For more information, see here and register online now.

The Supreme Court’s website has been launched: http://www.supremecourt.gov.uk/index.html

Update: Read up on the workings of the UKSC at this (non-affiliated) blog: http://www.ukscblog.com/

(For those not familiar with the context, the vacation clerkship program, run every summer, is the primary route of recruitment for mid-to-large-sized law firms in Sydney.)

These are excellent tips, though, and it’s recommended reading for all the keen baby lawyers out there. I thought, however, that I’ll also share a few of my thoughts on the clerkships process.

#1: Take it seriously, but not too seriously. Some would see the clerkships process as a single, crowded drawbridge across the chasm between struggling law student and high-flying corporate lawyer. Others don’t seem fussed about it at all. It’s important to have a realistic sense of how important the process is.

The clerkship process is important. For those whose parents are not judges or an important client of a major law firm, it is the best and – despite the many hurdles set in the path – the easiest path to a job at a commercial law firm. Unfortunately, the profession in Sydney places far too great a significance on a start at a commercial law firm. In some respects, a clerkship becomes a badge rather than what it should be – a chance to find out whether you and commercial law make a good couple. As a result, though there are many paths forward, and many paths to commercial law, if your interests swing that way, the clerkship is significant for a law student because it is the easiest way to earn that badge. If you do not put your best – and smartest – effort into the clerkships process, you may end up spending twice or three times the effort to score a graduate job – efforts subject to all the vicissitudes of the market. So start preparing early (ideally, a year early), talk to everyone, read everything, and carefully think through every decision you make in this process.

At the same time, it’s important to keep in mind that a clerkship is not the be-all and end-all of starting your career. There are many other paths to commercial law: as a graduate, after a further degree, as a qualified lawyer, or as a foreign lawyer. Remember, also, that commercial law is not for everyone. It is neither particularly remunerative in the first few years, nor does it offer work life balance as a matter of course. Does working on internationally significant commercial transactions for large corporations float your boat? If it doesn’t, happiness might be just an application (to the public or community sector) away. So don’t fret if the clerkships process and the competition seem a little daunting - there could well be a better path out there.

#2: A successful clerkship application must be balanced but stand out in some way. What does it take to get a clerkship offer? Some firms are rumoured to look only at marks; others supposedly only hire law society executives. In truth, all firms look for a combination of things. For the majority, being well-balanced is key. Academic results, work experience, extracurricular activities, quality of writing (in the application form and in the cover letter), as well as maintaining a good impression in the interview – all combine to make a successful application. To ensure an offer, however, an applicant should be stand-out in at least one area – some quality or experience that helps you to make it past the “maybe” pile into the “yes” pile. For those who are organised, it may be worthwhile cultivating that stand-out quality in the months or year before the clerkship process.

#3: Focus on a few firms, and try as many paths as possible. The clerkship application process is stressful, intense, and time-consuming; a quality application takes a lot of effort and time to perfect. It is prudent to apply for a good number of firms, but anything more than half a dozen will probably be a serious strain on your life. Anything more than a dozen is not for the faint-hearted. Applying for too many firms not only means more applications to draft, check, and customise – it also means that you may find it difficult to remember all the facts about each firm when you front up for the interview. A cover letter carrying the wrong firm’s name is almost certainly the biggest no-no. While not as dramatic, a bland, generic application does not impress the reader, either.

The second part of this item is that it’s a good idea to try as many things as possible. As Enoch mentioned, while a giant law firm might seem the perfect, glamorous workplace, it is not ideal for everyone – indeed, it is not ideal for most people. On the other hand, while a small firm might advertise its great atmosphere and work-life balance, you may find its work a little, well, less than exciting. The clerkship process is a chance to check out the options on offer, and you never know what you might find.

