Even in the realm of physical things, new challenges arise all the time.
Even in the realm of physical things, new challenges arise all the time.
Consider the issues raised in:
Does the despoiler of water have a proprietary right in the commingled product? Implications for Property Law and Criminal Procedure Monash University Law Review Vol 38, No 3 p35.
Who would have thought anyone would be interested in waste water?
While it is relatively easy for students to comprehend scenarios regarding physical items, some have more trouble with intangibles.
While it is relatively easy for students to comprehend scenarios regarding physical items, some have more trouble with intangibles.
We consider briefly, a few of these to make sure that students would identify them in a particular situation and be able to comprehend legal issues surrounding them.
Any other info that is confidential to that company. E.g. consider the type of info that a CEO might acquire in course of their job.
Mixture of legal and practical steps
Mixture of legal and practical steps
Conduct information audit…limit access of critical confidential information (practical) and include provisions in employment contracts or separate confidentiality agreements (legal)
Create confidential information policy and cover aspects such as use of and ownership of contacts. Include social media contacts?
Contrast the speed with which Woolworths was able to act with the litigation between Optiver Australia Pty Ltd and Tibra Trading P/L 2006-?
Contrast the speed with which Woolworths was able to act with the litigation between Optiver Australia Pty Ltd and Tibra Trading P/L 2006-?
Optiver, a high frequency trading operation claimed former employees took software and confidential information with them when they set up their own operation in competition with Optiver.
Optiver claimed damages etc under s. 115 Copyright Act….amounting to $hundreds of millions.
An English case of Force India formula One Team Ltd v. 1 Malaysia Racing Team SDNBHD & ORS[2012], italian aerodynamics company Aerolab was ordered to pay €25,000to Force India for misues of confidential information relating to the design of a half size wind tunnel model of a Formula 1 racing car.
An English case of Force India formula One Team Ltd v. 1 Malaysia Racing Team SDNBHD & ORS[2012], italian aerodynamics company Aerolab was ordered to pay €25,000to Force India for misues of confidential information relating to the design of a half size wind tunnel model of a Formula 1 racing car.
In 2010 Aerolab was retained by the Team Lotus Formula 1 team soon after having already undertaken similar work for Force India and used information gathered during Force India’s works….copied some computer files…enabled them to take short cuts by providing a more advanced model from which to build…but did not lead to total replication of Force India designs.
In the absence of enforceable restrictive covenant, an employer cannot prevent an employee/consultant from using information which forms part of his own skill, knowledge and experience, even if confidential and learned during employment but is entitled to protection of confidentiality in respect of information that might otherwise amount to a trade secret.
Measure of damages is that which would otherwise have been negotiated between willing licensor and willing licensee acting reasonably as at date of breach for permission to use the confidential information….here, time and cost Aerolab would otherwise have had to expend to design and draw the relevant Lotus parts had they not misused the confidential information.
Note that in both the previous cases, the value of the software ….the confidential information misused….was in saving time to achieve the first step and not exact copying of an identical result. There can be significant difficulties in valuing that contribution and therefore assessing damage.
Note that in both the previous cases, the value of the software ….the confidential information misused….was in saving time to achieve the first step and not exact copying of an identical result. There can be significant difficulties in valuing that contribution and therefore assessing damage.
NSW Supreme court proceedings commenced.
NSW Supreme court proceedings commenced.
Internet executives suing rock band INXS for $2.8m, claiming that they pitched a concept to band and manager-a website that promoted big brands and allowed them to download songs, ringtones and video music clips. Just as they were about to sign a sponsorship agreement with Telstra, manager pulled plug on project only to create a “substantially similar” site. Claim is that business plan was confidential and INXS stole it and used it without their permission. Band deny it was confidential.
Richard Prince, artist composes blown up photos taken from his Instagram feed…entire career built on appropriation…takes advantage of “fair use” exception…testing limits of copyright…overlaying photos/work on the work of others…divorcing recognizable images from their context
Richard Prince, artist composes blown up photos taken from his Instagram feed…entire career built on appropriation…takes advantage of “fair use” exception…testing limits of copyright…overlaying photos/work on the work of others…divorcing recognizable images from their context
Software can be Copyrighted. However, if the software represents a new process, it may also able to be Patented.
