When many young entrepreneurs and start-ups turn their minds to business assets, matters such as finances, office accommodation, computers, equipment and staff are among the first things that come to mind.

But protecting your business assets, and the profits that flow from them, also encompasses intellectual property (IP).

Australia’s framework of IP laws are designed to protect everyone – whether you are an entrepreneur, small business owner, designer, artist or inventor – with exclusive rights to use and control your intellectual or creative work.

What Area Of Intellectual Property (IP) Law Protects You?

The first step is to work out what kind of IP you actually own. IP is not registered or protected as a physical ‘thing’, but rather as a set of rights over how certain things such as sounds, images, words or creative works are used.

IP is the umbrella term for ‘property’ that you have developed and devised through your intellect. Nevertheless, not all IP is the same, and not all creations will attract IP protection under the law. Some forms of IP require formal registration through a government body to be protected by the law; while other forms are automatic.

Ideas are not IP and cannot be protected as IP. To protect a form of IP, it must have an aspect of physicality or be in some tangible form.

1. Patents

Patents are devices, substances, processes or methods that are useful, new and inventive.

Quite often, patents are referred to as ‘inventions’. To successfully claim protection and ownership of a patent, patents must have formal registration.

To satisfy the ‘new’ component of a patent, it is very important that you keep your invention somewhat secret. Do not share your invention with the world before it has patent protection.

Patents grant their owners a state-granted monopoly of the commercialisation of the invention, but they do have a maximum life span for you to exploit them as your exclusive property. The number of years you have this monopoly over the invention will depend on the type of patent you obtain.

2. Designs

A registered design covers the look or appearance of a product that is new and distinctive.

It does not, however, cover how something works, i.e. its purpose or function. These aspects are likely to come under the heading of patents.

To achieve the greatest degree of protection under the law, and to ensure your designs are not copied, you will need to have certification of your registered design. Again, as a design must be new, you will need to look into filing any applications prior to publicly disclosing your designs. The maximum lifespan for a design is 10 years, during which time you have exclusive ownership to exploit the design.

3. Trade Marks

As an entrepreneur or business owner, do you use any signs or symbols to distinguish your goods and services from the goods and services of other traders?

A trade mark can be your brand name, logo, slogan, or even more abstract things like sounds, smells and colours.

Formal registration is required for the owner of a trade mark to claim protection and ownership. While patents and designs must be new, trade marks do not have this same requirement, which means applications can be made after publicly disclosing your trade marks. Trade marks, in Australia, can be renewed in 10 year blocks indefinitely.

4. Plant Breeders Rights

If you are able to successfully breed new and distinctive plant varieties, you may be entitled to register IP rights over this breed.

Like trade marks, these rights are not granted automatically. Since the plant variety needs to be new to satisfy the registration requirements, it is important to seek advice to assess your legal position before publicly disclosing your plant breed. If you disclose your discovery too early, the opportunity to gain exclusive ownership may be lost entirely.

5. Copyright

In Australia, copyright protection is an automatic form of IP protection. This means that you do not need to submit any painstaking applications, or pay any government fees.

Copyright protection covers ‘works’ that are creative and original, including literary works, broadcasting works, dramatic works, and works of craftsmanship, to name a few. In other words, if you created or authored the work, then you own the copyright in that work.

If you have outsourced any sort of work, it is important to check that your contractor’s contract stipulates that ownership of copyright in works created in the course of their employment is assigned (transferred) back to you. Failure to check this will mean that, by default, the contractor will own the copyright they create.

Copyright protection lasts for the life of the creator, plus 70 years. In cases where the duration depends on the year of publication of the work, it lasts until 70 years after it was first published.

6. Circuit Layouts

Circuit layouts are automatic rights granted to original layout designs of integrated circuits and computer chips.

Although these laws are based on the laws of copyright, circuit layouts are a distinct form of IP that is protectable in its own right. From the first commercial exploitation of a circuit layout, the owner will have 10 years of exclusive ownership rights.

To be valid, however, the first commercial exploit must take place within 10 years of the date of creation of the circuit layout. This means that the lifespan is, in some cases, more like 20 years.

Important Takeaways

• The subject matter of Designs, Patents and Plant Breeders Rights all must be new. As such, any sale, promotion or public disclosure of your patent, design or plant may forfeit your ability to seek protection. Get legal advice before you share your intellectual property with anyone, and, if disclosure is inescapable, make sure that the other party signs a confidentiality agreement.

• In general, intellectual property rights apply in all states of the country in which you are granted rights. As such, when looking to commercialise your IP in other international jurisdictions, it will be important to look into the filing and registration requirements of those countries.  In certain cases, particularly with Designs and Patents, there are limitations on how much time you have to apply for registration overseas.

Conclusion

To be a successful young entrepreneur or start-up it is critical to understand, and be proactive, in safeguarding your rights and interests.

Obtaining IP protection and registration can be a complex and confusing process. Any mistakes made during the application stages can leave you unprotected, with an invalid protection and/or the need to redo the application, which may lead to further expenses.

The best approach is to seek advice from a legal professional who specialises in IP law early, and especially when lodging your applications and registrations. This way you can rest assured that your IP interests are water tight.

Further Information

For efficient, high-quality and cost-effective advice visit:

• LegalVision website; or
• Ph: 1300 544 755

LegalVision business lawyers primarily work online, meaning you can receive a response to your legal question quickly (often within 48 hours).

To everyday Australians, the inner workings of Parliament House can seem complex and confusing.

When it comes to making Australian laws:

• what role do politicians play in the life cycle of a Bill?
• what rules govern whether a proposed Bill lives or dies?
• how are laws actually made?

In the first of our Laws Of The Political Jungle series, we provide a simple snapshot of Parliamentary processes and some of the main obstacles faced by a proposed new Bill, such as the Marriage Equality Bill, being made into Australian law.

Parliamentary Safari

To better illustrate the factors that influence the survival of a Bill on its journey through an, often perilous, Parliamentary landscape we take you on a guided tour through equally wild terrain.

In this setting you have two groups of predators:

1) Lions which live in the open savannah of the House of Representatives; and

2) Crocodiles which reside in the water hole of the Senate.

In the middle of these two groups of politicians is a young zebra which represents a proposed new Marriage Equality Bill. If the young zebra is introduced into the House of Representatives, the zebra must safely travel past the first group of lions, and survive the group of crocodiles on the other side, if it is to become part of Australian law.

If the zebra is introduced into the Senate, the process is vice versa. In any event it may have to become an amended zebra for it to safely pass to become part of Australian law.

Survival Of The Fittest – Challenges Faced By A New Bill 

In recent weeks there has been a lot of interest surrounding the Marriage Amendment (Marriage Equality) Bill 2015 (the Bill). On Monday this week (1 June 2015), the Marriage Equality Bill was introduced into the House of Representatives by Opposition Leader, the Hon. Bill Shorten MP, with the purpose of allowing same sex marriage in Australia.

To introduce the Marriage Equality Bill into a fertile grassland such as the House of Representatives, or alternatively the source of life-giving water in the Senate, is one thing – to have it navigate both Houses of the Parliament, be given the Royal Assent by the Governor-General and become part of Australian law is an entirely different matter.

Due to the current political climate, the House of Representatives has voted to postpone debate on the Marriage Equality Bill until later in the year. This means that it is unlikely that the Bill will be considered again until Parliament’s Spring Sitting (between August and December 2015).

Of considerable interest is whether the vote for each member of the House of Representatives (Member) and each Senator should be one of “conscience“. We will also explore the meaning of the phrase to “cross the floor”. To Members and Senators such a matter could be career defining for them to do so.

Top End Predators: Members Of The House Of Representatives & Senators

Before exploring the dynamics impacting a Bill’s survival, it is important to understand the law of the land as it relates to the placement of Members and Senators at the top of the food chain. This is called the Australian Constitution.

The Constitution is a bit like Mother Nature: it is not only a great source of power over the legal landscape but also has ramifications for politicians as a result of their behaviour, how they interact with one other as well as informing their subsistence strategy (continued election by the voting public). Without the Constitution, the House of Representatives and the Senate would not exist.

