Proposals for legislation targeting fake news and online hate speech are not unique to Germany. As recently as 3 January, French president Emmanuel Macron announced his support for legislation banning fake news during political election campaigns. The potential for prominent online platforms to sway election results became highly contentious in the lead-up to the US Presidential election in 2016. Many commentators believe that multiple factors, including the 24-hour news cycle, the increasing number of people using social media feeds as their primary source of news, and Facebook’s algorithms substantially influenced voter perceptions by determining the content to which they were exposed.

In a statement released on 22 January, Facebook’s Product Manager for Civic Engagement, Samidh Chakrabarti, acknowledged that “Russian entities [had] set up and promoted fake pages on Facebook… essentially using social media as an information weapon.” In its approach to the difficult balancing act of enabling free speech and preventing the viral spread of misinformation, Chakrabarti said that Facebook will “soon require organisations running election-related ads to confirm their identities [to] show viewers of their ads exactly who paid for them.”

Chakrabarti also highlighted the effect of fake online news in relation to the Australian political system, referring to articles circulated by Facebook in April 2017 which falsely claimed that Labor MP Dr Anne Aly – the first female Muslim to sit in the Australian Parliament – had refused to lay a wreath at an Anzac Day ceremony. In an interview with Fairfax Media following a barrage of cyber harassment, Dr Aly reflected, “you want this platform of free and open discourse, but… it can have those dangerous consequences. If it becomes predominantly an echo chamber, that goes against the grain of democracy, because it doesn’t expose people to other views and facts.” Similar sentiments were shared by Chakrabarti, who noted, “this medium’s being used in unforeseen ways with societal repercussions that were never anticipated.”

Whether the NetzDG law marks the dawn of a new age of online user protection, or, more ominously, a curtailment of free speech bordering on state censorship, the extent to which governments should intervene in internet publication has become increasingly difficult to assess. Legislators and academics have noted that internet technology advances so rapidly that laws cannot effectively keep up, as demonstrated by the widespread use of VPN technology by citizens evading the Chinese government’s internet firewall.

German internet users wishing to view ‘fake news’ or hate speech removed by social media platforms could, if they really wished to, use VPN technology to circumvent fake news bans instigated by German Facebook, by appearing to be accessing websites from locations abroad, where the NetzDG law does not apply. Although entertainment streaming services like Netflix have upgraded their systems to detect when audiences are using VPNs to access entertainment catalogues from other countries, it’s unclear whether governments banning fake news will be able to impose such standards on social media websites.

While the NetzDG law is yet to be proven effective, one thing remains clear: the position of the German government and President Macron on ‘fake news’, political polarisation and online hate speech has not gained real traction in the Australian legal context. It was, after all, only four years ago that senator George Brandis infamously stated that ‘people do have a right to be bigots.’ While the Racial Discrimination Amendment Bill 2016 was defeated by the Senate in 2017, there have been no substantive attempts by Parliament to take protection against hate speech a step further by interfering with the autonomy of social media websites. That being said, if Chakrabarti’s promise to neutralise risks is fulfilled, and other social media providers adopt similar approaches, any perceived need for domestic legislation may be nullified through self-regulation by the social service providers.

By Claire Nielson

The post The Legality of ‘Fake News’ appeared first on Sanicki Lawyers.

Sheeran, who co-wrote The Rest of Our Lives for renowned US country artists Tim McGraw and Faith Hill, is accused in a New York district court of “wilful copyright infringement” of melodies, chords and lyrical themes of When I Found You written by Beau Golden and Thirsty Merc’s Sean Carey.

It is unlikely that these similarities are mere coincidences, following allegations that Rae’s boyfriend, a marketing manager for Sony Music responsible for promoting Sheeran’s song in Australia, was aware of the “note-for-note copying” for months prior to release, and may have even been responsible for exposing the song to Sony Music.  Furthermore, Rae’s song was at its peak in Australia during Sheeran’s 2016 Australian tour, suggesting Sheeran would most likely have heard the song.

Sheeran and his co-writers have been said to have made over US $5 million for the song from downloads, online streams, TV broadcasts and live performances.  Golden and Carey are hence seeking this US $5 million in damages, excluding profits, running royalties and legal costs, and are also seeking an injunction.

