facilitate the development of a voluntary code of conduct to address bargaining power concerns between digital platforms and media businesses.
  • Reforming media regulation to cover both online and offline delivery of media content to Australian consumers.
  • Further strengthening Privacy Act protections, subject to consultation and design of specific measures as well as conducting a review of the Privacy Act.

Introduction of the Consumer Data Right

In August 2019, the Federal Government passed the Treasury Laws Amendment (Consumer Data Right) Bill 2019 (CDR), amending the Competition and Consumer Act 2010 (Cth), Australian Information Commissioner Act 2010 (Cth) and Privacy Act 1988 (Cth).

The CDR will give consumers the right to safely access certain data about them held by businesses, allowing them to better access information on the products available to them, as well as being able to direct that this information be transferred to accredited, trusted third parties of their choice.

In December, the ACCC announced an updated timeline for the launch of the CDR. The launch has now been pushed back from February to July 2020 for the banking sector.  

The ACCC also announced that it would amend the CDR rules to reflect the revised timetables and consult other phases of the CDR, including its introduction into the energy and telecommunication sectors.

Reforming Australia’s designs system

Australia’s current design system has not been reviewed since the introduction of the Designs Act 2003 (Cth) in 2004. In response to recent concerns regarding its effectiveness and suitability, IP Australia has now commenced a two-phase approach to provide reforms to the system.

The first phase involves progressing and implementing the accepted recommendations from the former Advisory Council on Intellectual Property’s (ACIP) review of the Designs Act. IP Australia is aiming to introduce changes based on these recommendations in 2020.

The proposed changes fall into three topics:

  • examining the scope of design protection,
  • providing early flexibility for designers, and
  • simplifying and clarifying the designs system.

IP Australia aims to introduce changes based on these recommendations this year. 

In the second phase, as part of its ‘Designs Review Project’, IP Australia has also begun a more holistic review considering broad and longer-term reforms to Australia’s designs system. IP Australia will continue its research and consultation with stakeholders throughout 2020, with the aim to further understand and improve design innovation, commercialisation, and the overall designs economy in Australia.

Author: Blake Motbey, Associate

 

When a patent troll’s business doesn’t go according to plan

Posted on by influence legal.

Earlier this year, concern spread among users of open source software following claims by an IP licensing business (also known as a non-practising entity (NPE), or, to those on the receiving end of a claim, a patent troll) that use of popular open source components infringed the NPE’s patents.

Sound View Innovations, established in 2013, had acquired a number of the patents of AT&T Bell Labs and Lucent Technologies from Alcatel Lucent at the end of that year. Since then, Sound View has acquired over 1000 patents. It has become well-known as an NPE after commencing proceedings against online platforms including Facebook, Hulu, Twitter, media companies such as CBS and then broadening its claim base to retailers such as Walmart and airlines such as Delta in 2019.

Sound View’s claims involved open source components including:

  • jQuery, a JavaScript Library that handles HTML client side scripting across web browsers,
  • Apache HBase, a database management system real-time read/write access to data,
  • Apache Hadoop, which allows distributed processing of large data sets, and
  • Apache Storm, a distributed real-time computational system.
Patent trolls may have suffered some setbacks, but
they are still lurking.

These components, especially jQuery, are widely used in cloud stacks across a large number of online platforms, media companies and customer-facing organisations.

Sound View’s claims included that use of jQuery to create and process customisable data analysis and processing applications, and use of Apache Spark to perform real-time data stream processing, infringed patents in its portfolio.

The claims were alarming to both software providers and end users, as end users can be liable whether or not they developed the infringing material. Where software providers had accepted liability for open source usages by customers, they would be exposed to potential indemnity claims. Open source components are also often excluded from software providers’ warranties or indemnities, and in those cases the end users would have no recourse under their supplier contracts.

The industry view is that Sound View was targeting end users in the hope that they would pay licence fees rather than engage in the expensive process of defending the claims, which would require significant time in reviewing the technical issues. Both Twitter and LinkedIn settled claims early.

