Videogames and copyright

WIPO has released a short multi-jurisdictional study of videogame copyright.

The authors conclude -

Throughout this study, we have attempted to analyze the different approaches that many countries have taken in the legal protection of video games, the creators involved and the transfer of rights regimes. We observe that, on the side of a legislative (and sometimes doctrinal) void, the majority of jurisdictions tend to protect these works of authorship as software; this is so because practically the only common element of every video game is its underlying computer program. However, considering the latest developments in technology, it is important to stress that, in many cases, different video games will share similar source codes or “game engine” when developed using the same software (middleware). This element needs to be taken into account when analyzing the legal nature of video games. Answers to questions on legal protection may be different from those applicable 20 years ago. It is clear that as the industry continues its stable evolution, solutions for the legal protection of video games may continue to vary in the upcoming years.

It is our opinion that video games are complex creations, composed by multiple copyrighted works (e.g., literary works, graphics, sound, characters and software) which deserve independent legal protection. Although the majoritarian trend considers that software is the prevailing element of video games, we believe that the distinguishing element of one video game from another will not be the underlying software only, but also the various audiovisual and literary elements created for each video game. Those may also include performances by actors and musicians. In parallel, given that this is an ever-changing industry, we acknowledge that some video games (for example, those simple games developed for social networks or for smartphones, such as popular card games or bubble shooter games) do not stand out for their audiovisual elements and would need to seek copyright protection through their software. Therefore none of the elements neither the software nor the audiovisual, would necessarily prevail; a distributive approach seems to be appropriate, insofar as a video game is made of both elements.

At the international level, although the TRIPS Agreements and the WIPO Copyright Treaty (the “WCT”) include references to software and audiovisual creations, multilateral treaties provides little specific guidance regarding the protection of video games. Given the complexity and the economic significance of video games, the international community may take into account the opportunity of discussing and analyzing this topic. The authors of this study envisage the possibility of establishing a special regime of protection for video games as a whole in a similar fashion that many countries have done for audiovisual works. That could perhaps also introduce specific contractual rules in order to regulate the relationship between the different stakeholders involved.

It is extremely hard to draw precise normative recommendations; nevertheless the following elements could be taken into account in pursuing an international debate on the protection of video games:

A.  An international legal framework solution, whether binding or non-binding, should consider the establishment of a special regime or a sui generis legal protection for video games.

B.  Considering that video games are mostly developed by medium-sized and large companies, a discussion on the legal regime of video games should address the role that these entities play and the rights they require to obtain in this process. Such companies usually take the initiative and the risk, and provide the necessary resources, both financial and human, to create the work; thus they should have, at least, all the exploitation rights in the resulting work. This can be achieved by establishing a presumption of transfer of rights in favor of the video game producers, unless agreed otherwise via contract.

C.  As for other subjects involved in such creations (e.g., scriptwriters, designers and animators), considering the complexity of these works of authorship, it is not feasible to determine a priori who are the subjects that deserve being qualified as authors. For instance, in the context of cinematographic works, Article 14bis of the Berne Convention provides for a special regimen of ownership of copyright allowing, inter alia, legal transfer and presumption of transfer. Accordingly, some jurisdictions have specified which individuals are to be considered the authors of a cinematographic work (generally, the scriptwriters, the director and the composer of the original soundtrack). However, we do not recommend that a similar regulation be applied to video games, as given the above-mentioned complexities, the persons who may contribute creative and original elements to the work may vary in each case. Therefore, a case-by-case analysis should be undertaken in order to determine which contributors to a video game should qualify as the authors, which will depend on the type of game, the creative contributions of the individuals and other relevant factors.

D. Finally, as discussed in the introduction, there are other stakeholders in the value chain of this industry, including publishers, marketing experts and quality assurance testers. These are important players in the industry, with essential roles; however, they do not contribute to the creation of the work itself. Their endeavors can guarantee the commercial success of the video game, but this does not indicate that they have contributed creative elements to the work.

Given the continuing evolution of technology, it is now possible to record a gameplay and broadcast it. Indeed, television programs that report on video game news are common in developed countries and in nations like the Republic of Korea video game championships are also broadcasted live. Internet live-streaming of gameplay is even possible with some game consoles.

It is not unrealistic to expect that, in the future, video game tournaments or seasonal leagues will be aired and gameplays will be narrated as sporting events are today. Therefore, according to this scenario, lawmakers might also need to address the issue of which rights should be obtained by television networks or Internet websites that air a given gameplay, and who shall benefit from such exploitation.

We think it is understandable that video game producers should own the right of authorizing the exploitation of any image generated by a video game. Thus a legal instrument on the legal protection of video games could also guarantee the producer’s right to authorize any exploitation of the game, including audiovisual elements. Consequently, in order to concede a fair and reasonable copyright protection to video game developers, legislation should expressly address this issue by granting rights holders the exclusive right to authorize any reproduction, distribution, communication to the public or transmission of video games.

Whether other individuals, such as the authors, should or not also have certain rights on these kinds of exploitations is more controversial and will depend on the discussions held at an international level. Indeed, those national legislations that are very protective of authors, including many European countries, might consider granting a remuneration right to them, in terms similar to the rights that audiovisual authors currently enjoy. On the other hand, other countries, such as the United States of America, are likely to prefer the opposite solution.

