What am I reading today? 10 Aug 2017

Shelves of books in Stockholm library
What am I reading today?

Here are some of the stories that caught my attention in the past 2-3 weeks or so:

Intellectual property

US: THE SLANTS trademark application officially approved - and the SCOTUS ruling 
US: Apple owes WARF $506 million for intellectual property it used
Canada: Haliburton officials upset after man trademarks name of county

Copyright

Olive Cotton Award: Is it a photo? Is it a portrait? Should...
Beyonce Can't Dodge 'Formation' Copyright Lawsuit
Access Copyright v. York University: An Anatomy of a Predictable But Avoidable Loss

Broadband and Internet

AU: NBN's speed woes were a time bomb we all saw coming
EU: Sweden scrambles to tighten data security as scandal claims two ministers
AU: SA lawmakers drafting laws that include requiring suspects to reveal their passwords
US: New Bill Seeks Basic IoT Security Standards
AU: Government log on - Turnbull government considers universal ID
'Anonymous' browsing data can be easily exposed, researchers reveal 

Privacy 

AU: The creepy law proposed by Qld Police - Sunshine Coast Daily and Boing Boing 
*Ed: Let's hope the parliamentary committee catches its breath on this one...

Telecoms

AU: Telco groups at war over 5G spectrum

Law practice

How Far Are Lawyers From Drafting Smart Contracts?

Australia’s “Amazon.com” tax

The Australian Treasurer recently announced that Australian State and Territory treasurers have agreed the GST should apply to cover online transactions where overseas suppliers sell goods under AU$1,000 to Australian consumers. Call it the “Amazon.com tax”?

Australia Post delivery van
Australia Post delivery van (by OSX (own work) [Public domain], via Wikimedia Commons)
This mirrors the recent proposal to apply GST to supplies of digital products and services from overseas providers to Australian consumers, the so-called “Netflix tax” (see my previous post).

Why?

In Government speak, the change would “promote greater integrity in the tax system” and to help to “level the playing field” for Australian retailers.

How would this be done?

The proposed approach for collecting the GST on imported goods is to reduce or remove the “low value importation threshold” for goods from its current level of A$1000 to say, A$20 or even zero.

Also to rely on overseas suppliers registering for, collecting and remitting the Australian GST. Presumably the latter requirement is aimed at minimising the compliance costs for collecting the GST on these imported goods.

When would this happen?

The Government has yet to release any draft legislation, but the Treasurer’s announcement indicated the new GST arrangements would start from 1 July 2017 (which would match the expected start date for proposed changes to inbound digital supplies), or possibly sooner.

What should overseas suppliers do?

Overseas suppliers who have Australian turnover over A$75,000 or more would need to register for and charge Australian GST (currently 10%, but could rise to say 15%).

For the moment, these suppliers should (if not already) change their sales terms to allow them to “gross up” the purchase price by an additional amount on account of Australian GST. This would align with the usual contractual practice for GST on onshore sales.

Of course, until we see the draft legislation a number of questions will remain unanswered. Some of these are:

  • Will an overseas supplier who sells through a shared platform (e.g. Amazon.com) need to register for Australian GST, or will that privilege fall to Amazon itself?
  • What “supplies” (in GST language) will go towards the AU$75,000 registration threshold?
  • How will an overseas supplier work out the customs value (or “CIF value”) of their goods, in order to charge collect and remit the correct amount of GST?

My 2 cents worth

On the one hand, I hope this change (presuming it goes through) meets the revenue forecast so that the Government can pay for personal and business tax cuts elsewhere. But I doubt it will play out that way.

This move smacks of pandering to big industry players. That is to say, I cannot recall buying anything online in order to save a merely 10-15%, as the savings are usually much higher.

Perhaps worse, this change would do nothing to motivate Australian onshore sellers to improve their game.

Presumably this change, if it is implemented by reducing or removing the low-value importation threshold, would also mean that Australians who travel overseas and return with new purchases might also need to pay GST on those purchases. (For the moment, let’s leave aside the question of whether the goods purchased overseas have become the shopper’s domestic property at the time they are brought into Australia.)

What do you think? Would needing to pay an extra 10% change your buying behaviour?

