E-Research and Jurisdiction

Gaye MiddletonUecomm Operations Pty Ltd

E-Research and Jurisdiction

Jurisdictional issues

• Intellectual property issues

• Privacy issues

• Dispute resolution issues

How to address these issues??

research contract

Intellectual property issues

• Differences between intellectual property protection in different jurisdictions

• Potential infringement of intellectual property rights in recipient jurisdiction where information or materials is transferred across borders

Differences in IP protection

• IP laws are territorial

• International IP treaties do not result in uniform IP protection between member states

Potential for IP infringement

Australia

• Authorisation copyright infringement - s36 Copyright Act 1968 (Cth)

• Contributory patent infringement - s117 Patents Act 1990 (Cth)

Privacy issues

• What is meant by “privacy”?

• What is meant by “personal information”?

• National Privacy Principle 9 (NPP9) and transborder flow of data

• EC Directive 95/46 and the concept of “adequacy”

• Diversity of international privacy laws

Dispute resolution issues

• Which courts have personal jurisdiction?

• Which state or national laws apply to multi-jurisdictional disputes?

Personal jurisdiction

• Person is physically present in jurisdiction

or

• Dispute concerns a contract made or broken within the jurisdiction

or

• Dispute concerns a tort committed in the jurisdiction

or

• Dispute concerns a breach of legislation in the jurisdiction

Choice of law

• Choice of law rules - connecting factors

Contract - “closest and real connection”

Tort - place of the wrong (lex locus delicti)

Research contract

• Tool to address jurisdictional issues and minimise legal risk

• May address:

choice of law

courts which can hear disputes

ownership of and dealings with intellectual property

privacy obligations

Take home message

Use a research agreement to address key jurisdictional issues which arise in the context of e-research conducted across multiple jurisdictions