Given the importance of political parties in the history of Australian politics, it is somewhat surprising that there is no mention of them in the Australian Constitution, apart from what is to occur to fill the place of a Senator where a casual vacancy occurs by the Parliament of the State in which the vacancy occurred. The House of Representatives is composed of Members directly chosen by the people of the Commonwealth.

• Lions On The Grasslands – Members of the House of Representatives

The Commonwealth Electoral Act 1918 (Electoral Act) provides the mechanism for the creation and re-distribution of Electoral Divisions for the House of Representatives. One member of the House of Representatives is chosen for each Electoral Division. Currently there are 150 Electoral Divisions in Australia, meaning there are 150 Members of the House of Representatives. In the event of a vacancy a writ must be issued for the election of a new member.

Each pride of lions, for example, has a unique leader who is responsible for looking after the interests of the group and its territory.

The pride of lions is the equivalent of each political party in the House of Representatives. The unique leader of the largest pride, or coalition of the largest prides, is the Prime Minister and leader of the next largest pride is the Leader of the Opposition, as constituting the largest prides of lions in the savannah. There are other smaller prides, or individual lions, living in the savannah.

The government is formed by the largest party or coalition of parties with the majority of Members in the House of Representatives. That party or coalition of parties may be in the minority in the Senate.

A political party may have both lions and crocodiles as its members, and certainly will do so if they are the party or parties forming the government and the opposition in the savannah.

• Crocodiles In The Water Hole – Senators of the Senate

The Senate is composed of Senators for each State, directly chosen by the people of that State, voting as one electorate. If the place of a Senator becomes vacant before the expiration of the term of service, special provision is made for action by the Parliament of the relevant State for filling that vacancy by the member of the same political party.

The Electoral Act also makes provision for the election of Senators from the Australian Capital Territory and the Northern Territory, and for the filling of any vacancy by their respective legislative assemblies. There are currently 12 Senators from each State, and 2 Senators each from the Australian Capital Territory and the Northern Territory, with a total of 76 Senators.

If one crocodile unexpectedly leaves the water hole, for example, another crocodile will take its place in the bask.

Each bask of crocodiles, for example, has a unique leader who is responsible for looking after the interests of the group and its territory in the water hole. Each bask of crocodiles is the equivalent of each political party in the Senate. The unique leader is Leader of the Government in the Senate and the leader of the next bask is the Leader of the Opposition in the Senate. They are the leaders of the biggest bask of crocodiles in the water hole. There are other smaller basks, or individual crocodiles, living in the water hole.

Fit To Qualify – What Rules Guide Members And Senators In Their Natural Habitat?

Just like lions are adapted to life on land, so too Members of the House of Representatives must possess certain qualities in order to live in their environment. The same rules apply to crocodiles which are best suited to an aquatic existence in the same way that Senators need specific qualities to successfully live in the Senate.

There is no requirement for a member of a political party to be qualified to stand for election even though, a quick glance at the current list of Members and Senators, tells the story of how difficult it is for a person to be elected unless they are a member of a political party.

What Rules Determine If A Member Or Senator Can Be Disqualified?

Just as the laws of nature determine whether lions or crocodiles cast out certain individuals for social deviance (for example, where younger males challenge an alpha), The Constitution governs when a Member or Senator can become disqualified from their position in public office.

If a Member or a Senator is disqualified, as provided for in the Constitution, their place automatically becomes vacant. Crucially, it is not considered a disqualification for a Senator or a Member if they are expelled from membership, or disciplined by, their current or former political party.

There are also mechanisms for a Member or a Senator to be disqualified by the High Court of Australia, sitting as the Court of Disputed Returns under the Electoral Act. Being expelled from a political party or being disciplined is also no basis for disqualification under the Electoral Act.

Can Politicians Be Disciplined For Voting A Certain Way?

When an individual lion or crocodile misbehaves or contravenes group social norms, that individual could face an attack or social isolation.

Similarly, where a Member or Senator votes in a way that is contrary to their political party policy, they may be expelled from membership of that political party, or disciplined by that party. This does not result in disqualification from continuing to be a Member of the House or a Senator. That Member or Senator may choose to resign from the House or the Senate as the case may be, but they are not compelled as a matter of law to do so.

Bucking The Trend – How Does A “Conscience Vote” Impact A Bill’s Passage?

In recent weeks, there has been considerable discussion by politicians, the media, and the community as to whether members and Senators should have a conscience vote in relation to marriage equality that is the subject of the Marriage Amendment / Marriage Equality Bill 2015.

A “conscience vote” means that there will be no direction by the leader of each parliamentary party, of which they are a part of, to the Member or Senator to vote in any way on the Marriage Equality Bill. That is, it is a matter entirely for them to determine the way that they vote, and to deal with the politics of the way they voted as a result. As there will be no formal sanction, Members and Senators from the same political party may be voting differently from some of their colleagues.

This means that each lion and each crocodile can set aside group social protocols and choose to either attack the zebra or let it pass through their respective territories unharmed.

Zebra Crossing – What Does It Mean To “Cross The Floor?”

“Crossing the floor” is voting against the formal decision of the parliamentary political party to which the Member or Senator belongs.

Some political parties may not require a Member or Senator to vote in a particular way but some do have that requirement.

Where that is a requirement, every Member or Senator of that political party is required to vote in a particular way on a particular matter. For a Member or Senator not to vote in a certain way, if required to do so, is an unmistakeable and public act of rebellion.

Tracking The Zebra’s Spoor – The Parliamentary Procedures For A Bill

For any Bill introduced into the House, provided that it is important enough to have had sufficient time allocated to enable it to be debated, there will be a vote at the end of the second reading debate. For a question to be resolved in the House a vote must be taken. The Speaker or a Deputy Speaker will be the Chair at that time. The Chair will put the question that the bill be now read a second time. The Chair will call for those in favour to say aye and those opposed say no, and will state that he or she thinks that either the ayes or the noes have it. If that occurs and if two or more Members do not dispute that statement of opinion by the Chair then the vote is decided in favour of the ayes or the noes as the case may be. If two or more Members dispute that statement the Chair will ask if a division is required. A division is a formal parliamentary vote.

If a division is required by two or more Members, the Chair instructs the Clerk “to ring the bells”. Bells will be rung throughout Parliament House and every clock will have a flashing green indicator light on, for 4 minutes, to enable those Members who are required by their party to vote to enter the chamber. It is not unusual for Members to be scurrying along the corridors to get into the chamber prior to the time having elapsed – it is that important to them! Once the bells have stopped ringing, on the order of the Chair all of the doors in the chamber are locked. The Chair will then state the question to be decided and the vote of those Members present will be taken. Any Member who is not in the chamber when the doors are locked cannot vote on that question.

Those Members in favour of the Marriage Equality Bill being read a second time will sit on the right hand of the Speaker’s Chair and those opposed will sit on the left side of the Speaker’s Chair. If a Member “crosses the floor” then they will literally be seated on the opposite side of the chamber from their parliamentary colleagues, who will vote in accordance with their parliamentary party’s direction. That situation will remain until the procedural matters to enable the vote to occur are completed, and the number of votes on each side and whether or not the question has been agreed to has been announced by the Chair.

The names of each Member who voted in that division, and the way they voted, are recorded in the Hansard of the House of Representatives for that day, and will permanently remain. If a Member voted against what their parliamentary political party decided, that Member has crossed the floor regardless of the outcome of the vote.

The End Of The Road

If the majority of lions in the House of Representatives decide to attack the young zebra, by voting in the negative, the zebra will die. By denying the Marriage Equality Bill a second reading, and opportunity for the zebra to move on to the water hole, means that the Bill has not been passed by the House of Representatives and cannot be introduced into the Senate. In other words, once Members of the House of Representatives have voted in the negative on whether a Marriage Equality Bill should be read a second time, this is the end of its journey through Parliament and it cannot become law.

Since the life of this particular zebra is over, any further attempt for the same animal to be revived and to pass through the grassland or the water hole is not possible. A new Bill, on the same subject matter, would need to be introduced either into the House of Representatives or Senate and the whole process would need to start over.

NB: Materials from this article have been drawn generally from Info sheets and other publications on the Australian Parliamentary website. For a more detailed analysis of these issues, you can refer to Info sheets and other publications on the Australian Parliamentary website.