Software can be Copyrighted. However, if the software represents a new process, it may also able to be Patented.
At present the Samsung-Apple patent cases (at least 21) are displaying the complexities of this reality, and the importance of it to many businesses. If Apple win, for example, it is relevant to all of us using pay TV and video, as it may prevent others from providing certain services, without their permission and under licence.
In our Federal Court, Samsung allege in the Federal Court that the iPhone and iPad infringe 7 patents related to wireless communication standards.
Note also the successful action in the US by our CSIRO relating to wifi.
Consider the role of IP
Consider the role of IP
Manuals-copyright licensing, packaging
Branding-trademark use for marketing, utensils, packaging
Confidential information-business know how
Patents?-genetically engineered foodstuffs
Designs-utensils, giveaways.
A court case commenced in the Federal Court Australia June 8, 2010 to test the legality of an Australian patent for a breast and ovarian cancer gene owned by an American biotechnology company and two international research organisations. There have been calls by researchers, doctors and healthcare interests to stop gene patents because it is an impediment to research and makes treatments costly due to licence fees. In a NY case brought by the American Civil Liberties Union against Myriad Genetics, the US patent for the same gene has been invalidated and an Australian Senate inquiry has inquired into gene patents.
A court case commenced in the Federal Court Australia June 8, 2010 to test the legality of an Australian patent for a breast and ovarian cancer gene owned by an American biotechnology company and two international research organisations. There have been calls by researchers, doctors and healthcare interests to stop gene patents because it is an impediment to research and makes treatments costly due to licence fees. In a NY case brought by the American Civil Liberties Union against Myriad Genetics, the US patent for the same gene has been invalidated and an Australian Senate inquiry has inquired into gene patents.
Discovery instead of invention? 400 gene patents in Australia.
Ethical and philosophical questions-can you privatise the human body-whose property is it?
Particularly important for targeted or customised treatments-coming soon-control over your own treatment?
A summary of the nature of this type of personal property is contained in a HC tax case Commissioner of State Taxation v. Cyril Henschke Pty Ltd [2010]HCA 4. Doris Henschke surrendered her one sixth share in a wine making partnership in SA.
A summary of the nature of this type of personal property is contained in a HC tax case Commissioner of State Taxation v. Cyril Henschke Pty Ltd [2010]HCA 4. Doris Henschke surrendered her one sixth share in a wine making partnership in SA.
The HC adopted with approval the statement of Windeyer J in Biolton v. FC of T [1965]ALR481,485 that the right with respect to partnership assets is generally regarded as equitable and is “a fractional interest in a surplus of assets over any liabilities on a winding up and in the future profits of the partnership business…”
So, value can only finally be ascertained on a winding up…but can be estimated and agreed prior to that.
Most of the time no practical difference and used interchangeably. But, in some literature and legal references, property is used to refer to rightful ownership (and the associated rights) and title is broader and covers situations in which a third party may prevail over the true owner for legal reasons and become entitled to some personal property. We consider situations like this in Modules 3 and 11.
Most of the time no practical difference and used interchangeably. But, in some literature and legal references, property is used to refer to rightful ownership (and the associated rights) and title is broader and covers situations in which a third party may prevail over the true owner for legal reasons and become entitled to some personal property. We consider situations like this in Modules 3 and 11.
Elements
Elements
Exclusive control over the chattel.
Plus
Intention to exclude others from exercise of control.
“Ownership” of personal property involves more than possession-
the right to possession,
to use, to use up,
to alter,
to hire out,
to grant a security,
to gift, or sell.
Cases are main source of law
Supplemented by Statute…e.g. as to what Police must do with items handed over to them by finders.
What is it?
What is it?
An old common law criminal offence which applies in NSW. If at the time a finder finds property, they believe that by taking reasonable steps they can find the owner, but appropriate it instead, they commit larceny by finding. BUT, if at that time they do not believe that by taking reasonable steps they can find the owner, they do not commit larceny.
Chamindu Amarsinghe was a cleaner tidying toilets in Melbourne, in August 2011 when he found a sanitary bin flush with money. “There was too much to count…”He called his supervisor. Police and a plumber pulled more than $100,000 from the Bourke St bathroom….$1,200 in the pipes.
