Owning the new economy: A guide to intellectual property management for Australia's clean technology sector

Australia's history of developing and managing the intellectual property rights of domestic innovations is – at best – mixed. The relevant immaturity of Australia's public sector commercialisation infrastructure has, over recent decades, been the subject of both stinging academic commentary and not insubstantial juridical disbelief. That said, improvements have been observed, and increasingly, private sector involvement in public sector innovation has allowed for a deepening refinement of domestic approaches to IP retention and ongoing management. Rather than a bare critique of Australia's IP management track-record, or a call for specific law reform, this manual engages at a more practical level some of the foundational questions that ought be asked by entities involved in the 'cleantech' industries. Beginning simply at what is IP and why it matters, this manual examines the models of IP management available to market participants around the world. The process of IP management is defined and assessed through a commercial lens; assessing the 'pros' and 'cons' of each management choice with a view to equipping the reader to determine which approach may be best adapted to their given clean tech project. The manual concludes with a brief survey of alternative models of Intellectual Property management, including relevant examples from overseas and prominent suggestions arising out of the academic discourse. It appears inevitable that the global warming challenge will prompt specific legislative, regulatory and multi-lateral responses by nation states, however, the ultimate form of any such response remains a highly contested political and social issue. Accordingly, the structure of this manual, and the discussion points raised herein, seek introduce the reader to some of the more contentious debates occurring around the world at the intersection between IP and climate change.

Identifying statutory encumbrances for seller disclosure

The standard land contracts in Queensland require a seller of land to disclose to a buyer not only registered encumbrances, but also statutory encumbrances affecting the land. Whether a statute creates a statutory encumbrance over the title to the property is therefore a key question for a seller when completing a contract. This article examines relevant case law and provides some guidelines for when a statute creates a statutory encumbrance that should be disclosed to a buyer as a defect in title.

Impact of online privacy concerns and brand reputation on consumer willingness to provide personal information

The aim of this research was to identify the role of brand reputation in encouraging consumer willingness to provide personal data online, for the benefits of personalisation. This study extends on Malhotra, Kim and Agarwal’s (2004) Internet Users Information Privacy Concerns Model, and uses the theoretical underpinning of Social Contract Theory to assess how brand reputation moderates the relationship between trusting beliefs and perceived value (Privacy Calculus framework) with willingness to give personal information. The research is highly relevant as most privacy research undertaken to date focuses on consumer related concerns. Very little research exists examining the role of brand reputation and online privacy. Practical implications of this research include gaining knowledge as to how to minimise online privacy concerns; improve brand reputation; and provide insight on how to reduce consumer resistance to the collection of personal information and encourage consumer opt-in.

Improving the estimation of probability of bidder participation in procurement auctions

Anticipating the number and identity of bidders has significant influence in many theoretical results of the auction itself and bidders’ bidding behaviour. This is because when a bidder knows in advance which specific bidders are likely competitors, this knowledge gives a company a head start when setting the bid price. However, despite these competitive implications, most previous studies have focused almost entirely on forecasting the number of bidders and only a few authors have dealt with the identity dimension qualitatively. Using a case study with immediate real-life applications, this paper develops a method for estimating every potential bidder’s probability of participating in a future auction as a function of the tender economic size removing the bias caused by the contract size opportunities distribution. This way, a bidder or auctioner will be able to estimate the likelihood of a specific group of key, previously identified bidders in a future tender.

‘Lemon Laws’: an inquiry into consumer protections and remedies for buyers of new motor vehicles