The ease of communication and relative anonymity afforded by the internet has left most of us quite complacent about the information we post and share.

Ideas, opinions and impressions about colleagues, friends, politicians or public figures are all readily published online with little regard to the possible impact or consequences.

But what you might not know is that by publishing or spreading information (whether online or otherwise) that is damaging to another person’s reputation, you can be sued under State and Territory defamation legislation.

One poorly composed status update, tweet, Instagram image, email, group text message, comment, blog post or news story that reflects negatively on the reputation of another person can leave you open to legal action under defamation law, regardless of whether your remarks are intentionally damaging or not.

To minimise the risk of unknowingly defaming someone, and potentially facing a costly legal action, it is important to get informed about Australian defamation law and how it impacts you. We explain what information can be considered defamatory; options that may be available to you if someone publishes defamatory information about you, as well as general guidelines for good online habits.

What Is Defamation?

Anyone who suffers a loss resulting from something you published is able to take legal action against you for causing that loss.

Under Uniform Defamation legislation and Australian case law, spreading false or defamatory comments about another person is actionable under the law of any Australian State or Territory. Legislation governing this area of civil law is focused on protecting individual rights from unsubstantiated attacks that may harm an individual’s reputation. It seeks to balance free speech and the need for discussion on matters of public interest, with information or material that may be damaging.

It is important to remember that defamation is not limited to written communication. It can include detrimental information communicated verbally to a group, over the radio, through print media, online publications, social media, photographs, videos, illustrations or other means.

In a landmark ruling in Switzerland, defamation law has been found to extend as far as a Facebook user  ‘liking’ a post that is defamatory of another person.

In our ‘Mean Girls’ example, by spreading rumours and fabricating information that negatively impacts the standing and reputation of other students, Regina George, could find herself the defendant in an expensive defamation lawsuit under Australian law.

Vicarious Liability & Defamation Law

Defamatory information (in any form) that is seen or heard by at least one other person and that negatively impacts your character can quickly lead to a costly defamation lawsuit.

With the rise in popularity of social media and online services, virtually anyone online is a publisher of information. This means that you are subject to the same laws that apply to major media publications and news outlets.

The ACT Supreme court has gone one step further by establishing that owners of websites can face vicarious liability for information published by contributors that is harmful to an individual, even where the owner of the site is not aware of that information. If the site is intended to be silly, irreverent and not to be taken seriously, certain information can still be considered defamatory.

This serves as a timely reminder for private bloggers, publishers, media powerhouses and newspapers that everyone involved in the publication of potentially defamatory material can be held liable. It is not possible to argue that you are only repeating rumours or a comment made by somebody else as you can be liable for a republication.

In our ‘Mean Girls’ example, as the owner of the Burn Book, Regina could be held vicariously liable for defamatory comments regarding the false criminal activity of a staff member, even though those comments were not written by her personally. It also means that Regina, and everyone who contributed to writing defamatory comments about staff and students, could also be sued for defamation.

When Can Information Be Considered Defamatory?

Information is considered defamatory if the below three questions can be answered affirmatively:

1. Has the material been shared with at least one other person?

Excluding the person who was defamed, at least one other person must see or hear the false information.

In Australia’s first social media defamation case, a former student has been ordered to pay over $100,000 in damages to a teacher after tweeting a series of defamatory comments on Twitter. It is important to remember that even if you are not the author of the original defamatory message, but you share the message (for example by retweeting it), you can still be sued for defaming someone.

In our ‘Mean Girls’ example, Regina made copies and disseminated false and damaging information about Ms Norbury’s purported criminal activity to all staff and students. So the material has been shared with at least one other person.

2. Does the material adequately identify you?

The material must include information that adequately identifies you. Your name might be used in connection with the defamatory remarks. If your name is not included, some cases have found that other information may be sufficient to imply that the material is about you.

In our ‘Mean Girls’ example, defamatory comments about Amber D’Alessio were widely circulated, leading to public ridicule and loss of reputation. Her name and image were published in conjunction with the damaging comments which puts her identify beyond doubt.

3. Communication must be defamatory

If the average or reasonable person is likely to think less of you after seeing or hearing the published material, then it is usually considered defamatory.

The information may make fun of you, suggest that you have a disease, are promiscuous or committed a crime. If others are likely to avoid or isolate you after the information is published then it is likely to be considered defamatory and you can take action.

In our ‘Mean Girls’ example, publishing false accusations that Ms Norbury trafficked drugs led to public scrutiny of Ms Norbury, criminal investigations, a loss of professional reputation and personal standing. It is likely that Ms Norbury could successfully sue Regina for the loss suffered.

4. There are no available defences to publishing the material

Simply because information is mean, embarrassing, hurtful, irritating, offensive, false or has a negative impact on a person’s business does not mean it is defamatory.

In general, the courts will not find material defamatory if:

• the information is substantially true
• the information was an honest opinion
• the information is subject to qualified privilege (this covers references given by employers or complaints to the police or other relevant authorities)
• the information is not important and the chance that your reputation will be damaged is not high.

What Are Your Options If You Have Been Defamed?

If your reputation has been negatively affected by information or material shared by someone else, there are a number of options available to you. Outlined below is a list of various courses of action you may wish to consider, ranging from the lightest to strongest:

• Take the moral high ground and do nothing
• Approach the publisher or author and seek an apology or for the material to be removed
• Request that the publisher or author clarify the comments made about you in a way that does not harm your reputation
• Seek an injunction which prevents any further communication of the material

This will be relevant where the information is continuously being circulated, for example, in an online publication or media outlet and your initial requests for the material to be removed have not been complied with. To do this, you will need to obtain advice from a lawyer specialising in defamation law.

• Seek an urgent court order that prevents the information from being published

This option will be relevant where you become aware of potentially defamatory information before it is published.

Depending on which of the above options you choose, you may wish to consider using the below draft email:

Dear Sir/Madam

It has come to my attention that the [information/comment/image] about me has been published on your [website/publication/Facebook page/Twitter feed/radio show/email] as below.

[insert the defamatory material]

I wish to advise that this information is damaging to my personal and professional reputation and I consider it to be defamatory of me. 

I am happy not to take this matter further if you cease to distribute/publish the material further, immediately remove the defamatory information and issue a public apology to me.

I would be grateful if  you would urgently comply with my request.  Should you fail to do so within 24 hours, I will pursue legal action seeking [an apology / injunction / removal / damages] for the defamation. 

Regards,

[insert your name]

• Commence legal action against the publisher or author of the damaging material

You can sue the person responsible for defaming you as well as anyone involved in the publication of false information (for example a publisher or a newspaper).

You may wish to consider this option in more serious cases, particularly if the information is professionally destructive of your reputation and has led to loss of earning capacity. Rebel Wilson is suing the publisher’s of Women’s Day for publishing defamatory articles that caused damage to her career. A court may award you damages to compensate you for the emotional damage you suffered as well as the harm to your reputation.

In our ‘Mean Girls’ example, given the gravity of allegations levelled at Ms Norbury, Regina and her friends could be liable for a large sum of damages. The defamatory comments not only impacted her professionally but also caused a potential loss of earnings (time away from work) as well as psychological pain and suffering. A court would be likely to take into consideration the severity of the case and award a sum of money to compensate.

How To Avoid Being Sued For Defamation

Be conscious of all your communication.

The spread of information these days is instantaneous: what you may think is a personal message to a colleague can easily be forwarded to the entire office. Remember that anything you say has the potential to not only harm another person but also result in a great deal of financial damage to you.

1. Be mindful about what you put in writing

Never publish or send any information when you are distracted, stressed, angry or upset. Wait until you are calm, clear and objective. This might mean drafting an email the night before and re-reading it in the morning before pressing ‘send.’

Before posting a social media update:

• Ask yourself “Would a newspaper publish this?” or “Would you be happy if this information became a headline story in the newspaper?” If not, delete it
• If in doubt, ask a friend or colleague to read it over for an objective opinion
• Wherever possible, avoid written communication, if you are discussing information that might be sensitive to a third party. Try to communicate verbally, either over the phone or in person. This not only lessens the chance of information you pass on being quoted accurately but also reduces the risk of that information being misconstrued, used for the wrong purpose or shared.

