The pragmatic approach : the myriad gene patents before the Australian courts

The Full Court of the Federal Court of Australia in D'Arcy v Myriad Genetics [2014] FCAFC 115 recently upheld the validity of Myriad Genetics' Australian BRCA1 gene patent over isolated DNA sequences.

Australian DOCAs versus UK pre-packs and CVAs : sifting through the ashes of comparative dividend returns

This article is something of a brief extension of recent research into deeds of company arrangement (DOCAs) under Pt 5.3A of the Corporations Act 2001 (Cth), conducted with the support of the Australian Restructuring Insolvency & Turnaround Association’s (ARITA’s) Terry Taylor Scholarship (TTS). This article presents some of the findings of that research (namely, the dividend outcomes delivered by sampled Australian DOCAs) in a manner consistent with reports which have recently emerged from similar research conducted in the UK. In so doing, a basic comparison can be made of the performance of Australian DOCAs against analogous UK procedures.

After-acquired income and contributions by Australian bankrupts: can pay, should pay, making them pay!

This article explores the issue of income of bankrupts from the historical, theoretical and legislative viewpoints. After setting out the foundation for our present law, the article reviews the current statistics on the use of the existing legislative income contribution regime and analyses the jurisprudence which has made the notion of after-acquired income - and the ability of bankrupts to invest it - opaque. The article then canvasses the ‘can pay, should pay’ notion of income contributions by bankrupts together with the current debate on ‘making them pay’.

Access to the Internet Submission to ALRC IP 46

This submission is directed to issues arising in respect of the need to recognise and support access to the internet for all Australian residents and citizens. As such it addresses the following questions only: Questions 2-1: What general principles or criteria should be applied to help determine whether a law that interferes with freedom of speech is justified? Question 2-2: Which Commonwealth laws unjustifiably interfere with freedom of speech, and why are these laws unjustified?

Fair Dealing Exceptions Submission to ALRC IP 46

This submission is directed to issues arising in respect of the need to ensure users are able to access copyright works and as such address the following questions only: Question 6-1: What general principles or criteria should be applied to help determine whether a law that interferes with vested property rights is justified? Question 6-2: Which Commonwealth laws unjustifiably interfere with vested property rights, and why are these laws unjustified?

Professional indemnity insurance, performance and pre-emptive negligence: The impact of ‘non-claims’

As part of Australian licensing requirements professional valuers are required to maintain a level of professional indemnity insurance. A core feature of any insurance cover is that the insured has an obligation to notify their insurer of both actual and potential claims. An actual claim clearly will impact upon future policies and premiums paid. Notification of a potential claim, whether or not the notification crystallises into an actual claim, also can have an impact upon the insured’s claims history and premiums. The Global Financial Crisis continues to impact upon business practices and land transactions both directly and indirectly. The Australian valuation profession is not exempt from this impact. One example of this ongoing impact is reflected in a worrying practice engaged in by some financial institutions in respect of their loan portfolios. That is, even though the mortgagor is not in default, some institutions are pre-emptively issuing notices of demand regarding potential losses. Further, in some instances such demands are based only on mass appraisal valuations without specific consideration being given to the individual lot in question. The author examines the impact of this practice for the valuation profession and seeks to provide guidance for the appropriate handling of such demands.

Valuers, liability and insurance obligations revisited

- Overview of negligence from the valuer’s perspective - Consideration of defences - Impact of lender conduct - Insurance obligations and impact for the valuer

Who gets the deposit when trustees for a bankrupt buyer disclaim a real estate contract?

The decision of Henry J in Majet v Goggin and Miller (as joint and several trustees of bankrupt estate of Brett-Hall) [2015] QSC 38 dealt with the fate of a deposit that was paid under a real estate contract that did not complete in unusual circumstances.

Revisiting the Australian code of banking practice: Is self-regulation still relevant for improving consumer protection standards?

The Code of Banking Practice is one of the oldest examples of consumer protection provided through self-regulation in the Australian financial services sector. However, since the Banking Code was first released in 1993, the volume of consumer protection legislation applying to banks has increased exponentially and parts of the Banking Code that once provided new consumer rights have now been largely superseded by legislation. In light of the increasingly complex set of laws and regulations that govern the relationship between banks and their consumer and small business customers it could be argued that the Banking Code has a limited future role. However, an analysis of the Banking Code shows that it adds to the consumer protection standards provided by legislation and can continue to facilitate improvements in the standards of subscribing banks and of other institutions in the financial services sector. Self-regulation and industry codes should continue to be part of the regulatory mix. Any regulatory changes that flow from the recent Financial System Inquiry should also facilitate and support the self-regulation role, but the government should also consider further changes to encourage improvements in industry codes and ensure that the implicit regulatory benefits that are provided, in part, because of the existence of industry codes, are made explicit and made available only to code subscribers.