1. Under the Terms of Reference for the Committee’s Inquiry, ‘lemons’ are defined as ‘new motor vehicles with numerous, severe defects that re-occur despite multiple repair attempts or where defects have caused a new motor vehicle to be out of service for a prolonged period of time’. Consumers are currently protected in relation to lemon purchases by the Australian Consumer Law (ACL) located in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (CCA). The ACL applies as a law of Queensland pursuant to the Fair Trading Act 1989 (Qld). The voluntary recall and consumer guarantees law took effect on 1 January 2011. 2. In 2006, the Government of Victoria made a commitment to introduce a lemon law into the provisions of the then Fair Trading Act 1999 (Vic). The public consultation process on the proposal to introduce a lemon law for motor vehicle purchases in Victoria was conducted by Ms Janice Munt MP, with the assistance of Consumer Affairs Victoria (CAV). CAV released an Issues Paper to canvas with industry and the community options for the development and introduction of a motor vehicle lemon law.(Consumer Affairs Victoria, Introducing Victorian motor vehicle lemon laws, Issues Paper, (September, 2007). 3. A CAV report prepared by Janice Munt MP was released in July, 2008 (Consumer Affairs Victoria, Motor Cars: A report on the motor vehicle lemon law consultations (July 2008) (Victorian Lemon Law Report). However, the Victorian proposal was overtaken by events leading to the adoption of a uniform consumer protection law in all Australian jurisdictions, the ACL. 4. The structure of this submission is to consider first the three different bases upon which consumers can obtain relief for economic loss arising from defects in motor vehicles. The second part of the submission considers the difficulties encountered by consumers in litigating motor vehicle disputes in the courts and tribunals. The third part of the submission examines the approach taken in other jurisdictions to resolving motor vehicle disputes. The final part of the submission considers a number of possible reforms that could be made to the existing law and its enforcement to reduce consumer detriment arising from the purchase of ‘lemon’ motor vehicles. 5. There are three principal bases upon which a consumer can obtain redress for defects in new motor vehicles under the ACL. The first is where the manufacturer admits liability and initiates the voluntary recall procedure provided for in s 128 of the ACL. Under this basis the manufacturer generally repairs or replaces the part subject to the recall free of charge. The second basis is where the manufacturer or dealer denies liability and the consumer is initiates proceedings in the court or tribunal seeking a statutory remedy under the ACL, the nature of which will depend on whether the failure to comply with the consumer guarantee was major or not. The third basis upon which a consumer can obtain redress is pursuant to public enforcement by the ACCC. Each basis will be considered in this part. What all three bases have in common is the need to conduct an investigation to identify the nature of the defect and how it arose.

Government entity contribution to an effective partnership privatisation

The partnership form of privatisation is increasingly being used, in particular to carry out complex and evolving bundles of services. These have not previously been privatised because of incomplete contracts and contract management difficulties. Improved performance of the government entity as contract administrator and member of the partnership is crucial to modern service delivery expectations yet the privatisation literature has focused on other aspects of partnerships leaving the understanding of factors impacting the effectiveness of the government entity underdeveloped. This paper proposes the development of knowledge as to the range of factors which impact the effectiveness of the government entity. There is limited data available as to the operation of trust in the partnership relationship, and as to the capability of a range of privatisation forms to achieve stewardship of infrastructure. This research will utilise the findings from that research to build a tentative framework which will be utilised in staged research interrogating first the privatization literature and then the literature of other disciplines and sectors. The combined data will be analysed to provide government and practitioners such as government entity CEO’s with a complete listing of the operation of the factors which impact the effectiveness of the government entity in contributing to improved service delivery.

A lifespan perspective on psychological contracts and their relations with organizational commitment

The current study investigated the influence of age-related constructs on the psychological contract and its relationships with continuance and normative commitment. It was proposed that as people age, their future time perspective (FTP) decreases. Consequently, it was expected that contract fulfilment would be positively related to continuance commitment for workers with short FTP, while it would be positively related to normative commitment for workers with long FTP. Conversely, it was argued that, with age, workers’ perceived work-related expertise increases, resulting in stronger reactions to obligation fulfilment on normative commitment. A study among 334 employees showed that FTP and work-related expertise indeed moderated the relationships between contract fulfilment and organizational commitment. The results showed that the influence of age on the relations between contract fulfilment with outcomes is dependent upon FTP and occupational expertise. The study shows the value of a lifespan perspective on psychological contracts and their relations with organizational commitment.

