The cyber world and your business
The fundamental concepts of commercial law were developed in a physical world but they are now rapidly adapting to a cyber world. The proliferation of Information Technology and Artificial Intelligence is occurring at an exponential rate. The concept of the Internet of Things (IoT), involving Human to Machine and Machine to Machine interaction is rapidly leading to the creation of Big Data. These technological changes are reflected in the business world with Apple, Alphabet, Microsoft and Amazon replacing traditional physical suppliers as the largest companies in the world.
Our aim is to help guide you through the various legal aspects of this ever changing landscape of cyber law, these aspects include:
- Cyber Intellectual Property.
- Cyber Security
- Cyber Technology
- Cyber Commerce
- Cyber Privacy
- Software development agreements
- Software licensing, hosting and support agreements
- Support and maintenance agreements
- Website development agreements
- Website user access terms
- Assignments of copyright in software
- IT professional services agreements
Cyber intellectual property
Intellectual property (‘IP’) is the legal asset in innovation, whether it exists in a physical or a cyber environment. However, the technology inherent in the cyber world can pose a challenge for the effective identification, protection and exploitation of IP.
Trade marks, patents and designs can usually be protected by registration. The authorship and ownership of copyright can be the subject of systematic audit and control programs. Nonetheless, a company’s website may effectively link this IP to the world, thereby raising jurisdictional issues for the website owner. Websites can provide an opportunity for IP infringement by third parties and present a danger of IP infringement by the website owner itself. These risks need to be strictly monitored and controlled.
The emergence of artificial intelligence (‘AI’) raises fundamental questions as to whether there is ‘human intellect’ in IP created by such AI devices. The concept of ‘human intellect’ is fundamental in establishing the authorship of copyright works and in the patentability of inventions. There are differing legislative approaches in various jurisdictions as to how best to deal with this important issue.
We provide IP audit and protection programs for our clients which are adapted to take account of the risks to ownership, infringement and exploitation of IP which are inherent in a rapidly evolving cyber environment.
Personal data protection was first legislated in Australia in the Privacy Act 1988 (Cth) and further changes to Australian privacy law came in 2014 with the introduction of the Australia Privacy Principles. In 2018 the Privacy Amendment (Notification Data Breaches) Act was introduced which required notification of breaches of data privacy to the Australian Information Commissioner. The foregoing national laws are supplemented by State privacy laws and regulations related to particular industries. Meanwhile, the introduction of overseas legislation such as the European Union’s General Data Protection Regulations (GDPR) has posed potential issues for companies transferring personal data to and from the EU jurisdiction.
We assist our clients in the drafting of privacy terms, monitoring of data storage and transfer, communication with data providers and third parties, compliance with relevant legislation and notification of data breaches. Whilst we advise on Australian law, we utilises our international Meritas network of law firms to service your legal needs beyond Australia.
Cyber technology brings with it cyber risk. You can be exposed to data breaches, denial of service attacks, unauthorised access, identity theft, phishing and online scams. The cyber risks are best met by the development and implementation of cyber security governance programs, effective technical controls and staff training.
Our cyber security services involve ensuring compliance with the relevant legislation and regulations, dealing with relevant regulators and the provision of technical governance systems, through to the protection of data and commercially sensitive information. We work with IT forensic providers to investigate and respond to cyber security breaches.
The proliferation of online commercial transactions pose significant issues to the fundamental concepts of offer and acceptance, appropriate jurisdiction and consumer/supplier obligations. eCommerce transactions can also raise issues as to the adequate identification of purchasers, establishing the effectiveness of purchase transactions and determining that delivery and payment obligations have been met.
We can provide advice on suitable terms and conditions for your business adapted to your particular industry sector. Such terms and conditions need to take account of relevant consumer and trade practices legislation in all relevant jurisdictions. We also provide advice on debtor control provisions and product and service liability.
Cyber technology is developing at an exponential rate and this development is creating IP which needs to be identified, protected and exploited. Our team regularly drafts and reviews IT documents for standard agreements as well as bespoke documents for unique arrangements..
Our IT documents are drafted to ensure identification of ownership, warranties, liabilities and current and future rights of the parties. As appropriate, this documentation can address the identification of pre-contractual and post-contractual IP rights and related issues such as moral rights and rights in jointly — created IP. Where jurisdictional issues are likely to arise, we can draw on our international network of lawyers through our Meritas membership.