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

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?

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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

Influence Legal ParliamentHere 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

influence legal copyright commissionsThe 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.

 

What does the Universal v TPG decision mean?

At the end of last month, the Federal Court made orders in the Universal v TPG litigation. The results were not unexpected and the key areas of dispute related to costs of complying with the orders and costs of the litigation.

influence legal how to download torrents
From wikiHow “How to download torrents (with pictures)”

Background

Universal and other copyright owners took action under section 115A of the Copyright Act against 20 ISPs, including TPG, to block access to a torrenting website, and associated clones, mirrors and proxy sites. The website was found to have the main purpose of allowing wide-scale downloading of copyright works, including music, movies and books.

Section 115A was added to the Copyright Act in 2015 and allows copyright owners to apply for an injunction requiring a carriage service provider to take reasonable steps to disable access to an online location – in Australia or overseas – which has the primary purpose of infringing, or facilitating the infringement of, copyright. There doesn’t need to be any fault on the part of the ISP for orders to be made.

Section 115A had already been used in the Roadshow v Telstra, Foxtel v TPG decision last year, with similar results.

The offending website in this case, KickassTorrents (KAT) had previously been blocked in Britain, Ireland, Denmark, Italy, Finland and Belgium and had then been shut down in July 2016 following the arrest of the alleged owner, but the case went ahead.

The ISPs had indicated even before that date that they were prepared to block access to the offending sites, but the key question remained as to who should bear the cost of implementing and maintaining the site blocking.

The copyright owners argued that the ISPs should bear the costs because they are subject to the regulatory framework. The ISPs argued that they are innocent parties in the infringement, that section 115A creates a no-fault regime, and that the orders under section 115A benefit the rights holders.

Orders

The Court ordered that the ISPs must:

– disable access by users of their service, to the infringing website, by DNS blocking or equivalent.

– redirect users to a page with a prominent message that the Court has determined the site infringes copyright, or facilitates infringement.

– block additional domain names if the copyright owners apply to extend the injunction.  These orders may be made without further hearing if the ISPs do not object.

The copyright owners will be required to pay the ISPs’ compliance costs, set at $50 per domain name. The Court, noting that the submissions on costs were similar to the submissions made in the Roadshow v Telstra, Foxtel v TPG case last year, supported a uniform approach to compliance costs. If costs exceed this amount, the ISPs will have to bear the additional amount.

The ISPs had also sought orders for costs of the litigation. The Court determined that the copyright owners should pay the ISPs’ costs for the limited area of evidence and submissions on compliance costs, but not the ISPs’ other costs.

Further developments

In February, Village Roadshow commenced a new action to block access to 41 websites including WatchSeries, Putlocker and MegaShare.

There have been reports that Village Roadshow and Foxtel will apply to block additional websites shortly.

There have also been reports that KAT has been revived in a new form by original staff members, with new domain names and a streamlined database, and a revised DMCA takedown procedure. The orders allow copyright owners to apply to block new domain names but this can only be reactive. With torrenting websites potentially able to use a huge number of domain names and structures, it will be interesting to see how much practical protection section 115A will provide to rights holders as cases develop over the coming months – especially when Gizmodo reports that “It’s laughably easy to circumvent Australia’s torrent site blocking”.

 

 

Highlights of 2016 and areas to watch in 2017

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.

Productivity Commission releases draft IP report

The Productivity Commission released its draft report on Australia’s intellectual property system on 29 April 2016.

The Commission has been asked to consider whether current arrangements appropriately balance access to ideas and products, and encouragement of innovation, investment and creative works.

Key recommendations Continue reading Productivity Commission releases draft IP report