Intellectual Property, Technology & Media Newsletter – June 2023

26 June 2023

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

Facebook to face the Information Commissioner: High Court revokes special leave to appeal

The Office of the Australian Information Commissioner’s proceedings against Facebook for alleged breaches of the Privacy Act 1988 (Cth) (Privacy Act) arising out of the Cambridge Analytica scandal are now one step closer to being substantively determined by the courts.

However, in light of a recently recommended change to the Privacy Act’s definition of ‘personal information’, we will have to wait and see whether the final decision in the substantive proceedings – as to whether Facebook breached that legislation – may ultimately be of limited value as precedent in future Privacy Act cases as a result of the implementation of that proposed change to the law.

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Setting up for success: key legal issues for new CRC-Ps

The Commonwealth’s Cooperative Research Centres Projects Grants program provides funding for short-term research collaborations between Australian industry and the research sector, with an emphasis on supporting SME participation in R&D.

For businesses looking to engage in the program, we have put together a summary of key legal issues to consider when structuring your collaboration and supporting contracts, touching on issues such as intellectual property, change management and termination.

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Protections for Prosecco: EU’s bid to secure further wine geographical indications in Australia

Recent developments in the renegotiation of the Australia-European Community Trade Agreement on Trade in Wine may significantly impact Australian winemakers when it comes to the branding, names and marketing of their products.

Through these negotiations, the European Union (EU) is seeking to protect a list of EU geographical indications that relate to certain wines produced in Australia, such as Prosecco. These protections, if adopted, will likely limit the ability of Australian producers to use certain terms to market and advertise their wine unless an exception applies.

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In case you missed it, the following articles were recently written and published by our team:

Can computers create copyright? Applying IP law to the output of generative AI

Traditional IP rights protect creations of the mind, so they typically require the involvement of a human author or inventor. Outputs of generative AI may accordingly be devoid of IP protection, although there may be scope to argue about the extent to which the ‘prompter’ of a generative AI system could be called the ‘author’ of its output.

If laws were to be updated to recognise IP in computer generated outputs, there is also scope for debate about who should be the owner of those rights – the creator of the system, or the relevant end user?

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Structuring a CRC: options for corporate structure, intellectual property, tax and winding up

There are various ways of approaching intellectual property and tax arrangements in a CRC, and those approaches in turn have implications for the winding up of the CRC company at the end of its funding term. A failure to consider these approaches carefully at the outset of establishing a CRC company may result in restrictions on IP access by partners – or an unexpected, and potentially significant, tax bill.

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ChatGPT: what is it and should we be concerned about our privacy?

ChatGPT has been making headlines as one of the most exciting developments in the tech world. The new artificial intelligence model, which was released late last year, is known for its ability to understand user’s questions and respond in a conversational manner. However, since its release, concerns have been raised about the way ChatGPT operates, and whether privacy may be compromised as a result.

This article outlines how these concerns have impacted privacy protection policies internationally, and what this might mean for Australia.

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The peril of personal accounts: managing personnel risk in digital assets

Locking yourself out of a digital account is one of the banes of modern existence at home and work alike. Where a business relies on individual employees’ personal accounts for access to its digital assets, the potential to lose access and control presents significant operational and reputational risks.

In this article we discuss the often-overlooked risks associated with individual founders or employees controlling access to a business’ cloud platforms or social media accounts, and a few simple steps you can take to help your business retain control over all its crucial digital assets.

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HWL Ebsworth acts in high profile intellectual property injunction proceedings

HWL Ebsworth has advised Austin Engineering Limited in obtaining an interlocutory injunction in the Federal Court of Australia against a former employee who has subsequently worked for a competitor.

The injunction was based on allegations of infringement of copyright and misuse of confidential information.

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From code to creation: intellectual property issues in training generative AI

Generative AI systems like ChatGPT and Stable Diffusion get their smarts by being trained against large datasets of existing works. The temptation for AI developers is to use the broadest scope of materials possible, but works can be protected by intellectual property rights, and there are questions being asked about the legality of using those materials in this way.

In this article we discuss how longstanding IP laws align with the rapidly evolving process of machine learning.

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The High Court treatment: trade mark law cleaned up in cosmetics case

In a judgment that has overruled the Full Federal Court decision in Self Care IP Holdings Pty Ltd & Anor v Allergan Australia Pty Ltd & Anor [2023] HCA 8, the High Court has held that a trade mark’s reputation is not relevant when deciding whether it has been infringed by deceptive similarity to another product.

This decision provides useful insight for businesses into what will be treated as ‘use’ as a trade mark and how to distinguish their brands from others to avoid confusion.

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Media regulator ACMA to be given new powers to help protect Australians from online misinformation

Between January 2020 and June 2021, over 82% of Australians reported having experienced misinformation about COVID-19. Of these, 22% of Australians report experiencing ‘a lot’ or ‘a great deal’ of misinformation online.

The Australian Government has announced that the Australian Communications and Media Authority will be given new powers in an effort to minimise and prevent harmful misinformation and disinformation on digital platforms.

Click here to read more.

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