Finally, considering the current “contractualization” of copyright, many aspects of the relationship between video game producers and authors, independent contributors or even game players, ultimately are regulated by contractual agreements. Aspects like the salary authors shall receive for their contribution to a game, whether fixed, variable or a combination of both; or the legal status of the creative elements made by players involved in interactive online gaming, will be resolved, in the first case, by employment agreements and, in the second, by user contracts.

In order to prevent possible abuses, it is recommended to enact rules that guarantee a fair compensation to authors who have contributed significantly to the success of a video game or have created original elements that permitted the video game producer to obtain substantial profits, whether these authors are employees, independent contractors or mere online gamers.

In conclusion, in light of the importance of the video game industry and the uncertainties due to a normative void, it is suggested to consider the opportunity to undertake an international debate that could potentially lead to a regulation on the protection of video games. This would allow addressing unresolved issues, including the protection of video games as singular works of authorship, the relationships between authors and producers, the question of who can qualify as an author and an enumeration of those authors’ rights. Insofar as it seems that no country in the world has regulated this matter in detail, now is the perfect time to approach a harmonized, international solution for an eventual implementation in domestic legal regimes.

Human experimentation, ethics and disadvantage

'From Skid Row to Main Street: The Bowery Series and the Transformation of Prostate Cancer, 1951–1966' [PDF] by Robert Aronowitz in Bulletin of the History of Medicine (forthcoming) comments that

Between 1951 and 1966, more than 1,200 homeless, alcoholic men from New York’s skid row were subjected to invasive medical procedures, including open perineal biopsy of the prostate gland. If positive for cancer, men typically underwent prostatectomy, surgical castration, and estrogen treatments. The Bowery series was meant to answer important questions about prostate cancer’s diagnosis, natural history, prevention, and treatment. While the Bowery series had little ultimate impact on practice, in part due to ethical problems, its means and goals were prescient. In the ensuing decades, technological tinkering catalyzed the transformation of prostate cancer attitudes and interventions in directions that the Bowery series’ promoters had anticipated. These largely forgotten set of practices are a window into how we have come to believe that the screen and radical treatment paradigm in prostate cancer is efficacious and the underlying logic of the twentieth century American quest to control cancer and our fears of cancer.

Aronowitz   notes that

Starting in 1951 and continuing for over a decade, Columbia University investigators recruited more than 1,200 homeless, alcoholic men from New York City’s skid row, the Bowery, brought them to a recently opened public cancer hospital, and subjected them to many invasive tests and procedures, including open perineal biopsy of the prostate gland.1 If positive for cancer, men typically underwent radical prostatectomy and surgical castration followed by a course of hormonal treatment. Although some kind of consent may have been obtained, these studies were conducted on poor, helpless men because investigators would and could not do these experiments on people with more autonomy, power, and dignity, such as the paying private patients at nearby Columbia Presbyterian Hospital.

Like other cases of unethical research practices such as those exposed by Henry Beecher in 1966, the Bowery series was published in leading medical journals, cited frequently in the medical literature, and was the subject of popular news coverage. These practices were ultimately forgotten and had minimal direct impact on subsequent clinical developments. Yet their history is significant because they provide a provocative and illuminating perspective with which to view subsequent events. The Bowery series was a prescient attempt to combine a set of existing practices for diagnosing and treating prostate cancer into a new early detection and radical treatment paradigm. Very similar practices would gain acceptance decades later. The difficulties of retrospective ethical judgments notwithstanding, we today respond to the invasive procedures done to ill-informed men for uncertain benefit with some disgust and disbelief. Yet very similar practices in the ensuing decades generally have not elicited similar reactions. Why? Comparing and contrasting the Bowery series’ assumptions, goals, and limited impact to subsequent developments provides some answers. This historical juxtaposition also makes visible some underappreciated ethical challenges posed by the ways that mass risk-reducing interventions have gained acceptance within modern medicine and society.

It is unsatisfying to simply observe that medical technologies and practices are accepted because they are effective at saving lives and reducing morbidity. Not only is evidence of scientific efficacy only one reason why medical and lay people accept new technologies and practices, but scientific evidence is often absent or contested. Historians, especially since Rosenberg’s influential 1977 essay, have researched the social and historical context within which actors determine whether medical treatments work or not. This “social efficacy” approach, which is also central to contemporary anthropological studies of medical practice, focuses on the work done besides the direct impact on objective states of health.

Pressman noted that “a therapy’s usefulness is contingent upon a particular historical era.” The corollary is also true. There may be a good deal of historical contingency to a therapy’s lack of utility, i.e. its limited social efficacy. Looked at this way, the Bowery series is a crucial side story illuminating what needed to happen in order for cancer risk to later get into men’s bodies on a mass scale. Contrasting the failure of the Bowery practices to gain much traction with similar practices deemed efficacious in later periods allows us to identify developments — besides evidence of scientific efficacy — that changed the way these similar interventions were later understood, legitimated, and diffused throughout American medicine and society.