Some defendants, however, filed petitions for inter partes review to invalidate Sound View’s patents. Hulu, Disney, Time Warner and others successfully invalidated multiple claims. Unified Patents, an industry organisation targeting bad faith NPE conduct, also filed petitions for IPRs against several Sound View patents to protect the interests of its members.

Last month, the US Patent Trial and Appeal Board (PTAB) found against Sound View in relation to two further patent claims.

The patent in question involved a technique to enhance existing caches in a network, by employing helper machines to segment streaming media into smaller units according to placement and replacement policies.

This followed successes earlier in the year by Unified Patents, whose membership includes Cisco, Adobe, Red Hat and over 200 other tech companies.

The PTAB decision is a classic illustration of the time and expertise required to defend an NPE’s claim. The decision was based on the prior art, that is, the board found that similar material had been published before the patent was filed, so the patent was not inventive. Many of the Sound View decisions have involved complex evidence comparing the detail of the defendant’s use against the patent claim, or detailed research into the prior art, with arguments about the standard of evidence required to show prior publication.

As yet, there is no overall regulation preventing NPE behaviour, though some US states have regulated against bad faith patent claims. The US Supreme Court ruled in 2017 that legal action must be taken in the state where the defendant is located, rather than the most NPE-friendly forum. Industry bodies are continuing to lobby for greater regulation of bad faith claims. States such as California have called on the US Federal Government to minimise abusive patent litigation. Legislation to address the issue at the US Federal level has hit various hurdles, and there have also been challenges to the inter partes review process on constitutional grounds.

In Australia, patent trolls have not gained as large a foothold as they have in the US. Over the last few years, several reviews of the Australian patent system have focused on whether patents are being used to stifle innovation and creativity. Following those reviews, amending legislation to phase out the innovation patent system was introduced to the House of Representatives earlier this month.

A spokesperson for the Institute of Patent & Trade Mark Attorneys of Australia, however, recently described the justifications for removing innovation patents as “nonsense”.

My business idea is being copied – what can I do?

Posted on by influence legal.

You’ve put time and thought into a great idea, invested in R&D, brought your idea to market – and now you find a competitor marketing the same idea.  What can you do?


How can you protect your idea?

The different aspects of intellectual property can help to an extent, but the issue of copying a concept can become complex.

Copyright protects the original material expression of an idea, rather than the idea itself. Unless your competitor copied your original artwork, wording or code, copyright won’t assist – for example, if you have had an idea for a scheduling program, and a competitor saw your idea and released a scheduling program which doesn’t use any of the original coding or graphical elements of your program, you won’t be able to make a copyright claim.

What about trade marks? Have you applied for trade mark protection of your product’s distinctive name? If the competitor used your name or a substantially similar name to promote similar products, you can make a claim based on your registered trade mark.

Patents protect inventions. They must be new to the market. If you think that your idea may be patentable, consult a patent attorney – but you must keep your idea confidential until the patent application is filed. If you have publicised it yourself, it may no longer be patentable. You can use confidentiality agreements where you need third parties to develop your invention. Also, take practical steps to protect confidentiality – limit distribution and keep information in secure files.

The law of passing off and consumer protection law can help where the competitor is making their offering look like it is, or is associated with, yours. For example, your competitor might be marketing compatible goods which have the look and feel of your brand, or suggesting that they are your authorised distributor or licensee.

If none of these will help in your specific situation, there are still practical steps you can take:

– make sure that you have all the relevant variations of your domain name so that there is no chance that an unscrupulous competitor can pick up similar names to direct traffic to their own website;

– make sure you have your domains set to auto-renew, or diarise renewal dates, so that you don’t accidentally drop your domain and have it picked up by your competitor;

– ensure that your website security is strong so that you reduce the risk of losing customers if your website is offline;

– make sure you are actively marketing on all relevant social media channels;

– if you are using a name or logo that is distinctive, apply for a trade mark, including in relevant overseas markets you plan to expand to;

– once you have your trade mark, ensure you diarise renewal dates;

– keep a record of your marketing activities, including promotions, press releases and media coverage, in case you need to demonstrate your reputation in the market in future years; and

– ensure that your concepts are kept confidential, including using effective confidentiality agreements, until they are ready for release.