#4 Talk to as many people as possible. Before and during the clerkship process, talking to those who have gone before is a good way of avoiding pitfalls that others have encountered. During the clerkship process, talking to others can shed light on the realities of life and work with your potential employer. All the marketing talk thrown at you during the process are also best read when filtered through a competitor’s interpretation. Firm-organised cocktail parties and other events are a good chance to meet and talk to the lawyers in the flesh – they are primarily for the applicant’s benefit, and only secondarily for the firm to spot outstanding candidates. While it may seem an elusive prospect while you are stressed by the interview process, this information will come in handy when you do need to choose between competing offers. Talking to many people also has benefits beyond the process – whether or not you choose the particular firm in the end, the relationships you forge through the interview process can build or extend your network in the profession.

Finally – this is not strictly speaking a tip – keep track of which firm is offering the best food during the process. It’s something fun to focus on when your mind needs a break from the stress of the process!

______

Tommy completed vacation clerkships at two law firms in London and an Australian law firm in Melbourne, and completed his practical legal training at a community legal centre and a corporate general counsel’s office in Sydney. No, he doesn’t talk about himself in the third person as a matter of habit.

On 22 April 2009, the High Court of Australia delivered its judgment in the case of IceTv Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14 (hereafter “IceTV“. The appeal by IceTV Pty Limited (“IceTV“) was upheld unanimously by a court comprising French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ. The court found that IceTV’s use of program title and time information originating from Nine Network Australia Pty Limited (“Nine“) did not infringe Nine’s copyright in its published programming schedules.

Significance of the case

The IceTV case has been a running saga in Australian copyright law for several years. The case is significant for several reasons. First, it is an important indication of the present High Court’s views on several open issues of copyright law which have been in flux in recent years. The bench which sat on IceTV encompass all but one (Bell J) of the present court, which has changed significantly in the last couple of years. Specifically, the case was a decisive statement of the court’s view on copyright’s protection of labour and time, versus the need for a “creative spark”, in compilations, an issue with increasing ramifications in the digital age. While the case considered this issue in the context of copyright infringement, and specifically the question of what constitutes a “substantial part” of a work, their Honours provided a strong indication of their views of the parallel issue in the context of subsistence of copyright.

Background

IceTV’s main product is a digital program schedule, which subscribers could use to program their digital video recorders to record specific shows and skip over ads. To create the schedule, IceTV employees started by noting the TV schedule over a 3 week period by actually watching the programs. Every week, they would use the previous week’s actual schedule as a base to predict the next week’s schedule. In the final step, they would check the schedule against the published TV schedule (the “Aggregated Guides”), as published in magazines and newspapers. It would then modify some titles and times, e.g. for movies and one-off programming changes, to match the published guides. These Aggregated Guides are made by “Aggregators”, who combine schedules sent to them by the TV networks. The schedules as sent out by Nine, for example, contained the TV schedule with title and time information, as well as synopses of the programs and other details. IceTV conceded from the start that Nine owned copyright in the schedule, but denied that it had taken a “substantial part” of the work so as to infringe the copyright. In the result, the High Court held for IceTV, agreeing that the title and time information taken was not a substantial part of the work and that no copyright was infringed.

Approaching copyright

The High Court criticised the approach taken by the full Federal Court, which focussed on the “interest” protected by copyright. The High Court warned that such an approach made it tempting to slip into a high level of abstraction. The higher the level of abstraction taken, the more likely that attention will be inappropriately focussed on the idea, or the facts, that underlie the work, rather than the expression of the work itself.

Under the full Federal Court’s approach, for example, the “interest” protected by a copyright over a compilation like Nine’s schedule might be seen as Nine’s commercial interest in its proprietary programming decisions. Thus, the “appropriation” by IceTV of Nine’s “skill and labour” in making these programming decisions made out the infringement. While arranging the program information required little skill and modest labour, according to this analysis, the much greater skill and labour in making the programming decisions was what copyright protected. In taking the programming order, names and times, IceTV took advantage of a “substantial” part of Nine’s overall “work”, and thus infringed Nine’s copyright.