AAPT, Anonymous and the OAIC

The Australian Privacy Commissioner has announced that AAPT Limited breached the Privacy Act 1988 (Cth) last year in failing to "adequately protect customer data from unauthorised access" and failed to comply with the obligation to destroy or permanently de-identify that was information no longer in use.

Anonymous hacked AAPT customer data on a server of Melbourne IT subsidiary WebCentral in July last year. Melbourne IT is a spin-off from Melbourne University and remains a dominant domain name registrar, withy operations in Australia and elsewhere. AAPT is a telecommunication service provider dealing with large corporations and SMEs. It originated as the connectivity arm of the Australian Associated Press (ie two of the major newspaper publishers) and is now a wholly-owned subsidiary of Telecom Corporation of New Zealand, the NZ equivalent of Telstra.

The server held websites and databases that included personal information about AAPT business customers, for example data used  by AAPT in billing, quoting, transferring numbers from other telecommunications carriers as part of the portability regime, obtaining credit reports and verifying customer identity.

Anonymous published that information online.

The Australian Communications & Media Authority (ACMA) undertook a separate investigation into the data breach in relation to AAPT compliance with the Telecommunications Consumer Protections Code C628:2007. In its April 2013 report ACMA found that AAPT contravened clause 6.8.1 of the Code in failing to protect the privacy of small business customers whose personal information was stored in a server that was the subject of unauthorised access.

The ACMA report - titled Investigation Report: Compliance with Clause 6.8.1 of the Telecommunications Consumer Protections Code C628:2007 by AAPT Limited is significantly more detailed than that by the OAIC. It indicates that

On 2 August 2012, the ACMA contacted AAPT to obtain information about this incident. On 7 September 2012, AAPT provided the ACMA with a copy of a confidential report titled Investigation into Data Security Incident, which occurred on or around 25 July 2012 (the Report). The Report was prepared by AAPT and provided the ACMA with an outline of the cause of the incident, an explanation of AAPT’s response to the incident and the steps taken by AAPT to prevent a repeat of any similar incident.

AAPT's report states that:

(a) On 25 July 2012, AAPT became aware of a security incident whereby a server (the server) supplied and managed by WebCentral Pty Limited, a subsidiary of Melbourne IT, and on which AAPT data was stored was the subject of an unauthorised hacking attack by a third party. It appears that the political activist group ‘Anonymous’ was responsible for the attack. A subset of the accessed files, containing personal information, were later released on the internet. It appears Anonymous attempted to scramble the disclosed personal data in order to anonymise it, but it is unclear whether Anonymous had been completely successful.

(b) The server was accessed by Anonymous in the period 17 – 19 July 2012. 8-10 GB of data was transferred from the server by Anonymous in the period 20 – 22 July 2012. Five of the 8-10 GB of data apparently consisted of two files (3.5 GB and 1.5 GB respectively). Based on AAPT’s analysis, it appears that the information released by Anonymous came from these two files.

(c) The first file (3.5 GB), when uncompressed, was 27GB in total and contained AAPT’s quoting database (named Fusion) which consists of 601 tables of data. The second file (1.5 GB) was found to be corrupt and could not be repaired and read.

(d) AAPT has been unable to determine what data was contained in the remaining 3-5 GB of transferred data, which means that the data may have come from any of the data (approx.100 GB in total) on the server. AAPT is therefore working on the basis that the entire server may have been compromised.

(e) An initial analysis of the data known to be copied by Anonymous revealed that some of the personal information contained in the 601 tables, included:

• 11 instances of credit card details; and

• 184 records of drivers licence numbers and dates of birth for AAPT customers who were sole traders.

(f) AAPT has since conducted a more thorough analysis of the data and has discovered that more personal information was contained in the 601 tables than it had originally thought. An analysis of the 5GB of data known to be copied and the remaining 95GB of data on the server that may have been copied indicates that the following personal information may have been accessed :

• Credit card details 13

• Name 264,691

• Drivers licence numbers 1,394 •

Medicare numbers 2

• Email address 109,566

• Address 2,854

(g) The following combinations of personal information were also identified:

• Name and email 108,376

• Name and Address 2,831

• Name and Mobile 64,035

• Name and Telephone 202,353

(h) AAPT has to date sent 1,393 notification letters to affected individuals (114 of which have been definitively identified as sole traders). The letters were sent to people who had the following information held in the server: • financially sensitive data; • either or both date of birth and licence government issued ID (e.g. drivers licence, passport) in any combination with name, address and contact details, and/or • password information (not system generated) in any combination with name, address and contact details....

(l) AAPT has liaised with various government agencies including the Australian Federal Police (AFP) to ensure potential harm is mitigated. AAPT is also taking steps to prevent a repeat of any similar incident.

In summarily - and belatedly - reporting on the OAIC investigation Commissioner Pilgrim comments that

While I appreciate the speed and the way in which AAPT responded to the incident, it highlights the importance of having appropriate security systems and contractual arrangements in place to avoid a breach such as this.

Organisations should ensure that contracts with IT suppliers are clear about which party has responsibility for identifying and addressing data security issues.

More should have been done to appropriately manage and protect the information involved. Using older versions of applications and software when newer versions are available is a risk that needs to be actively managed, particularly when personal information is involved.

