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Minter Ellison is a recognised leading adviser to the technology, media, communications and telecommunications (TMT) industries. TMT organisations face a wealth of challenges in maintaining competitive advantage and leveraging new opportunities. Rapid innovation and convergence in this space, together with an ever-changing legal and regulatory environment, means that TMT organisations must constantly re-evaluate, and in some cases entirely re-engineer, their business models and strategies.
Our TMT Group supports clients through this ever-evolving process, providing informed, commercial, strategic and practical advice. By applying our deep understanding of the TMT industry and its key drivers, adopting a cross-disciplinary approach, and leveraging an experienced and knowledgeable cross-border team, we are able to add significant value to our clients’ TMT transactions.
We work with leading organisations across the TMT spectrum, and have played a key role in some of the most significant TMT developments and transactions in the Asia Pacific region.
Our technical expertise extends across the entire spectrum relevant to the activities of TMT organisations, and includes intellectual property, media regulation, defamation, telecommunication regulation, outsourcing and procurement, e-commerce, technology, mergers and acquisitions, joint ventures, competition law, privacy and spam, corporate advice, employment law, tax, finance, infrastructure, property and litigation.
China's State Council has issued plans for three new Pilot Free Trade Zones in Guangdong, Tianjin and Fujian, and the expansion of its Shanghai Pilot Free Trade Zone. It also updated its foreign investment negative list and announced trial procedures for national security review of foreign investment in all free trade zones. The expansion of China’s free trade zone program is set to advance the country’s financial reform journey and improve its ability to compete with more established rivals in the Asia-Pacific region.
GST is back on the agenda for the national conversation with the Treasurer confirming at the recent Council on Federal Financial Relations Meeting that GST will be charged on electronic imports into Australia. In this article we look at particular aspects of the approaches taken by South Africa and the EU and consider what lessons their experiences provide for Australia. We also examine whether Australia can impose an electronic services tax on non-residents that have no presence here, and how this could be enforced.
In the wake of the controversial new metadata retention scheme, the Australian Government has committed to further regulation in the form of amendments to the privacy laws to introduce a mandatory data breach notification scheme by the end of the year.
Following a spate of decisions in 2014 on patent licences the Federal Court of Australia announced two further decisions which provide additional guidance to parties to a patent licence. Both of these decisions are a reminder that in addition to contract law, the parties to a licence of Australian patents should consider the relevant provisions of the Patents Act 1990.
It's been an unusually busy period for patent licensing, with the Federal Court of Australia issuing a number of important decisions in 2014. The decisions, which consider the issues of exclusivity, termination rights and obligations to fund litigation, provide useful guidance to licensors and licensees alike. They also underscore the importance of paying attention to the fine detail of patent licences during their negotiation and in court proceedings.
On 16 September 2014 the OECD released an interim report on countering harmful tax practices in connection with Action 5 of its Action Plan on Base Erosion and Profit Shifting. This Alert summarises the key issues highlighted in the OECD's report.
On 16 September 2014 the OECD issued its paper on BEPS Action 1: Addressing the Tax Challenges of the Digital Economy. This Alert summarises the main BEPS issues identified by the OECD and the way forward for taxation reform identified in the OECD paper.
Last week saw the removal of United States retail giant Target's chairman and CEO as the fall out continued from last year's hack of 40 million customer payment card records and 70 million other records. While Australian companies and government have not been immune from attacks by hackers, it raises some important questions.
The Australian Law Reform Commission (ALRC) Final Report into Copyright and the Digital Economy (Final Report) is now publicly available, having been tabled in Parliament on 13 February 2014. The report was finalised after receiving more than 1,000 submissions and undertaking more than 100 consultations with stakeholders.
The Office of the Australian Information Commissioner (OAIC) has issued for public consultation the final tranche of draft Guidelines for the new Australian Privacy Principles (APPs), which are set to commence on 12 March 2014. The second tranche discusses APPs 12-13, or Part 5 of the personal information lifecycle - Access to and correction of personal information. This white paper analyses the final tranche in detail including key concepts, applications and exemptions for each of the APPs and outlines the Privacy Commissioner's intended approach to compliance with the new regime.
