Understand Your Rights. Solve Your Legal Problems
You have been a practicing litigation counsel for 44 years. Have you learned anything over that time?
No, I pretty much knew it all when I started out. Or I thought I did. Some of the things I have learned are the importance of (1) mentoring, (2) patience, (3) humility, (4) candor, (5) coping effectively with stress, (6) adapting to change, and (7) written advocacy.
Could you elaborate?
Sure.
Mentoring: When I started out, I was lucky to work with lawyers who were not only skillful but were also highly ethical. I learned a great deal from them, largely because they took the trouble to teach me but also by osmosis, by their good example. I feel badly for young lawyers who have not had the opportunities that I had to learn from good mentors.
Patience: When I started practicing, I was young, and it showed. I talked like a book to impress clients with how smart I was. They were not impressed. It takes time and patience to develop trust and confidence. You have to remember the three As: Ability, Affability, and Accessibility. Ability will often be assumed if you are with a good firm. It’s not hard to be affable, and it’s not hard to be accessible. You just have to work hard, do your job, and if you are patient eventually clients will want you to be their lawyer.
Humility: There is no shortage of oversized egos in our profession. We have to empathise with others and always be open to appreciating the opposite side’s position. Judge Learned Hand’s advice should be taken to heart: “think that you may be mistaken”.
Candor: In an adversarial system, judges expect and want you to argue your side of the case. But that does not mean you should cover up its weaknesses. Candor in facing up to them is disarming and often powerful. It builds trust. Judges who have read the parties’ written submissions do not want to hear you repeat in oral argument what you have written; they want to hear your response to the other side’s submissions. You also have to be candid in advising clients. If you create unrealistic expectations and the results are not what they expect, you will hear about it.
Coping effectively with stress: Litigation is society’s way of resolving conflict peacefully, and conflict is inherently stressful. The best antidotes in my experience are preparation and civility. If you are thoroughly prepared, the stress of worrying that you have not done everything you can to advance your client’s interests is removed, or at least minimised. If you deal with opposing counsel with courtesy and respect, you will not aggravate the stress resulting from the parties’ conflict by piling on the stress of conflict with the lawyer on the other side. From the vantage point of the court, civility is also good advocacy. A sense of humour does not hurt either.
Judge Learned Hand’s advice should be taken to heart: “think that you may be mistaken”.
Adapting to Change: In ‘The Origin of Species’, Charles Darwin wrote that it is not the strongest of the species who survives, nor the most intelligent, but rather the one that is able best to adapt to its changing environment. I suspect that is true of our profession as well. Many of our traditions should be treasured, but we cannot stand still. It would be impossible to practice effectively today without deploying the tools enabled by the technological advances of the last 40 years. Just as importantly, advocates must adapt to social change, including change as reflected in jurisprudence and reform legislation.
The Importance of Written Advocacy: When I started practicing, I believed that oral advocacy was what made the difference between failure and success. I considered written submissions much less important. In most cases today the opposite is true. Your written submissions on appeals and motions are what form judges’ initial impressions, and those impressions are difficult to displace. When the court reserves judgment, the judges have the written submissions in front of them as they draft their reasons. When I started practicing you could almost always take as long as you wanted to argue your case. Over the course of my career, courts have imposed time limits on oral argument. This too has underscored the importance of written advocacy.
Are there other ways in which the practice of litigation changed in your time?
Many of the changes have been retrogressive. We used to have what in Ontario we called County Court cases, where young advocates could try claims over real estate or employment agency commissions and the like and gain valuable trial experience in cases in which the stakes were relatively low. There were few relevant documents and the pre-trial stages consisted of pleadings and short examinations for discovery and that was about it.
Now we also have endless case conferences, status hearings, pre-trial conferences and mediations, all designed to promote settlement and prevent cases going to trial. For cases that should be tried, the added steps simply add time and expense. The advent of email has resulted in an exponential increase in the number of documents that must be produced, and a corresponding increase in cost. Access to justice has suffered. So have the opportunities for advocacy for young lawyers.
We have made some progress recently in promoting proportionality through limiting discoveries and holding mini-trials confined to resolving issues of credibility on which cases turn.
Tell us about your practice today.
I practiced for most of my career in large firms. Five years ago I started my own litigation boutique with my daughter, Brooke MacKenzie, who had three years’ experience as a litigation counsel at a large and prestigious national firm. We concentrate our practice primarily in two areas: civil appeals and professional responsibility opinions and litigation. Almost all of our clients are other law firms or were referred to us by other lawyers. Brooke and I always knew that our partnership would have a limited shelf life, but practicing with Brooke has been the highlight of my career.
I am also a Member Arbitrator at Canada’s leading arbitration chambers, Arbitration Place.
How did you come to develop your interest in professional responsibility?
When I was in law school in the mid-1970s, students were not required to learn professional responsibility. There was an optional seminar in Legal Ethics. I did not take it and I do not know anyone who did.
I was lucky at the beginning of my career to practice with one of Canada’s leading counsel, who was recognised as the lawyer to call on if you got in trouble with the profession’s self-governing body, the Law Society. I started acting for other lawyers on discipline hearings myself, and during the late 1970s and throughout the 1980s I represented lawyers in that forum on dozens of occasions.
From 1990 to 1993 I took a mid-career break to become the Law Society’s Senior Counsel (Chief Prosecutor). While I held that position I wrote my text, ‘Lawyers and Ethics: Professional Responsibility and Discipline’. It was published in both a Practitioners’ Edition and a Student Edition. I have kept it current, and the 6th Student Edition was published in 2018, when we celebrated the book’s 25th anniversary.
While I was a Bencher I chaired a Task Force on modernising the Law Society’s Rules of Professional Conduct, which were badly outdated and in need of reform. The new rules that resulted have been used as a model in other Canadian jurisdictions.
I was unable to represent lawyers in professional conduct proceedings while I was a Bencher, but I have resumed doing so in recent years. It is the most important work I do.
What is your role in representing lawyers in professional conduct proceedings?
To protect the reputation and livelihood of practitioners. Often that involves protecting lawyers from regulatory overreach. In my experience, regulators sometimes seem to have little conception of how devastating to a lawyer even an allegation, let alone a finding, of professional misconduct can be.
What are the most common ethical issues that arise in your practice?
No other profession devotes anything like the amount of attention to ethics that we do.
The duties of confidentiality and resolute representation (which is sometimes referred to as the duty of zealous advocacy, particularly in the US) are duties peculiar to lawyers and are sometimes seen as being at odds with non-lawyers’ ideas of ethical conduct.
I have frequently acted on motions to disqualify law firms from acting in litigation because of alleged conflicts of interest. Even though the Supreme Court of Canada has established governing principles in a series of decisions since 1990 the outcome of disqualification motions is often unpredictable. This is because of the differing orientations of judges toward them. Some judges place the highest priority on protecting the reputation of the administration of justice if there is even a hint of a potential conflict. Other judges believe that most disqualification motions are tactical and place a higher priority on fairness to litigants and the prima facie right to be represented by counsel of their choice.
No other profession devotes anything like the amount of attention to ethics that we do.
Is there anything that lawyers can do to avoid allegations of disqualifying conflicts?
You have to maintain a conflict management system so that potential problems are identified promptly. Your database should be as comprehensive as possible, listing all parties to transactions and litigation.
You should avoid receiving confidential information from a potential client until you check conflicts.
If a potential conflict is identified, the key is to remember that the identification of a potential conflict is only the first step in the process. You cannot act on both sides of a dispute, of course, but most other conflicts can be managed. If the concern is that a lawyer in your firm has received relevant confidential information from a former client, promptly putting in place an effective ethical screen is likely to protect against disqualification. Engagement letters should carefully circumscribe the firm’s mandate and specify the circumstances in which the firm may act adverse to the client in unrelated matters. In some cases, problems may be addressed by limiting the firm’s role and entrusting part of the client’s representation to independent co-counsel.
You have received a number of awards and accolades. Which ones are most meaningful to you?
I do not consider ratings based on peer reviews to be significant, because many lawyers just vote for their friends and colleagues, or vote based on name recognition. One that means more to me was being honoured by induction as a Fellow of the American College of Trial Lawyers 21 years ago. Also, I was elected a Bencher of the Law Society of Ontario four times for four-year terms, and I was elected (or acclaimed) as Treasurer of the Law Society three times (the Treasurer is the Law Society’s President—the title is derived from the Inns of Court in Britain). In 2010 I was awarded an honorary Doctor of Laws degree in recognition of my contributions to the profession. These things are nice if you do not take them too seriously.