It was also concerning that the compromised servers contained old customer information that was no longer needed by AAPT

Holding onto old personal information that is no longer needed does not comply with the Privacy Act and organisations which do so are needlessly placing themselves in a position of risk.

No risk, of course, of a meaningful OAIC penalty, pending the proposed data breach statute and implementation of the revised Privacy Act 1988 (Cth) in March next year. We'll need to see whether the OAIC is prepared to use its powers once the amendments are in place.

OAIC recommendations to AAPT appear to follow those from ACMA and include

•  implementing regular training for staff in relation to data retention and destruction, 
• ensuring all IT applications are subject to vulnerability assessment and testing, 
• ensuring effective lifecycle management, 
• conducting regular audits of AAPT’s IT security framework.

All in all, the report deserves the sound of one hand clapping ... better than nothing but not cause for celebration on the basis that the OAIC has conducted an own motion investigation.

Succession

Reading the 231 page Victorian Law Reform Commission (VLRC)  final report on Succession Laws tabled in state parliament today

The report [PDF]

contains 78 recommendations to reform the law and related practices that affect what happens to the assets of Victorians after they die. The need for reform has long been recognised. More than 20 years ago, the Standing Committee of Attorneys-General initiated a project to develop uniform succession law and practice across Australia. The project was led by a National Committee for Uniform Succession Laws. By 2009, the project had produced a series of reports and model legislation.

Victoria’s legislation on wills was reviewed shortly before the national project began and the Wills Act 1997 (Vic) closely aligns with the national model. The Administration and Probate Act 1958 (Vic), which regulates the administration and distribution of estates, has never been comprehensively reviewed.

Of course, a law that has not been reviewed does not necessarily need reform, and there may be good reason not to adopt a provision contained in the model legislation. Although requiring the Commission to have regard to the national uniform succession laws project, the terms of reference for this review make clear that any reforms should have a sound policy basis: The purpose of this reference is to: (a) ensure that Victorian law operates justly, fairly and in accordance with community expectations in relation to the way property is dealt with after a person dies (b) ensure that the processes to resolve disputes about the distribution of such property are efficient, effective and accessible (c) identify practical solutions to problems that may still be outstanding in Victorian law and practice following the recommendations of the National Committee for Uniform Succession Laws established by the Standing Committee of Attorneys-General.

In conducting the review, the Commission has been mindful of changes in community expectations arising from increasingly complex family structures, longer life spans and a more accessible legal system. These changes have affected the operation of succession laws and influenced the Commission’s recommendations.

The Commission comments that

Most of the law under review is contained in the Administration and Probate Act and the Commission’s recommendations, if implemented, would require substantial amendments to that legislation. In considering the provisions of the Administration and Probate Act that fall within the terms of reference, the Commission noticed that other parts of the Act require revision to correct errors and ambiguities. Ideally, the whole Act should be revised and re-enacted.

It considers the 'Wills' terms of reference - 

Witnessing requirements and undue influence

The first topic is whether the current requirements for witnessing wills should be revised to better protect older and vulnerable will-makers. While the Commission found widespread concern about potential beneficiaries improperly prevailing upon vulnerable will-makers to make wills that do not reflect their wishes, there was little support for the view that changing the witnessing requirements would deal with this problem.

Proving undue influence in probate matters has traditionally been difficult. Fortunately, recent developments in the common law test applied by the court suggest that it is becoming easier to prove. However, the Canadian province of British Columbia has recently passed legislation that introduces the more flexible equitable doctrine of undue influence into the probate context. The Commission recommends that the Attorney-General cause a report to be prepared on the operation of the new legislation after it has been in force for four years. It also recommends that the Law Institute of Victoria develop best practice guidelines on detecting and preventing undue influence when preparing a will.

Statutory wills

The second topic on wills concerns the Supreme Court’s power under the Wills Act to authorise a will for a person lacking testamentary capacity, known as a statutory will. Similar schemes exist in all other jurisdictions and the model uniform legislation. The Commission’s consultations on this topic revealed that no major changes to Victoria’s scheme are necessary. However, there was support for reinforcing the Court’s ability to take into account the incapacitated person’s views, where they can be expressed, and for streamlining the application procedures. The Commission agrees and has recommended accordingly.

Ademption

The third topic on wills is about what happens when something that was left as a gift in a will is no longer owned by the will-maker when they die. If the subject of the gift does not exist in the same form within the estate, the gift is said to have been adeemed and the beneficiary receives nothing in its place. This is a particularly significant issue when a person acting under an enduring power of attorney (financial) sells an asset during the will-maker’s lifetime and the will-maker is unaware of the sale or no longer has the mental capacity to change their will. A common example is when the family home, which may be gifted under the will, is sold to fund the will-maker’s aged care.

Section 53 of the Guardianship and Administration Act 1986 (Vic) provides an exception to the ademption rule if the subject of the gift is sold by an administrator appointed by the Victorian Civil and Administration Tribunal (VCAT). In this case, the beneficiary who would have received nothing under the rule may instead receive the remaining proceeds of the sale.

The Commission recommends a similar statutory exception for a person acting under an enduring power of attorney (financial), and a similar right to apply to VCAT for access to some or all of the person’s will. However, as the administrator or attorney should aim to deploy all assets in the best interests of the person they represent during that person’s lifetime, the Commission recommends against requiring that separate accounts and records of sale proceeds be kept, or that the proceeds be quarantined from other assets.