2. Carefully consider what you share on the internet

You could unknowingly expose yourself to litigation. Remember once something is online you have lost control of it forever.

3. Adjust your privacy settings to ensure your posts are viewed by the least amount of people possible

4. If you host discussion forums, run a website with multiple contributors or own a company with a social media presence, be vigilant.

Regularly monitor discussions taking place on pages you manage and remove anything that could directly or indirectly identify an individual and be interpreted as damaging to that person. If you employ staff who monitor your social media channels, establish policy and procedures for determining whether third party content is offensive.

5. If you do find yourself accused of writing something defamatory, remove the material immediately and apologise. 

The best case scenario is that the person will not take things further.

Conclusion 

Know your rights. Defamation law exists to protect you. If you feel that you have suffered harm to your reputation as a result of information published by someone else, do something about it. Equally important is to be proactive in maintaining a healthy online presence that avoids causing harm to others.

An on-the-spot decision to publish something you consider clever or funny can quickly turn into a very serious and costly mistake.

Further Information 

If you have been the subject of defamatory comments or publications, seek legal advice immediately to prevent the further spread of the defamatory material and obtain a remedy. If you have been accused of making a defamatory comment or publication, you should also seek legal advice straight away because there may be consequences for not responding within a certain timeframe.

• For more information on good online habits visit Cyber Smart.

To get in touch with a legal professional specialising in defamation law contact:

• Marque Lawyers (NSW)
• Stephens Lawyers & Consultants (VIC)
• Slater & Gordon (National)
• Aherns Lawyers (WA)
• Australian Defamation Lawyers (QLD, VIC, WA, NSW)
• City First Solicitors (ACT); or

You can also search the Australian Lawyers Directory for legal representation in your area.

Many stores around the country display large signs with the words “you break it you buy it.”

But if you break a store item in Australia, you are not legally required to purchase it.

A binding contract only forms when one person makes an offer and another communicates an intention to accept it. When you select a product in a shop and pay for it at the counter you enter a binding contract with the shop owner.

A legal relationship only arises once you take an item to the checkout (make an offer) and the shop assistant takes payment (accepts that offer).

The display of goods for sale – whether in a shop window, on the shelves of a supermarket, petrol station or clothing rack – are considered invitations to treat and do not constitute an offer. An invitation to treat is merely an indication of a shop owner’s willingness to negotiate a contract.

The delightful meaning of this missive!?

If you accidentally break something expensive while browsing (because, let’s face it, those tiny antique stores can be really hard to negotiate with a sizeable satchel), you can now keep your credit card holstered and frolic out the front door conscience-free since no legal relationship has been created!

So Next Time You Shop, Remember:

Goods on display do not form a binding contract, they are purely an invitation to treat. If you break something, you do not have to buy it.

Want to see more #QuickLaw tips? Let us know what topics you would like covered in the comments section below! 

Touchstone Pictures 1999

There is also a difference between borrowing and stealing.

No one wants to be seen in the same outfit at a party.

Equally, designers do not want their original work replicated for the benefit of an individual or company without their knowledge or approval.

Design theft has always made up a portion of lost revenue for fashion brands. But a shifting dialogue in the clothing industry is now seeing designers and major fashion houses adopt a low tolerance approach and to fight back. The result is a brand new legal field blends law and fashion powerhouse industries.

Here are some examples of high-profile and successful law suits brought in the entertainment and fashion industries, how you can proactively protect your designs and what options may be available to you if your design is stolen.

Good Artists Borrow, Great Artists Steal

To draw inspiration is one thing, to contravene legislation is quite another.

Historically, the entertainment and fashion industries have traded in the exchange of creative ideas, as work from the past informs and shapes the present. The line between inspiration and innovation, however, has never been more blurred.

Of all creative fields, the music industry has enjoyed a long and glorious litigious tradition. Over the years countless artists have sued each other for copyright infringement. From Huey Lewis’ case v Ray Parker Jr; and The Rolling Stones v The Verve; to David Bowie and Freddie Mercury v Vanilla Ice. More recently, Pharrell Williams and Robin Thicke lost a record-breaking $7.4 million law suit initiated by Marvin Gaye’s estate for copyright infringement of “Got To Give It Up”. Ultimately, each case turns on the intersection between creative inspiration and infringing legislation.

It’s Not Blue, It’s Cerulean

As an emerging and highly-specialised area of law, fashion law covers intellectual property, business, finance and other issues impacting an item of clothing over the course of its life. In recent years, the practice of fashion law has exploded internationally. In the US, several independent fashion law institutes have been established to cater for growing demand for fashion law as a specialised field of study.

Litigation has since flooded the industry with a few major league cases paving the way for lesser known brands to sue for copyright infringement of original work.

Recent landmark cases have involved the likes of Converse shoes who sued up to 31 brands for copyright infringement of its Chuck Taylor All Stars sneaker design; Christian Louboutin who successfully pursued legal action against YSL for exclusive rights to manufacture shoes with a red sole; and pop icon Rhianna who successfully sued Top Shop for copyright infringement when her image was printed on T-shirts without her knowledge or permission.

Even top designers are finding that they are not beyond the long arm of the law. Yoko Ono has recently been sued for copyright infringement when she replicated the unique designs of a New York fetish designer.

Protecting Your Designs In Australia

The fashion law landscape in Australia is complex and relatively underdeveloped.

In Australia, the use of an idea or creative work without permission is regulated by intellectual property legislation. Australian law safeguards the intellectual property rights of fashion designers in four ways.

• Design law protects designs with commercial or industrial use
• Patent law protects new and useful inventions
• Copyright law protects original expressions and ideas
• Trade mark law protects your right to trade under your name exclusively. It is used to distinguish your goods or services and prevents a competitor from benefiting from your distinctive brand or reputation for quality.

Below is a checklist with some suggested ways to guard your interests under design, trade mark, copyright and patent legislation.

1. Register with IP Australia

In Australia, intellectual property is generated when you create a new or original work. For example, by designing an item of clothing.

To protect your design from being copied or misused, register your design with IP Australia. Registration prevents anyone from replicating the appearance of your garment, such as a shoe or handbag.

Before applying for design registration:

• Is your design new? This means that your design cannot be similar to anything else previously registered locally or internationally.
• Is your design distinctive? The overall impression or appearance of your design cannot be similar to anything else registered locally or internationally.

To ensure your design is original, research other designs using the IP Australia website.

If your application is approved, your intellectual property right gives you exclusive permission to use, control and profit from your design work.

2. Register your trade mark

To prevent a competing designer from piggy-backing on your brand name or label by offering a product that is substantially similar to your unique designs, register your trade mark. The Christian Louboutin v YSL case, for example, was fought entirely under trade mark law.

Before applying to register your trade mark:

• Search the Australian Trade Mark Online Search System (ATMOSS) to ensure no one has registered the trade mark before you.

A registered trade mark protects your right to sell your products exclusively.

Protection under trade practices and fair trading legislation can protect your trade mark rights against misrepresentation by competitors. However, litigation is typically more costly and time-consuming than simply registering your trade mark at first instance.

3. Copyright protection

In Australia, copyright protection protects your design upon creation if it is an original artistic work in material form. Fashion designs fall under the description of an ‘artistic work’ under the Copyright Act 1968 (Cth).

In order to receive automatic copyright protection your design:

• Must be in material form. This means it cannot be a mere idea. A sketch on a napkin, post-it note, scrapbook or smartphone app are sufficient. If you have commenced your artistic work in a material form then it is protected by Australian Copyright legislation from the time when you first write it in material form.
• Must be original. This means that your design cannot be copied from anyone else.

Copyright legislation does not protect your designs where someone has created the same, or a similar design, independently. An element of purposeful replication is required.

Always use a copyright symbol © [your name/brand/year] on your designs. This alerts others to the fact that your design is an original work.

Registration lapses after a certain period of time. See below:

Replicated from IP Australia.

4. Register your patent

To protect clothing or fabric that has a specific function, register your patent.

Registration for fashion designs is only available in certain circumstances since patents protect how a design works and not how the design looks. A patent will be relevant where you have developed new technology that has a specific function. For example, Speedo has patented new sportswear technology.