Chamindu Amarsinghe was a cleaner tidying toilets in Melbourne, in August 2011 when he found a sanitary bin flush with money. “There was too much to count…”He called his supervisor. Police and a plumber pulled more than $100,000 from the Bourke St bathroom….$1,200 in the pipes.
Police were never able to establish the origin or that it was proceeds of crime and no one came forward to claim it. Magistrate Michael Smith ordered $81,597 go to the honest Mr. Amarsinghe and the rest to the state.
Note the effect of Statute on historic finds
Note the effect of Statute on historic finds
From the Sunday Telegraph 27/9/ 2009
Fight on for Saxon Gold
Row has erupted over who will share fortune in Anglo-Saxon treasure found in a field in Britain
Note effect of Statute….becomes Crown Property even though found by individual with metal detector and private land.
Compensation payable under this particular statute.
Similar provisions in Australia.
Example:
Example:
A leased land to B for 99 years. While excavating, B found a prehistoric boat 6 feet below surface. A claimed the boat and was successful. Immaterial that he had not been aware of it’s existence
Elwes v. Brigg Gas Co (1886) 33 Ch D 562
Note the effect of modern statutes on finding items such as this
Example:
Example:
P water company owned land with a pool and employed D to clean it. While doing so, workman found 2 gold rings in mud at bottom of pool.
HELD: P as owner of land containing the pool entitled to rings.
South Staffordshire Water Co v. Sharman (1896) 2 QB 44
Example:
Example:
While using a metal detector in a public park owned by P local authority, D became aware of object. He dug 9 inches down and found a valuable medieval gold brooch. Court held that local authority as owner or lawful possessor of land had better title to object found than finder. Right of public to engage in recreational pursuits in park did not include digging and removal of property (acts of trespass).
Waverley Borough Council v. Fletcher (1996) QB 334
NOTE: Relevance of rights granted, signs, terms of dedication, statutes affecting.
Property leased by City of London to Yorkwin Investments Ltd. Yorkwin hired Wates Ltd for demolition/construction. They found a safe in a cellar and bank notes within the safe.
Property leased by City of London to Yorkwin Investments Ltd. Yorkwin hired Wates Ltd for demolition/construction. They found a safe in a cellar and bank notes within the safe.
Who was entitled to them?
Safe formed part of the building and so occupier normally entitled, but lease from City of London contained a clause giving them the right to any valuable objects, so City of London entitled and not finder Wates, or occupier Yorkwin.
Golf club with well built fences to make sure any lost ball could be found.
Golf club with well built fences to make sure any lost ball could be found.
Trespasser found a golden ball.
Landowner manifested intention to control any lost things on his land and prevailed over trespasser finder.
On 24 August, 2007, Seven Network ran a story about AFL players who had had drug treatment. They did not name the players, but named the club. Seven reportedly bought the records for $3,000 from a source who claimed to have found them in the gutter outside a medical clinic. After seizing documents, police arrested a man and a woman and charged them with “larceny by finding”.
On 24 August, 2007, Seven Network ran a story about AFL players who had had drug treatment. They did not name the players, but named the club. Seven reportedly bought the records for $3,000 from a source who claimed to have found them in the gutter outside a medical clinic. After seizing documents, police arrested a man and a woman and charged them with “larceny by finding”.
“There would be an ethical issue if we had knowingly bought stolen documents….it is yet to be established whether the documents were stolen or not.”
Who do the records belong to? Were they abandoned? Who does the information in those records belong to?
See also later module on electronic commerce and data management
If a person finds goods and hands them into the Police, there is generally a Statute which provides that if the true owner is not found within a specified time, that the goods be returned to the finder (unless they are proceeds of crime etc)
If a person finds goods and hands them into the Police, there is generally a Statute which provides that if the true owner is not found within a specified time, that the goods be returned to the finder (unless they are proceeds of crime etc)
Care should be taken to obtain a receipt and preferably to have a witness.
Otherwise, one could end up in the situation described in Edwards v. Police (2004) SASC 419. Mr.& Mrs Irwin found a purse with $660 inside, handed it in, true owner came forward, money missing but Irwins had no receipt for purse and money. Police officer charged and convicted, but it could have ended badly for the Irwins.
By far the least problematic way (legally speaking) to make a valid gift is by a Deed of Gift.