Having recently settled a dispute with TLC for US $20 million for plagiarising in his hit single “Photograph” and narrowly avoiding an action for “Thinking Out Loud”, one has to wonder whether this is simply a spout of unintentional mistakes by Sheeran, or a pattern of more dishonest behaviour.

By Talia Le Couteur

The post Sheeran Targeted Once Again in Copyright Dispute appeared first on Sanicki Lawyers.

However, similarities between the National Party’s ad track and US rapper Eminem’s 2002 smash Lose Yourself did not go unnoticed by New Zealand’s High Court, it seems.

On 25 October 2017, New Zealand’s High Court held that the Nationals’ song ‘substantially copied’ Lose Yourself.

The decision may not come as a shock to the NZ public, given that the copying was thinly veiled to begin with – the ad track’s title being Eminem Esque, but the decision was not made lightly, with the Court considering evidence from two musicologists/doctors (Dr Dre not included).

The Court found the Nationals infringed the copyright in Lose Yourself in not one, but three different ways: communicating the copy to the public, authorising the copying of Lose Yourself in the National Party’s ads, and authorising the ‘use and/or deployment’ of the ads.

The case reiterates the importance of the principle that, for copyright infringement to occur, it is not necessary that the whole song be copied, nor that the copying be ‘exact’. Infringement can occur if a substantial part of the song is copied, or even if ‘what has been copied contains the essence of the copyright work’.

The decision also highlights the sensitive nature of copyright generally. Here, the National Party sought out advice from advertising and music licensing industry ‘experienced professionals’ regarding use of Eminem Esque, which was sourced from a production music company to begin with. The Court found these steps to be ‘appropriate’ and rejected Eminem’s legal team’s submission that the Nationals should have also sought legal advice regarding the potential risk of copyright infringement. Consequently, no additional damages for ‘flagrant’ infringement were awarded to Eminem’s side.

Still, the damages awarded in respect of the copyright infringements outlined above totalled NZ$600,000. The political ads in question were played 186 times on New Zealand television, among many other instances of exposure.

It has been reported that Eminem himself was not in fact consulted in relation to the case, but of the damages he personally receives, all will be donated to hurricane relief efforts.

By Adil Dart

The post Lose Yourself: New Zealand National Party Loses Copyright Case appeared first on Sanicki Lawyers.

In March 2017, the Australian Senate passed a resolution recognising the benefits of having a resale market for consumers with a legitimate reason for on-selling tickets.  There are situations when a person wishes to on-sell tickets and this should be allowed or facilitated, such as illness or a change in circumstances.  The motion called for the Commonwealth Government to provide increased protection to consumers and follow the lead of lawmakers in the UK and the USA.  It noted the “detrimental impact” on consumers of ticket scalping.

So, what is ticket scalping? Ticket scalping is the purchase of tickets to an event with the express intention of selling them to a third-party purchaser.  The scalper tries to sell the ticket above their face value, which in many cases can lead to a considerable profit.  The ‘scalper’ essentially engages in a commercial enterprise – they have no intention of attending the event, but rather purchase the ticket in pursuit of a gain.  More sophisticated online technologies have exacerbated the problem by allowing robots to purchase many tickets quickly.

Under the Major Sporting Events Act 2009, the Victorian Government can make a major sports event declaration.  This allows the Minister to make written guidelines for specified events, placing conditions on the sale and distribution of tickets.  These conditions include prohibiting and restricting the sale or advertising of tickets above their face value.  In practice, such declarations have only been made in respect of a limited number of events.

In relation to AFL matches in Victoria, only the Grand Final is declared a major event and covered by anti-scalping legislation.  Hence, protections apply to the Grand Final but not to the rest of the Finals Series, or matches during the regular season.  As a result, the legislation only has limited effect, and there have been calls for the Victorian Government to increase its coverage.

Purchasing tickets from unauthorised sellers carries the risk of buying a fake ticket or missing out on other consumer guarantees.  Even large ticket resellers such as Ticketmaster Resale and Viagogo cannot guarantee the legitimacy of tickets, and consumers are urged to exercise caution before purchasing a ticket from an unauthorised seller.

