What Happens when Someone Claims Copyright Infringement Overseas?
Where in the world can you take action for copyright infringement?
The topic for today is copyright.
Our client has received a letter of demand from Germany.
Now, you are not obliged to go to the courts somewhere else in the world if on your website you have terms and conditions that say the governing law is Australia, or if on your piece of material it says the governing law is Australia. Copyright laws are similar internationally in line with treaties, but are limited by country if you want to take legal action. If you specify the governing law you are in a position to argue that an action started somewhere else in the world is outside its jurisdiction.
So in our client’s case, the dispute is in regard to a book cover. The inside cover states that the governing law is Australia, it’s published by an Australian company and the artist involved is based in Germany.
We have told the German lawyer, “If you want to take action against our client, come here to Australia and take action here.” Because even if there is a decision in Germany, they can’t enforce it against our client in Germany because the client has no property there. That means they can’t make our client pay unless they come here to Australia and execute against the client’s property here in Australia. So they have an uphill battle in front of them.
When you’re being pursued by someone from overseas for a copyright issue, remember it’s going to be hard for them to get money out of you if they’re in another country.
How can Onyx Legal help you?
If you are worried that someone is infringing your rights under copyright law, or you receive a letter alleging that you are infringing copyright law, make an appointment so that we can help you chart a way forward.
Crowdfunding is about enabling other people to support your cause or idea by donating money to you. Some fundraisers offer perks or rewards in exchange for donations, some don’t.
Organisations that have deductible gift recipient (DGR) status can provide tax deductible receipts for donations of over $2, provided that no perk or reward is offered in exchange for that donation.
In Australia there are strict regulations around offering shares or interests in a company as part of a crowdfunding campaign. Only angel investment platforms with financial services licences are able to support this.
What is the risk?
As a donor you are warned against giving money to crowdfunding campaigns in case they are a scam. Statistically, most are not scams but genuine efforts by people or organisations to fund particular projects or ongoing activities.
Australians reported spend $20billion per year on gambling. With those statistics I am constantly surprised that crowdfunding gets such a bad rap. If we could divert even a fraction of gambling revenue into crowdfunding campaigns (same risk) the potential for growth in innovation is huge.
As a fundraiser, your greatest risk is not grabbing the attention of the public and failing to reach your funding goal. One way to mitigate this is to use crowdfunding platforms that permit flexible campaigns where you receive the funding regardless of whether you reach your target or not.
Chose a platform that is currently active; you don’t want to put time and effort into a great campaign only for nothing to happen with it. For example, Cleantechfundr doesn’t appear to have any activity since 2014.
What are the crowdfunding laws in Australia?
Crowdfunding has worked without government interference or regulation up until now, but in late 2015 the Australian Government had before it draft legislation that would regulate ‘crowd-sourced funding’ (because calling it ‘crowdfunding’ like everyone else would be too sensible).
Fundraising in a traditional sense is covered by the Corporations Act and the rules are enforced by the Australian Investments and Securities Commission (ASIC). If your campaign is seen to be promoting a financial product (shares, insurance, mutual fund) then you will have compliance obligations and crowdfunding is probably not your best bet.
Where you are collecting a donation and offering nothing more than a nominal reward in return, you are unlikely to have to comply with Corporation Act.
The draft legislation (Corporations Amendment (Crowd-sourced Funding) Bill 2015) proposed that ASIC would have regulatory oversight of crowding in Australia where the fundraising results in the people gaining an interest (shares) in a public company. There was nothing in that draft legislation that affected crowdfunding by proprietary companies, associations or individuals. That Bill has now been shelved (2016).
Other laws that affect campaigns are consumer protection laws. When you promote what you plan to do with the money, you have to be accurate in what your telling people. If what you say is later found to be misleading and deceptive you may be liable to pay fines as well as refund money.
You do have to own or have the right to use any content you include in your campaign to avoid infringing intellectual property laws.
Some states of Australia also require organisations (unless exempt) to obtain a fundraising licence if collecting money for a charitable purpose. These states are:
• Western Australia (any amount) • Victoria (>$10,000 per financial year) • Tasmania (for individuals & organisations not incorporated in Tasmania) • South Australia (any amount) • Queensland (any amount) • New South Wales (any amount) • Australian Capital Territory (>$15,000 per year)
‘Charitable purpose’ doesn’t appear to cover ‘developing a business or business idea’ but it is worth checking with the appropriate state based regulator to work out whether or not you are covered. A useful resource for this is Fundingcentre.com.au for fundraising legislation and regulations for not-for-profits.
How do crowdfunding platforms work?
Crowdfunding platforms usually collect the money before passing it on to the fundraiser, and will only pass it on under certain conditions. Where a fundraiser has listed an all-or-nothing campaign, the people pledging money are often not charged until the campaign has reached the funding goal. With a flexible campaign, funds raised are handed over whether or not the goal is reached.
Crowdfunding platforms don’t take responsibility for the funds raised. If a fundraiser has offered perks or rewards in exchange for money raised and they don’t deliver, donors have to pursue the fundraiser rather than the crowdfunding platform.
Why crowdfunding doesn’t always work in Australia
You can’t enforce a pledge under Australian law. We have a system where there has to be a mutual exchange before a contract can be enforced. The exchange doesn’t have to be for equal value, it just has to occur.
So, if you are crowdfunding in Australia and you want to be able to collect all of the donations pledged to your campaign, you will usually need to offer and provide something in exchange. This is why a lot of campaigns offer promotional material in exchange for donations.
Realistically, the cost of enforcing small donations is likely to be prohibitive, so it is still an exercise in trust in hoping that people will meet the promises they have made. For this reason, platforms that do not have a minimum cap for collection of funds offer a lower risk to crowdfund fundraisers. If you are able to collect the funds as soon as the donor has the impulse to buy, you are less likely to lose collections because people change their mind at a later date.