Sketch out a plan

The areas of law covering fashion design are complex and difficult to navigate alone.

If you suspect that someone is infringing your intellectual property rights, contact an IP professional. They will guide you through the costs and risks involved in pursuing an IP infringement, how to enforce your rights as well as your best course of action.

What experiences have you had with the fashion industry, design theft and enforcing your rights? Think we’ve missed anything? Leave us a comment below!

Further information

To register your design, trade mark or patent visit IP Australia.

For copyright queries contact the Australian Copyright Council.

To get in touch with a legal professional specialising in fashion law contact:

• Melbourne – Gi&Sanicki Lawyers
• Sydney – Media Arts Lawyers
• Sydney – Axis Legal; or
• Search the Australian Lawyers Directory for legal representation in your area.

For industry support contact the Council of Textile and Fashion Industries of Australia.

For a comprehensive guide to intellectual property for Australia’s clothing and fashion industry visit WIPO

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By now you might be starting to think that Canadians have all the fun.

The latest trend lighting up the Twitter-sphere is not a weasel / woodpecker death match or even Nickelback’s colossally awful new single.

It’s Dr Spock.

“Spocking a $5 bill” has seen Trekkies from all walks of life pay tribute to the late Leonard Nimoy (who passed away last week) in an unusual way. The profile of former Canadian Prime Minister, Sir Wilfrid Laurier, is now widely being replaced by that of Dr Spock.

Keeping Tradition Alive 

A practice long-loved by Canadians, ‘Spocking’ $5 bills has experienced a rapid resurgence in popularity to mark the death of Nimoy. Since the campaign #spockyourfives kickstarted on social media, hundreds (if not thousands) of bills with Nimoy’s distinctive Vulcan cut, brows and endearingly pointy ears have emerged in current circulation.

“Spock” your $5 bills for Leonard Nimoy pic.twitter.com/bKdKyC3l4q

— Design Canada (@The_CDR) February 27, 2015

Is ‘Spocking’ illegal in Canada?

Defacing currency in Canada does not contravene the Currency Act or Canadian Criminal Code.

It is, however, an offence to “melt down, break up or use otherwise than as currency any coin that is current and legal tender in Canada”.

Neither piece of legislation mentions bank notes – a tidy loop hole that many enterprising Canadians continue to freely exploit.

While the practice has not been endorsed by the Bank of Canada, there is little that can be done to prevent it. The recent spike in $5 alterations has seen the Bank weigh in to request Canadians stop the Spock on the basis that it may interfere with security features of bank notes.

It also warns that retailers may soon refuse to accept defaced currency.

So while it’s not illegal to revamp your bank notes, on a more practical level, there may soon be an upper limit on the number of iced capps you can purchase at Tim Hortons with your specially ‘Spocked up’ cash.

As one commentator writes in the comments section of Mashable:

Don’t try this at home

Before you think about going forth and ‘Spocking’ your Australian cash …think again.

While it’s not illegal to graffiti money in Canada, it is very much unlawful to do so in Australia.

Penalties can reach up to $5,000 and a 2 year jail sentence according to the Crimes (Currency) Act 1981.

“A person shall not, without the consent, in writing, of an authorized person, wilfully deface, disfigure, mutilate or destroy any coin or paper money that is lawfully current in Australia.”

As with many creative pursuits, the threat of hefty penalties does not deter a handful of stunningly creative renegades.

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US legislation

Similar to Australia, the US imposes strong penalties. You can face a sizeable fine and up to 6 months imprisonment for vandalising currency.

Title 18, Part 1, Chapter 17, Sec. 333 of the US Code provides:

“Whoever mutilates, cuts, defaces, disfigures, or perforates, or unites or cements together, or does any other thing to any bank bill, draft, note, or other evidence of debt issued by any national banking association, or Federal Reserve bank, or the Federal Reserve System, with intent to render such bank bill, draft, note, or other evidence of debt unfit to be reissued, shall be fined under this title or imprisoned not more than six months, or both.”

Again, this has not discouraged many talented artists, such as James Charles, who prove it is possible to turn just about anything into an art form.

via http://www.mymodernmet.com/

via http://www.mymodernmet.com/

via http://www.mymodernmet.com/

Our personal favourite!? Mr Bill Murray.

At the end of the day

Defacing any form of currency in Australia, and many other countries, is unlawful.

So don’t do it, okay!?

Just don’t.

Why do you think the trend of ‘Spocking’ cash has taken off? Do think Canada should amend its existing laws to make defacing currency a clear offence? Let us know in the comments!

Do you want the good news or the bad news?

The good news is that if you’re among the genetic elite blessed with flawless bone structure and a perfect pout, society will grant you a free pass from just about any wrongdoing.

The bad news is that if you’re born with The Stephen Tyler Giant Mouth then the only thing you can look forward to is shoving a Double Bacon Deluxe Cheeseburger down your colossal throat. In essence, fortune does not look kindly on you, friend.

Preferential treatment of beautiful people is not a new concept. But when it comes to court sentencing, personal appearance is not only more relevant than ever but also a bigger contributing factor than anyone previously thought.

Here we explore the facts around fancy faces and whether a cheeky grin can help you avoid doing hard time.

Backing the Beautiful

Have you ever noticed how beautiful people are served first in the bar line? Have better jobs, are paid more, and seem to have happier lives?

You may have thought you were edging closer to life in a nice padded room, but rest assured your observations are legitimate. Those with traditionally appealing features actually do have it easier.

Why?

Let’s just say that preferential treatment of the attractive is not a new phenomenon. Scientists have described this cognitive bias as the ‘halo effect’. It means that we automatically assign favourable personality traits such as kindness, talent, honesty and intelligence without conscious realisation that physical appearance has played an important part in the decision-making process.

In a day-to-day sense this means that we tend to trust the beautiful more easily. Whether it’s voting for a politician, choosing a checkout person at the supermarket, picking an applicant for a job, tipping a waitress, or befriending someone new – we respect, trust and gravitate towards facial features and body types that are pleasing to the eye.

Since subconscious assessments play an enormous role in our conscious decision-making process, we unwittingly treat the beautiful as superior to the lesser-looking whether we want to or not.

Fans of the TV series 30 Rock will understand this phenomenon as ‘the bubble.’

Jack Donaghy thinks he can speak fluent French.

He can’t.

History of handsomeness

The building blocks of good looks are pretty simple. Universal identifiers of beauty are facial appearance and structure. Symmetrical faces are unconsciously associated with strong immune systems, overall fitness and the potential for healthy offspring – little wonder why these qualities are commonly selected for in a partner.

BBC news reports that beautiful people experience favouritism in more areas of life just romantic relationships. Studies show that attractive features have a bigger impact on maximum earning capacity than higher education. Beauty also selects for pay increases, attractive spouses, promotions, low interest mortgages, free Chinese food (!) and up to 10-15% higher earnings than the unattractive. Although men’s looks tend to play a bigger role in the workplace, women’s features are more significant in the formation of romantic relationships.

At the opposite end of the spectrum, some commentators claim that the level of discrimination experienced by unattractive people in the workplace now warrants government programs that aid the unlovely and provide special protection by law. The argument is that if you’re ugly you should receive benefits for being part of a disadvantaged group, in the same way as someone with a disability.

Too Pretty for Prison – The Psychology of Sentencing

Studies dating back to the 1960s have documented significant differences in the treatment of the beautiful when brushing with the law.

In general, attractive defendants are treated more compassionately and experience more lenient sentences (or are acquitted altogether) in contrast to less attractive persons accused of the same offence. Good looking plaintiffs, on the other hand, are not only awarded higher settlements, but are also more likely to win their case. The physical appearance of the offender such as beauty and baby-facedness can play an important role in a judge’s assessment of the case and the offender’s guilt or innocence.

Looks have also been shown to influence bail. In one British study, a positive correlation was found between a lower bail amount and the attractiveness of the offender: the bail of good looking criminals was smaller than the less beautiful accused of the same crime. The same is true of minor offences involving fines: better-looking defendants receive smaller fines than ugly ones.