The UNCITRAL Model Law on Cross-border Insolvency and its Potential Role in Upholding the Rule of Law

The rule of law is understood to be a core aspect in achieving a stable economy and an ordered society. Without the elements that are inherent in this principle the possibilities of anarchy, unfairness and uncertainty are amplified, which in turn can result in an economy with dramatic fluctuations. In this regard, commentators do not always agree that the rule of law is strictly adhered to in the international legal context. Therefore, this paper will explore one aspect of international regulation and consider whether the UNCITRAL Model Law on Cross-border Insolvency (1997) (‘Model Law’) and its associated Guide to Enactment and Interpretation (2013) contribute to the promotion of the key elements of the rule of law.

Performance-based contracting for roads – Experiences of Australia and Indonesia

Many countries over the last decade, have used performance-based contracting (PBC) to manage and maintain roads. The implementation of PBC provides additional benefits for the government/public such as cost savings and improved conditions of contracted road assets. In Australia, PBC is already being implemented on all categories of roads: national, state, urban and rural. Australian PBC arrangement is designed to turn over control and responsibility for roadway system maintenance, rehabilitation, and capital improvement projects to private contractors. Contractors’ responsibilities include determination of treatment types, the design, programming and the undertaking of works needed to maintain road networks at predetermined performance levels. Indonesia initiated two PBC pilot projects in 2011, the Pantura Section Demak-Trengguli (7.68 kilometers) in Central Java Province and Section Ciasem-Pamanukan (18.5 kilometers) in West Java Province. Both sections are categorized as national roads. The contract duration for both of these projects is four years. To facilitate a possible way forward, it is proposed to conduct a study to understand Australia's experiences of advancing from pilot projects to nation-wide programs using PBC. The study focuses on the scope of contracts, bidding processes, risk allocation, and key drivers, using relevant PBC case studies from Australia. Recommendations for future PBC deployment nation-wide should be based on more research associated with risk allocation. This will include investigation of standard conditions of contract. Implications of the contract clauses for the risk management strategy to be adopted by contractors. Based on the nature of risks, some are best managed by the project owner. It is very important that all parties involved to be open to the new rules of contract and to convince themselves about the potential increased benefits of the use of PBC. The most recent states of challenging issues were explored and described.

Should tax incentives for charitable giving stop at Australia's borders?

Around the world, philanthropic gifts are increasingly crossing borders, driven by globalisation and facilitated by liberalised cross-border tax incentives. Australia is considered to have one of the strictest regimes for the tax treatment of cross-border donations. With bipartisan political support for a significant reduction in the amount and scope of Australian foreign aid, the nation’s international presence through the ‘soft power’ of aid will fall increasingly upon private philanthropy. Are the current tax incentives for Australian cross-border philanthropy and the supervision of those incentives appropriate to both facilitate and regulate international giving? To address this question, this article analyses the amount of Australian cross-border philanthropy and explains the current legislative architecture affecting the tax deductibility of cross-border gifts. It then examines the Australian Government’s proposed ‘in Australia’ reform agenda against the underlying fiscal and regulatory policy imperatives, and makes recommendations for the future tax treatment of Australian cross-border philanthropy.

A model for determining the optimal project life span and concession period of BOT projects

The concession agreement is the core feature of BOT projects, with the concession period being the most essential feature in determining the time span of the various rights, obligations and responsibilities of the government and concessionaire. Concession period design is therefore crucial for financial viability and determining the benefit/cost allocation between the host government and the concessionaire. However, while the concession period and project life span are essentially interdependent, most methods to date consider their determination as contiguous events that are determined exogenously. Moreover, these methods seldom consider the, often uncertain, social benefits and costs involved that are critical in defining, pricing and distributing benefits and costs between the various parties and evaluating potentially distributable cash flows. In this paper, we present the results of the first stage of a research project aimed at determining the optimal build-operate-transfer (BOT) project life span and concession period endogenously and interdependently by maximizing the combined benefits of stakeholders. Based on the estimation of the economic and social development involved, a negotiation space of the concession period interval is obtained, with its lower boundary creating the desired financial return for the private investors and its upper boundary ensuring the economic feasibility of the host government as well as the maximized welfare within the project life. The outcome of the new quantitative model is considered as a suitable basis for future field trials prior to implementation. The structure and details of the model are provided in the paper with Hong Kong tunnel project as a case study to demonstrate its detailed application. The basic contributions of the paper to the theory of construction procurement are that the project life span and concession period are determined jointly and the social benefits taken into account in the examination of project financial benefits. In practical terms, the model goes beyond the current practice of linear-process thinking and should enable engineering consultants to provide project information more rationally and accurately to BOT project bidders and increase the government's prospects of successfully entering into a contract with a concessionaire. This is expected to generate more negotiation space for the government and concessionaire in determining the major socioeconomic features of individual BOT contracts when negotiating the concession period. As a result, the use of the model should increase the total benefit to both parties.