By far the least problematic way (legally speaking) to make a valid gift is by a Deed of Gift.
If there is no Deed, we must rely on the common law to work out from the evidence whether there has been a valid gift or not.
At common law
At common law
Written
State on its fact it is a deed..e.g. This Deed…executed as a deed
Convey some privilege or thing…hereby…by these presents
Grantor must have legal ability to grant the thing or privilege and the grantee must have legal capacity to recive
Delivered by grantor and accepted by grantee
See s. 38 Conveyancing Act 1919 (NSW)for statutory requirements
Signed and sealed
Attested by at least one witness not a party to the Deed.
See other states for any specific requirements in that State.
Note that there is a longer limitation period for deeds…12 years in NSW
Birthday present of a yacht? Valid gift?
Birthday present of a yacht? Valid gift?
On the night of 40th birthday of R, a yacht belonging to Mr. S (husband of R’s mother) was moored outside restaurant where party took place.
When making his speech Mr. S gave a gift to R and said to R: “And you can have the boat”
R accepted in his acceptance speech.
Various other similar statements prior to that time
Mr. S later said he was joking.
Valid gift?
Valid gift?
Did it matter that words not contemporaneous with delivery? No
Did it matter that there was a liability (1/3 of value owed and charged to third party) transferred with gift? No
Handing keys over. “It’s all yours son”. Enough for delivery? Yes, constructive.
Note public policy issues.
Note public policy issues.
Donor no longer around
Easily abused
Desire to encourage people to make valid Wills etc.
Do not confuse with gifts during lifetime…intended to come into effect while person alive.
Case examined whether delivery of documents for bank account and term deposit was the means or part of the means of getting at the property or the essential indicia of title and whether land can be the subject of a donation mortis causa.
Case examined whether delivery of documents for bank account and term deposit was the means or part of the means of getting at the property or the essential indicia of title and whether land can be the subject of a donation mortis causa.
Court concluded valid donation mortis causa of bank account balance and term deposit, but not apartment.
Ms Hobbes did a lot for George Gibson in the 11 months before his death.
Ms Hobbes did a lot for George Gibson in the 11 months before his death.
See paras 8-13 for evidence re George’s statements to Ms Hobbes-”When I go, you live here” “Take these. I don’t need anymore” “Plenty there for you. Look after you” “You have my keys . All yours. Thank you for looking after me”
See para 22 for essential elements of donation mortis causa…Public Trustee v. Bussell…gift made in contemplation of death, delivery and conditional on death….first and third satisfied in all cases.Main issue in all was delivery. See review of relevant cases in judgement
Clear that passbook was an essential indicium of title because it had to be presented for each transaction….enough for dmc, but not intervivos gift
More difficult re term deposit, but card etc enough.
Regardless of debate over whether dmc can apply to land in Australia ever, even if it did, keys and rate notice not enough.
When considering delivery, the donor must do all that is necessary to transfer ownership.
When considering delivery, the donor must do all that is necessary to transfer ownership.
What is necessary?
Transfer of shares?
Licence?
Are bitcoins personal property?
Are bitcoins personal property?
ATO of view that bitcoins are neither money nor foreign currency and supply does not attract GST. However, they are an asset for CGT purposes and so ATO regards them as a barter transaction and personal property.
Are bitcoins “financial products”?
WTO estimates that 15% or $8.43b of the $5.62t in international trade is conducted on a non cash basis. However, less than 1% of businesses use non cash trade. Some very large ones do and lots of very small ones. Commercial exchanges, government deals, individual BtoB deals.
WTO estimates that 15% or $8.43b of the $5.62t in international trade is conducted on a non cash basis. However, less than 1% of businesses use non cash trade. Some very large ones do and lots of very small ones. Commercial exchanges, government deals, individual BtoB deals.
Note dissatisfaction with USD since 2009 and discussions re alternative reserve currency (basket of several, SDR), role of barter, gold, real items rather than paper money.
A lot of oil swaps both by international oil companies and by others swapping other commodities (e.g. food) for oil. Venezuela barters oil with 13 countries e.g. accepts sugar from Barbados and bananas from St. Lucian
A lot of oil swaps both by international oil companies and by others swapping other commodities (e.g. food) for oil. Venezuela barters oil with 13 countries e.g. accepts sugar from Barbados and bananas from St. Lucian
Bulgaria receives gas from Gazprom Russia in return for allowing pipelines through its territory to other countries…Turkey, Greece. Similar deal..cheap price…with Ukraine.