Clearly, it is difficult to produce rules that accommodate all possible scenarios. Redistributing some of the estate’s assets to a beneficiary who otherwise would receive nothing may unfairly deplete a gift to someone else. Therefore, the Commission recommends that a beneficiary should be able to challenge an outcome that would result in a beneficiary gaining an unjust and disproportionate advantage, or suffering an unjust and disproportionate disadvantage, of a kind not contemplated in the will. They would be able to challenge the outcome whether or not the exception to the ademption rule applies.

Intestacy is addressed with the comment that 

In 2012, 36,328 deaths were registered in Victoria. Many of those who died did not leave a valid will setting out how they wanted their property to be distributed. Property that is not disposed of by a valid will is distributed under a statutory intestacy scheme contained in the Administration and Probate Act.

In some areas, Victoria’s intestacy laws are unnecessarily complex and out of step with the laws in other jurisdictions. Recommendations by the National Committee for Uniform Succession Laws regarding intestacy have largely been implemented in New South Wales and Tasmania. Adoption of these recommendations in Victoria would promote national consistency, modernise and clarify the law and simplify the administration of intestate estates.

The Commission found general support for the recommendations and has recommended that Victoria adopt most of them as well. The basic framework of the intestacy scheme in Victoria would remain the same but there would be many refinements. In particular, the changes would strengthen the position and entitlements of the deceased person’s partner and allow for a more tailored distribution to multiple partners.

However, simply grafting the changes onto the existing provisions in the Administration and Probate Act would make Victoria’s law unnecessarily complex and confusing. For this reason, the Commission considers that all of the provisions concerning the intestacy scheme should be rewritten, incorporating the recommendations in this report.

The Commission’s recommendations depart significantly from those of the National Committee for Uniform Succession laws in two respects: how an intestate estate is shared among multiple partners and children, and how the law provides for an alternative system of distributing the intestate estate of an Indigenous person.

The National Committee’s recommendation concerning distribution of the estate where multiple partners and children are entitled to a share of the estate could unfairly favour the partners at the expense of the children. The Commission prefers the approach taken in New South Wales and recommends accordingly.

Noting that the current law on intestacy reflects English law and society and may be inappropriate for the distribution of some Indigenous people’s estates, the National Committee recommended an alternative scheme, based on Northern Territory law. The Northern Territory law is rarely used. The Commission’s consultations identified concerns that, compared to the existing scheme in Victoria, the National Committee’s alternative is not necessarily more accessible or able to accommodate traditional law. The Commission concluded that adopting the National Committee’s recommendation would not greatly assist Indigenous communities in Victoria and recommends that the Attorney-General have the Department of Justice prepare a report about the distribution of the intestate estates of Indigenous people in Victoria, building on the work of the National Committee and the Commission, and based on further community consultation.

In relation to Family provision the report states -

Eligibility to apply

Victoria’s family provision law, set out in Part IV of the Administration and Probate Act, allows any person who believes that a deceased person had a responsibility to provide for them, and did not do so, to apply for a court order to redistribute the estate in their favour. Each case is determined on its merits, which ensures that no worthy claim is ever excluded.

However, this open-ended approach to eligibility has had the unintended effect of making it difficult for legal practitioners to advise their clients about whether or not they have a claim. Almost all family provision claims settle at mediation, including those that might not have succeeded at trial, commonly in order to contain the legal costs that are often borne by the estate. There is widespread concern that the current law allows opportunistic and non-genuine claims.

The Victorian approach to eligibility is unique in Australia and effectively aligns with that recommended by the National Committee for Uniform Succession Laws. It is unlikely that any other jurisdiction will adopt this approach. In all other Australian states and territories, family provision legislation specifies categories of people who are eligible to apply. Following extensive consultations, the Commission recommends adopting the approach taken in New South Wales.

Costs

The Commission also makes several recommendations in response to concerns about estates being depleted by the costs of family provision claims. Costs rules operate differently in family provision proceedings compared to other civil proceedings, where the unsuccessful party pays their own costs and some of the costs of the other side. In family provision proceedings, the estate commonly bears its own costs regardless of the outcome. On occasion, the estate may even be required to pay the costs of an unsuccessful family provision applicant. A provision at section 97(7) of the Administration and Probate Act, empowering the court to make a costs order against the applicant if the application is made frivolously, vexatiously or with no reasonable prospect of success, has not deterred applicants from making unmeritorious claims and should be repealed.

Although most family provision claims settle, an applicant could be deterred from bringing or pursuing a weak claim if the Administration and Probate Act set out the costs orders that the court could make if the claim proceeds to trial. The Act should specify that the court may make any order as to costs in family provision proceedings that it considers just, and then set out a non-exhaustive list of the types of costs orders that the court may make. These would include orders that each party bear their own costs, the estate pay the applicant’s costs, or that the applicant pay the personal representative’s costs. The Commission also considers that the court’s power under the Civil Procedure Act 2010 (Vic) to cap costs should be specified in the Administration and Probate Act.