Land Contracts in Queensland [4th Edition]

"The authors analyse the substance of the transaction through the medium of the latest standard REIQ Residential, Commercial and Community Titles contracts, and draw on a comprehensive range of court decisions relating to the area. There are chapters covering contract formation including the role of the real estate agent, the disclosure regime for sellers and agents, subject matter, the inclusion of special conditions, risk, completion both through the paper based medium and electronic conveyancing and stamp duty and GST implications."--Publisher website

Illuminating the glass box: The lighting designs of Richard Kelly

A promotional brochure celebrating the completion of the Seagram Building in spring 1957 features on its cover intense portraits of seven men bisected by a single line of bold text that asks, “Who are these Men?” The answer appears on the next page: “They Dreamed of a Tower of Light” (Figures 1, 2). Each photograph is reproduced with the respective man’s name and project credit: architects, Mies van der Rohe and Philip Johnson; associate architect, Eli Jacques Kahn; electrical contractor, Harry F. Fischbach; lighting consultant, Richard Kelly; and electrical engineer, Clifton E. Smith. To the right, a rendering of the new Seagram Tower anchors the composition, standing luminous against a star-speckled night sky; its glass walls and bronze mullions are transformed into a gossamer skin that reveals the tower’s structural skeleton. Lightolier, the contract lighting manufacturer, produced the brochure to promote its role in the lighting of the Seagram Building, but Lightolier’s promotional copy was not far from the truth.

Internet privatization, WikiLeaks, and free expression

In late 2010, the online nonprofit media organization WikiLeaks published classified documents detailing correspondence between the U.S. State Department and its diplomatic missions around the world, numbering around 250,000 cables. These diplomatic cables contained classified information with comments on world leaders, foreign states, and various international and domestic issues. Negative reactions to the publication of these cables came from both the U.S. political class (which was generally condemnatory of WikiLeaks, invoking national security concerns and the jeopardizing of U.S. interests abroad) and the corporate world, with various companies ceasing to continue to provide services to WikiLeaks despite no legal measure (e.g., a court injunction) forcing them to do so. This article focuses on the legal remedies available to WikiLeaks against this corporate suppression of its speech in the U.S. and Europe since these are the two principle arenas in which the actors concerned are operating. The transatlantic legal protection of free expression will be considered, yet, as will be explained in greater detail, the legal conception of this constitutional and fundamental right comes from a time when the state posed the greater threat to freedom. As a result, it is not generally enforceable against private, non-state entities interfering with speech and expression which is the case here. Other areas of law, namely antitrust/competition, contract and tort will then be examined to determine whether WikiLeaks and its partners can attempt to enforce their right indirectly through these other means. Finally, there will be some concluding thoughts about the implications of the corporate response to the WikiLeaks embassy cables leak for freedom of expression online.

Accountability for good faith in commercial dealing: The Carter v Boehm legacy 250 years on

In common law jurisdictions such as England, Australia, Canada and New Zealand good faith in contracting has long been recognised in specific areas of the law such as insurance law and franchising, and more recently the implied duties of good faith and mutual trust and convenience in employment contracts have generated a considerable volume of case law. Outside of these areas of law that may be characterised as being strongly‘relational’ in character,the courts in common law jurisdictions have been reluctant to embrace a more universal application of good faith in contracting and performance. However increasingly there are cases which support the proposition that there is a common law duty of good faith of general application to all commercial contracts. Most important in this context is the recent decision of the Supreme Court of Canada in Bhasin v Hrynew.1 However, this matter is by no means resolved in all common law jurisdictions. This article looks at the recent case law and literature and at various legislative incursions including statutes, codes of conduct and regulations impacting good faith in commercial dealings.