If you have any questions about how to protect your ideas, contact us.

Highlights of 2017 and areas to watch in 2018

Posted on by influence legal.

Here is a round-up of some key developments in 2017:

  • The Competition and Consumer Amendment (Misuse of Market Power) Act 2017 came into effect, implementing Harper reforms in the area of misuse of market power, adding an effects test as well as the purpose test.
  • The Telecommunications Sector Security Reforms were enacted and are now in a 12 month implementation period. These reforms impose obligations on carriers and carriage service providers to take steps to ensure the security of networks and notify breaches, and provide powers to the Attorney-General to issue directions relating to security risks.
  • Business gained useful guidance on the issue of unfair contract terms in small business contracts with a case in the waste management area which provided a detailed review of some common, and some less common, standard terms.
  • Consultations closed in December on a draft bill to implement aspects of the Government’s response to the Productivity Commission’s review of Australia’s IP arrangements.
  • A controversy in relation to the Olive Cotton Award highlighted issues around copyright, commissions and collaboration.
  • The Full Federal Court dismissed Vodafone’s application for judicial review in relation to the ACCC’s decision not to declare a domestic mobile roaming service. If a domestic mobile roaming service had been declared, this would have allowed carriers to access Telstra’s regional networks in areas not covered by their own networks.

Areas to watch this year:

  • With mandatory data breach notification coming into force later this month, and the EU General Data Protection Regulation taking effect in May, 2018 is the year of privacy compliance for Australian businesses.  Check out more details here and ensure that your privacy compliance systems are up to date.
  • Also in Europe, the Trade Secrets Directive, which harmonises trade secrets protection, will be implemented by member states by the middle of the year.
  • In the FOI area, submissions to the OAIC on the Freedom of information regulatory action policy close this Friday.
  • The ACCC has foreshadowed its 2018 priorities, including criminal cartel enforcement and deterrence. In an interview in the AFR, Chairman Rod Sims suggested that there would be 3 to 4 cartel actions in 2018, including the possibility of penalties for executives. This follows the ACCC’s successful actions in financial services and in the shipping industry, with a further shipping case to be heard in July.
  • Other ACCC priorities mentioned in the interview include bank interest rate decisions, and media sector mergers.
  • On the IP front, submissions on the Copyright Amendment (Service Providers) Bill, which would extend safe harbour provisions to educational and cultural institutions, libraries, archives and organisations assisting people with disabilities, close on 30 January.

Copyright, commissions, collaboration and the Olive Cotton Award controversy

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The recent controversy about the winning entry for the 2017 Olive Cotton Award is interesting in terms of the requirements of this photography portraiture prize, but also a helpful illustration of how copyright ownership can become complicated in the areas of commissions and collaboration.

Justine Varga entered a fascinating work, “Maternal Line”, which had been inspired by the sight of her grandmother seated at the kitchen table testing pens by scribbling.

She asked her grandmother to scribble directly onto a piece of film, and then handprinted the result in the darkroom. The result is a moving artwork described by the judges as “a very complex photographic portrait”.

There has been plenty of discussion about whether the result of Varga’s process was a portrait or a photograph.

However it also prompts discussion of some frequently misunderstood areas of copyright, as this article, quoting North Sullivan, former president of the Australian Commercial and Media Photographers association, and Professor Kimberlee Weatherall of the University of Sydney law school, highlights. Sullivan and Weatherall have both queried whether the copyright in the artwork is owned by Varga or her grandmother.

Collaboration

The general rule in relation to collaboration, where parties jointly create a copyright work, is that the authors own the copyright jointly.

In order to qualify as a joint author, a person must have contributed more than ideas or suggestions, because copyright applies to the expression in material form, not to the idea.

Dictation, though, is different from suggestion. The scribe who takes down dictation is not the copyright owner. This has the corollary that where one person has seen a copyright work and dictates it, copyright can be infringed even though the scribe has never seen the copyright work.

