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Global rules on foreign direct investment (FDI)
Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
Australia | Publication | December 2023
The High Court recently delivered its decision in Real Estate Tool Box v Campaigntrack 1 relating to copyright authorisation.
The High Court held that the appellants, who had engaged a third party software developer to create a real estate marketing system for their use, were not liable for copyright infringement, as they had not authorised the developer’s infringement of Campaigntrack’s copyright when creating the system. Although the appellants in this case successfully avoided a finding of copyright infringement, the High Court has emphasised that each case turns on its facts. The judgment sets out important considerations to keep in mind when engaging contractors to produce work-product in highly competitive fields, such as IT systems, where competitors are highly motivated to disrupt new product launches.
Under s36(1) of the Copyright Act,2 a person who is not, and does not have a licence from, the copyright owner, and does not themselves engage in an infringing act, can nevertheless be found to infringe copyright if they authorised the infringing act. This is particularly relevant in third party contractor scenarios.
Matters that must be taken into account are, as set out in s36(1A):
The High Court confirmed that any finding of authorisation (by indifference or otherwise) is heavily fact dependent and a decision based on a particular set of circumstances may be of no assistance in other cases.3
This question of fact involves an enquiry into whether the conduct of the person amounts to “sufficient involvement” in the infringement.4 There must be a close focus upon all the facts of the case and the matters mandated by s36(1A), including whether the person knows or had reason to anticipate or suspect an infringing act is occurring or is likely to occur.5
Mere neutrality or inattention will not suffice.6
Authorisation by indifference requires the person to be in a position and have knowledge of facts, matters and circumstances sufficient to give rise to a duty to take reasonable steps to avoid or prevent the act.7 This involves an assessment of what the person actually did and what a person, in that position with that knowledge, ought to reasonably have done.8
Key takeaways include:
Copyright Act 1968 (Cth) (Copyright Act).
Real Estate Tool Box v Campaigntrack at [64] per Gageler CJ, Gordon, Edelman, Steward and Jagot JJ.
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Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
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On February 2, 2024, the Belgian Presidency of the Council of the European Union confirmed that the Committee of Permanent Representatives had signed the Artificial Intelligence (AI) Regulation, referred to as the AI Act. Approval by the EU Parliament followed on 13 March 2024, and the AI Act is likely to appear in the EU’s Official Journal around May 2024. The AI Act aims to establish a stringent legal framework governing the development, marketing, and utilisation of artificial intelligence within the region, thereby marking a significant advancement in the regulation of this burgeoning domain.
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The EU’s Artificial Intelligence Regulation, commonly referred to as the AI Act, is expected to come into force during the summer of 2024 (the AI Act). The AI Act will be the first comprehensive legal framework for the use and development of artificial intelligence (AI), and is intended to ensure that AI systems developed and used in the EU are safe, transparent, traceable, non-discriminatory and environmentally friendly.
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