These measures are intended to deter opportunistic family provision applications being made, and to strengthen the position of the personal representative when determining how to respond to such claims.

Procedure

As the actual costs of proceedings largely depend on court practices and procedures, the Commission examined current and proposed initiatives in Victoria and other jurisdictions that expedite family provision applications and refine the evidence that the courts rely upon. The courts are best placed to determine how a case should proceed and the Commission puts forward a series of recommendations for their consideration. They include proposals to standardise and reduce the size of documents that the parties produce, to require disclosure of costs based on the relevant court scale, and to determine applications concerning smaller estates summarily.

Although both the County Court and Supreme Court have jurisdiction in family provision matters, only one in four proceedings is initiated in the County Court. In consultations, many people said that the County Court hears and determines family provision applications well and expeditiously. Some said that costs are often less in the County Court than in the Supreme Court. The Commission can see no reason why, in normal circumstances, a family provision claim concerning a smaller estate would need to be initiated in the higher court. The Commission recommends that the County Court have exclusive jurisdiction in family provision claims where the net value of the estate does not exceed $500,000.

Other reform

Finally, the Commission considered particular difficulties that arise when dealing with farm property under succession laws, as the property provides a livelihood as well as a residence and may not be easily divided among family members. To reduce the risk of disputation after the willmaker’s death and to encourage the making of mutually satisfactory arrangements before death, the Commission recommends introducing a provision that allows the recipients of gifts during the will-maker’s lifetime to sign, with the court’s approval, a binding release of their rights to make a family provision claim after the will-maker dies. Such a provision exists in New South Wales.

The Commission considered two other recommendations of the National Committee for Uniform Succession Laws concerning family provision applications but does not recommend that they be adopted in Victoria.

The first recommendation was to introduce notional estate provisions, as in New South Wales legislation. Notional estate provisions allow certain property that is not part of the deceased person’s estate to be used to satisfy a successful family provision claim or pay the costs of family provision proceedings. The National Committee recommended them to discourage willmakers from disposing of their property during their lifetime in order to frustrate the operation of family provision laws. However, in the absence of any evidence that notional estate provisions achieve this purpose in New South Wales, or that they are needed in Victoria, the Commission does not recommend their introduction.

The second National Committee recommendation that the Commission does not support is that an application for family provision should be able to be made up to 12 months after the date of the deceased person’s death. The time limit within Victoria is six months from the date of the grant of representation. Some submissions supported extending the time limit; others argued that it is already too long. On balance, the Commission considers that the current time limit strikes an appropriate balance between providing notice to interested persons and efficiency in distributing the estate.

In relation to Executors’ costs and commission -

Special rules for legal practitioner executors

There are cogent reasons why legal practitioners are appointed as executors, and it is in the community’s interest that they continue to provide executorial services. Most act in the best interests of will-makers and beneficiaries, as is their duty, but there is persistent concern that legal practitioner executors who also provide legal services to the estate are charging twice for some of the same services. The terms of reference ask the Commission to review whether there should be special rules for these executors.

Although a will-maker may select a legal practitioner as executor because of their legal skills and knowledge, the provision of executorial services is not regulated under the Legal Profession Act 2004 (Vic), which regulates the provision of legal services by legal practitioners to their clients. An executor has a duty to act in the interests of the beneficiaries, but a beneficiary is not the executor’s client. Most of the safeguards, rights and avenues for dispute resolution that are available to clients under the Legal Profession Act are not available to beneficiaries.

New uniform law for regulating the legal profession in New South Wales and Victoria is expected to be introduced in 2013. The Commission has not seen the new legislation but understands that the treatment of executorial services will be unchanged. The Commission makes a series of recommendations that would: • require legal practitioner executors to disclose to beneficiaries an estimate of what they will charge the estate for executorial and legal services • extend the jurisdiction of the Legal Services Commissioner to resolve disputes about services provided by legal practitioner executors and charges of $25,000 or less for executorial services • allow a beneficiary to apply to the Costs Court for review of legal costs.

Some legal practitioner executors who are authorised by a will to be paid commission choose instead to charge a fee for their executorial services, which may be a smaller amount. The Commission has concluded that it would be useful for legal practitioners and beneficiaries alike if there were a statutory provision that clearly permitted them to do this, and has recommended accordingly.

The legal profession makes professional rules of conduct and associated guidelines. A failure to comply with the rules may amount to unsatisfactory professional conduct or professional misconduct. The current rules do not adequately address the need to obtain the informed consent of the will-maker or the beneficiaries in order to be paid commission, or to otherwise seek court authorisation. In any event, legal practitioners are not always referring to the rules when administering estates. The Commission recommends new provisions in the Administration and Probate Act to alert any professional executor (who may be a legal practitioner, accountant, or financial adviser or other professional) to this requirement.

The Commission also recommends that the legal profession revise the professional rules that apply when a legal practitioner drafts a will that appoints the legal practitioner as executor and authorises the payment of commission, or allows the legal practitioner to charge the estate for legal services. In addition, the Commission recommends that new professional rules, supported by guidelines, should clarify the duties of legal practitioners in providing executorial services and charging for those services.