Sales of arms, defence materials. Note that extensive offsets can be involved. Planes for oil or shrimp.
East Malaysia plans a huge barter terminal that will exchange grains, timber, food, livestock, palm oil, electrical products, tobacco and chemicals.
Large companies sometimes exchange (agree to share) sophisticated technology for access to markets. E.g. power.
Hancock agreed with Romanian company to provide iron ore in exchange for rolling stock and other things as part of a countertrade deal. Unfortunately, Hancock needed the cooperation of BHP (both to use their Mt Newman railway and with the mining) for it to work.
Hancock agreed with Romanian company to provide iron ore in exchange for rolling stock and other things as part of a countertrade deal. Unfortunately, Hancock needed the cooperation of BHP (both to use their Mt Newman railway and with the mining) for it to work.
Just about everything that could go wrong did go wrong, the agreements were not interdependent. Hancock Mining sought to assign its rights in various agreements so someone else could bring the legal action.
See Westraint Resources P/L v. BHP Iron Ore P/L (2001) for details.
The owner of the principal chattel may become owner of both it and the attachments.
The owner of the principal chattel may become owner of both it and the attachments.
The owner of the attachments, although they lose ownership, may be entitled to compensation.
See McKeown v. Cavalier Yachts Pty Ltd
Mr. McK owned yacht hull worth $1,777. It was situated on the premises of Cavalier, the manufacturer. An engine was installed and deck filled. Improvements worth $24,409. Who owned the yacht as improved. Mr. Mck claimed he did.
Mr. McK owned yacht hull worth $1,777. It was situated on the premises of Cavalier, the manufacturer. An engine was installed and deck filled. Improvements worth $24,409. Who owned the yacht as improved. Mr. Mck claimed he did.
Can the improvements be conveniently detached? No
Would it cause injury to remove? Yes.
Accession applies. Yacht returned to Mr. Mck. Damages inappropriate because yacht sufficiently individual. Fair and just compensation must be paid for improvements.
In Jones v. De Marchant (1916) 28 DLR 561
In Jones v. De Marchant (1916) 28 DLR 561
Husband used 18 of his wife’s beaver skins along with 4 of his own to make a coat for his mistress.
Who owned the coat?
On application of doctrine of accession, the wife.
If a chattel that has been attached to another can be removed without damage to either, there is no need to apply doctrine of accession.
If a chattel that has been attached to another can be removed without damage to either, there is no need to apply doctrine of accession.
e.g. Sims v. SPM Business Consultants Pty Ltd (2002) 43 ACSR 633, held that doctrine did not apply to documents later added to client files because they could be removed without harm to either documents or files.
Consider the facts in English case of Glencore International AG v. Metro Trading International Inc (1998) ….MTI bought, blended and sold fuel oil…bought oil products from variety of sources…stored for a while and then resold, after carrying out any necessary blending to vessels as bunker fuel or to traders. Suppliers framed contracts as bailment/storage with retention of title clauses, but if MTI had right to blend as it though fit (i.e. create different products), title would pass to MTI.
Consider the facts in English case of Glencore International AG v. Metro Trading International Inc (1998) ….MTI bought, blended and sold fuel oil…bought oil products from variety of sources…stored for a while and then resold, after carrying out any necessary blending to vessels as bunker fuel or to traders. Suppliers framed contracts as bailment/storage with retention of title clauses, but if MTI had right to blend as it though fit (i.e. create different products), title would pass to MTI.
As MTI became insolvent, this was very relevant. If fuel still belonged to suppliers, and there was not enough to go around, under law of confusion, they would become owners as tenants in common of fuel on hand at the time of insolvency. Otherwise, they would be unsecured creditors of MTI.
There were also issues related to security (banks) and insurance in the case.
Note that now, in Australia, PPSA would affect situation and outcome.
Please explain the different findings in In re Cole and the Sally Anne Horsley case with respect to Delivery.
Please explain the different findings in In re Cole and the Sally Anne Horsley case with respect to Delivery.
