Intellectual Property, Technology and Media Newsletter – June 2021

30 June 2021

Welcome to our Newsletter, bringing you the latest in Intellectual Property, Technology and Media Law legal news.

The epic battle continues

The competition law dispute between Epic Games and Apple over Fortnite’s in-app purchase processing is set to become even more interesting in Australia. Hot on the heels of Epic’s appeal against the Full Court’s decision to temporarily stay the Australian proceedings in the international dispute, and the release of the Australian Competition and Consumer Commission’s Digital Platforms Inquiry report on app marketplaces, the ACCC has sought leave to intervene at the Full Court appeal hearing in order to make public policy submissions. For our summary of the previous instalment in the Fortnite legal saga and comments on the Digital Platforms Inquiry report, see our recent articles ‘Choice of forum clause pauses Epic and Apple’s local Fortnite match’ and ‘ACCC finds ‘significant issues’ with operation of app marketplaces by Apple and Google’.

Business email to compromise scams – the legal position

A business email compromise scam is a form of cybercrime that occurs where a hacker gains access to a business email account to scam organisations out of money or goods.

We recommend that all businesses take steps to protect themselves from the significant loss that can flow from these scams.

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The ownership and use of athlete data analytics in sports

Over the last decade we have seen Australian sports, such as AFL, NRL and Cricket, collect and use athlete data through wearable technology devices. Those of us who are AFL mad can get access to some of this data via the Telstra Tracker on the AFL App, which provides statistics on player speed, intensity and ground coverage during games in real time.

But the collection of biometric and positional data in sport poses some interesting questions, such as who owns the data and how can that data be used? Can athletes use the data to their own advantage both on and off field? What are privacy law implications?

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Clive Palmer cops order to pay universal music publishing $1.5 million for flagrant copyright infringement

On 30 April 2021, the Federal Court handed down judgment in the matter of Universal Music Publishing Pty Ltd v Palmer (No 2). The Judge held that Clive Palmer had infringed the copyright subsisting in the musical and literary works in Twisted Sister’s 1984 hit ‘We’re Not Gonna Take It’. Universal Music Publishing was awarded substantial damages, including $1,000,000 to punish Palmer’s contemptuous conduct and deter similar infringements.

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In case you missed it, the following articles were recently published on our website:

Stage 1 defamation reforms commence

On 1 July 2021, the Model Defamation Amendment Provisions 2020 (Stage 1 Reforms) commence in South Australia, Victoria and New South Wales.

The key changes include a new “serious harm” test, mandatory Concerns Notices, a new stand-alone defence for publications on matters of public interest, a new defence concerning peer-reviewed matters published in academic or scientific journals, a new “single publication rule” and clarification of the cap on damages for non-economic loss.

The Stage 1 Reforms will only apply to the publication of defamatory matter after 1 July 2021.

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Back in the game – Australian Government announces 30% digital games tax offset

The outlook for the Australian games industry has become brighter with the introduction of the Digital Games Tax Offset (DGTO) in the Australian Government’s 2021 Budget.

The DGTO is squarely aimed at attracting both local and foreign investment, and some State Governments have already shown renewed interest in encouraging the industry.

The incentive follows intensive lobbying by stakeholders including the Interactive Games & Entertainment Association and even the formation of a bipartisan Parliamentary Friends of Video Games group.

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Medical and biotech innovators can tick the patent box for budget tax cuts

A new patent box regime announced in the Federal Budget aims to boost the Australian medical and biotech industries by rewarding local research, development and commercialisation. Profits flowing from patents protecting eligible innovations will be taxed at a concessional rate of 17%. The Government will conduct industry consultations before finalising the scheme, which is due to commence in 2022.

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 ACCC finds ‘significant issues’ with operation of app marketplaces by Apple and Google

The ACCC issued its interim report into the operation of the Apple App Store and Google Play Store. In its report, the ACCC identified ‘significant issues’ with the manner in which these marketplaces are operated, and made a number of recommendations as a result.

The ACCC had called for feedback from app developers on these marketplaces in late 2020, with the report drawing on the responses received.

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Location, location, location: Court finds Google misled consumers about collection of location data

In April 2021 the Federal Court found that Google engaged in misleading or deceptive conduct by virtue of statements made to users about collection of location data. The case is unusual in that it was brought under the Australian Consumer Law, rather than the Privacy Act. The Court found that it is not necessarily reasonable to expect all individuals to undertake a ‘careful and meticulous’ review of privacy documentation.

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