Australia’s “Netflix” tax

Taxes signpost
Recently the Australian treasurer Joe Hockey announced that the Australian Government is considering extending the Goods and Services Tax to also cover intangible services such as internet streaming (eg Netflix), music downloads (eg iTunes) and e-books (eg Kobo and Amazon) that are sold into Australia. This could make buying online services 10% more expensive.

Generally, no GST is payable on sales other than goods or real property by overseas sellers to Australian to private buyers. But if the Government’s proposed “Netflix tax” becomes law, GST would apply to overseas sellers’ “supplies” of music or video streaming and downloads (or the legit/legal ones, at least!) and other internet-delivered services to Aussie consumers.

Why do this? The Treasurer says that this is an “integrity measure” for Australia’s tax base, and in line with the OECD position that that GST should be charged at the source regardless of where the supplier is based. Other proposals we’ve heard include raising the GST rate (currently 10%) or lowering the low-value threshold for imported goods (currently AU$1,000) but these might be more politically challenging or simply cost too much.

What would this mean?
For consumers – The price you pay for streaming services and downloads could go up by as much as 10%. And while I can’t recall hearing anyone specifically naming Apple’s AppStore or Google Play in this context, I see no reason app sales or even cloud-based services would be excluded.

For off-shore sellers – There would be many practical problems in trying to collect GST from an overseas seller, though arguably this might be easier if you sell through a centralised online middle-man like a Google Play or Apple’s AppStore, or somehow the tax gets collected from the customer directly. But generally as a seller you could be required to remit GST from your sales to Australian customers. So unless you agree to give up 10% of your selling price from Aussie customers you might think about adding a GST “gross-up” clause to your sales contracts, to allow you to collect an additional amount for GST from your customers. As always, consult a lawyer 🙂

G’day, eh? We are Aussies – January 26, 2015

It’s official, today we are Aussies! This morning Anna and I joined 620 new citizens to take the Australian citizenship pledge at Brisbane City Hall.

Play the slide show

Do we now speak with perfect Aussie twang, enjoy the taste of Vegemite or magically understand the rules of cricket? Uh, no – and especially not the cricket!

After the ceremony, we enjoyed a fabulous lunch with great Aussie friends. Thanks to Fiona for putting on lunch, and to Fiona, Kate, Terri, Kaelene and Sharon for the Aussie welcome and laughs.

What’s next? Perhaps we should learn the lyrics to the Australian national anthem. Anyone know whether is the “national anthem of STRAYA” or “Advance Australia Fair“?

Oh yeah, and there is an election on in Queensland next Saturday – voting compulsory.

iiNet wins in copyright appeal case (AFACT v iiNet) – April 22, 2012

On 20 April 2012 the High Court of Australia handed down its decision in the “iiTrial” between Australian Federation Against Copyright Theft (a group of 34 movie studios and TV production companies) and Australian Internet service provider iiNet.

The main question on appeal to the High Court was whether iiNet “authorised” its users’ copyright infringment by not sending warning notices to customers and not stopping them from any infringing use of Internet file-sharing tools and services.

The Court found that the copyright infringement notices issued by AFACT members to iiNet were merely allegations of infringing behaviour and did not satisfy the civil standard of proof (at [75]). The notices “did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers’ accounts” (at [78]). The Court dismissed the appeal by a 5-0 verdict and ordered AFACT to pay iiNet’s costs in the High Court hearings.

A number of experts and commentators have posted their thougths on the High Court’s decision, and as such I do not propose to canvas the case here. Some suggest that copyright rights holders would call on legislators to amend the Copyright Act 1968 (Cth), continue to press for an industry code including a “three-strikes” rule, or start legal action against content hosts (such as YouTube) and possibly even end-users.

See:

In 2010, justice Cowdroy of the Federal Court held that iiNet did not “authorise” alleged copyright-infringing activities by iiNet’s customers (see Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24). In February 2011 justices Emmett, Jagot and Nicholas of the Federal Court of Appeal upheld justice Cowdroy decision 2:1 (see Roadshow Films Pty Limited v iiNet Limited [2011] FCAFC 23 per Emmett and Nicholas JJ, Jagot J dissenting). In August 2011, the High Court granted leave to AFACT to appeal against the Full Federal Court’s decision. That appeal was heard on 1-2 December 2011.

