White SW Computer Law
Intellectual Property, Information Technology & Telecommunications Lawyers
Melbourne Office - PO Box 452, COLLINS STREET WEST Victoria 8007 Australia
Sydney Office - GPO Box 2506, SYDNEY New South Wales 2001 Australia
Telephone: Melbourne Office - +61 3 9629 3709 Sydney Office - +61 2 9233 2600
Facsimile: Melbourne Office - +61 3 9629 3217 Sydney Office - +61 2 9233 3044
Email: wcl@computerlaw.com.au Internet: http://www.computerlaw.com.au

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 ====== White SW Computer Law Intellectual Property, Information Technology & Telecommunications Newsletter - March 1997 ====== ====== White SW Computer Law Intellectual Property, Information Technology & Telecommunications Newsletter - March 1997 ======
 ===== Don't rely on your company for protection. ===== ===== Don't rely on your company for protection. =====
-If a company is found to have infringed the copyright owned by another party the directors or managers of that company may be found personally liable for such infringements by authorising or procuring such conduct by or on behalf of the company. ​In December 1996, Steven Lagos, a company director of the company Palm Beach Pty Ltd was found to have infringed Microsoft'​s copyright in the case //​[[case_links#​Microsoft Corporation v Auschina Polaris Pty Ltd & Ors|Microsoft Corporation v Auschina Polaris Pty Ltd & Ors]]//. In that case, Palm Beach had imported unlicensed copies of Microsoft programs into Australia. It was found that Lagos knew that if the copies had been made in Australia they would have constituted an infringement of copyright and that he had authorised or procured the infringement. It was ordered that he had to personally pay Microsoft the value of the unlicensed programs **without** any deductions to be allowed for the purchase price and other pre-sale expenses. Have you considered your personal liability for any such infringements in your office?+If a company is found to have infringed the copyright owned by another party the directors or managers of that company may be found personally liable for such infringements by authorising or procuring such conduct by or on behalf of the company. ​
  
 +In December 1996, Steven Lagos, a company director of the company Palm Beach Pty Ltd was found to have infringed Microsoft'​s copyright in the case //​[[case_links#​Microsoft Corporation v Auschina Polaris Pty Ltd & Ors|Microsoft Corporation v Auschina Polaris Pty Ltd & Ors]]//​. ​
 +
 +In that case, Palm Beach had imported unlicensed copies of Microsoft programs into Australia. It was found that Lagos knew that if the copies had been made in Australia they would have constituted an infringement of copyright and that he had authorised or procured the infringement. ​
 +
 +It was ordered that he had to personally pay Microsoft the value of the unlicensed programs **without** any deductions to be allowed for the purchase price and other pre-sale expenses. Have you considered your personal liability for any such infringements in your office?
 ===== Watch out for whose photos you use! ===== ===== Watch out for whose photos you use! =====
-In 1994, Telstra Corporation Ltd used a photo of the swimmer Kieren Perkins in an advertising supplement regarding the selection of a carrier for long distance and international calls. Telstra had not sought permission from Perkins to use the photo and gave the impression that Perkins supported Telstra in the selection process. It was found on Appeal in //​[[case_links#​Talmax Pty Ltd and Anor v Telstra Corporation Ltd|Talmax Pty Ltd and Anor v Telstra Corporation Ltd]]//, that Telstra had engaged in misleading and deceptive conduct and as such was restrained from using the advertising material. Perkins was also awarded $15,000 for loss of opportunity to exploit commercial advantage together with legal costs. You should ensure that any photos used in publications,​ multimedia etc are being used with the subject'​s permission. It is a lot cheaper to edit them out in the production stage rather than defend an action in the Court.+In 1994, Telstra Corporation Ltd used a photo of the swimmer Kieren Perkins in an advertising supplement regarding the selection of a carrier for long distance and international calls. Telstra had not sought permission from Perkins to use the photo and gave the impression that Perkins supported Telstra in the selection process. ​ 
 + 
 +It was found on Appeal in //​[[case_links#​Talmax Pty Ltd and Anor v Telstra Corporation Ltd|Talmax Pty Ltd and Anor v Telstra Corporation Ltd]]//, that Telstra had engaged in misleading and deceptive conduct and as such was restrained from using the advertising material. Perkins was also awarded $15,000 for loss of opportunity to exploit commercial advantage together with legal costs. You should ensure that any photos used in publications,​ multimedia etc are being used with the subject'​s permission. ​
  
 +It is a lot cheaper to edit them out in the production stage rather than defend an action in the Court.
 ===== Buying and selling intellectual property? ===== ===== Buying and selling intellectual property? =====
 A draft bill to be released by the New South Wales Government could see all national, unrestricted intellectual property rights subject to stamp duty when these rights are transferred. It is important that in your contractual documentation,​ the party responsible for paying taxes and other Government charges is made clear. This can be of particular importance when transactions involved occur in New South Wales or in other countries such as New Zealand where a goods and services tax is levied. //Have you considered who is going to pay for any such stamp duty or VAT/GST?// A draft bill to be released by the New South Wales Government could see all national, unrestricted intellectual property rights subject to stamp duty when these rights are transferred. It is important that in your contractual documentation,​ the party responsible for paying taxes and other Government charges is made clear. This can be of particular importance when transactions involved occur in New South Wales or in other countries such as New Zealand where a goods and services tax is levied. //Have you considered who is going to pay for any such stamp duty or VAT/GST?//
- 
 ===== The danger of electronic evidence. ===== ===== The danger of electronic evidence. =====
 With the majority of businesses creating and storing their documents and letters on computers and with the ever increasing use of e-mail as a means of communication,​ electronic evidence is going to become an increasingly important. With the majority of businesses creating and storing their documents and letters on computers and with the ever increasing use of e-mail as a means of communication,​ electronic evidence is going to become an increasingly important.
  
