Posts by Rick Shera
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Speaker: TPPA: It's Extreme, in reply to Steve Withers,
Agree - which is why those who have concerns need to find examples that resonate with the general public. Parallel import limits clearly fall into that category, as does 3 strikes internet termination.
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@ScottY - yes, there are major issues with patent changes as well but I wanted to focus on the copyright and TM ones. Pharmac is clearly a target although I heard Susy Frankel of VUW suggest that (as much as it might like to) US is probably not aiming to do away with pharmac altogether but to significantly curtail its buying power by restricting flow of generics. Some of the anti-patent gurus around will be looking at this I'm sure.
@Rick Lock/Chris Bell GIs aren't actually listed and probably will not be in any final treaty. Although, aparently, Chile has some of it's GIs listed in the existing P4 treaty (which TPPA is building on). There is also some wording in the proposed US text suggesting that generic names would be excluded from GI protection. Suspect that the GI clauses are an attempt to end-game the EU which of course wants GIs for everything.
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@Simon Bennett/@Peter Cox
Employee vs contractor status is not quite as clear-cut as that. You can find many examples of people who work under documented service contracts, who are in fact employees (although not so much the other way).
Things like flexible working time, control of IP/personality/publicity rights, taking on other work outside the main employment etc can be catered for in employment contracts. Conversely, subject to Commerce Act (competition law) issues, one could even contemplate some standard industry wide service contract terms by reference to a reinvigorated pink book. But, you are right that things like payment of holiday pay, ACC, PAYE (employees) vs deduction of expenses (contractors) are bright line dividers.
For employers this is often a no-win situation - they agree to people being contractors (whiich can often have nice tax benefits for the "contractor" by way of tax deductable expenses and income splitting via companies/trading trusts) only to find that the IRD assesses the person as an employee and comes after the employer for back PAYE and penalties. Worse still, a dispute arises and the person turns around and claims they were an employee all along by filing a personal grievance via a "no win no fee" advocate.
It's an area that IRD is hot on and this spat will no doubt have it looking closely at whatever eventuates - here's its guidance
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@sacha - the RHs have done a great job in diverting attention onto s92A repeat infringer termination, which is a side-show IMHO. Meanwhile, s92C which emulates the takedown core of DMCA, snuck through and has been in force since the original amendment Act was passed. As Colin mentioned, s92C has way less due process than will be in the new s92A regime (actually ss122 onwards but, hey, let's not lose the hashtag to the Sikorski 92A crowd).
Not that I should complain; s92C is great because all it takes is a simple cease and desist letter to TelstraClear and a client's ... ahem ... ambitious copyright complaint nicely morphs into the blocking of a competitor's website. No fuss, no risk, no pesky evidence requirements and no courts.
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I wonder Russell if there should be an innocent dissemination defence for breaching suppression orders. It has always seemed unfair to me that people who endeavour to raise the quality by monitoring/moderating their blogs are therefore more likely to be deemed publishers -> liable for third party posts to the blog. There are innocent dissemination defences for defamation and offensive material and copyright safe harbours for ISPs (which definition currently includes bloggers) so why not for suppression orders?
The reality may be that unless you go to the lengths of a Vince Seimer, not much will be done about an intentional breach of an order, let alone an inadvertant breach which is cured in the way that you have done here. But, should the online environment need to rely on ad hoc non-enforcement? Don't think so.
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@AnthonyJT wrote:
Ultimately, the complaints about special treatment for celebrities is somewhat tautologous - media interest in them derives from their status and absent that status there would be no interest and, in turn, no reason or justificaiton for suppressing their name.
Yes, similar reasoning was accepted by the Court in the Hosking case (where Mike Hosking and his wife sought to restrain publication of pictures of kids in pram being pushed by her on a public street, on the grounds of privacy). They failed on the facts, in part because they themselves had courted publicity and therefore could not complain when it was visited upon them.
Live by the sword; die by the sword?
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... and lets not forget that the obtaining of a suppression order or strong resistance to the granting of one will often be a significant bargaining chip in the dance orchestrated by media/legal minders for impugned celebrities or their victims. As someone has already said, name suppression creates that sense of mystery and titillation and that too can be advantageous to one side or the other (let alone increasing the bid price for the exclusive - suppression as a mechanism for creating competitive tension if you will).
BTW, not being in Wellington, I will not be able to attend what looks to be a perfectly timed one day conference hosted by InternetNZ on this - a heavy weight line-up of speakers so would be well worth a look in http://www.internetnz.net.nz/issues/newzealand/r-v-the-internet-seminar
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Hi everyone.
Well - best laid plans and all that!
But, unfortunately, as happened to Russell, the way in which this story was broken, with traditional media picking it up from PA before KidsCan even had a chance to comment properly, has meant that all my time has been taken up today and I have not had a chance to come back here. I think I saw a post earlier on about the way in which traditional media feeds off blogs - I can now attest to that!
I know Russell is out of Auckland tomorrow so I expect that we will not be able to get anything up as soon as we would have liked but it is still my intention to try to answer on PA the main questions that have been raised here in due course.
Like Russell, I also have my own work to attend to so hopefully you will bear with me for a little while. Thanks everyone also for the thoughtful and reasoned debate - much appreciated.
Rick Shera
Chair
KidsCan Charitable trust -
Hi everyone. I usually post here on ICT and legal matters (particularly with respect to copyright, s92A etc).
However, I now find myself with the ideal opportunity to respond to a group that will listen to facts about KidsCan Charitable Trust, since I am the chairman of that charity.
I do not want to just hand this off to someone else because I think that when issues like this are raised, people deserve to hear from the board, whose job it is to try to ensure that things like ethics, good governance and ... well ... old fashioned common sense, are adhered to. So what I've agreed with Russell is that I will collate the questions and comments that you have all raised (which, like Russell's original entry, I think are perfectly legitimate) and then try to answer them as best I can in one hit in a guest blog. Chairing KidsCan is not my day job but I'd like to think that we can get that organised for posting later tomorrow.
So, if anyone has any other comments/questions about KidsCan or the Big Night In Telethon, post them here and I will answer them as best I can.
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@Rich of Observationz et al
As some have already mentioned, legal input at the highest level is often invaluable. Given the legal labyrinth that the transition group will have to contend with and the well funded, legally backed, agendas that are being pushed (from all sides; not just that which Russel portrays), having someone of Miriam Dean QC's experience and acumen is a logical choice. Having worked with Ms Dean on many occasions can I also add that she has a frighteningly ferocious appetite for hard work and a knack for asking the hard questions, both of which also make her ideally suited. It is amusing to see people target lawyers as homogeneous lackeys of the establishment as if that alone supports the argument - hardly a useful contribution in this instance.
That is not to say that I am anything but dismayed at the way that I have already been disenfranchised - perhaps more so than many given that I live in a rural area that I purposely chose to live in because it was NOT Auckland, North Shore or one of the other more logical greater Auckland constituents!