Gavin MacKenzie
MacKenzie Barristers
Address: Richmond Adelaide Centre, 120 Adelaide St. W., Suite 2100, Toronto ON, M5H 1T1
Tel: 416-304-9293
Mob: (416) 579-9528
Email: gavin@mackenziebarristers.com
MacKenzie Barristers is a boutique litigation practice concentrating on civil appeals and issues of professional responsibility and liability. They are frequently retained by other lawyers for advice or representation on legal ethics issues and professional responsibility disputes; to act as independent counsel for a third party or affected person in continuing litigation; or to collaborate or act as counsel on a motion or an appeal.
Gavin MacKenzie was called to the bar 43 years ago. His practice has since focused on commercial litigation, civil appeals, arbitrations, judicial review applications, and professional responsibility, liability and discipline. He has appeared as counsel in over 200 reported cases, before all levels of court including the Supreme Court of Canada and before many tribunals. He was honoured by induction as a Fellow of the American College of Trial Lawyers in 2000. He is the author of Lawyers and Ethics: Professional Responsibility and Discipline – a leading authority on legal ethics and professional responsibility and liability issues for practitioners and the courts for the past 27 years – and in 2010 he was awarded an honorary Doctor of Laws (LLD) degree from the Law Society of Upper Canada in recognition of his contributions to the legal profession.
The dispute between the European Commission and AstraZeneca (AZ) rumbles on following the Commission’s decision to commence legal action against AZ for alleged breaches of the COVID-19 vaccine supply contract. Commission spokesperson Stefan De Keersmaeker confirmed it was the Commission’s view that “the terms of the contract, or some terms of the contract, have not been respected, and the company has not been in a position to come up with a reliable strategy to ensure the timely delivery of doses.” In a statement issued on 26 April 2021, AZ noted that it “regrets” the Commission’s actions but remains resolute that it “will strongly defend itself in court”. The dispute has also put UK and EU relations under strain, especially after the EU triggered Article 16 of the Northern Ireland Protocol, although they were quick to make a U-turn after widespread condemnation of this action.
Who is right and who is wrong? Nicholas Scott and Jade Brooks of Blaser Mills Law offer some insights on this dispute, how it could have been avoided and what it might say about the current state of UK/EU relations.
The problem in brief
The Commission has stated on numerous occasions that (i) AZ has failed, in breach of contract, to deliver the contracted quantities of AZ’s COVID-19 vaccine and (ii) in order to cure this alleged breach, AZ must send doses manufactured in the UK to the continent to make up for the shortfall arising from production problems at AZ’s Dutch and Belgium plants. AZ denies this.
What has AZ actually agreed to do?
So far as material, the contract says that AZ will use its “Best Reasonable Efforts” to (i) manufacture the 300 million “Initial Europe Doses” and (ii) “deliver [redacted] quantities of vaccine to certain distribution hubs following EU marketing authorisation.”
‘Best Reasonable Efforts’ is defined in the agreement as:
“the activities and degree of effort that a company of a similar size with a similarly-sized infrastructure and similar resources as AstraZeneca would undertake or use in the development and manufacture of a Vaccine at the relevant stage of development or commercialisation having regard to the urgent need for a Vaccine to end a global pandemic which is resulting in serious public health issues, restrictions on personal freedoms and economic impact…” .
Further, ‘Initial Europe Doses’ is defined in the agreement as follows:
“AstraZeneca has committed to use its Best Reasonable Efforts… to build capacity to manufacture 300 million Doses of the Vaccine, at no profit and no loss to AstraZeneca, at the total cost currently estimated to be [redacted] Euros for distribution within the EU [redacted] (the “Initial Europe Doses”).”
What were AZ’s delivery obligations?
The Commission claims that the contract contains binding obligations to deliver the Initial Europe Doses, essentially on demand and as determined by the Commission. However, the contract’s drafting does not support this, referring instead to “Best Reasonable Efforts” to deliver [redacted] quantities of vaccine to certain distribution hubs following EU marketing authorisation.” As set out above, the definition of “Best Reasonable Efforts” makes no mention of delivery, referring only to “development and manufacture.”
In fact, the sections of the contract dealing with delivery state that the parties “shall work together to identify the final delivery schedule for such Doses”. This is the sort of drafting you might expect to find in a framework agreement, e.g. delivery of commodities, where a shipping schedule has to be agreed to cover a period of months or even years, in order to accommodate the parties’ commercial needs. It is not at all obvious how this drafting creates an absolute obligation to deliver whenever the Commission demands it.
Choice of Law: Belgian vs English Law – might the Commission have been better off with English Law?
We do not pose the question above to be tendentious, but in order to test whether the Commission’s choice of Belgian law worsened its position. The UK government contract is subject to English law, which takes the approach of holding the parties to the obligations created by the words used in their contract. Whereas, Belgian law, (in common with other civil law systems) will focus on whether the parties acted in good faith and tried their best to deliver the vaccines. That is a more nebulous standard of performance, the pitfalls of which can perhaps be more easily avoided through the more precise manner of drafting obligations seen in English law commercial agreements.
How can such disagreements be avoided in the future?
The Commission’s contract betrays a certain lack of commercial common sense because it does not appear to give the Commission a great many (if any) contractual levers to effectively police the contract. By contrast, the UK government’s contract with AZ states that if any third party tries to force or persuade AZ to take any steps that would hold up supply of vaccine doses, the UK government can terminate the contract and activate various penalty clauses. However, the Commission’s approach seems to have been to rely more on the broader civil law concept of good faith, rather than the English law approach of spelling out in the contract what should happen. That has been to the EU’s detriment.
What could the Commission expect as a remedy?
It is understood that the Commission has waived its rights to sue AZ for any delay in delivery. The Commission could terminate the contract for a material breach, but this would not result in delivery of any vaccine doses, so it would seem self-defeating. Equally, it seems relatively unlikely that a court would order specific performance of the contract, as this would require diversion of doses from other countries, which would likely be prevented by some form of export control in those other countries.
Despite the recent legal action the Commission has launched against AZ, it seems fairly unlikely that it will actually result in delivery of more vaccine doses. As such, you have to question the merit of it.
Did the EU go too far in invoking Article 16?
Northern Ireland’s first minister, Arlene Foster, branded the triggering of Article 16 “an incredible act of hostility”. The Commission has acknowledged that it went too far, with the President of the Commission, Ursula von der Leyen, stating that “mistakes were made in the process leading up the decision to invoke Article 16, I deeply regret that”. Michel Barnier, the EU’s chief Brexit negotiator, has since stressed the need to ensure that we are “preserving the spirit of co-operation” between the EU and the UK and has called for the EU to step back from a dispute with the UK over AZ vaccines.
However, the AZ row is invariably linked to the other key issues that have impacted the UK-EU relationship recently - Brexit and trade. Clearly this remains a developing picture, but the fact that the Commission is suing AZ and has dialled down the rhetoric about export controls on vaccines might suggest an element of rapprochement between the Commission and the UK in these unprecedented times.
Nick Scott, Partner
Jade Brooks, Associate
Blaser Mills Law
Address: 107 Cheapside, London, EC2V 6DN
Tel: +44 (0) 203 814 2020
Email: nxs@blasermills.co.uk
Blaser Mills Law is full-service law firm based in London and the South East, offering a comprehensive range of legal services to businesses and private individuals. We act for blue-chip companies as well as SMEs, entrepreneurs and not-for-profit organisations.
Nicholas Scott is a highly experienced litigator recommended in the UK Legal 500 as “outstanding” and who has “tremendous knowledge and experience…always available and responds to challenges in a calm, decisive and unphased manner.” Specialising in complex high value commercial disputes – typically with a significant international element – he represents clients in both High Court litigation and arbitration (LCIA, ICC, AAA, LME, WIPO) and also has extensive experience of alternative dispute resolution including mediation, early neutral evaluation and adjudication. Nick was a key member of the Defence team awarded “Dispute Resolution Team of the Year” at the 2014 Legal Business Awards and “Litigation Team of the Year” at the 2014 Lawyer Awards.
Jade Brooks is an Associate in the Blaser Mills Dispute Resolution team. She specialises in all aspects of Commercial and Civil Litigation. Jade is recommended in the Legal 500 and was a finalist for Junior Lawyer of the Year in the Law Society Legal Excellence Awards 2018.