Queensland floods – January 17, 2011

Thank you to all our family and friends who have called or asked how we are going amongst all the flooding in Queensland. A lot has happened in the past 7 days, so let me walk you through some of it.

Background

A series of floods hit eastern Australia in December 2010 and January 2011. Many of the affected areas have been in Queensland, but the flooding has also impacted parts of New South Wales and Victoria.

Large parts of Queensland received much heavier than usual rainfall throughout the (southern) spring and Christmas 2010 periods. Around 7 January 2011, water management authorities were forced to start release thousands of gigalitres of rainwater from the Wivenhoe Dam into the Brisbane River, in order to avoid the dam breaching its banks.

10-13 January

Toowoomba, in the Darling Downs area west of Brisbane, was hit by flash-flooding after more than 160mm of rain fell in 36 hours to 10 January 2011. Much of that water travelled down the range towards Brisbane, to join the water that had been released in to the Brisbane River from Wivenhoe Dam. While the controlled releases presented some risk of flooding to Brisbane, the further rainfall in the Darling Downs and Brisbane Valley made flooding a certainty.

On Tuesday morning, several office buildings in the Brisbane CBD started to evacuate. It took Anna and me more than two hours to reach home by bus in the heavy rain. We quickly packed a few clothes and important papers, and headed to higher ground. Fortunately, we were able to stay with friends far enough away from the now-raging Brisbane River.

By Tuesday evening, huge areas of Brisbane’s southern and western suburbs, including West End, Rocklea, Milton and South Bank were flooding. My friend Tyler took a number of photos of South Bank and the Brisbane CBD on January 12, January 13 and January 14 and posted them to Facebook (login required). CBC.ca also featured some of Tyler’s photos and videos (no login needed).

Bronwyn has amazing photos of the Eagle St and Riverside areas of the Brisbane CBD (Coffee Club is on the second level at Eagle St pier – the restaurants below have flooded to the ceiling), while Mike’s house was badly flooded (login required).

The river swallows up Riverside in the CBD

The river swallows up Riverside in the CBD

Our suburb of Bulimba was expected to flood, and as our house is a mere two streets from the river, we did not hold out much hope of it staying dry. On Wednesday morning, we went back to the house to put as much of our furniture up as high as possible, and snuck a few photos of the raging river.

Furniture up high

Fridge up on the bench

Anna in water over the road

The water started to cover the roads just before noon, so we said goodbye and good luck to the house.

On Thursday morning, we watched in frustration as the TV news helicopters buzzed all over the southern and western suburbs and the Brisbane CBD. The images were unreal! But we could not figure out why the news seemed to refuse to mention any areas beyond the CBD.

We drove to the house, and were shocked to discover that our house had been strangely and miraculously untouched! Water had flowed up to the industrial property next to us, but only soaked the grass and roads.

A number of properties upriver from us in Bulimba and Hawthorne were not so lucky. You can see in my photos from 13 January that there are a number of new “lakes” surrounding many properties and lying across roadways.

Bulimba ferry terminal underwater

Why was our house not flooded on January 12?

The Brisbane River becomes wider and deeper when its flows reach the Bulimba area. So the main threat of flooding on our property is a storm tide. This is caused by wind and atmospheric pressure, such as tropical cyclones or storms, that produce higher than usual tide levels. In short, we are most likely to be flooded by water that has been pushed up-river by storm tides and strong winds, and less by the volume of water that flows down-river.

The storm tide scenario happened in Brisbane a big way in January 1974 and February 1893. The river’s peak in the ’74 flood measured 6.6 metres at the Port Office gauge and approximately 5.5 metres at the city gauge. That level likely meant that our house in Bulimba was under 2-3 metres of water.

The flood modeling for 13-14 January 2011 indicated that the river would exceed its 1974 levels. But very fortunately for us, the rain stopped on 11 January and we did not have a cyclone pushing water up-river.

What’s next?

The Big Wet 2011 is not over yet. There are a number of cyclones to the northeast of Queensland, and the next king tide is expected to hit Brisbane on Friday, 21 January. Meanwhile, the rainy season usually runs through to March. This is all the better reason to (finally) finish my disaster/storm kit!

a defiant Bulimba shopfront