A highly attractive defendant accused of raping an ugly victim is also less likely to be convicted than if the victim is beautiful. In one notorious example from the 1920s, the striking psychological bias caused by appearance wrongly impacted the outcome of a case:

Alexander Pantages – an ageing, awkward and unattractive theatre bigwig – was wrongly accused and convicted of raping an immaculately dressed, strikingly beautiful and well-spoken young girl. Pantages was convicted of 50 years imprisonment but acquitted at retrial 2 years later – after it was discovered that the young girl’s middle-aged boyfriend had set the whole thing up in order to acquire Pantages string of theatre companies at a bargain price. 

More recently, Jeremy Meeks who was arrested in Stockton, California last year on multiple weapons and gang-related charges enjoyed an extraordinary positive public reaction based solely on his mugshot.

Jeremy Meeks viral mugshot

Once posted to social media, the Stockton Police Department’s Facebook page experienced the ‘hot felon’ phenomenon first hand. Meeks’ image received over 100,000 likes and 26,000 comments, spawning endless memes and fan sites. A crowd-funded bail campaign started by adoring lady fans amassed $5,000 in days while multiple contract offers from modelling agencies rolled in. Although Meeks has received 2 years imprisonment, his projected earnings from endorsements and contracts are likely to reach up to $100,000. Importantly, the three other ugly men charged with similar offences did not revel in the same favourable treatment.

Elsewhere, lawyers and legal professionals have long-recognised the psychological importance of physical appearance in the court system. Attractive young female lawyers are often advised to wear glasses in order to appear older and more intelligent in court. It’s also why lawyers advise clients to dress up for a hearing.

Conclusion

Appearance is everything.

The likability and attractiveness of a defendant can shape judge or jury determination of guilt or innocence. To this end, the appearance of innocence can play a big role in leading a court to that finding.

The moral of the story? Being beautiful pays serious dividends.

Do you think justice is blind? Should attractiveness impact whether someone is punished for committing a crime? Tell us what you think in the comments section below!

The breakdown of any relationship is a traumatic experience.

But what if the person you once trusted intentionally reposted intimate pictures or videos of you without your consent? The misuse of technology as an emergent tool of degradation and punishment has become alarmingly common in Australia.

It’s a devious and perverted form of post-breakup warfare that is being waged online.

This is the dark and insidious world of revenge porn.

History and pathology

It began in a relatively isolated way. Several websites, mainly US-based publications, popped up to cater for malicious reposting with an ever-growing community of actively engaged users supplying sexually explicit content to site administrators.

In the last few years the revenge porn business has boomed. Photos are usually sent in by spurned ex-partners (mostly men) seeking an avenue for revenge against former girlfriends. Many images posted on specially dedicated sites specify the victim’s full name and are linked to social media profiles. Some go as far as including personal details such as employer information. In other cases, sexually explicit images are posted on social media or emailed to friends, family or even work colleagues without the knowledge or consent of the victim.

The intention is to humiliate, harass or blackmail.

Widespread use of social media and smart phones among young people who capture selfies for the purpose of ‘sexting’ has paved the way for the actions of few to easily spiral out of control. ‘One click’ access and publication of personal information on social media has, perhaps, groomed an entire generation to accept abuse of information as the new norm. What was once reserved exclusively for the private domain has now become part of an increasingly private ‘public dialogue.’

More than ever, the internet is providing ill-intentioned perpetrators with a dangerous platform to not only air grievances but also to find a similarly-inclined audience.

The rapid proliferation of this form of sexual exploitation has occurred for two main reasons:

1. ease of publication; and
2. lack of accountability.

As a growing practice, this unconstrained freedom to publish explicit media has, and continues, to go largely unchecked.

The trend has given rise to a problem that has not been faced by any other generation – and the results can be devastating.

Impact on victim

Unlike other forms of abuse, revenge porn involves no physical harm to the victim.

The emotional and psychological toll can, however, closely mirror the impact of a sex crime. The victim is left feeling helpless, violated, humiliated and without recourse. In some reported cases, intimate images are used to manipulate and blackmail current partners within the context of a domestic violence situation.

In the past, victims of sexually explicit photo hacks have experienced harsh public backlash. Disney star Vanessa Hudgens, for example, made a public apology after explicit photos surfaced on the internet. Nowadays, victims (particularly celebrities) of photo hacks are calling attention to revenge porn and online photo attacks for what they truly are – a sex crime. A changing mainstream media dialogue spearheaded in large part by Jennifer Lawrence following a nude photo hack late last year now rightfully redirects blame, attention and shame to the shoulders of the perpetrator.

State of the law in Australia – Is it doing enough?

Like most countries, Australia has no laws specifically designed to combat revenge porn or malicious reposting. Current privacy laws deal mainly with abuse by corporations or government bodies but mention nothing about breaches made by private individuals. State and territory criminal laws, on the other hand, deal with physical assault rather than virtual behaviour that causes similar and serious and ongoing psychological harm.

Victoria is leading the charge against revenge porn in Australia by amending existing sexting laws. Recently passed legislation makes it a criminal offence to distribute, or threaten to distribute, intimate images or videos of a person without consent.

In a Federal context, the Commonwealth Criminal Code 1995 makes it an offence to use the internet to menace, harass or offend. As a broad spectrum law, it has been used to prosecute cases of cyber bullying. Some commentators argue that it may be used to prosecute perpetrators of revenge porn. However, as a newly emerging area of cybercrime there is no legal precedent and no criminal prosecutions that have used this legislation to date.

This is not the first time the law has lagged.

When it comes to the rapidly-evolving area of cyber crime, the actions of individuals often overtake the ability of policy makers and legislators to keep pace. From the Silk Road online black market used for the sale of illegal drugs to other deep web and darknet services, there is no shortage of ways for extremest groups, child pornographers or illegal goods distributors to engage in untraceable illegal activity hidden from relevant authorities.

The UK and several states in the US have now regulated against revenge porn. In the UK it is now an offence punishable by up to 2 years imprisonment.

What if it happens to you, or someone you know?

If you become aware of a picture that has been published online without your consent, move quickly! The longer your images are online, the more people will see them and the further they are likely to spread. Taking immediate action is the best way to ensure that the pictures are removed successfully.

1. Report the crime to local police;
2. If the picture has been posted on social media, report the abuse through appropriate channels immediately and request that the image is removed;
3. If the images have been posted on social media, depending on the nature of your relationship with the perpetrator, you may wish to contact him/her directly to request the pictures are taken down. Sometimes the most effective strategy is the simplest: appealing to a person’s better nature may well produce the outcome you seek without the need to pursue further action;
4. If the picture has been posted on a specially dedicated revenge porn website, however, contact the site’s administrator and request the picture is removed;
5. Seek advice from a lawyer who specialises in cyber crime.

Some suggested wording you may wish to consider using when requesting the removal of an image:

Dear [insert name of site administrator]

I have recently become aware of explicit images of myself that have been posted on your website without my knowledge or consent.

I am writing to request the immediate removal of these images.

If my images are not removed within 24 hours I will be forced to report your website to the authorities and to pursue legal action.

Thank you

Regards

[insert your name]

Another possible legal avenue could involve suing website owners for breach of copyright under civil Copyright Protection laws. Copyright protection in Australia is automatic as soon as an image is captured.

This means that if  you took the explicit image yourself, it belongs to you.

Virtual reality

A good defence is the best offence.

Be mindful of the information you share. Abuse – whether virtual or physical – almost always happens at a time and in a way that we cannot anticipate.

Report any online attack immediately and talk about it with friends and family.

The only outcome to be achieved by remaining silent is to allow the perpetrator to win.

Have you or anyone you know been victimised by revenge porn? Do you think legislation should punish perpetrators of online assaults in the same way as other sex crimes? Let us know what you think in the comments section below!

Further information

If you or someone you know has been the victim of revenge porn contact:

• Australian Cybercrime Online Reporting Network (ACORN)
• Local police assistance line: 131444
• National Counselling Helpline: 1800 737 732 (for assistance and practical strategies on how to cope with the ongoing effects of revenge porn) or
• To explore a remedy for copyright infringement seek advice from a copyright lawyer.

Expectations and reality are two very different things.

For many employees, working for a start up company can seem like a dream: complete creative freedom, constant brainstorming sessions, flexible work hours and a dynamic, out-of-the-box team environment.

While the possibilities of a start up role are virtually limitless – so are the perils.

Here we dispel 6 common corporate myths perpetuated by small businesses to retain dream employees in nightmare conditions.

Myth 1: There is no such thing as job security in start up companies

Positions in startups are emotionally, psychologically and financially demanding.

A common strategy used by inexperienced entrepreneurs is to shift much of this burden from the shoulders of company directors to employees. Placing staff on short-term contracts with zero job security allows unethical businesses to influence behavior and motivate employees through a performance-based cycle of negative reinforcement. In some cases real or perceived failure to generate sufficient income to justify your role is used in connection with a threat of termination of employment.

This predator-prey strategy is a potent form of corporate manipulation that generates higher employee output through longer hours and less leave.

Escaping the web

Don’t operate in a vacuum.

Understand your rights and entitlements and communicate these to your employer. Threat of termination of employment (whether overt or implied), coercion and false or misleading representations about workplace rights are hallmarks of an organisation openly exploiting staff.

Myth 2: We are all doing it tough financially but if you work hard we will reward you!

Beware of employers who use notions of transparency as emotional leverage to tip the salary bargaining scales against you.

Startups that project complete openness with staff while withholding important financial statistics, timelines for company growth and long-term plans for employees are often masking a hidden agenda. Broad future-based promises about the creation of permanent work generates a powerful culture of indoctrination, particularly in companies contracting a young and dynamic workforce.

Promises of long term employment after an initial and unspecified period of ‘start up hardship’ are rarely kept.

Employees who empathise with what they are led to believe are the shared financial struggles of their employer are less likely to request salary increases, assert rights to leave entitlements and superannuation or even permanent roles. Staff become conditioned to work towards company goals with little or no remuneration.

Escaping the web

Don’t allow yourself to be strung along by a corporate illusion. Identify employers that are more interested in their bottom line than the welfare of employees.

Key indicators are companies who focus on vanity metrics such as number of staff, number of social media followers and email subscribers as evidence of rapid expansion and success. A disproportionate emphasis on artificial growth indicators often conceals deeper systemic issues.

With no clear business model and hard evidence to support claims of explosive growth, unethical employers are free to exploit employee loyalty and garner an ‘above-and-beyond’ attitude with zero accountability to follow through with the promise of career progression, promotion or increased pay.

Understand your rights and keep abreast of changes to standard wages in your industry.

Myth 3: As a contractor you do not have the same entitlements as an employee

A common strategy used by unethical businesses is to engage staff in sham contracting arrangements.

This involves deliberately disguising an employment relationship as an independent contracting relationship to avoid employer obligations – for example, computers and basic equipment, paid leave entitlements, superannuation, workers compensation, compliance with OH&S and tax laws and consistent work hours.

The result is the mirage of a thriving organisation; the reality is a company operating on a shoestring to the overall detriment of employees.

Escaping the web

Sham contracting is illegal.

Insist on an employment contract before accepting any new job.

Read the contract thoroughly to determine your conditions of employment. Make a conscious note of anything that may detrimentally impact you and raise it with your employer before signing.

Even if your contracting arrangement seems legitimate you may be entitled to full employee benefits and protections.

Early indicators of a sham arrangement are where your employer has:

• asked you to register an ABN before being hired (especially where your current work is your primary source of income);
• told you that for tax purposes it is more beneficial to you to work as a contractor;
• held off or seemed reluctant to provide you with an employment contract;
• made assurances that the contractual engagement you accept is temporary with ‘near future’ steps towards a streamlined HR system and full employee entitlements.

Unethical employers are highly practiced in the art of subtle manipulation. This behaviour points to someone seeking to evade employer obligations under the guise of a contractual relationship. Your employer cannot use the above unfair tactics or any other mechanism (whether overt or implied) to induce you to accept unsatisfactory work arrangements.

If you suspect that you have been hired under a sham contracting scheme, check your employment arrangements against the below checklist:

Reproduced from Fair Work Australia

Myth 4: Internships are about working, not about learning ….right?

Wrong.

Beware of startups running bogus unpaid internship programs.

Unethical employers have been known to make false or misleading statements to induce unpaid work that is used to better everyday operations and expansion of the company without complying with the Fair Work Act 2009. 

Job seekers in the entertainment, media, marketing and non-profit industries are particularly susceptible to exploitation. With an endless supply of recent graduates willing to do whatever it takes to get a foot in the door, inexperienced staff looking to further their career are easily manipulated into supplying a continuous free work force. Hopeful interns are often promised future paid work that fails to materialise.

Escaping the web

If you wish to undertake an internship first ensure that the program is legitimate.

You can do this by seeking information on program:

• Duration – generally speaking, the longer your internship program runs, the greater the likelihood it constitutes an employment relationship.

• Content and structure – is your program intended to be a learning and professional development experience or will you be undertaking work that goes towards normal business operations of the company? Do you come into work at a specified time? Work to specific tasks and deadlines? If so, it’s likely you are engaged in more than just observational learning and that an employment relationship has formed.

• Significance to business operations – will you complete work that directly benefits or goes towards normal business operations? If you were not undertaking this work would it ordinarily be completed by a paid employee? The higher the calibre of work you are completing the more likely you have entered an employment relationship.

• Benefits – who is benefiting more from the program? The main rewards should pass to you in the form of skills acquisition and experience. If the balance of benefits is skewed in favour of the company there is a good chance you are in an employment relationship and are entitled to fair pay.

An unpaid internship program that amounts to an employment relationship means you are entitled to protections such as a minimum wage, compliance with National Employment Standards and the terms of any relevant award or enterprise agreement.

On the other hand, if you are completing work experience as part of an authorised educational training program (such as school or university coursework requirement) and your role is purely observational then your employer is legally not required to pay you.

Myth 5: Your dream job exists, you just need to create it

Company owners who give with one hand by promising your dream job but take with the other by failing to provide support, resources and training play a dangerous game of psychological abuse.

Identifying features of these employers are those who have an unreasonable expectation of the time, mental & emotional energy and financial investment you should be making for the greater good of the company.

Intra-office dialogue and meetings are used to establish unrealistic expectations of staff work level commitment. Failure to work overtime and weekends with no pay is equated with lack of commitment and often results in veiled threats about your future with the company. Often this is less a product of your efficiency and more a product of work pressure being inversely directed to you through unachievable work targets.

Escaping the web

Beware of companies selling a dream.

This can quickly evaporate to reveal a nightmare.

If something seems wrong don’t ignore it. Minor tell tale signs are usually the first indicators that something nefarious is happening on a much larger scale.

It is unlawful for your employer to:

• do something that adversely affects you in certain circumstances;
• coerce you into doing something through fear, intimidation of threats;
• use extreme pressure or influence to make you alter your employment conditions;
• make a knowingly false representation that you will rely on.

Do your research, trust your instincts and learn to identify the early warning signs.

Myth 6: This is just what start up life is like!

Perhaps the most pervasive myth hatched by unethical businesses is that control over company culture is absolute.

Either you fit in, or you leave.

Some employers go so far as to manufacture their own corporate folklore to divert attention away from all manner of evil. Office chatter such as “this is just start up life!” is used as a calculated blanket excuse to justify much of what we discuss in Myths 1-5.

At their worst, company directors actually start to believe their own mythology.

This type of corporate Stockholm Syndrome can ensnare hopeful employees in a web of lies and deceit. Staff who don’t know any better are at risk of ongoing emotional/psychological abuse from employers who understand the system and how to manipulate it.

The impact on employees can result in the unwitting acceptance of:

• second rate office conditions and facilities;
• a toxic company culture (for example, one that fosters gender inequality, sexual harassment, offensive language or bullying and harassment);
• no pay increases or other entitlements;
• ever-changing employment conditions;
• flagrant disregard for staff safety and wellbeing.

Escaping the web

Be wary of employers who make you doubt yourself, your judgement and your abilities.

Identifying unfair pressure and emotional or psychological abuse is not easy.

Skilled manipulators are successful at exercising power and control because their tactics can almost never be traced to an aggressive act. An important warning sign is an employer who uses subtle emotional manipulation by way of critical analysis on aspects of your personality, character or personal life.

For example, you may justifiably express concerns about accepting a job without signing an employment contract. In this case, an experienced emotional manipulator responds by redirecting the question to you and away from his/her unlawful activity:

“Some people need employment contracts in order to feel secure. But the rest of our staff are happy to take risks and live week-to-week”.

Don’t be fooled. This statement is carefully crafted strategy designed to stop you asking the right questions.

If you’re questioning yourself, you’re not questioning the company or the decisions being made about it or your future. 

Still unsure about whether any of this applies to you? Consider the following scenarios:

Your health is often the best point of reference. Chronic stress, headaches, increased blood pressure, heart palpitations, exhaustion, insomnia, weight loss and brittle hair are some of the main signs you are compromising yourself in the interests of the company.

Ongoing and extreme cases can lead to Battered Worker Syndrome.

Un-spinning the lies – when to call it quits

If something sounds too good to be true ….it probably is.

Take your cue from the tale of the spider and the fly and learn how to separate myth from reality.

Analyse your situation and make an informed decision about the best time to cut your losses and move on.

These days success in start up life is less about persevering in the face of an impossible situation as knowing the best time to leave.

Identifying corporate propaganda is an important first step to minimise the time you waste in the wrong start up and safeguard your future.

Looking for further information and resources?

For more information contact the Independent Contractors Hotline: 1300 667 850

To complain about a sham contacting arrangement contact:

• Fair Work Ombudsman: 131 394
• Australian Building and Construction Commission: 1800 003 338
• Your local union.

The Fair Work Ombudsman and Building and Construction Commission have powers to prosecute employers who contravene these laws.

Do you have anything to add to this story? Tell us about it in the comments section below. 

The internet is littered with bears.

The difference is that web bears are not after your food.

They’re after your content.

A seemingly harmless way to access and download pictures, Google Image Search has become a popular ‘go to’ solution for a range of individual and company needs. But without proper permission, or licensing a person or company cannot use your photo without your approval.

Here we show what to do if you meet a bear consuming your content, how to fend off a grizzly attack on your photos and other options that may be available to you.

How to survive a cyber attack

When faced with a threat to your content your chosen course of action will depend on your circumstances and the ideal outcome you seek.

Below is a checklist with some suggested strategies:

1. Identify the bear quickly upon your encounter

Is it a ferocious grizzly (a corporation making a profit from your image) or a lone black bear (a private blogger)? Recognising the species of offending animal early will ensure your next steps are not only deliberate and informed but also guarantee your survival.

If you suspect someone is using your photo without permission, first locate the name of the individual or company. You can do this by entering the website name into whois.net. This will arm you with information on the site’s owner/administrator.

Many amateur and professional photographers now take proactive measures to protect their content by undertaking regular reverse searches using Google Image Search. A detailed tracking document that records the date, website, name and contact details of sites using your photos without permission will give you a number of options and also streamline the legal process should you decide to take things further.

2. Deal with the attack as calmly as possible

Avoid making any sudden movements. Bears don’t like surprises.

Aggressively tweeting, facebooking, emailing or phoning will only antagonise the giant.

Step back from the situation, moving slowly and deliberately. Think about the outcome you would like to achieve before sending an initial email.

Below is a short template you may wish to consider using:

Dear [insert relevant name]

I trust this note finds you well.

I have to draw to your attention a matter of concern to me.

I have noticed that an image of mine has been published on your [website / merchandise / advertisement / social media / blog] without my knowledge or approval.

As the sole copyright owner of this image, I would appreciate if you could [remove the image from your website / credit the image with my name].

I regret to have to advise you that if you continue to use my image without my permission, I will be forced to pursue legal action.

Regards,

[insert your name]

3. Pick your battles – Know when to play dead and when not to

In Australia, copyright protection is automatic as soon as your original photo is captured.

If you take an image, you own it.

There is no formal step (such as registration in the US) required to protect your photo under copyright law. Most countries including Canada, China, France, Germany, the UK and the US grant copyright protection to Australian work under international treaties.

Lone opportunists

While no case of your picture being used without permission is ideal, it may be a case of genuine mistaken identity. Early identification means you are in a better position to decide on a course of action.

In most cases it’s likely that an individual has inadvertently consumed your content without realising they were infringing your copyright.

If this is the case, a few strategic displays such as speaking in a low, calm voice and slowly raising your arms in the air to make you appear bigger should make the animal back away.

A simple email or social media message requesting your desired outcome will ordinarily suffice.

Most private individuals will be horrified to hear that they have used your content or published incorrect information and happy to either correctly credit the source; include a live link back to your site; or remove the image altogether.

@MsMarmitelover sorry will do now.

— Rachael Lander (@strungoutblog) November 3, 2014

In Australia, although there is little guidance on what constitutes copyright infringement in the digital age, a recent Federal Circuit Court case established that being ignorant to the owner or need to correctly attribute a photo is no defence to copyright infringement.

This means that it is not possible for someone to argue that they did not know they were infringing copyright regulations by using your photo.

Knowing consumption

If a commercial entity or a mainstream media outlet has knowingly infringed your copyright and is profiting from unauthorised consumption of your photo you may wish to take things further by sending a bill for compensation or seeking damages.

Many professional photographers are successfully suing corporations for breach of copyright and loss of profits for use of their images on websites, magazines, books, t-shirts, advertising or merchandise without seeking permission or paying licensing fees.

To ensure you’re still standing after a face-off with a grizzly corporation you will need to significantly increase your arsenal by contacting a lawyer who specialises in copyright law.

Copyright lawyers hunt bears for a living.

They will advise you on your rights, whether your claim is worth pursuing, the best course of action based on your circumstances and possible remedies you may be awarded based on the loss you have suffered. This could mean an injunction that stops the person or company using, or continuing to use, your image or damages as compensation for the infringement.

The court will take into consideration the seriousness of the infringement and whether it was highly profitable in assessing the amount of damages to award.

5. Exploit the bear’s weaknesses

Understanding your basic rights puts you in a position of power to protect yourself against potential aggressors.

Plan your best possible survival strategy and fight to survive.

In Australia, if you are the owner of copyright in an artistic work (such a as a photo) you have exclusive rights to:

• reproduce your work;
• publish your work; and
• communicate your work to the public.

Copyright protection lasts for 70 years after the photographer’s death.

The Copyright Act also provides you with three moral rights (separate from copyright protection) over your work, including:

1. right of attribution of authorship (the right to be named as the author of your work);
2. right against false attribution (the right not to have someone else named as the author of your work); and
3. right of integrity of authorship (the right not to have your work detrimentally affect your reputation).

If your moral rights are infringed, you may seek damages, an injunction or a public apology.

6. Move quickly and outsmart would-be web bears

While there are a range of remedies available to right a loss suffered from unauthorised use of your pictures, it is worthwhile exploring preventative measures to reduce your risk of an unpleasant encounter.

Some strategies you may wish to consider are:

• clearly watermarking images with your copyright details. For example, © [your name/brand/site/year]. While this strategy is not 100% effective it does require an additional layer of effort, such as cropping, which will go some way towards discouraging opportunists;
• only posting low resolution versions of your photos. This makes your content less attractive as a potential target;
• if you own a website, try disabling right click download options from your pictures. Again, this approach is not completely effective but it does serve as a clear warning;

Julianna Koh-Blackwell, an award-winning Sydney-based pet photographer uses the ‘disable right click download’ approach.

A ‘right click’ warning on Blackwell’s site.

If you are based in Australia, you may also wish to consider registering your images under the US copyright system – particularly if they are likely to be used overseas. This serves to remove any question of ownership rights if a US-based publication or company happens to use your image.

Happy endings

In the digital age, unpleasant encounters with opportunistic internet feeders are not just likely … they are inevitable.

It may be a case of an individual accidentally foraging for content in the wrong place, or it could be something more serious.

In either case, how you choose to deal with the situation will largely depend on the outcome you seek.

Stay informed and take proactive steps to protect yourself and your pictures.

Think you’re ready to tackle a bear head on?

• Make things easier for yourself and seek out a professional based in your area; or contact
• Arts Law Centre – for more information on your rights as a photographer and access to legal professionals specialising in copyright law.

What experiences have you had with people using your images online and how did you deal with it? Tell us about it in the comments section below!