The question raised in this situation is whether Varga’s process involved a collaboration with her grandmother, or whether her grandmother was the sole author.

Importantly, joint authors cannot deal with their copyright without the consent of the other authors. Where two parties to a commercial transaction are jointly contributing to a copyright work, it’s worthwhile considering whether to agree that each party can commercialise the work without the other party’s permission, or whether they want to act jointly throughout the life of the copyright.

Commissions

The laws relating to copyright in commissions differ between jurisdictions, and it’s important to understand the Australian rules for local situations.

When you commission a copyright work – as, in this situation, Varga may have done by asking her grandmother to scribble on the film – you do not automatically own the copyright.

There are some exceptions.

Photos commissioned for private or domestic purposes, such as wedding photos or a family portrait, under a paid arrangement, are an exception to this general rule. However, it’s open to the photographer to retain copyright by agreement, so the person commissioning the photograph needs to check the photographer’s terms and conditions.

The situation is also different for copyright works commissioned by the Crown, or created in the course of employment.

In other situations – whether it’s marketing material, website content, a logo, or photographs for your business – you need a written assignment agreement from the author if you want to own the copyright. You should also consider appropriate treatment of moral rights.

There are also compromise options. If your key requirement is to be able to use the commissioned work freely, a broad licence from the author may be adequate for your situation.

If you would like us to review your terms and conditions in relation to copyright ownership and licensing, contact us.

Highlights of 2016 and areas to watch in 2017

Posted on by influence legal.

Influence Legal ParliamentHere is a round-up of some key developments in 2016:

  • The Telecommunications Sector Security Reforms went through 2 rounds of public consultation and have now been referred to the Parliamentary Joint Committee for Intelligence and Security. These reforms will impose obligations on carriers and carriage service providers to take steps to ensure the security of networks and notify breaches, and provide powers to the Attorney-General to issue directions relating to security risks.
  • The Masters Bendigo case saw developments in relation to agreements to agree and good faith.
  • There were several key cases in the credit reporting area, including the Veda trade mark and SEO case, and the OAIC determination requiring Veda to improve accessibility of free credit reporting.
  • The Productivity Commission released its report on IP arrangements, prompting public debate in relation to fair use and the rights of copyright holders.
  • The OAIC consulted on its draft Big Data guide.
  • An exposure draft of the Harper review bill was released.
  • The unfair contracts rules for small business came into effect from 12 November.
  • The ACCC took landmark consent proceedings relating to attempted cartel conduct in the financial services industry.
  • The Federal Court found that Woolworths’ “Mind the Gap” payments were not unconscionable.

Areas to watch this year:

  • Data protection remains a key focus area with significant developments continuing in Australia (including the Notifiable Data Breaches Bill), the EU (the European Union General Data Protection Regulation will take effect in May 2018 and will significantly affect data relating to employees) and across the globe.
  • Trade secrets have become another focus area.  In 2016 the European Council approved the Trade Secrets Directive to harmonise European trade secrets protection. Member states will need to implement the directive by mid 2018. The US Defend Trade Secrets Act 2016 has created a federal jurisdiction for misappropriation of trade secrets including significant whistleblower protection which will need to be reflected in US employment and confidentiality agreements.
  • Ahead of the release of its 2017 priorities, we can anticipate that the ACCC will continue to focus on unfair contracts in business, cartel conduct (following the significant financial services case) and optional extra preselection in the airline industry. The ACCC is seeking submissions on a proposed FIFO airline alliance (due on 27 January) and on its draft decision for the declared superfast broadband access service (SBAS) and the local bitstream access service (LBAS) (due on 17 February).
  • CAANZ will report on the first Australian Consumer Law review by March.
  • Further legal and regulatory attention is likely in the problematic commercial VET sector, with reforms promised to address the significant consumer protection issues that were highlighted during 2016.
  • On the IP front, submissions are due by 22 January on the proposed IP Laws Amendment Bill.