Ultimately, consumers need to be careful when selling and purchasing tickets second-hand for concerts, sporting matches and other events.  Obtaining front row seats still means queuing with the masses, though perhaps now via an online medium – unless buyers are prepared to risk being scammed.

By Marcus Frajman

The post Front Row Seats appeared first on Sanicki Lawyers.

Between 2011 and 2014 Mr Hoser had been contracted to perform live reptile shows at Bunnings stores around Melbourne. After Bunnings replaced Mr Hoser and started contracting with other wildlife performers, he became concerned that both Bunnings and one of his competitors were wrongfully utilising terms he had trademarked. After some mediation between the parties, Mr Hoser proceeded to seek an interlocutory injunction so that he could prevent a rival demonstrator from using the trademarked phrases ‘reptile party’ and ‘reptile parties’. Both of these terms were registered in the name of Mr Hoser.

In considering if the injunction would be granted, the court had to determine if there was a serious question to be tried. The court reflected on evidence from other wildlife performers and concluded that, on the facts, the applicant’s case was so unlikely to succeed that the injunction was refused. The court came to this conclusion largely due to the operation of s24 of the Trade Mark Act. This provision provides that if a trademarked term has, in the relevant industry, become a description of the type of service being provided, then the trademark owner cannot enforce exclusive rights over said term. In this instance the terms ‘reptile party’ and ‘reptile parties’ were considered to describe the service of bringing reptiles to parties.

Not only were the legal arguments weak, but the self-represented applicant made a number of errors throughout the court process. Mr Hoser did not properly swear an affidavit which resulted in an adjournment. He also filed post-hearing submissions without leave and failed to respond to a calculation of costs. Professional legal advice could have helped Mr Hoser deal with such technical oversights, but more importantly, given that the court found there was no serious question to be tried, a legal advisor may have been able to council the applicant and advise him not to take the matter to court at all.

So, what can we take away from this outcome?

Firstly, when registering trademarks, remember to avoid registering terms that merely describe the service you are providing.

Secondly, if you are thinking of pursuing a legal matter, don’t overlook the value of professional legal advice, not only to avoid technical errors but also to help determine if a matter is even worth litigating.

Lastly, if a dispute arises, court is not necessarily your first port of call. While we often frame litigation as the be-all-and-end-all of dispute resolution, less dramatic approaches, such as mediation or negotiation, can sometimes prove most rewarding.
By Steele McMahon
[1] Hoser v Bunnings Group Ltd & Anor [2017] FCCA 1624 (13 July 2017)

The post A Reptile Party: Trademarks and Self-Representation appeared first on Sanicki Lawyers.

The annual championship game of American football is watched by millions of Americans and is televised all over the world.  The abundance of viewers and stringent regulations lead to an expensive advertising price tag.  According to USA Today, television network CBS charged approximately $5 million for a 30 second ad spot in 2016.

If companies use the term for financial gain without permission, they will quickly find themselves in legal trouble.  The NFL do not take the issue lightly, as according to sporting website SB Nation, a cease and desist letter was handed to a church in 2007 for selling tickets to a Super Bowl party.

Instances of companies avoiding the term are easy to spot.  In a 2015 tweet by Nike San Francisco promoting team merchandise, the event was referred to as ‘The Big Game’, whilst Delta Airlines referred to it as the ‘Pro Football Championship’.

The decision to trademark the term years ago has helped lead to enormous advertising revenue for the National Football League year after year, demonstrating the vital importance of protecting your intellectual property.

Credit: Daniel Abdallah

The post The Super Bowl Trade Mark appeared first on Sanicki Lawyers.

• After 10 years of negotiation the Trans-Pacific Partnership, also known as the TPP, was a trade agreement between 12 countries that border the Pacific Ocean: Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United Stated, Vietnam and Australia.

• The agreement originally came about after talks to expand the Trans-Pacific Strategic Economic Partnership agreement (TPSEP or also known as P4) created in 2005 between Brunei, Chile, New Zealand and Singapore.

• For the TPP to come into effect at least six out of the 12 countries, representing 85 per cent of the overall economic output would have had to ratify the agreement by February 2018. Since the United States made up 62 per cent of the economic output its removal from the deal means the TPP can no longer go ahead.