The High Court emphasised that analysis must be firmly rooted in the first principles of copyright law. That is, copyright protects expressions, not ideas; expressions, not facts. In the context of compilations of facts, especially, it was not helpful to consider the essential “interest” of the copyright owner in the work; nor was it helpful to repeat the mantra “what is worth copying is worth protecting”. Nine’s copyright protected only the precise expression of the programming information in the form of the program schedule; the programming decisions, being statements of future intention, were underlying facts. The only “skills and labour” which mattered was that which went into creating that expression, as distinct from the underlying facts. Thus, the signficaint “skills and labour” that might have gone into making the programming decisions were not relevant to the schedule. While significant skills and labour might have gone into writing the synopses, for example, the arrangement of program titles (generally not made up by Nine) into chronological order (an obvious order) did not require much skills and labour.

Implications for finding infringement

There are several implications for finding infringement of copyright flowing from this approach.

First, it is important to identify the elements of subsistence of copyright, even if subsistence is conceded. In particular, in the context of a compilation as here, it is skills and labour of the author which elevate a prosaic arrangement of facts into a work subjec to copyright. In the present litigation, the parties, including the trial and appeals judges, made no distinction between the joint authors, who must be natural persons, with the owner, who is Nine, their employer. This, according to the High Court, led to the confusion between the skills and labour that went into the work, as opposed to the (irrelevant) skills and labour expended by other employees of Nine in making programming decisions.

Secondly, originality is important in asessing whether an alleged infringer has taken a “substantial part”, so as to make out infringement. Copyright protects an “original” expression. Where a work contains both original (or creative) and non-original (information) elements, copyright vests in the whole work, but it is the taking of original parts that makes out infringement. In application, what is observed is a continuous spectrum. Had IceTV taken the synopses, for example, which were wholly creative elements written by the authors of the schedule, a modest taking would have made out the taking of a “substantial part” and thus infringement. However, when it comes to less original and more factual information, a great degree of taking is required to make out the taking of a “substantial part”.

Into considerations of originality ties considerations of skills and labour. In compiling facts, it is the degree of skills and labour applied which lends what was factual information the requisite originality for copyright. The High Court emphasised that what mattered was the skills and labour that was directed towards coming up with the particular form of expression of the work. In the case of the programming time and title information, according to the High Court, the authors of the schedule generally took the title of the program as given, and the time as determined by those making programming decisions, and then arranged them chronologically, an obvious order. As such, not a great deal of skills and effort went into the expression of the compilation in respect of program time and title. While a great deal of skills and labour might have gone into making the underlying programming decisions, those skills and that labour was not directed towards coming up with the particular form of expression of the work, and thus, not relevant when assessing the originality of what was taken. Thus, IceTV, in taking a modest amount of that information, did not take a substantial part of the copyright work. It did not infringe Nine’s copyright.

Implications for subsistence of copyright

This case dealt with finding infringement of copyright, not subsistence. That copyright subsisted over the work in question was conceded from the start. Nevertheless, subsistence of copyright was on everyone’s mind, and in particular, the decision of the full Federal Court in Desktop Marketing Systems Pty Ltd v Telstra Corporation Limited (2002) 119 FCR 491 (“Desktop Marketing“).

In that case, the full Federal Court (composed identically with the full Federal Court bench that heard IceTV) decided that copyright subsisted in the White Pages directory because of the skills and effort that went into the work, a time- and capital-consuming endeavour, even though the arrangement of names and addresses into alphabetical order was an obvious and prosaic form. The decision in Desktop Marketing stands in contrast to the way this issue, often called “sweat of the brow”, is dealt with by the US Supreme Court in Feist v Rural Publishing, where no copyright was found to subsist in a telephone directory, a mere arrangement of facts.

Though subsistence was not a direct issue in IceTV, most commentators hoped the High Court would clarify the issue. Partly motivated by this, the Australian Digital Alliance and the Telstra Corporation both appeared as amicus curiae. Accordingly, the High Court did comment on the issue of subsistence.