Submission to Senate Standing Committee on Legal and Constitutional Affairs on the Copyright Amendment (Online Infringement) Bill 2015

We argue that safeguards are necessary to ensure human rights are adequately protected. All systems of blocking access to online content necessarily raise difficult and problematic issues of infringement of freedom of speech and access to information. Given the importance of access to information across the breadth of modern life, great care must be taken to ensure that any measures designed to protect copyright by blocking access to online locations are proportionate. Any measures to block access to online content must be carefully tailored to avoid serious and disproportionate impact on human rights. This means first that the measures must be effective and adapted to achieve a legitimate purpose. The experience of foreign jurisdictions suggests that this legislation is unlikely to be effective. Unless and until there is clear evidence that the proposed scheme is likely to increase effective returns to Australian creators, this legislation should not be introduced. Second, the principle of proportionality requires ensuring that the proposed legislation does not unnecessarily burden legitimate speech or access to information. As currently worded, the draft legislation may result in online locations being blocked even though they would, if operated in Australia, not contravene Australian law. This is unacceptable, and if introduced, the law should be drafted so that it is clearly limited only to foreign locations where there is clear and compelling evidence that the location would authorise copyright infringement if it were in Australia. Third, proportionality requires that measures are reasonable and strike an appropriate balance between competing interests. This draft legislation provides few safeguards for the public interest or the interests of private actors who would access legitimate information. New safeguards should be introduced to ensure that the public interest is well represented at both the stage of the primary application and at any applications to rescind or vary injunctions. We recommend that: The legislation not be introduced unless and until there is compelling evidence that it will have a real and significant positive impact on the effective incomes of Australian creators. The ‘facilitates an infringement’ test in s 115A(1)(b) should be replaced with ‘authorises infringement’. The ‘primary purpose’ test in s 115A(1)(c) should be replaced with: “the online location has no substantial non-infringing uses”. An explicit role for public interest groups as amici curiae should be introduced. Costs of successful applications should be borne by applicants. Injunctions should be valid only for renewable two year terms. Section 115A(5) should be clarified, and cl (b) and (c) be removed. The effectiveness of the scheme should be evaluated in two years.

The responsibility of intermediaries: Emerging IP protection schemes, from Content ID, to three-strikes and follow-the-money

The only effective and scalable way to regulate the actions of people on the internet is through online intermediaries. These are the institutions that facilitate communication: internet service providers, search engines, content hosts, and social networks. Governments, private firms, and civil society organisations are increasingly seeking to influence these intermediaries to take more responsibility to prevent or respond to IP infringements. Around the world, intermediaries are increasingly subject to a variety of obligations to help enforce IP rights, ranging from informal social and governmental pressure, to industry codes and private negotiated agreements, to formal legislative schemes. This paper provides an overview of this emerging shift in regulatory approaches, away from legal liability and towards increased responsibilities for intermediaries. This shift straddles two different potential futures: an optimistic set of more effective, more efficient mechanisms for regulating user behaviour, and a dystopian vision of rule by algorithm and private power, without the legitimising influence of the rule of law.

Regulating ride-sharing in the peer economy

The rise of the peer economy poses complex new regulatory challenges for policy-makers. The peer economy, typified by services like Uber and AirBnB, promises substantial productivity gains through the more efficient use of existing resources and a marked reduction in regulatory overheads. These services are rapidly disrupting existing established markets, but the regulatory trade-offs they present are difficult to evaluate. In this paper, we examine the peer economy through the context of ride-sharing and the ongoing struggle over regulatory legitimacy between the taxi industry and new entrants Uber and Lyft. We first sketch the outlines of ride-sharing as a complex regulatory problem, showing how questions of efficiency are necessarily bound up in questions about levels of service, controls over pricing, and different approaches to setting, upholding, and enforcing standards. We outline the need for data-driven policy to understand the way that algorithmic systems work and what effects these might have in the medium to long term on measures of service quality, safety, labour relations, and equality. Finally, we discuss how the competition for legitimacy is not primarily being fought on utilitarian grounds, but is instead carried out within the context of a heated ideological battle between different conceptions of the role of the state and private firms as regulators. We ultimately argue that the key to understanding these regulatory challenges is to develop better conceptual models of the governance of complex systems by private actors and the available methods the state has of influencing their actions. These struggles are not, as is often thought, struggles between regulated and unregulated systems. The key to understanding these regulatory challenges is to better understand the important regulatory work carried out by powerful, centralised private firms – both the incumbents of existing markets and the disruptive network operators in the peer-economy.

Claiming the moral high ground in the copyright wars

Copyright was once one of the more obscure areas of law. It applied primarily to resolve disputes between rival publishers, and there was a time, not too long ago, when ordinary people gave it no thought. Copyright disputes were like subatomic particles: everyone knew that they existed, but nobody had ever seen one. In the digital age, however, copyright has become a heated, passionate, bloody battleground. The 'copyright wars' now pitch readers against authors, pirates against publishers, and content owners against communications providers. Everyone has heard a movie producer decry the rampant infringement of streaming sites, or a music executive suggest that BitTorrent is the end of civilisation as we know it. But everyone infringes copyright on an almost constant basis - streaming amateur videos with a soundtrack that isn't quite licensed, filesharing mp3s, copying LOLcat pictures from Facebook, posting pictures on Pinterest without permission, and so on - and most know full well they're in breach of the law.

It might be yours there but it’s not down here: Issues arising under the PPSA in cross-border transactions

As a relatively new piece of legislation, the Personal Property Securities Act 2009 (Cth) (PPSA) is yet to be the subject of much significant judicial consideration. Whilst the position of the Australian courts is becoming clearer in relation to domestic disputes, parties to cross-border transactions continue to encounter an alarming number of uncertainties with respect to the enforcement and maintenance of their security interests. This article considers the relevant problematic provisions of the PPSA and considers them in light of the authorities dealing with corresponding legislation in other jurisdictions. It then attempts to provide some guidance and suggestions as to the best means of protecting security interests in cross-border transactions.