• A communal ratification by all 12 countries would have eliminated numerous barriers to overseas investment and international expansion for Australian companies by removing more than 98 per cent of tariffs (taxes on imports) in the Pacific region.

• The TPP aimed to address modern investment and trade by evening the score between private businesses and government entities in issues such as competition, anti-corruption and e-commerce. However, no changes would have been made to Australia’s IP laws or policies.

• Some of the exports to be covered in the TPP included beef, sugar, seafood, wine, grains and resources, to name a few.

• Last year alone one third of Australia’s total goods and services exports, encompassing roughly $9 billion, were sent to the 12 TPP countries.

• Following President Trump’s withdrawal, Japanese Prime Minister Shinzo Abe – whose country was the only one to ratify the agreement – stated that without the US the TPP would be meaningless.

• Even if President Trump had lost his campaign it’s highly likely the deal would’ve collapsed regardless as Hillary Clinton had also pledged to withdraw from the TPP if elected US President.

• The TPP is not to be confused with the TTIP; a deal to eliminate regulatory barriers to trade and tariffs between the US and member states of the European Union.

There’s been talk by Australian Trade Minister Steve Ciobo of re-hashing the TPP into plan B with the remaining countries, as well as current speculation that China may take the US’s place going forward. Regardless, as trading for the Pacific region remains unclear going forward we’ll have to wait for the government’s next move.

By Kelsey Haymes

The post 10 Things You Should Know About The TPP appeared first on Sanicki Lawyers.

In an “exciting evolution for the company”, Australia’s Bega Cheese executive chairman Barry Irvin announced last week that the company would obtain the global trade mark rights to Vegemite from Mondelez International as part of a business acquisition worth 460 million Australian dollars.

A quintessential breakfast spread for most Australians, over 22 million jars are produced in Vegemite’s Port Melbourne factory every year. As reported by the Sydney Morning Herald, Bega Cheese says that the trade mark acquisition will give it a “strong presence” in the domestic spreads business.

The news of the acquisition surely came as a relief for Bega’s investors, with shares rising by 15 per cent since the announcement was made. The rise in shares will undoubtedly help in recouping the losses recorded last October, when concerns over slow sales of infant milk formula from Bega’s joint venture with Blackmores saw the shares dumped.

The shift back to full Australian ownership is a welcome transition for fans of the iconic spread, who can now wholly claim Vegemite as a national treasure.

Credit: Elizabeth Samaras

The post Bega Cheese & Vegemite – a match made in Australia Day heaven appeared first on Sanicki Lawyers.

This article aims to present the main issues surrounding copyright and your website.

1. Who owns the website? Me or the Web Designer

So you have hired a web designer to build your fantastic new website. Before the designer gets started you need to make it clear who will own the copyright in the site. It makes sense you that if you pay for the site then you will own it. However this will all depend on what agreement you have in place with your designer. Most web agencies and freelance designers will have a standard agreement assigning all copyright in the site to you, the business owner. This is important as it means that you have full control over the site and can make any necessary changes without requiring the permission of the web designer.

2. What elements of the website are protected by copyright?

While the website as a whole is not protected by copyright, the various elements contained within the site are. These elements include;

• photos, images and logos (known as ‘artistic works’)
• videos and animation;
• text (known as ‘literary works’)
• sound recordings;
• tables of words or symbols,
• and musical works.

Each of the above elements are capable of being protected by copyright.

3. What ‘rights’ does a copyright owner have?

Depending on the type of work, the owner of the copyright has certain exclusive rights.

Owners of copyright in Literary, dramatic, artistic and musical works have the exclusive right to:

• reproduce the work;
• make the work public for the first time; and
• communicate the work to the public.

Owners of copyright in literary, dramatic and musical works have two additional exclusive rights:

• to perform the work in public; and
• to make an adaptation.

Owners of copyright in films, sound recordings, broadcasts and published editions have the exclusive right:

• reproduce the material;
• showing films and playing recordings in public;
• transmitting films and sound recordings to the public using any form of technology; and
• rebroadcast television and sound broadcasts.

4. When can I use another person’s works without their permission?

Copyright protection is automatic upon creation and reduction to material form. This means that you should assume that anything that you want to use on your website, and that has not been created by you will require permission to use.