First, the Court emphasised that subsistence required “originality”. This means that the work must have originated with the author, and not merely copied. “Originality” meant that the work must have taken some “independent intellectual effort” by the author or joint authors.

For compilations of facts, it is emphasised that facts are not copyrightable, but compilations are. Two kinds of effort go into making a compilation (and most other types of works) – “industrial collection” or “sweat of the brow” on the one hand, versus “creativity”. However, it is a false dichotomy to treat the two as opposites, one copyrightable and the other not. Nevertheless, the court opined that what is commonly called a “creative spark”, which can be manifest as the exercise of skills and judgment, is a necessary element of the originality that lends a work its copyrightable nature.

Thus, while subsistence of copyright was not an issue here, Gummow, Hayne and Heydon JJ concluded without deciding that “[i]t may be that the reasoning in Desktop Marketing is out of line with the understanding of copyright law over many years”.

Conclusion

IceTV represents a clear indication from the High Court of its preferred approach to copyright, especially in the context of compilations. The emphasis on first principles, and the caution against an inappropriately high level of abstraction, returns clarify to analysis which, in recent years, has become mired by confusion. Copyright is an artificial right, created by statute for policy reasons. It is a creature of the economic context in which it is found: it seeks to encourage creativity and innovation by giving authors a commercially valuable right, limited in time, to exploit the products of their intellectual effort. This uneasy balance means that it is tempting, and easy, to slip into confusion over what, precisely, is being protected. The emphasis on precise legal distinctions is one way to maintain the balance.

Though merely obiter, the discussion on originality in the subsistence of copyright, and particular on the reasoning in Desktop Marketing provides important guidance for copyright law in Australia. Without deciding, the High Court has signalled a willingness to settle the issue of “sweat of the brow” in a manner that is more in line with the generally accepted view in accordance with Feist

At the same time, subtle differences can be detected between the two joint judgments (one by Gummow, Hayne and Heydon JJ, and the other by French CJ, Crennan and Kiefel JJ). Gummow, Hayne and Heydon JJ placed greater emphasis on first principles and the need to clearly delineated ideas from expressions, expressions from facts, the original from the unoriginal, and labour from skills. By contrast, French CJ, Crennan and Kiefel JJ saw a continuum, with the original more worthy of protection than the merely laborious, and with a greater taking required to make out “substantial part” of the unoriginal compared to the creative. It may be that, should the issue in Desktop Marketing return to the High Court in the near future, these subtle differences will play a more dynamic part in the Court’s reasoning and judgment.

The Hong Kong Law Fair will be coming to the University of Sydney this year, and it’s being coordinated by the Chinese Law Students Society. Register now to attend!

(Free plug =D i’m serving on the Old Men Committee for the fair.)

Here’s how it works: “All India Restaurant” → A.I.R. → “All India Reports”, the most commonly used law reports series for Indian cases → law → Guardianship Tribunal. Geddit?

I like it because it’s so obscure

Name: Hillary Clinton
Appointed: Secretary of State
You may remember her from: Married to former President Bill Clinton, first lady 1993-2001. Wellesley College, Yale Law School, parnter of Rose Law Firm. Senator for New York state since 2000.
Quote: “We are the president” – according to James B Stewart

Name: David Axelrod
Appointed: Senior Adviser
You may remember him from: Nothing, but he has an Autobot surname (a more introspective variation of Hotrod?) and a moustache that makes him look like he’s still living in 1984.

Name: Gregory Craig
Appointed: White House Counsel
You may remember him from: special counsel to Bill Clinton, defending him against impeachment. A reversible name. Yale law schoolmate of Hillary and Bill.

Name: Ron Klain
Appointed: Chief of Staff to the Vice-President
You may remember him from: Chief of Staff to the Vice-President (Al Gore). Supreme Court tipstaff.