-A number of US cases have already seen such evidence playing an important role. After purchasing a solar energy subsidiary of Atlantic Richfield Co, Siemens Solar Industries found e-mail in Atlantic'​s computer system which showed at the time of the sale, Atlantic knew that their solar technology project was not commercially viable. Siemens sued Atlantic for having misrepresented the likely success of the project. In a case for wrongful termination against Oracle, an employee used an incriminating piece of e-mail in support of her case. The e-mail was found to have been forged and the employee was charged with perjury.+A number of US cases have already seen such evidence playing an important role. After purchasing a solar energy subsidiary of Atlantic Richfield Co, Siemens Solar Industries found e-mail in Atlantic'​s computer system which showed at the time of the sale, Atlantic knew that their solar technology project was not commercially viable. Siemens sued Atlantic for having misrepresented the likely success of the project. ​ 
 + 
 +In a case for wrongful termination against Oracle, an employee used an incriminating piece of e-mail in support of her case.  
 + 
 +The e-mail was found to have been forged and the employee was charged with perjury.
  
 In most litigation, a party can request the other side to "​Discover"​ all relevant documents in their possession. This will include documents stored in a computer network and on PCs, laptops, home computers and off site backup copies, e-mail and also computer logs and audit trails. In most litigation, a party can request the other side to "​Discover"​ all relevant documents in their possession. This will include documents stored in a computer network and on PCs, laptops, home computers and off site backup copies, e-mail and also computer logs and audit trails.
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 Does your firm have a policy with respect to verifying copyright ownership - do you know the consequences if you fail to make proper inquiries? Does your firm have a policy with respect to verifying copyright ownership - do you know the consequences if you fail to make proper inquiries?
- 
 ===== Playboy litigation continues 15 years on ===== ===== Playboy litigation continues 15 years on =====
-In 1981 in **USA**, Playboy Enterprises Inc obtained an injunction against Chuckleberry Publishing Inc and Tattilo Edtrice SpA to prevent them from selling their magazine Playmen in the US. The injunction prevented Tattilo from using the trade marks "​Playboy"​ or "​Playmen"​ or any other confusingly similar word in conjunction with the sale or distribution of English language publications and related products in the US. Fifteen years later In //​[[case_links#​Playboy| Playboy Enterprises Inc v Chuckleberry Publishing Inc & others ]]//, the court found that by offering access to American customers via the Internet, Tattilo was in contempt of Court by breaching the injunction. Tattilo was ordered to :+In 1981 in **USA**, Playboy Enterprises Inc obtained an injunction against Chuckleberry Publishing Inc and Tattilo Edtrice SpA to prevent them from selling their magazine Playmen in the US. The injunction prevented Tattilo from using the trade marks "​Playboy"​ or "​Playmen"​ or any other confusingly similar word in conjunction with the sale or distribution of English language publications and related products in the US. 
  
 +Fifteen years later In //​[[case_links#​Playboy| Playboy Enterprises Inc v Chuckleberry Publishing Inc & others ]]//, the court found that by offering access to American customers via the Internet, Tattilo was in contempt of Court by breaching the injunction. ​
 +
 +Tattilo was ordered to :
   * shut down its Internet site in Italy or refrain from taking new subscriptions from US residents   * shut down its Internet site in Italy or refrain from taking new subscriptions from US residents
   * invalidate user names and passwords previously purchased by US residents and refund the remainder of their subscriptions   * invalidate user names and passwords previously purchased by US residents and refund the remainder of their subscriptions
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 Have you considered the value of registering your trade marks in Australia and foreign countries where you do or may do business? Without the added protection that is afforded by registration,​ it can be difficult to enforce your rights with respect to trade marks. Have you considered the value of registering your trade marks in Australia and foreign countries where you do or may do business? Without the added protection that is afforded by registration,​ it can be difficult to enforce your rights with respect to trade marks.
  
-This article is a guide only and should not be used as a substitute for proper legal advice, readers should make their own enquiries and seek appropriate legal advice.+
  

  © White SW Computer Law 1994-2019. ABN 94 669 684 644. All Rights Reserved.
  Liability limited by a scheme approved under Professional Standards Legislation
  This website is a guide only and should not be used as a substitute for proper legal advice.
  Readers should make their own enquiries and seek appropriate legal advice.
  For legal advice please email wcl@computerlaw.com.au