Court review of costs and commission

The National Committee for Uniform Succession Laws recommended that the model legislation should include a provision like section 86A of the Probate and Administration Act 1898 (NSW). Section 86A allows the court to review and reduce commission, or an amount charged or proposed to be charged, in respect of any estate, even if the amount charged is authorised by the will. The review can be requested by an interested person or initiated by the court. The provision is rarely used in New South Wales but has served as an effective deterrent to the abuse of charging or commission clauses.

The Commission recommends that Victoria adopt a provision such as section 86A, except that there would be a time limit within which an interested person could apply for review. The time limit would be three months after the time that the interested person knew, or ought to have known, of all commission, charges and disbursements charged or proposed to be charged out of the estate. This additional requirement was proposed by the Law Institute of Victoria and was widely supported in submissions.

Community education for non-professional executors and beneficiaries

In response to submissions that drew attention to gaps in publicly available information on what happens to a person’s assets after they die, the Commission recommends that the Victorian Law Foundation should publish a guide, or series of guides, on making wills and the role of the executor.

The Commission argues that although not causing significant difficulties,

Victoria’s current law in relation to the payment of debts is overly complex. In some areas, the relative simplicity of the law is obscured by inaccessible drafting.

The National Committee for Uniform Succession Laws made recommendations that, if adopted in Victoria, would modernise and clarify the law and simplify the administration of estates. Submissions to the Commission conveyed strong support for adopting these recommendations in Victoria, and the Commission recommends that they be adopted. The reforms would give primacy to the will-maker’s intentions when the estate is solvent, and clarify the application of the Bankruptcy Act 1966 (Cth) when the estate is insolvent.

In discussing Small Estates the VLRC comments that

Victorian law and practice provide a number of measures that assist personal representatives of small estates to obtain a grant of probate or letters of administration at less than the usual cost, or to administer the estate without obtaining a grant. Some measures support non-professional personal representatives who administer small estates themselves, and others encourage trustee companies to obtain grants of representation for small estates. Each of these measures works without significant difficulty but could be more effective.

The Supreme Court’s Probate Office will prepare and file documents for a person applying for a grant of representation, if the value of the estate is $25,000 or less. If the only beneficiaries are the partner, children or sole surviving parent of the deceased person, assistance is available for an estate that is valued at $50,000 or less. In addition, there are two expedited processes for trustee companies that obtain grants of representation for estates valued at $50,000 or less.

These dollar figures have remained unchanged since 1995 and represent a dwindling proportion of deceased estates. Only 48 estates were assisted by the Probate Office’s small estates service in 2011–12, and one of the expedited processes for obtaining a grant of representation has been used only twice since 2006. The upper limit of $50,000 is lower than in other jurisdictions, and there was clear support in submissions and consultations for increasing it.

The Commission recommends that the assistance provided by the Probate Office, and expedited grants of representation, should be available in respect of estates valued at up to $100,000. The dual eligibility criteria for assistance from the Probate Office’s small estates service would be removed, and the upper value limit would be adjusted in accordance with movements in the Consumer Price Index.

The Commission also recommends combining the two expedited processes for obtaining a grant of representation into a single process to be availed of by State Trustees. Private trustee companies do not administer small estates for commercial reasons, whereas State Trustees receives a government subsidy to administer small estates. As noted above, one of the current processes is rarely used. The second process is simpler, cheaper and favoured by State Trustees but does not create searchable records that could ensure that only one grant is made in relation to each estate.

The Commission’s recommendations enable State Trustees to continue to use a streamlined process to obtain a grant of representation but improve the degree of transparency. The will would be filed with the Supreme Court and a notice of intention to administer the estate would be advertised on the Supreme Court’s website rather than in a daily newspaper.

While a grant of representation is always required when transferring certain types of property, for example land and shares, it is possible to transfer other assets without one. Gifted goods, for example, can simply be handed to the beneficiary; instead of a grant, a bank may accept a death certificate or other documentation as authority to release money in an account. In this way, many estates are fully or partially administered informally.

However, a person administering an estate informally is liable to be sued by a rightful personal representative, creditors or beneficiaries if they make payments that would not have been legitimate if they had obtained a grant of representation. This may occur where a more recent will is discovered after the estate has been informally administered according to an older will, or when the debts of the estate were not fully paid before the estate was distributed. In addition, a bank or other third party that transfers assets of the estate to a person without requiring a grant of representation is exposed to liability where payments are made incorrectly or a grant of representation is later taken out by another person.

The Commission makes recommendations to clarify and strengthen existing protections to people who administer estates informally, and to protect third parties transferring up to $25,000 without a grant of representation. This amount would be adjusted to reflect changes in the Consumer Price Index.

Although the Commission recognises that it is useful to be able to administer an estate informally, this course of action should not be taken simply because seeking a grant of representation seems too complex or costly. The valuable assistance provided by the Probate Office to small estates should be supplemented by more and better information to the public on the administration of estates. The Commission recommends that the Supreme Court produce a compilation of simply expressed and comprehensive information for potential applicants for a grant of representation, and make it available on its website.

In relation to Costs rules in succession proceedings  the VLRC

considered cost rules at a general level, as well as in the context of reviewing applications for statutory wills and family provision. It has concluded that, at the general level, the rules are working satisfactorily and do not require legislative amendment. No submissions expressed a contrary view.