Name: Tom Daschle
Appointed: Secretary of Health
You may remember him from: “Senator Tom Daschle (D)”, from his days as Senate Majority Leader. Wikipedia says of Daschle: “Daschle became a brother of Alpha Phi Omega”. The article does not explain how Daschele’s brother acquired such a quirky name, and whether the surname Omega indicates that said brother was adopted from Greece.

To be continued.

I happened upon the Wikipedia article on family dictatorships - and the related articles on dynasties and political families – and found it in a most unsatisfactory state. I’ve edited it, but it’s got me thinking. When does a political dynasty turn into a family dictatorship, and when is a family dictatorship a monarchy?

The first difference seems to usually involve a value judgment as to the quality of the political system. If the country is democratic, as in the US, then the passage of a position from father to son creates a “political dynasty”, while if the country is judged to be a dictatorship, then this is a family dictatorship. I say “value judgment”, because clearly this is not a question of law. Many “dictatorships” have very nicely whitewashed constitutions and hold regular elections. Often, the boundary can be hard to define. Is Singapore a political dictatorship or merely a political family?

The latter difference also is not one strictly of laws and institutions. In a monarchy, the crown passes within the family by force of law. However, some family dictatorships also enshrine their succession by laws designating the dictator’s heir.

It seems to me that the conditions for consituting a string of leaders from the same family as a family dictatorship are something like this:

1. No general law of hereditary succession. If a regime adheres to a general law of hereditary succession, then regardless of how the leadership is named, it is a hereditary monarchy and not merely a dictatorship. This is a maximum threshold. Anything falling short of this can be a family dictatorship. This covers a broad spectrum of institutional positions. A state may enact an ad hoc law designating the leader’s proginy as the legal successor; or it may hold elections (as to which, see below); or it may simply in practice treat the successor as the new leader. An example of the last is Kim Jong-il, whose position, the chair of the National Defence Commission, was simply declared to be the highest office of the land by government propaganda after the death of his father as the President. Since the younger Kim is not the President, he needed not be elected and is under no constitutional obligation to present himself to the electorate either.
2. Use of political, not “soft” power. A family dictatorship is first and foremost a dictatorship. This means that the regime enacts its policies, including succession policy, by the use of politcal powers as represented by instruments of state. This is a minimum threshold. Thus, a regime that holds free and fair elections, but in which one family, because of the informal power and influence accrued to it, continues to hold political office, is not a family dictatorship. Thus, no matter how many Bushes are elected to the Presidency, the US is not a family dictatorship. The Bushes would achieve disproportionate success because of their economic power and informal influence, rather than control over state apparatus. By contrast, Singapore is arguably a family dictatorship. The (indirect) hereditary succession was instituted through the regime’s control over the country’s political process, which itself is maintained by relaxed separation of powers, the enactment of laws that hamper dissent, and using the law to force dissidents into bankruptcy, jail, or exile.

Family dictatorships share attributes with other forms of government. One is the non-transparent selection of a successor. The selection and cultivation of a successor usually involves the interplay of forces within the regime, and can often be highly personal. It is often highly uncertain, with successors falling in and out of favour over a long period of time. To a greater or lesser extent, the same process is found in all but the most transparent of systems. The second is the “grooming” of a successor. In order to attain either authority within the regime, or a veil of legitimacy in the eyes of the public, the successor is carefully planted in various positions to attain experience, often with a cult of personality built up around that experience. Such a process is also found across authoritarian regimes and in hereditary monarchies. One scene which I found curiously apt during the Olympics was that Chinese Vice President Xi Jinping was chosen to meet with all the visiting Crown Princes – as heir apparents, the selection ensured reciprocity. (A vice presidency does not equal heirdom apparent in China. Since each president now serves for two terms, the first term vice president is a holdover minder from the previous administration, and the second term vice president is the designated successor.)

Since I can’t think of any particularly nice pictures to put in here, enjoy these two Youtube videos:

A day in the life of the Prince of Wales: Part 1 

and

Dear Leader Kim Jung-il is the People’s Inspiration