Rapid innovation and convergence in the TMT space in Australia, together with an ever-changing legal and regulatory environment, means that TMT organisations must constantly re-evaluate, and in some cases entirely re-engineer, their business models and strategies. This chapter, contributed by partners Anthony Lloyd, Paul Kallenbach and Paul Schoff, discusses the different laws and regulations that impact the TMT space in Australia.
A recent decision of the Supreme Court of Western Australia reinforces the need for parties to clearly state what they mean when seeking to exclude liability for 'consequential loss'.
The Office of the Australian Information Commissioner (OAIC) has issued for consultation the second of three tranches of draft Guidelines for the new Australian Privacy Principles. This tranche provides guidance on APPs 6 to 11.
How companies should use social media continues to be a vexed issue for management and boards. Organisations can face serious reputational repercussions if they fail to properly manage online dialogue with customers and other stakeholders, and they may also attract legal liability. In our view, a tailored approach taking into account legal and non-legal areas of risk, the social media landscape in which the company operates, and available resources is a sensible strategy.
The government has released a discussion paper concerning the employee share scheme administrative and tax arrangements for start-up companies. This is the first major tax policy announcement for the ESS since the 2009 reforms and reflects the government's commitment to growing a robust start-up sector through a review of the regulatory regime.
The Commonwealth Attorney General, Mark Dreyfus QC, yesterday issued Terms of Reference requiring the Australian Law Reform Commission to conduct an inquiry into the prevention of, and remedies for, serious invasions of privacy in the digital era. This latest development is part of the government's second stage response to the recommendations in the ALRC's 2008 Report into reforming the Privacy Act 1988 (Cth), together with the recent proposed compulsory data breach notification scheme and the removal of certain exceptions to the Privacy Act.
The High Court of Australia held that Google was not liable for representations made by advertisers in sponsored links on Google's search results pages. The case concludes a five year court battle between the Australian Competition and Consumer Commission (ACCC) and Google Inc. (Google) over misleading representations displayed in sponsored links on Google's search results pages.
Australia's new cybercrime law, which came into force on 1 March 2013, establishes the legislative framework for Australia's accession to the Council of Europe Convention on Cybercrime (Convention). The essence of the new cybercrime law is to empower Australia's law enforcement and intelligence agencies to compel carriers to preserve the communication records of persons suspected of cyber-based crimes. The new law also expands the Commonwealth cybercrime offences and facilitates international cooperation between State parties to the Convention through the cross-border sharing of communication records.
This week the Australian Government released its hotly anticipated package of reforms in response to the Convergence Review and the Independent Inquiry into the Media and Media Regulation ('the Finklestein Inquiry'). The proposed changes will 'bolt on' additional regulation to the already complex media landscape and principally affect traditional news organisations.
On 28 December 2012, the PRC National People’s Congress passed Amendments to the PRC Labour Contract Law (the Amendments) in relation to the labour dispatch arrangement. The Amendments will come into force on 1 July 2013.
On 31 December 2012, the China International Economic and Trade Arbitration Commission (CIETAC), a foreign-related arbitration commission set up by the China Council for the Promotion of International Trade (also known as the China Chamber of International Commerce) (CCPIT), released its Announcement on Issues Concerning CIETAC Shanghai Sub-Commission and CIETAC South China Sub-Commission" (the Latest Announcement). This is the latest development in a dispute, which has been on foot since April 2012, between CIETAC, the Shanghai Sub-Commission of CIETAC (CIETAC Shanghai), and the Shenzhen Court of International Arbitration (SCIA) (the CIETAC Dispute). SCIA was known as the South China Sub-Commission of CIETAC before 22 October 2012.
What's on the cards for key industry sectors for the coming year? Read what we think:
Minter Ellison partners Anthony Lloyd, Paul Kallenbach and Paul Schoff have authored the Australian chapter of the new edition of Technology, Media and Telecommunications Review (John P Janka ed), published by Law Business Research in October 2012.