What can’t I crowdfund?
Each crowdfunding platform sets out different categories of product or service they won’t allow you to start a campaign for. These usually cover things like illegal activities, adult material, tobacco or alcohol products, financial products, optional medical procedures, gambling and so on.
Different types of platforms
Not all crowdfunding platforms support every idea. Some platforms are aimed at creative projects, some social enterprise or charitable projects and a few are designed to connect small investors with start-ups in exchange for an interest in the company. Below is a PDF showing a selection of different types of crowdfunding platforms available in Australia.
There are a few other platforms promoted as crowdfunding or small investment opportunities (like BrickX and Thinkable) that don’t fit the usual crowdfunding framework are not included.
Download your Crowdfunding Australia comparison table here – crowdfundingpdf
What exactly is governance and why is it important?
Well, it’s not that complicated. It’s just the rules around doing business.
If you’re a registered company, there are certain reporting obligations that you have in order to protect the shareholders, the investors in your business. Good governance also helps to add value to your business so that when you’re looking at getting more investors on board or actually selling your business in the future, you can demonstrate why it’s worth what you say it’s worth.
An example here might be if you’ve got a startup and someone’s developed a piece of software. Now, that piece of software might have some value, and the person who created it might be entitled to receive some money from the business at some point in time once it’s making revenue.
Actually documenting the rights of the company and the developer shareholder are very important because if you’ve got an investor who wants to come into the company, or you’ve got someone who wants to buy the business, they need to know that the business owns that software and on what terms it owns it, because it can make a big difference to the valuation of the business. That is one of the first points of information around governance – ensuring that all the key players in the business understand the rules for the business.
There’s a lot of questions around what level of detail you need to have, but that’s a separate conversation. Typically, a company will have at least a constitution or replaceable rules, and a shareholder agreement governing the relationship between the shareholders.
How can Onyx Legal help you?
If you would like to understand your business structure and how to bring in new people so that everyone is on the same page,
Today we’re talking about the minimum legal terms you need for your website.
The reason you would have a legal terms on your website is to reduce the risk to your business, so it’s not a small thing. It’s actually really important to the viability of your business into the future.
For an example, I recall a man in the UK who got sued by a company in the US out of a court in Australia because of comments he made on his website. He had no legal terms to protect himself.
One of the key things you can do is use your Terms of Use is to designate your governing law, the relevant law for your website. So if you’re based in the US, you want some law relevant to the US. If you’re based in the UK, you want it in the UK. If you’re in Australia, you want it in Australia. That’s one key thing that Terms of Use can do for you.
The other thing is privacy. Privacy is pretty important.
There are a lot of people out there concerned about how that information is used. Whether you are legally required to protect your client’s privacy or not, it’s a really worthwhile investment to do that.
The quickest way to notify people how you do that is to have a Privacy Policy on your website.
The more products or services you offer through your website, the more terms and conditions you can use to help limit the risk to your business and to better manage the expectations of your customers.
How can Onyx Legal help you?
We can help you in putting together both the Terms of Use and a Privacy Policy. We can also talk to you about any other terms and conditions you might need for your website.
What I’d like to talk to you about today is trademarks, and what is a trademark, and could you trademark ‘hot dog’?
Well, let’s look at something as an example. Take Nike. Nike has the Nike trademark, the name of the brand. The tick symbol, so that’s their key image, as well as a catch phrase, Just Do It.
That’s three really good examples of what makes them distinct from every other brand in sports apparel. They’re not Adidas and you know that as a result of their branding. They’re not Reebok. You can clearly differentiate their products due to their branding.
And that’s the key to identifying a trademark. You can’t use something that’s just generic.
So if you wanted to call your business ‘Sports Apparel’, obviously you’re not going to be able to trademark that because it’s in general usage and it doesn’t show you as any different from any other sports apparel provider. Adding a geographical tag like ‘Sports Apparel UK’ isn’t going to cover it either. It has to be something distinctive.
So, could you trademark ‘hot dog’? No.
Could you trademark ‘Big Cheesy New Yorker’ as a hot dog brand? Possibly. As a brand? Possibly.
That’s what you’ve got to look at. What makes your brand distinctive and does that make it worthwhile trademarking?
How can Onyx Legal help you?
Some people want to trademark catch phrases or product descriptions. Trademarks are for showing point of origin. If you need help working out what trademarks work best for your business, then
1st thing to consider when BUYING/ SELLING your online business
When you buy a business you need to understand if you are also buying the intellectual property
What we’d like to talk to you about today is why copyright makes the online world a more interesting place. I know that’s difficult for some people because there’s a lot of people out there that say, “Hey, I can find it available for free. Why should I have to pay for it?“
Well, copyright started originally to protect the people who create education and entertainment for us to encourage them to continue to do so. You can imagine that if people didn’t receive an income for creating the things they create, we probably wouldn’t see a lot of them. Think about the big movies, touring musicians or best selling books for example.
Another thing about copyright is that there’s no copyright in ideas.
Consider this – there are an awful lot of videos, TV programs, movies about zombies. That’s because zombies are not a protected idea; it’s just a concept.
There is however, copyright in each motion picture, the script behind each motion picture, the music that goes with the motion picture, the stills that can be created out of the motion picture.
All of that kind of information attracts different rights under copyright.
There’s a whole lot to this topic, and we do want to share a lot more information for you, check out or article about using copyright material, but that’s enough for today.
How can Onyx Legal help you?
Do you need heads of agreement or a contract for buying an online business or selling an online business? Does it cover copyright materials or other intellectual property? There are lots of basic templates around that simply do not protect your interests. If the transaction involves more money than you can afford to lose, book an appointment for help with your contract and the transaction.
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