Spam

The Australian Communications & Media Authority (ACMA) has imposed a $165,000 infringement notice on Grays (NSW) Pty Limited, responsible for Australian GraysOnline shopping websites, for noncompliance with the Spam Act 2003 (Cth).

ACMA indicates that its

investigation found a decision by Grays that an email campaign introducing its GraysEscape website was not promotional, was incorrect. As a result of the decision, Grays sent messages without an opt-out facility and to some people who had previously withdrawn their consent to receiving marketing messages.

ACMA imposed a $15,500 infringement notice on Minardi Pty Ltd, owner of the Melbourne nightclub Brown Alley, for sending promotional SMS messages that did not comply with the Act. Its investigation found some of Minardi’s messages did not include contact details. Others were missing an opt-out facility. Some messages had neither of the requisite features.

The SMH states that Minardi

had already received five warnings about its text-message marketing over three years. But the authority lost patience and started a formal investigation after complaints spiked in December 2012. It found that of nine marketing messages sent in December, five did not include contact information and eight did not have opt-out information. This totalled more than 50,000 breaches of the act.

That's $0.30 per dud message.

Self-awarded degrees and self-belief

An example of CV buffing from the UK, where barrister Dennis O'Riordan has been suspended for three years - alas not suspended from a rope while savage carnivores nip at his toes while he's forced to listen to Elvis - for awarding himself a degree or two.

O'Riordan's entry in the Bar Directory reads 'Dr Dennis Thomas Delcaron O’Riordan LLB, Hons, BCL D Phil, Oxon, MA'. He had not been sprung while gaining a succession of glittering legal positions, an indication of inefficiencies in vetting.

He is described [PDF] by the Bar Tribunals and Disciplinary Service (BTDS) as having

engaged in conduct which was dishonest or otherwise discreditable to a barrister, in that from about March 2007 to about December 2012 he entered or caused to be entered on his Chambers’ website the following false educational or other qualifications or attainments:-

(i) Bachelor of Arts (First Class) Oxford University, and/or 

(ii) Bachelor of Civil Law (First Class) Oxford University, and/or 

(iii) Doctor of Philosophy, Oxford University, and/or

(iv) Eldon Scholar, and/or 

(v) Member of the New York Bar, and/or

(vi) Member of the Irish Bar

... he did not attend Oxford University as an undergraduate, and was not awarded a BA or BCL or a D Phil or an Eldon Scholarship by that university. Further he is not, and has never been, a member of either the New York or Irish Bars.

Dennis O’Riordan engaged in conduct which was dishonest or otherwise discreditable to a barrister, contrary to paragraph 301(a)(i) of the Code of Conduct in that, on about November 2008 he entered or caused to be entered on his them employer’s website the following false educational or other qualifications or attainments:-

(i) Bachelor of Arts (First Class), Balliol College, Oxford University, and/or

(ii) Bachelor of Civil Laws, Balliol College, Oxford University, and/or

(iii) Doctor of Philosophy, Balliol College, Oxford University, and/or

(iv) Member of the New York Bar, and/or 

(v) Member of the Irish Bar

... he did not attend Oxford University as an undergraduate, was not awarded a BA or a BCL or a D Phil or by that university and was not a member of Balliol College. Further, he is not, and has never been, a member of either the New York or Irish Bars. 

Dennis Thomas O’Riordan engaged in conduct which was dishonest or otherwise discreditable to a barrister, contrary to paragraph 301(a)(i) of the Code of Conduct in that, on about November 2012 into his curriculum vitae when applying to join a set of barristers’ Chambers the following false educational or other qualifications or attainments:-

(i) Attendance at Radley College, and/or 

(ii) LLB (Hons) (First Class) University of East Anglia, and/or

(iii) Bachelor of Arts (First Class) Oxford University, and/or

(iv) Bachelor of Civil Laws (First Class) Oxford University, and/or

(v) Doctor of Philosophy, Oxford University, and/or

(vi) Eldon Scholar, and/or 

(vii) Master’s degree, Faculty of Law, Harvard University 

(viii) Member of the New York Bar, and/or 

(ix) Member of the Irish Bar

... he :-

(a) did not attend Radley College, and/or

(b) did not attend Oxford University as an undergraduate, and was not awarded a BA or a BCL or a D Phil or an Eldon Scholarship by that university, and/or 

(c) was not awarded a first class degree by the University of East Anglia, and/or 

(d) was not awarded a Master’s degree by the Faculty of Law of Harvard University, and or 

(e) is not and has never been, a member of either the New York or Irish Bars.

O'Riordan wisely resisted any temptation to award himself the Victoria Cross (unlike a CSU academic).

The statement by the BTDS is reminiscent of the UK Register's comment on creativeness by CV embellishment by then senior IBM executive Jeff Papows -

So he's not an orphan, his parents are alive and well. 

He wasn't a Marine Corps captain, he was a lieutenant. 

He didn't save a buddy by throwing a live grenade out of a trench. 

He didn't burst an eardrum when ejecting from a Phantom F4, which didn't crash, not killing his co-pilot. 

He's not a tae kwon do black belt, and he doesn't have a PhD from Pepperdine University.