The Australian Government has launched another inquiry into the compulsory licensing provisions in the Patents Act 1990 (Cth). This alert outlines the scope of the inquiry by the Productivity Commission, and how you can make a submission.
With a view to improve the protection of workers' rights and interests and better regulate the labour dispatch regime, on 6 July 2012, the Standing Committee of the National People's Congress of China released the Draft Amendments to PRC Labour Contract Law. This Alert outlines the five primary modifications to the labour dispatch regime contained in the draft amendments.
The PRC's Interpretation of the Supreme People's Court on Application of Laws in the Trial of Cases Involving Sale and Purchase Contracts will take effect from 1 July 2012. Widely regarded as a judicial milestone the promulgation of the Interpretation is expected to contribute to the development of jurisprudence and commerce in China.
The ATO has warned taxpayers that input tax credits for importation GST will be denied if the importation arrangements are not managed in accordance with the statutory requirements. It is likely the ATO will now focus on this area and taxpayers will have no excuse if they fail to comply with the criteria necessary to claim credits.
On 28 April 2012, the China State Council released the Special Provisions on Labour Protection for Female Employees ('the New Provisions'). The New Provisions came into force on that same date, and superseded the Provisions on Labour Protection for Female Employees promulgated on 21 July 1988. The New Provisions provide better protection to female employees and cover prohibited work, maternity leave, maternity insurance and sexual harassment.
Minter Ellison's Anthony Oxley and Tony Dhar provide comment on ASIC's new regulatory guidance in relation to advertising financial products and advice services.
On 30 April, the Convergence Review Committee issued its hotly anticipated Final Report which sets out proposed changes to Australia's media regulatory framework. The Review emphasises a shift from 'black letter law' regulation towards flexible principles-based regulation. This alert discusses the proposed changes.
In a 5-0 decision of the High Court, iiNet has finally won its long running legal battle with copyright holders. The Court held that iiNet was not liable for its users' downloading of copyright material. Our Alert explores the background to the case, the reasons for the decision and importantly, what this means for copyright owners and content providers as a result.
Terms of Reference for the Australian Law Reform Commission's (ALRC) Inquiry into Copyright.
On 22 February 2012, there was a further key development in the proposed amendments to the Personal Data (Privacy) Ordinance when the Bills Committee for the Personal Data (Privacy) (Amendment) Bill 2011 published a paper revising proposed amendments to provisions on the use of personal data in direct marketing and the sale of personal data.
On Tuesday, 29 November 2011, as part of its Mid-Year Economic and Fiscal Outlook 2011-12, the Federal Government announced a package of changes intended to raise A$11.5 billion in new revenue and savings.
A report by the Victorian Ombudsman has identified five underlying factors which contributed to difficulties experienced in government ICT projects. The report, Own Motion Investigation into ICT – Enabled Projects, released on 22 November, was prepared in consultation with the Victorian Auditor-General. It examines 10 major Victorian Government ICT projects that experienced difficulties such as budget and timeframe blowouts or failure to meet requirements.
On 12 October 2011 the Hon. Robert McClelland MP, Commonwealth Attorney General, launched a public consultation paper proposing amendments to Part V Division 2AA of the Copyright Act 1968 (Cth)to extend the application of the safe harbour scheme to entities providing network access and online services.
China's National Development and Reform Commission (NDRC) has moved to regulate the private equity sector in that country. This reflects increased interest from Central government authorities in ensuring there is adequate regulatory control over this growing investment sector. Under the new rules, enterprises are being encouraged (and in some cases required) to file certain information. This represents a significant development for an industry that has not been accustomed to mandatory disclosure of financial and investment details.
Many organisations are transferring non-critical applications to various cloud computing models, whilst still maintaining business critical applications within their current infrastructure. Cloud computing models exist along a spectrum that includes public clouds, private clouds, hybrid clouds and virtual private clouds (a private cloud existing in a public cloud).
In this edition of TMT News, we look at: