Tag Archives: university of melbourne

Drilling down on suppression orders – with a call for reform #mediaiplaw

By MARK PEARSON

Suppression orders should be precise and address imminent publications likely to prejudice the case, not be futile and should only follow a request for removal, University of Melbourne senior lecturer Jason Bosland explained to the 2015 IP and Media Law Conference at the University of Melbourne Law School today (November 23).

Melbourne University's Jason Bosland calls for reform of suppression orders

Melbourne University’s Jason Bosland calls for reform of suppression orders

However, the courts continue to issue broad suppression orders that lack these qualities. Presenting a paper co-authored with Timothy Kyriakou, he explained that most suppression orders covered prior convictions and the vast majority were made against the “world at large” rather than at specific individuals or organisations.

“This indicates that orders are being made as a general precaution in a lot of cases rather than in response to an imminent publication,” he said.

He suggested reforms limiting magistrates’ court powers, giving all levels of the court system the same suppression order powers. Another anomaly was that the Supreme Court lacked power to issue a suppression order to ensure the safety of a person, a power held by the Magistrate’s Court.

His abstract explained:

In recent years, decisions in Victoria and New South Wales have considered the power of courts under the common law to restrain the publication of prejudicial material by the media, particularly in light of such material being published, or potentially published, on the internet.

This paper distills the principles established in those cases. It also considers whether and to what extent they continue to be relevant following the introduction of the Open Courts Act 2013 in Victoria and the Court Suppression and Non-publication Orders Act 2010 in New South Wales. It then examines the making of such orders in Victoria and assesses whether the courts have been complying with the relevant principles. Finally, some suggestions for reform are presented.

In his paper ‘The media’s standing to challenge departures from open justice’, Curtin Law School’s Michael Douglas argued the media was disadvantaged by suppression orders in ways most other parties were not.

Departures from open justice directly affect the legal rights and interests of media organisations. He argued that at common law, media organisations may intervene as of right, as a matter of natural justice, in any proceedings contemplating a departure from open justice.

“Open justice is essential to the integrity of our justice system. When a court departs from open justice, it is appropriate that media organisations are able to question whether the circumstances warrant the departure,” his paper stated. The paper addressed the issue of non-party media organisations’ standing to challenge departures from open justice.

In several jurisdictions, the issue is resolved by statute, but the position is not uniform around Australia.

The paper explained the position under the differing statutes and at common law. It focused on the common law position which remained in some jurisdictions, where the standing of media organisations was controversial.

“The orthodox view, expressed in older NSW authorities, is that media organisations have no absolute right to be heard at common law,” he stated, challenging that orthodoxy, following a contrary, Western Australian line of authority. The paper explored the link between principles of standing and the principles of natural justice drawn from High Court decisions.

The full conference program is here. Our paper (Pearson, Bennett and Morton) is titled ‘Mental health and the media: a case study in open justice’ (see earlier blog here).

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2015

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Filed under free expression, intellectual property, media ethics, media law, Media regulation, Uncategorized

How startups focus on the execution of business plans, with less intent on controlling IP

By MARK PEARSON

Entrepreneurs might undertake strategies that abandon formal IP protection in favour of being quicker to market and investing in capabilities – that is, focussing on an idea’s execution – University of Toronto Professor Joshua Gans told the 2015 IP and Media Law Conference, in his keynote address at the University of Melbourne Law School today (November 23).

JoshuaGandCMCL

Professor Joshua Gans delivering the keynote to the Media and IP Law Conference at the University of Melbourne.

He unveiled an economic model developed with colleagues Scott Stern and Kenny Ching featuring two key propositions.

“Execution allows you to maintain market leadership so control buys you only delay,” he said.

“Control only is cost in that regard. It only delays you without giving you additional benefit.

“Even aside from resource constraint issues, control and execution are substitute strategies. The whole is not greater than the sum of the parts. You want to advise firms to pursue control or execution but not both.”

He explained execution-oriented firms will hit key milestones more quickly and will be less dependent on significant venture capital investment.

He argued against what he said was the common assumption of IP analysis that the strength and use of IP is exogenous.

CMCLlogoforblog19-11-15“Here I argue that is is endogenous and depends on the choices of entrepreneurs/innovators in their business strategy,” he promised in his abstract.

“I demonstrate that entrepreneurs can undertake strategies that abandon formal IP protection in favour of being quicker to market and investing in capabilities — that is, focussing on execution.”

Joshua Gans is a Professor of Strategic Management and holder of the Jeffrey S. Skoll Chair of Technical Innovation and Entrepreneurship at the Rotman School of Management, University of Toronto (with a cross appointment in the Department of Economics). Since 2013, he has also been Area Coordinator of Strategic Management. He is also Chief Economist of the University of Toronto’s Creative Destruction Lab. In 2012, Joshua was appointed as a Research Associate of the NBER in the Productivity, Innovation and Entrepreneurship Program.

He has also co-authored (with Stephen King and Robin Stonecash) the Australasian edition of Greg Mankiw’s Principles of Economics (published by Cengage), Core Economics for Managers (Cengage), Finishing the Job (MUP) and Parentonomics (New South/MIT Press). Most recently, he has written an eBook, Information Wants to be Shared (Harvard Business Review Press).

The full conference program is here. Our paper (Pearson, Bennett and Morton) is titled ‘Mental health and the media: a case study in open justice’ (see earlier blog here).

———–

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2015

Leave a comment

Filed under free expression, intellectual property, media ethics, media law, Media regulation, Uncategorized