There are a few exceptions to copyright protection. Firstly, copyright protection does not exist forever. After a certain amount of time a work will enter the public domain. This means it will be free to use. For example, copyright in a musical work is protected for 70 years after the death of the composer. After this time, the work enters the public domain. You should be aware that the duration of copyright differs according to the type of work that it is.

The other exceptions are set out in the Copyright Act 1968 (Cth) and fall under the category of ‘fair dealing’. These include using the a portion of the work for the purpose of reporting the news or for the purpose of parody and satire. Each of these exceptions are limited and professional legal advice should be sought if you are thinking about relying on these exceptions.

5. Do I need permission to use copyright protected material?

If you did not create the work yourself and it is not in the public domain or does not fall within an exception to copyright you will require permission to use any work you would like to include on your website.

6. How do I obtain clearance to use copyright protected material?

The best way to obtain permission is to contact the copyright owner directly. Remember that in some cases the copyright owner and the creator may be two different parties. This may require some detective work (and some google searching) to track down the contact details of the owner. Send the owner an email or a letter explaining the work that you would like to use and the way in which you would like to use it. Ask the owner to provide permission for this use. The owner may request a license fee for the use of the work. It is best to get any permission for use in writing.  An email will suffice in most cases. If you wish to have the exclusive right to use a work on your website or if you wish to have the copyright in a work assigned to you, the copyright owner must sign a written agreement.

7. What about ‘Moral Rights’

Moral Rights are specific rights granted to the creator of the work. There are three Moral Rights:

• The right to have the creator’s name attributed to their work when it is used;
• The right not have the creator’s work falsely attributed to someone else; and
• The right not to have the creator’s work treated in a derogatory or prejudicial manner.

This means that you will either need to attribute the work to the creator or get a Moral Rights waiver signed by the creator. It also means that you need to be careful modifying someone else’s work. For example if you take an artwork and crop it so you only display one part of the work, the creator may see this is derogatory treatment of their work and may have a claim against you for Moral Rights infringement.

8. Linking to other websites

As a general rule there is no issue with linking from your website to another website. The main thing you should be careful of is linking to websites which infringe upon another party’s copyright. This is because you may be seen to be authorising such an infringement. This is illegal under the Copyright Act.

9. How do I protect the copyright in my website?

As previously stated, copyright protection is automatic. One thing you can do to help protect your copyright is provide a ‘Copyright Notice’ on your website. A Copyright Notice sets out the permitted uses of the site and provides contact details for permissions and the reporting of infringements.  You can also include the copyright symbol © with the name of your business and the year the website was created. For example © 2016 Sanicki Lawyers.

10. Copyright infringement

Copyright is infringed when a “substantial part” of a copyrighted material is used without permission of the copyright owner. The copyright owner may be entitled to take civil action against the infringer and obtain damages or stop the infringer from using the work. ‘Substantial part’ is defined an important, distinctive or essential part of the work and does not necessarily have to be a large part of a work.

The purpose of this article is to give general introductory information only. If you require advice in relation to your particular situation, please contact Sanicki Lawyers on 03 9510 9888 or hello@sanicki.com.au.

The post 10 Things to Know About Your Website & Copyright appeared first on Sanicki Lawyers.

The Met Theatre stopped the performance of Rossini’s Guillaume Tell after a group of musicians reported that a figure had been seen spreading a suspicious powder into the orchestra pit during second intermission.

Roger Kaiser, the individual responsible, has since written a formal apology to the theatre including the statement, “As a devoted opera enthusiast, the reality of the situation weighs heavily on me”. Kaiser had made a promise in 2012 to his cancer-affected friend to scatter his ashes at various opera venues, but his good intentions seemingly went astray with another, separate performance cancelled as police investigated.

Kaiser has not been charged with a crime, and the Met’s general manager Peter Gelb has responded, “”I trust that your future visits to the Met will be without incident, and that you will continue to proselytize about your love of opera to all who will listen.” However, we advise any readers with similar intentions to respect their loved one’s wishes, but also others (and private property) before a potential terrorism charge!

Written by Jonty Simmons

The post Ashes and Opera don’t mix appeared first on Sanicki Lawyers.