In 2008 I'll groan each time...

  1. A conference organiser uses "2.0" after a one word conference title.
  2. Writers spring to their keyboards after every news blip from Google, Microsoft or Facebook.
  3. People and governments don't realise how much the world has changed in recent years.
  4. Yet more calls are made for legislation to pour out of parliaments (which nobody has the time to read).
  5. I have to read a judge's decison which is unnecessarily long and lacking in structure.
  6. I let myself or a client down by failing to do something faster, cheaper, or better.
  7. I receive email attachments from a client with next to zero explanations or background.
  8. A meeting is requested with neither a clear agenda or any background documents.
  9. People tout their virtues and fain disinterest in power, fame or fortune.
  10. After I provide detailed advice, a potential client says "My gut feeling is a small law firm can't do this job."
  11. I receive a business enewsletter as engaging as spam.

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Jurisdiction clauses, legal rules and rulers

AAP reports that this week a Magna Carta manuscript was sold at a Sotheby's auction for A$24.8 million to an anonymous telephone bidder.

Ross Perot's foundation has owned it since 1984. Previously it was held by the Brudenell family of Northamptonshire, England since the late 14th or early 15th centuries.

Apparently 17 Magna Carta manuscripts  have survived, with only two held outside Britain.

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Business model defined

Intellectual property does not make money on its own. It needs a suitable business model.

To illustrate that truism, flash back to the 1970s and the ever-fascinating PARC riddle. The riddle is: Why was so much invented and created at PARC, yet so little gained in financial terms by the owner of PARC?

The owner of PARC was Xerox. PARC stands for the Palo Alto Research Centre, founded in 1970. In all senses, Palo Alto is in the center of Silicon Valley. At PARC the Xerox photocopier fortune helped establish and feed extraordinary creativity and invention.


The PARC team created the core of much of what we consider to be basic IT today.

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Is your know-how under-valued?

All businesses derive revenues from know-how. No business could get anything done without know-how. Yet very few apply knowledge and time to treat their know-how in a structured way to protect it effectively and build more value.

Fewer still evaluate or formally value their know-how. They are not helped by accountants, lawyers and advisers who respond with generic textbook approaches.

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Luis Vuitton mashups & fashion law

What do Britney Spears and a dog toy manufacturer called Haute Diggity Dog have in common? Answer: both were recent defendants in legal actions in France and the US by luxury goods maker Louis Vuitton.

Both were engaged in new-media-style mashups that could be described as brand guerrilla warfare. Louis Vuitton elected to fire back with traditional litigation.

Their tales are titillating examples of creative mashups causing legal bashups.

These recent court decisions also illustrate important lessons in differences in the treatment of parody, satire and other forms of brand guerrilla warfare in France, the United States and Australia.

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Securing fairness for Australian visa applicants

I was having a debate with a neighbour last week, and the conversation went from politics to whether Australia is a racist country.

My neighbour took the view that Australia is no worse than any other country in the world, and a lot better than most. I took the view that Australia still has a way to go to eliminate racism. Common public statements by our leaders are that Australia is an egalitarian and fair country, the land of the "fair go". This is not always the case.

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Californification of titles without trade marks

Showtime Network, a pay TV channel picked Californication to title its TV series. The Red Hot Chilli Peppers had already used it to title a song and album.

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How to make contracts more certain and less costly

Stop believing the myth that lawyers can provide legal protection with words alone. In addition to words, protection in contacts requires knowledge and know-how regarding business process, policies, training, standards, and codes of conduct.

The reason is that context has become as important as content. The context of a contractual or other legal relationship between two or more parties has become as important as the words the parties choose to communicate and set the terms between each other.

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Contract Drafting Tips Series: Confidential Information Clause

This article is part of a series on drafting tips for contract clauses.

Under confidential information law a legal right exists for a person who in circumstances of confidence gives (or permits access to) confidential information to another person ("user") who then, without permission, uses it or discloses it to a third party. In those circumstances the first-mentioned person may obtain certain legal remedies against the user.

Confidential information law is a branch of equity law. A contract, preferably written, can bolster protection of confidential information. This is because the aggrieved person can then rely on two legal grounds, contract law as well as equity law. Numerous practical steps can be taken to further enhance enforceability under such laws.

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Contract Drafting Tips Series: Rights Granted Clause

This article is part of a series on drafting tips for contract clauses.

A "rights granted" clause defines the rights granted to a licensee to use or deal with certain property. It can be very broad (eg all rights in a work) or very narrow (eg television broadcast rights in a particular territory for a particular duration).

This article focuses on rights granted clauses for intellectual property ("IP"). The legal rights granted may be in one area of IP law, or in a combination.

The rights granted may be a right of copyright in a work, a registered trade mark right, a right to patented technology, a right over a registered design, a right over a plant variety or consent regarding use of confidential information.

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Contract Drafting Tips Series: Dispute Resolution Clause

This article begins a series on drafting tips for various types of contract clauses.

Good contracts help avoid and resolve disputes. The person who drafts a contract should consider possibilities for dispute resolution and, if need, draft a clause.

Having a dispute resolution clause is useful in appropriate cases. According to a recent dispute resolution survey by the Institute of Arbitrators & Mediators Australia (IAMA), almost half of all technology contracts result in some kind of dispute over factors such as time, cost or performance.

You can draft a contract with no dispute resolution clause, and we often do. There are also instances when it is very useful to have one.

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Australian architects behaving badly

This week I've written articles on two court cases involving copyright, contracts and architects. Both cases involve lengthy disputes over either a unit block or project homes. The project homes case is continuing with an appeal due in 2008.

It got me thinking. What options are available for Australian architects who seek to professionally document their legal relationships with clients and collaborators?

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Architect gave an implied copyright licence

The work of architects exposes them to legal risks. Lack of clarity in documents or arrangements often causes angst for architects. It is sometimes also used by them as a negotiation tactic.

This is illustrated in a leading copyright case for architects decided by the High Court of Australia in December 2006. The decision in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 is about copyright in property development plans.

It's an interesting case worthy of a detailed case report.

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"Wow factor" snares copyright breach of architectural plans

In September 2007 the Federal Court of Australia ruled on the question of copyright in project homes and plans for them. Barrett Property Group Pty Ltd v Metricon Homes Pty Ltd [2007] FCA 1509 was an action between two competing project home developers in the market in Victoria.

The breach of copyright claim was made by Barrett Property Group Pty Ltd trading as Porter Davis Homes. It claimed Metricon Homes Pty Ltd had copied certain project homes and architectural plans for them, commencing with the "Seattle 31" model.

The case is a lesson on the nature and extent of evidence required to win a architectural plan copyright infringement case. If you read to the end you'll see that the numbers in this court case don't talk, they scream. An appeal has been filed and is scheduled for February 2008.

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No substitute for experience and skill in immigration law

A former Minister for Citizenship once said that representatives of migration applicants do nothing more than present their clients' facts to the Department.

My response is to quote George Gerswin, "It ain't necessarily so."

Over the years as a solicitor specialising in immigration law, I have had to intervene on literally hundeds of occasions to see that my clients receive a fair (and legal) go from the Department of Immigration.

I'll give you three recent examples from the last two weeks.

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