What is music clearance and licencing?
Music clearance is the process of obtaining the legal right to use a protected musical property in the way of a composition and recording. Music clearance professionals require specialised training. Their work entails meticulous research, extensive knowledge of music copyright and razor-sharp negotiation skills. They should have an overall understanding of the music business and every conceivable exhibition market or distribution platform. Music licensing is the contract administration portion of the process required to finalise a music clearance. A music licensing professional must understand music law and effectively be able to draft and negotiate a music licence.
Why is it important to get right?
It’s important to get it right because so much can go wrong. Issues that come up could be anything from not obtaining the correct rights, under-clearing a song use, clearing the wrong song, or making incorrect assumptions about the copyright status of a song presumed to be public domain. Even if clearance goes well, a poorly drafted agreement could leave a film or TV production open to legal liability. Overall, common clearance and licensing mistakes can be costly, resulting in expensive copyright infringement claims and even injunctive relief.
Who should be responsible for music clearance?
Many production companies have in-house clearance departments, which are responsible for clearing their own music. However, there are many who do not, and in that case, a music clearance professional should be hired to do clearance work for their project. They will have the specialised knowledge and connections required to get the job done correctly.
It’s important to get it right because so much can go wrong.
Some state that the business of clearing music rights continues to present itself as a complex issue. What aspects remain complex?
This is true, and that’s why it’s always gratifying to complete a clearance successfully. Overall, there are many issues that could emerge, from copyright disputes, incorrect or missing copyright registration, deceased songwriters, appointed trustees not knowing how to administer on behalf of the songwriter’s catalogue, undisclosed samples, or multiple songwriters for one song with several different copyright owners and approval parties, any of which may make clearance and negotiation more complex. A music catalogue may change hands due to a sale or merger, which could make it difficult to find current administration. Also, public domain songs may present a unique challenge due to the lack of clear documentation.
Much can be resolved at an early stage if the correct details about the music can be ascertained; what details are needed?
Ideally music clearance should be contemplated in pre-production. The production should anticipate music costs and have a budget in place for music clearances. There may be music references in a script, music that may not be cleared in a clip licence, or music that is tied to a scene that requires clearance upfront to ensure that it can be used and properly budgeted. Otherwise, music is typically cleared in post-production. With rare exception, if music is audible, assume clearance is needed. In order to effectively research a song for potential use, the production needs to be able to identify the song title, version of the song (i.e. English or foreign language, instrumental), the songwriter(s), and recording artist (providing a pre-existing recording is being used). If a production decides to move forward with clearance, there is other important information required, such as how the song will be used, scene description, whether the use involves a parody use of the song, etc. There is no set cost for music use and no guarantee of approval, so productions need to be prepared to have alternative choices should their first choice be cost prohibitive or denied.
There is no set cost for music use and no guarantee of approval.
How have new issues been presented with the rise of new mediums, such as podcasts? How does the traditional model of clearance and licencing apply?
Mediums are constantly evolving with new technology and platforms, which does impact licence requirements and fees, based on the new medium being cleared. However, the clearance process is fundamentally the same no matter the medium. Fees vary greatly for streaming or downloading rights depending on the type of use. As an example, streaming has become as important as traditional broadcast television rights for audio/visual productions and popular streaming platforms frequently require all media excluding theatrical rights, putting streaming clearance costs on par with television clearance costs. Many productions such as podcasts have little to no money in the budget for music and often request gratis rights or very low fees. Publishers and labels may hesitate to grant licences for small productions because it could be difficult to control monetisation. If the stream is through a platform like YouTube, which has performance licences in place worldwide and distributes income according to use, publishers and labels are more willing to grant permission.
What are the different types of music licences?
There are several different types of music licences, but with respect to audio/visual productions, there is the synchronisation licence (for the use of the underlying musical composition) and the master licence (for the use of the sound recording).
Are procedures more complicated when foreign rights are needed?
Procedures can be more complicated if the worldwide rights are split between multiple parties. In a perfect scenario, you would go to a single music publisher for the worldwide synchronisation licence and a single record label for the worldwide master licence. However, in many cases (such as when the U.S. rights have reverted to the songwriters and/or the artist), you have to enter into multiple licences for the U.S. rights and deal with completely separate parties for the rest of the world. This can be further complicated if the foreign rights are divided, where several licences may also be required.
Film & Ink Law Group PC
1100 Glendon Avenue
17th Floor
Los Angeles, CA 90024
Tel: (310) 689-7291
Email: hello@filmandink.com
Kathleen Taylor is an expert in the area of music clearance and licencing for feature films, trailers, television and new media. In addition to clearing and negotiating music rights, Kathleen drafts and negotiates master and synch license agreements, prepares music budgets and analyzes copyright issues. Kathleen’s music career spans across two decades during which she has cleared and licensed music for feature film, trailers, television and new media properties for such clients as ABC TV Network, NBC TV Network, Disney Studios, CBS Studios, HBO, Lionsgate Entertainment, STX Entertainment, Warner Media, E! and UPN. Prior to joining Film & Ink in 2011, Kathleen held positions at Universal Music Group, where she worked in music licensing on both the music publishing and record label side. Prior to working in music clearance and licensing, Kathleen spent several years working in television and feature film production, which gives her a unique understanding of both music and production needs.
Since its founding in 2005 by Natasha Mandich and Trisha Gum, Film & Ink has guided clients through media’s integration with technology, representing both established studios and streaming services on live action and animated projects for television, theatrical, and digital platforms. Simultaneously, we furnish general counsel services to growing companies on day-to-day legal matters such as contract review and negotiation, employment issues, and regulatory compliance. We also advise clients on marketing campaigns, both traditional and in the social media space. Additionally, we possess a core strength in data privacy issues, an area of particular importance to our consumer-facing clients that collect and use customer data.
Eagerly awaited, the draft Online Safety Bill has finally been published, delivering on the government’s manifesto commitment to make the UK “the safest place in the world to be online”. The Bill has its genesis in the Online Harms White Paper, published over two years ago in response to widespread concern at the malign underbelly of the internet. But following passionate lobbying by stakeholders, is the result a Bill which has tried so hard to please all interested parties that it ends up satisfying no-one?
Elusive duty of care
The cornerstone of the Bill is a new ‘duty of care’ placed on service providers to protect individuals from ‘harm’. It will apply to providers both based in the UK and – nebulously – those having ‘links’ here. In the government’s sights is the gamut of illegal and legal online content, from child sexual exploitation material and terrorist activity to cyber-bullying and trolling.
The ‘duty of care’ will apply to search engines and providers of internet services which allow individuals to upload and share user-generated content. In practical terms, this net will catch social media giants such as Facebook as well as less high-profile platforms such as public discussion forums.
As regards illegal content, the duty will force all in-scope companies to take proportionate steps to reduce and manage the risk of harm to individuals using their platforms. High risk ‘category 1’ providers – the big tech titans with large user-bases or which offer wide content-sharing functionality – will have the additional burden of tackling content that, though lawful, is deemed harmful, such as the encouragement of self-harm and misinformation.
Adding a further level of complexity, the regulatory framework will apply to both public communication channels and services where users expect a greater degree of privacy, such as online instant messaging services and closed social media groups.
Quite how service providers will be expected to meet these onerous new obligations is not specified in the Bill and, instead, they must wait for full Codes of Practice to be issued.
Rabbits from the hat
Sensitive to public pressure, the government has built on early iterations of its proposals to include new measures addressing concerns raised during the consultation process over freedom of expression, democratic debate, and online scams.
The initial release of the Online Harms White Paper triggered a furore over the potential threat to freedom of speech, with campaigners fearing the proposals would have a chilling effect on public discourse as service providers self-censored rather than face swingeing regulatory penalties for breaches in relation to ill-defined harms. In response to such concerns, service providers will be expected to have regard for the importance of protecting users’ rights to freedom of expression when deciding on and implementing their safety policies and procedures.
Concern has been building for some time about the influence which the largest social media companies potentially wield over political debate and the electoral process. This was seen most starkly in the US during the recent presidential election, where some platforms may have felt like a political football in their own right. While there are only distant echoes of that here, the role which social media plays in UK democratic events has attracted attention and, in a nod to this the government has proposed a new duty on category 1 providers to protect “content of democratic importance”. In what might euphemistically be described as opaque, such content is defined as “content that is, or appears to be, specifically intended to contribute to democratic political debate in the United Kingdom…” Service providers affected might well be left scratching their heads about quite how they will be supposed to interpret and satisfy this obligation, and it is to be hoped that the eventual Codes of Practice will provide some much-needed clarity. Absent such guidance, the risk is that they will be pilloried by all sides.
The government has proposed a new duty on category 1 providers to protect “content of democratic importance”.
Following a vocal campaign from consumer groups, industry bodies and Parliamentarians, the government appears to have capitulated to pressure to include measures bringing online scams within the scope of the Bill. eCommerce fraud is estimated to be up 179% over the last decade, with romance scams alone resulting in UK losses of £60 million in 2019/20. All service providers will be required to take measures against these illegal online scourges. Commentators have noted, though, that frauds committed via online advertising, cloned website and emails will remain outside the Bill’s ambit, leaving many investors still vulnerable to the lure of sham investment frauds.
A fierce watchdog?
This ground-breaking regulatory regime will be enforced by a ‘beefed-up’ Office of Communications (‘Ofcom’) which will wield an arsenal of new powers including fines and, in the last resort, business disruption measures. Penalties of up to £18 million or 10% of annual global turnover (whichever is the greater) will be at the regulator’s disposal. Those calling for senior management liability will, however, be disappointed; the Bill will not impose criminal liability on named senior managers of in-scope services, though the Secretary of State has reserved the power to introduce such liability in the future.
Conclusion
It remains to be seen how the juxtaposition between online safety and freedom of expression and democracy will play out. Service providers and Ofcom alike will no doubt have their plates full trying to decipher just how to moderate lawful but harmful online content whilst also ensuring users’ freedom of expression and democracy is not adversely affected.
Greta Barkle, Associate
Guevara Leacock, Legal Assistant
BCL Solicitors LLP
Address: 51 Lincoln's Inn Fields, London WC2A 3LZ
Tel: +44 (0)20 7430 2277
Fax: +44 (0)20 7430 1101
Email: law@bcl.com
BCL Solicitors LLP is a market-leading London-based firm specialising in domestic and international corporate and financial crime, tax investigations and litigation, financial regulatory enforcement, corporate manslaughter and health and safety offences, disciplinary proceedings, serious and general crime, as well as the associated areas of anti-money laundering and anti-corruption compliance and risk management. BCL is consistently top-ranked by Chambers & Partners and The Legal 500, and recognised in Who’s Who Legal and in GIR’s list of the world’s leading investigations firms.
Greta Barkle is a New Zealand-qualified lawyer specialising in business crime, regulatory investigations, extradition and cybercrime. Prior to joining BCL Solicitors LLP, she worked on a range of complex disputes, including claims against the New Zealand Police and Government Communications Security Bureau in relation to dawn raids and unlawful surveillance of communications.
Guevara Leacock is a Legal Assistant in BCL’s Corporate and Financial Crime Team. He joined the firm in 2019 from another leading criminal defence practice where he also specialised in white-collar and business crime.
We have a legal system that it is the envy of the world. Unfortunately, it is not the envy of divorcing couples or parents trying to agree arrangements to see their child. In fact, it is the antithesis, adding stress to an often already toxic mix of emotions. Our adversarial system relies on creating ‘two opposing sides’, polarising arguments, promoting one side at the expense of the other and ultimately involving the court to impose a solution. All this at tremendous financial and emotional cost and the erosion of access to justice.
The current approach is broken. People rarely feel satisfied, and the process can quickly descend into a zero-sum game of “I win, you lose”. In short, the system escalates conflict by design.
The court is an expensive and scarce resource and most legal professionals agree it should be reserved for the most difficult cases where the protection of court is needed. We know that cooperation and coordination produce better outcomes (The Prisoner’s Dilemma). It follows then that, when trying to resolve most family disputes (those that fall outside the need to involve the court), we should be looking to a system that promotes cooperation, coordination, and communication.
Many lawyers are deeply frustrated by the system in which they work, and most will greet the recent no-fault divorce legislation, set to start this autumn, as a welcome step forward. The removal of the ‘five facts’ in the Divorce, Dissolution and Separation Act 2020, and their replacement with a statement of irretrievable breakdown and an option for a joint application goes a long way to de-escalating the conflict that permeates the current system.
While this legislation is largely just playing catch-up with the way many of us have been trying to resolve issues for years, it does represent a step towards healing the broken court system. But more broadly, we have reached a point where the government must rethink how it handles family matters entirely. The recent decision to offer £500 in tax-free vouchers to separating couples to go to mediation, whilst welcome, was far too narrow in scope. What is really needed is complete overhaul.
At present too many people end up in the court system, and once in the system it is hard to get out. It is the equivalent of heading down a one-way street. If we only look at the ‘system’ or ‘alternative processes’ for getting divorced, we will never create lasting change. Instead, we need to think about how we deal with relationship breakdown as a civilised society.
At present too many people end up in the court system, and once in the system it is hard to get out.
This is a subject close to my heart. Whilst training to become a Counselling Psychologist I researched the process of relationship breakdown and the emotional journey people go on when they end a significant relationship. It is clear from the data that as we live longer the likelihood of having only one significant relationship is ever-diminishing. People expect to experience relationship breakdown and yet we are not skilled as a society at handling it when it happens.
The research shows there are very raw emotions being processed and stress and fear are prevalent. At times when we are emotionally processing (and close to being overwhelmed), we find it harder to make good decisions (those that serve our interests in the longer term or create a ‘greater good’ scenario rather than short-term pay-off). Unless we address this emotional journey and learn how to support and guide people through it, we will keep ending up with people in an overwhelmed state being funnelled into an overwhelmed court system.
If we want to change the numbers, we need to reframe how we think about relationship breakdown. Instead of seeing the ending of a relationship as a battleground – and one that requires a legal expert or process to resolve – we should be looking at separation and divorce as emotional processes that have both legal and financial consequences. If we attend to the emotions and human consequences of separating first, we give people an opportunity to choose better ways to resolve financial and children issues. We free people up to cooperate, communicate and coordinate.
There needs to be a public information campaign to make it much clearer to separating couples that divorce and separation are emotional issues, and that is where people should first look for support and be signposted to when their relationship breaks down.
Next, we need to break the link between divorce and going to a solicitor. There should be a neutral service that gives people support and information on the different options and help available to them whatever type of significant relationship has broken down. The purveyors of one option (solicitors) should not be the conveyors of all options.
A neutral relationship breakdown service should be supported by the introduction of a triage system that gives people different options, based on their individual circumstances, and could help people understand which process is right for them. This needs to extend beyond signposting people to mediation, looking at the wide variety of tech and human help that now exists. We need to drop the pursuit of a gold standard legal approach to divorce and adopt a cost-proportionate approach that serves all citizens.
Most people we speak to in the amicable service are keen to tell us they have not done this before, and they do not know what they are doing. This is completely understandable; nobody gets married thinking it will end in divorce, but it means much more neutral guidance and information is needed for people, so they do not wrongly end up in the court system.
Protecting children must be our priority when conceptualising a societal change to relationship breakdown – what better motivation is there as a parent? That is why we are supporting the “Parent Promise”, which was launched this month by the Positive Parenting Alliance. The promise encourages parents to plan for how they will parent if their relationship breaks down before it does. Cultural changes can be powerful and agreeing to discuss parenting arrangements in the event of a separation or divorce when couples are still together could help to improve outcomes for families if relationships do break down.
Protecting children must be our priority when conceptualising a societal change to relationship breakdown.
The need for reframing and rethinking as a society is urgent. No-fault divorce legislation will pass at a time when divorces are at a seven-year high and are expected to increase even further following family tensions that have been fuelled during lockdown. Latest Cafcass figures show a 40% increase in private law cases since the start of the pandemic. Not only will a system already stretched because of COVID-19 face a huge increase in new cases, but a huge number of previous cases will be returning to courts as well. Whether this is to negotiate first-time arrangements that the pandemic has exacerbated through job losses, or more difficult situations such as parents using the pandemic as an excuse to withhold contact, the court system will be overloaded by problems that would benefit from being resolved quickly.
The adversarial legal system is not the right way to handle divorces. But changing the system without changing the perceptions of the people using it is doomed to failure. It is still far too common for people to think that using the courts is the only way to get divorced. Pursuing other paths and keeping things amicable often achieves better outcomes. It can help you preserve a better relationship with your ex-partner, save you money in solicitor’s fees, and most importantly, protect children from a harmful process. Divorce is a reality of life; it does not have to be a battleground.
Kate Daly
amicable
Address: amicable, PO Box 73636, London, SW14 9BZ
Tel: +44 (0)203 004 4695
Email: hello@amicableapps.com
amicable is a solicitor-free legal services company that provides divorce services to couples looking to end their relationship.
Kate Daly is co-founder of amicable and a divorce advisor specialising in non-conflict divorce. Her background is in psychology, conflict resolution and negotiation. She also hosts The Divorce Podcast.
There are over 1 million mild traumatic brain injuries (MTBI) in the United States today, accounting for 85% of all traumatic brain injuries (Bazarian et al, 2005)1. MTBI injury was formerly referred to as concussion (Ruff et al, 2009)2, a diffuse disorder of brain cells generated by traumatic shock, but short of discernible permanent structural injury. MTBI is the most common diagnosis for referral to a neuropsychologist due to personal injury (Ruff and Richardson, 1999; Sweet and Meyers, 2012)3. Researchers have had many years to study MTBI, enabling a clearer picture regarding definitional and research design problems (Larrabee, G, 2005)4.
Post-concussion syndrome – a mixed neurological/psychological disorder
This syndrome is one of several that stand on the border between neurological (organic) and psychological. It begins with a head injury from which the patient seemingly makes recovery but then continues as a psychological condition long after any visible indices of brain damage have resolved (Lishman, W A, 1973).5 He noted that post-concussion syndrome (PCS) represents the most frequent psychological sequelae of head injury by pointing out that the longer psychological symptoms persist, the less likely they are an expression of actual brain damage. And as Symonds said almost three-quarters of a century ago, "It is not only the kind of injury that matters but the kind of head." (Symonds, C P, 1937)6.
Psychological reactions are an all-too-common consequence of PCS. Few physical injuries fail to be compounded by some additional degree of psychological response. Approximately one-third of all people requiring medical attention following an accident (and particularly the kinds of accidents likely to eventuate in litigation) are found to also suffer a significant adverse psychological response (O'Donnel, M L et al, 2004)7.
While a posttraumatic psychological reaction may occur in someone who previously had not the slightest psychological difficulty, it is far more likely in the emotionally-predisposed individuals, whose pre-trauma personality is characterised by such elements as compensatory drive, perfectionism, self-reliance, overachievement, and a preoccupation with control issues. (Fann and Sussex, 1976)8. For example, if the patient was to collapse psychologically following a modest concussion from which apparently good objective recovery was made, there were likely significant psychological problems prior to the concussion, the trauma merely providing a focal point around which such difficulties might coalesce and become manifestly symptomatic.
It is the patient's preexisting disequilibrium that plays a far larger role than the actual concussion in creating neuropsychological symptoms that follow the index trauma, the event serving more as a vehicle for rendering previous emotional and psychological problems into physical form. The plaintiff’s attorney would argue most reasonably that the patient had some problems but no manifest symptoms prior to injury and such problems the patient possessed merely predisposed them to the disability which followed. It falls to the defence to demonstrate that an illness need not be visibly symptomatic to be present, just as a cancer may be present and even incurable long before the patient develops a palpable lump or persistent cough, and that the patient was not merely predisposed or vulnerable prior to injury, but psychologically impaired (i.e. psychological disequilibrium) long before the allegedly precipitant event.
When symptoms of a concussion persist beyond expectation they are frequently described as post-concussion syndrome (PCS; Gunstad and Suhr, 2004)9. Hence, PCS is defined as a form of physical, psychological and cognitive impairment characterised by memory and other cognitive deficits, headache, dizziness, fatigue, apathy, difficulty concentrating, personality change, emotional ability, irritability, depression and anxiety (Alexander, M P, 1995)10. Here, the patient's predisposition as noted above is just as important as the traumatic impact, as different individuals will react in markedly disparate ways to what appears to be objectively the same degree of injury. Older people and people at a clinical juncture in life are particularly vulnerable. Socioeconomic status can also be a determinative factor: A janitor may continue to perform their duties acceptably despite a modest degree of brain injury that would retire a PhD. In short, what may matter is not only the degree of concussion, but the number of degrees the concussion patient holds.
To date, there are three conceptual positions of concussion, presently termed mild traumatic brain injury (MTBI). The first is that there is a relatively small percentage of MTBI patients that experience lasting problems for physical (i.e. neurological verifiable) reasons (Ruff, Iverson, Barth, Bush, & Broschek, 2009)11. The second position is that the residual problems arising from MTBI are more psychological (i.e., medically unverifiable, non-neurological) (Uzzell, 1999)12. The final position is that of Larrabee (1999) and Binder (1997)13 , who deny residual problems until further scientific investigations are conducted.
Hence, the purpose of this article is intended to provide attorneys with an updated perspective on the PCS diagnosis, and even consider its definitional dismissal from clinical and forensic use.
Traumatic brain injury consists of four categories of severity: mild, complicated-mild, moderate, and severe. MTBIs are defined by any alteration in mental status (e.g. feeling "dazed"), loss of consciousness of 30 minutes or less, post injury memory loss (posttraumatic amnesia) of 24 hours or less, and a Glasgow Coma Scale (GCS) score (an index of brain responsiveness) of 13 or higher. Complicated-mild traumatic brain injuries are MTBIs plus intracranial (i.e., inside the skull) bleeding, typically found in the emergency room brain CT or MRI. Moderate and Severe traumatic brain injuries require progressively more severe injury characteristics with intracranial bleeding and low GCS scores, 9-12 and 3-8 respectively.
There are many MTBI definitions, but the most widely used is from the American Congress of Rehabilitation Medicine (ACRM; Anderson-Barnes, Weeks, and Tsao, 2010)14 , making it useful in forensic cases. However, no mention is made in this definition about intracranial bleeding, which is the hallmark of a complicated-mild traumatic brain injury. Therefore, it is important to emphasise that any definition of MTBI should exclude bleeding inside the skull, thereby differentiating between MTBIs and complicated-mild traumatic brain injuries. At present, brain injury severity is not characterized this way i.e., all intracranial bleeding associated with MTBI is viewed equally. Since research is differentiating between MTBIs and complicated-mild traumatic brain injuries it is incumbent upon not only clinicians but also attorneys to make this distinction in their medical-legal cases.
The purpose of this article is intended to provide attorneys with an updated perspective on the PCS diagnosis, and even consider its definitional dismissal from clinical and forensic use.
The Problems With the Post-Concussion Syndrome Diagnosis
According to the International Classification of Diseases, 10th Revision, Clinical Modification (ICD-10-CM; Goodheart, 2014)15; there is a diagnostic category called PCS. It is applied for those who succumb to a concussion followed by the triage of physical, psychological and cognitive symptoms that extend beyond the immediate/acute time period after the injury. For a professional to employ this diagnosis the following criteria are required: There are organic (physical) and psychogenic (psychological) disturbances observed after closed head injury. There are problems with this diagnosis. To begin with, the definition of "organic" is unclear, plus it is an obsolete non-specific term referring to syndromes arising from brain disease (Loring and Meador, 1999)21. Neuropsychologists can measure deficits in cognitive functioning but establishing a relationship between the deficits and their source of brain disease (i.e. organicity) is extremely difficult unless there is unequivocal evidence of brain damage found in neuroradiological studies of patients who have suffered strokes, complicated-mild traumatic brain injuries, or moderate/severe brain injuries.
Because the PCS is attributed to concussions, as opposed to significant brain damage, current brain scanning techniques are not sensitive to so-called organicity. Thus, trying to determine whether an abnormal brain scan is causally related to a concussion and/or cognitive deficits is compromised since many patients without concussions or cognitive deficits have abnormal brain scans (Evans, 2017)22. There are also patients with normal scans that have significant cognitive deficits measured by neuropsychological tests (Decobert, 2005)23. Finally, there are cases where normal CT and normal cognitive functioning exists who have had concussions (Hughes et al, 2004)24. Collectively, this undermines confidence in a reliable metric between distal concussion history and "organic disturbances" measured by brain scanning, at any time, or neuropsychological testing extended beyond the immediate/acute phase following the concussion. PCS includes subjective physical complaints (headaches, dizziness), psychological (emotional and behavioral changes) and cognitive changes. These disturbances can be chronic, permanent or late-emerging.
Unfortunately, the diagnosis additionally does not take into account potential fabricating (malingering) or magnification of reporting collectively in the service of achieving a specific goal (Rogers and Bender, 2013)16. Thus, the PCS diagnosis made without empirical evidence (neuropsychological examination) to support valid patient complaints will introduce questionable clinical data (Larrabee, 2012)17. The literature is replete with studies of intentional deceptive reporting gained through unstructured clinical judgment and validity tests revealing high rates of invalid neuropsychological information: 38.5% (Larrabee, 2003)19, 58% (Armistead-Jehle, 2010)18, and 30% (Young, 2015)20 are just some examples.
Finally, physical, psychological, and cognitive symptoms are not specific to concussion (Larrabee, 2012)25 ,and if they are, they must occur more often among these patients than among those without the diagnosis (Faust and Ahern, 2012)26. To rephrase, there is an associative correlation made by the patient between their symptoms and their concussion whereby these symptoms are misattributed to the index trauma. Without all the facts-frequency of the symptoms when the disorder is present and when it is not present, the determination cannot be made. This is known as analysis of covariation (Faust and Ahern, 2012)27. This expands the source for PCS into alternative differential considerations, besides mitigating defence exposure when responsible for causation.
Alternative Causes Manifesting as Post-Concussion Syndrome
Before accepting the concussion and post-concussion diagnoses at face value, the following are potential sources that can account for ongoing symptoms: posttraumatic stress disorder (Flynn, 2010)28, orthopedic injuries (Mickeviciene et al, 2004)29, whiplash (Sullivan et al, 2002)30, chronic pain (Iverson and McCracken, 1997)31, outpatient treatment due to psychological problems (Fox et al, 1995)32, pre-injury personality disorders (Hibbard et al, 2000)33, anxiety (Meares et al, 2011)34, depression (Basso et al, 2013)35, the manner in which symptoms are elicited from the patient (Iverson et al, 2010)36, and finally litigation (Lees-Haley & Brown, 1993)37.
How Common Is the Post-Concussion Syndrome?
The rate at which a diagnosis occurs is known as the base rate, and in turn, it determines the likelihood of a clinician correctly diagnosing the condition. The base rate for PCS is not known with certainty because not all patients who incur a concussion report it to doctors (Sosin et al, 1996)38. Many researchers have concluded different base rates and I shall only reference the leaders since there are too many to list. McCrea (2008)39 reported a base rate for PCS of 1 to 5%. Larrabee (2005)40 concluded a single uncomplicated mild traumatic brain injury with neuropsychological deficits persisting for up to three months, but the norm is full recovery, with no long-term residual deficits. There is increasing evidence that questions the validity of the PCS symptom constellation. To qualify as a syndrome, a condition must demonstrate a set of specifically associated symptoms broadly present in persons who have the condition and absent those who do not have it.
There is increasing evidence that questions the validity of the PCS symptom constellation.
In summary, current research has definitively demonstrated that a patient with an MTBI has no long-term cognitive or psychological deficits. This is supported by the Committee on Traumatic Brain Injury Board on Health Care Services (Institute of Medicine, 2006)41, the American Medical Association (Giza et al., 2013)42, and 6 meta-analyses representing hundreds of studies (Rohling et al, 2017)43.
If Not Post-Concussion Syndrome, What Is the Diagnosis?
PCS is a condition in search of a specific cause. Adjustment disorder, posttraumatic reaction or post-accident syndrome/post-injury syndrome (Bush & Myers, 2013)44 are more appropriate diagnoses since they include the amalgam of physical, psychological and cognitive symptoms secondary to accidents that include concussion. Until PCS can be casually related to concussion in a reliable way, it is more appropriate for clinicians to not diagnose PCS – particularly those working in a legal setting – and alternatively consider the aforementioned conditions underscoring the persistent symptoms.
Strategic Considerations: Defence of Post-Concussion Syndrome Claims
When preparing for the defense of PCS cases, I believe they should be divided into two groups:
Defence of the PCS is found in one or more of three areas:
Essential Factors in the Assessment of the Post-Concussion Syndrome Claimant
Neuropsychological examination (NPE) is especially useful in PCS and brain injury cases (Sica, 2017)47. The NPE enable cognitive and psychological determinations to be made. The appropriate approach to this diagnosis relies on a multi-method convergent means of data gathering. Three recommended overlapping methods of NPE are: review of outside records (e.g. CT, MRI, depositions) and consultation with observation and neuropsychological, forensic, and psychological test scores (Lally, 2003)24. Lally refers to these three evidentiary sources as the "tripod" on which neuropsychological testimony rests, and further argues that this approach places a neuropsychologist at an advantage over other mental health professionals. This is particularly elaborated upon by Sica (2020) in terms of the unique position of neuropsychology in the clinical and legal setting.
Conclusions
Presently, research has brought us to the point where distinctions between MTBIs, complicated-mild TBIs, moderate TBIs and severe TBIs can be made. Attorneys and clinicians involved with concussions (MTBI) and PCS need to know the definitional distinctions and that it is impeachable for reasons discussed in the body of this article. Also, the fact that research indicates the base rate for PCS is extremely low, and thus, legal challenges can justifiably be raised when this questionable diagnosis is made with reasonable medical certainty.
The definitional evolution of traumatic brain has come a long way, providing clarity regarding the PCS diagnosis and thereby providing the fact finder a just legal outcome. May this article be the requiem for the PCS diagnosis. I rest my case.
REFERENCES
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11Ruff, R. M., Iverson, G. L., Barth, J. T., Bush, S. S., and Broschek, D. K. (2009). Recommendations for Diagnosing a Mild Traumatic Brain Injury. A National Academy of Neuropsychology Education Paper. Archives of Clinical Neuropsychology, 24, 3-10.
12Uzzell, D. (1999). Mild Head Injury: Much Ado About Something. In N. R. Varney and R. J. Roberts (Eds.). The Evaluation and Treatment of Mild Traumatic Brain Injury (pp. 13-26). Mahwah: Lawrence Erlbaum Associates.
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14Anderson-Barnes, V. C., Weeks, S. R., and Tsao, J. W. (2010). Mild traumatic brain injury updates. CONTINUUM: Lifelong Learning in Neurology, 16, 17-26.
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16Roger, R., and Bender, S. (2013). Evaluation of Malingering and Related Response Styles. In A. M. Goldstein (Ed.), Handbook of Psychology: II (Forensic Psychology) (pp. 517-540). Hoboken: John Wiley and Sons, Inc.
17Larrabee, G. J. (2012). Performance Validity and Symptom Validity in Neuropsychological Assessment. Journal of the International Neuropsychological Society, 18, 625-630.
18Armistead-Jehle, P. (2010). Symptom Validity Test Performances in US Veterans Referred for Evaluation of Mild TBI. Applied Neuropsychology, 17 (1), 52-59.
19Larrabee, G. J. (2003). Detection of Malingering Using Atypical Performance Patterns on Standard Neuropsychological Tests. The Clinical Neuropsychologist, 17 (3), 410-425.
20Young, G. (2015). Malingering in Forensic Disability Related Assessments: Prevalence 15± 15%. Psychological Injury and Law, A (3), 188-199.
21Loring, D. W., and Meador K. J. (1999). INS Dictionary of Neuropsychology, Oxford University Press.
22Evans, R. W. (2017). Incidental Findings and Normal Anatomical Variants on MRI of the Brain in Adults for Primary Headaches. Headache: The Journal of Head and Face Pain, 57, 780-89.
23Decobert, F. (2005). Unexplained Mental Retardation: Is Brain MRI Useful? Pediatric Radiology, 35, 587-596.
24Hughes, D. G., Jackson, A., Mason, D. L., Berry, E., Hollis, S., and Yates, D. W. (2004). Abnormalities on Magnetic Resonance Imaging Seen Acutely Following Mild Traumatic Brain Injury: Correlation with Neuropsychological Tests and Delayed Recovery. Neuroradiology, 46, 550-558.
25Larrabee, G. J. (2012). Performance Validity and Symptom Validity in Neuropsychological Assessment. Journal of the International Neuropsychological Society, 18, 625-630. (2012)
26Faust, D., & Ahern, D. C. (2012). Clinical Judgment and Prediction. In D. Faust (Ed.), Coping with Psychiatric and Psychological Testimony (6th Ed., PP. 147-208). New York: Oxford University Press.
27Faust, D, & Ahern, D C (2012). Clinical Judgment and Prediction. In D Faust (Ed), Coping with Psychiatric and Psychological Testimony (6th Ed., PP. 147-208). New York: Oxford University Press.
28Flynn, F G (2010). Memory Impairment After Mild Traumatic Brain Injury. CONTINUUM: Lifelong Learning in Neurology, 16, 79-109
29Mickeviciene, D, Schrader, H, Obelieniene, D, Surkiene, D, Kunickas, R, Stovner, L, and Sand, T (2004). A Controlled Prospective Inception Cohort Study on the Postconcussion Syndrome Outside The Medicolegal Context. European Journal of Neurology, II, 411-419.
30Sullivan, M J, Hall, E, Bartolacci, R, Sullivan, M E, and Adams, H (2002). Perceived Cognitive Deficits, Emotional Distress and Disability Following Whiplash Injury. Pain Research and Management, 7, 120-126.
31Iverson, G L, & McCracken, L M (1997), Postconcussive Symptoms in Persons with Chronic Pain. Brain Injury, II, 783-790.
32Fox, D D, Lees-Haley, P R, Earnest, K, and Dolezal-Wood, S (1995). Base Rates of Postconcussive Symptoms in Health Maintenance Organization Patients and Controls. Neuropsychology, 9, 606-611.
33Hibbard, M R, Bogdany, J, Uysal, S, Kepler, K, Silver, J M, Gordon, W A, and Haddad, L (2000). Axis II Psychopathology in Individuals with Traumatic Brain Injury. Brain Injury, 14, 45-61.
34Meares, S, Shores, E A, Taylor, A J, Batchelor, J, and Bryant, R A (2011). The Prospective Course of Postconcussion Syndrome: The Role of Mild Traumatic Brain Injury. Neuropsychology, 25, 454-465.
35Basso, M, Miller, A, Estevis, E, and Combs, D (2013). Neuropsychological Deficits in Major Depressive Disorder: Correlates and Conundrums. In P A Arnett (Ed), Secondary Influences on Neuropsychological Test Performance (PP. 39-66), New York: Oxford University Press.
36Iverson, G L, Brooks, B L, Ashton, V L, and Lange, R T (2010). Interview Versus Questionnaire Symptom Reporting in People with the Postconcussion Syndrome. The Journal of Head Trauma Rehabilitation, 25, 23-30.
37Lees-Haley, P R, & Brown, R S (1993). Neuropsychological Complaint Based Rates of a 170 Personal Injury Claimants. Archives of Clinical Neuropsychology, 8, 203-209.
38Sosin, D M, Sniezek, J E, and Thurman, D J (1996). Incidence of Mild to Moderate Brain Injury in the United States, 1991. Brain Injury, 10, 47-54.
39McCrea, M (2008). Mild Traumatic Brain Injury and Postconcussion Syndrome: The New Evidence Base for Diagnosis and Treatment. New York: Oxford University Press.
40Larrabee, G (2005). Mild Traumatic Brain Injury. In G. Larrabee (Ed), Forensic Neuropsychology: Scientific Approach (PP. 209-236), New York: Oxford University Press.
41Institute of Medicine (2006). Evaluating the HRSA Traumatic Brain Injury Program. Washington, DC: National Academic Press.
42Giza, C C, Kutcher, J S, Gioia, G A, et al., (2013). Summary of Evidence-Based Guideline Update: Evaluation and Management of Concussion in Sports: Report of the Guideline Development Subcommittee of American Academy of Neurology. Neurology, 80, 2250-2257.
43Rohling, M, and Axelrod, B (2017). Mild Traumatic Brain Injury. In S S Bush, G J Demakis, and M L Rohling (Eds), ATA Handbook of Forensic Neuropsychology (pp. 147-200). Washington, DC: American Psychological Association.
44Bush, S S, & Myers, T E (2013). Neuropsychological Services Following Motor Vehicle Collisions. Psychological Injury and Law, 6, 3-20.
45Yochelson, L, Traumatic Neurosis, Readings in Law in Psychiatry, Ed. R C Allen, E Z Ferster, and J G Rubin (Johns Hopkins University Press, 1975).
46Green, P, Iverson, G L, & Allen, L (1999), Detecting Malingering in Head Injury Litigation with the Word Memory Test. Brain Injury, 13, A13-9.
47Sica, R B (2017) Neuropsychological Observations, Clinical Judgement, Objective Evidence and Their Variable Applications. Psychological Innovations, Vol. 2, No. 1, 21-26.Sica, R B (2020) Medical Adjustment Counseling: An Evidence-Based Neuropsychological Approach in the Care of Medical Patient, Neuro Rehabilitation, 46, 213-225.
48Lally, S J (2003). What Tests are Acceptable for use in Forensic Evaluations? A Survey of Experts. Professional Psychology: Research and Practice, 34, 491-98.
Dr Robert B Sica, PhD, ABN, FACPN
Board-Certified In Neuropsychology # 84, #255
Director, Principal, Neuropsychological Rehabilitation Services | LifeSpan
Fellowship Residency Supervisor
Jersey Shore University Medical Center, Neuroscience Division
Clinical Assistant Professor, Rutgers-Robert Wood Johnson Medical School
Clinical Assistant Professor, Seton Hall - Hackensack Meridian School of Medicine
NRS|LS
Address: 2100 Route 33, Suite 9-10, Neptune, NJ 07753
Telephone: (732) 988 3441
Fax: (732) 988 7123
Email: rsica18@hotmail.com
Neuropsychology Rehabilitation Services – LifeSpan (NRS|LS) was founded in the late 1970s. It is a joint practice consisting of a neuropsychological rehabilitation program, a multi-specialty health psychology program and a behavioural health program treating a variety of mental health conditions. The practice also treats the full spectrum of brain conditions, including but not limited to concussion, traumatic brain injuries, cerebrovascular accidents, brain tumours, dementia and learning disabilities. Finally, the practice is involved with pharmaceutical clinical trials for children and adults. NRS|LS is affiliated with Hackensack Meridian Health, Jersey Shore University Medical Center Neuroscience Division, and is staffed by licensed neuropsychologists and other healthcare experts.
Dr Robert B Sica is the originator, principal and director of NRS|LS and has lectured and published in neuropsychology and forensic neuropsychology, drawing upon over 40 years of clinical experience in private practice, hospital, academia, and law. He was the first clinical neuropsychologist on staff at Jersey Shore University Medical Center, Neuroscience Division, and Riverview Medical Center, both hospitals part of Hackensack Meridian Health, where he treats patients along with academic responsibilities teaching medical students and neuropsychological fellows. He is a clinical assistant professor at both Rutgers-Robert Wood Johnson Medical School and Seton Hall – Hackensack Meridian School of Medicine. Finally, he was a managing partner in the development of the Jersey Shore University Medical Arts Center building, a joint venture between staff physicians and the hospital. He holds a PhD in psychology and was a key leader in the 1970s brain injury rehabilitation movement.
What is the value of having a trademark registered in Australia?
When I am looking for something in a crowded online market or at a physical store, I look for the brand I know and trust, and purchase it. Simple, reliable, repeatable.
Trademarks (brands) are essential marketing tools and your business’s identifier in the marketplace. Consumers use brands to identify your offerings against those of your competitors, with the expectation of consistent quality. Brands are hugely valuable assets and can ultimately be worth billions of dollars.
Many businesses over the past year have had to dramatically pivot their offerings and move to, or ramp up, online selling. But the importance of registering a trademark has not waned and arguably has increased.
A registered trademark gives the exclusive right to use, licence and sell or transfer the trademark. The ® symbol used for registered trademarks gives notice that you have the right to use that trademark for the goods or services covered to the exclusion of others and acts a strong deterrent against would-be infringers.[1] Trademark registration also gives you a powerful tool to stop would be copycats encroaching on your territory.
It is possible to carry on your business without registering your trademark. However, relying on an unregistered trademark carries greater risk. Your rights are not located on a searchable register, meaning that another company may build their own rights in the trademark. When it comes to stopping them, you have to be able to establish a superior reputation against this other party by gathering evidence of your use over a long period. A trademark registration eliminates the need to provide that evidence and offers much greater certainty.
Trademarks (brands) are essential marketing tools and your business’s identifier in the marketplace.
The costs to file a trademark application are nominal compared to rebrand and relaunch costs.
Once your trademark is registered, and provided you keep using it, it is renewable every 10 years for as long as you want it.
When should I look at registering a trademark?
You should look at trademark protection early in the process of a new product or offering. A clearance search to check that your brand is available to use and register prior to launch gives a very good level of comfort about your ability to use the trademark and allows you to strategise to achieve registration of the brand. Being ahead of the curve and proactive can make life much easier and save on potential rebrand costs and the marketplace awkwardness of having to withdraw a brand after launch.
What should I be protecting as a trademark and how?
We often think of trademarks as words or logos, but trademarks have far more reach than that. Trademarks can also be colours, shapes, aspects of packaging, movement or animations and even sounds (think jingles) or scents. In Australia, if consumers associate any of these signs with your business, they can be protected as a trademark for your goods and services to the exclusion of others.
At a minimum, protecting your house brand is paramount. Registering trademarks for your main product and services lines is also important. Ask yourself: "If my competitor started using or registering that brand, would it bother me"? If yes, the brand likely warrants trademark protection.
We often think of trademarks as words or logos, but trademarks have far more reach than that.
A trademark registration does not protect the brand for all goods and services but covers certain goods and services nominated at the time of filing the application. There are 45 classes of goods and services to choose from. It is essential (though not always straightforward) to get the correct goods and services specified, because:
What if I see someone else using my trademark, including online?
This is where the importance of a trademark registration comes to the fore. If you see unauthorised use of your trademark in relation to goods or services covered in your registration, you are in a strong position to ask them to stop. Letting someone know you have a registered trademark is often enough to get them to cease their activity. However, if they do not stop, you can take the matter further.
Also consider the forum of the unauthorised use. If it is on social media, search engines, or an eCommerce website, you may be able to make a complaint on that platform to immediately remove the conduct. You need to have a registered trademark to do this.
What about protecting my trademark overseas?
In most cases, trademarks are national (per country) rights.[2] A trademark which is used or protected in one country does not enjoy protection in another country. However, the protection for a registered trademark can be extended to other countries by filing national applications in those countries or filing an International Registration via Madrid Protocol, designating countries who are members of the Madrid Protocol.
You can also claim priority and benefit from your Australian filing date (say 1 June 2021) if you file overseas within 6 months (on or before 1 December 2021). If someone else files an intervening trademark overseas between those dates, you can trump them with your earlier filing date.
First-to-file countries are important to identify early. In those markets, such as China, if someone files a trademark application before you (even if you have been using there) that application / registration can block not only a later application from you but also your use in that country – effectively blocking you out of the market.
What extra steps can I take to protect my trademark rights?
Once you have your trademark registered, you can build on your activities to maximise your investment by:
So you can get the best value out of your brand by registering it as a trademark. This offers more certainty, avoids unnecessary costs down the track, allows you to gain better value from your investment and protect this essential marketing tool to the exclusion of others.
[1] If your trademark is not registered, you can still use the ™ symbol to show you are using the brand as a trademark.
[2] Compare an European Community Trademark, which gives trade registration in all 27 member countries.
Elizabeth Godfrey, Principal, Trademarks Attorney
Davies Collison Cave
Address: Level 15, 1 Nicholson Street, Melbourne VIC 3000
Tel: +61 (3) 9254 2777
Fax: +61 (3) 9254 2770
Email: egodfrey@dcc.com
Davies Collison Cave is a leading Australian intellectual property legal practice that consistently files more patent applications than any other firm in the country. They provide expert services in the areas of patents, trademarks, trade secrets, copyright and design protection, licensing, litigation and related legal and commercial matters.
Elizabeth Godfrey specialises in all aspects of trademark protection including selecting, searching, applying for and prosecuting trademark applications both local and international. She has an extensive opposition and non-use practice and exceptional knowledge and expertise in running opposition matters.
Special Purpose Acquisition Companies (SPACs) have been all the rage recently. In fact, there were $166 billion in SPAC deals announced in the first quarter of this year, exceeding the number of deals seen in 2020. A feat that showcases the rise in popularity is how, last year, the US – the current front-runner of SPAC markets – saw nearly 250 SPACs, compared to 59 in 2019 and only 13 in 2016[1]. SPAC merger sizes are also reportedly increasing, with the average size of an announced merger now sitting at a whopping $2.3 billion compared to $900 million in the first quarter of 2020 and $800 million in the first quarter of 2019[2]. What accounts for this rise in popularity?
Well, aside from the fact that SPACs have been supported by celebrity endorsements and backed by sports stars, blank-cheque companies have raised jaw-dropping amounts, driving capital markets in an era where IPOs were placed on hold due to the pandemic and the uncertainty surrounding it. With the number of public companies decreasing whilst the money being pumped into public markets is simultaneously rising, SPACs have been pushed into the market as a way of bringing money into new companies. The more traditional way of going public via an IPO is famously known for being heavily regulated, and SPACs provide a somewhat easier route into the public market – but this does come with some pricked ears and raised eyebrows from critics, who have been vocal about the lack of regulation and heightened risk.
Anu Balasubramanian, Private Equity Partner and Jamie Holdoway, Private Equity Associate at Paul Hastings, spoke to us about regulation in M&A and SPACs. “SPACs are not a new phenomenon, which raises the question as to why existing securities laws are said to be unsuitable to deal with current market trends”, they said.
They explained that, fundamentally, regulators have refocused their attention on SPACs for two reasons. “Firstly, the sheer amount of capital which has been raised by blank cheque vehicles in the last twelve months, particularly the sharp acceleration in Q4 2020 and Q1 2021.
There were $166 billion in SPAC deals announced in the first quarter of this year, exceeding the number of deals seen in 2020.
“Secondly, the increasingly high valuations for businesses which are comparatively nascent when compared to those which usually opt for the conventional route to public markets.”
As aforementioned, SPACs are often described as an alternative route to IPO. This is affected by a de-SPAC, in which the listed blank cheque company merges with the operational target. “The sheer number and popularity in SPAC transactions have led some to identify a potential gap in securities laws whereby a de-SPAC is not subject to the same standard of regulation as a traditional IPO”, Anu and Jamie explained.
For example, while it is common for a SPAC to present financial projections about its acquisition target (which can be a relatively young business), companies seeking an IPO usually avoid doing so because of the associated liability risks. “SPAC sponsors have sought to avail themselves of certain “safe harbour” provisions relating to private securities litigation. Those provisions explicitly exclude IPOs, and it is yet to be tested whether a de-SPAC can take advantage of them on the basis that the initial offering of securities occurs before the de-SPAC merger”, they stated.
As such, the question is whether the two routes to the public markets should be regulated in the same way. “SPACs have allowed investors in public equities to participate in investment at an earlier stage in a company’s growth. This is arguably a welcome development after a 10-year trend in companies remaining in private hands for longer and more mature businesses shunning the IPO route because of volatility in price exploration”, Anu and Jamie expanded.
The SPAC boom has slowed down since, due to regulators paying a little more attention. According to the Financial Times: “In a series of escalating statements, US securities regulators have raised sharply worded concerns about the recent boom in SPACs, questioning everything from optimistic revenue projections to the involvement of celebrities such as Jennifer Lopez and Alex Rodriguez in the companies.” With the appointment of Gary Gensler of the Biden administration to lead the SEC, many predict that blank-cheque companies will be a top priority in the coming months. The SEC has recently announced that a number of SPACs have misclassified warrants sold to investors as equity rather than liabilities, which has thrown doubt over valuation assumptions[3]. And in fact, despite the strong start in the first quarter, fewer than a dozen SPACs completed IPOs in April, resulting in it being the slowest SPAC-filled month since June 2020.
With the appointment of Gary Gensler of the Biden administration to lead the SEC, many predict that blank-cheque companies will be a top priority in the coming months.
The key points the regulators are wrestling with centre on disclosure of information. “If SPAC vehicles present a very attractive but (arguably) high risk opportunity, they should be required to present a fair assessment to investors. Similarly, regulators are concerned about the level of transparency around how sponsors benefit from the transaction and conflicts of interest”, said Anu and Jamie.
They explained that, although investor appetite for SPACs has cooled meaningfully in recent months, prior levels of activity and the fallout from a potentially overheated market will likely force regulators’ hands to act. “It is interesting that whilst the Securities and Exchange Commission (SEC) has sought to deflate investor appetite, the Hill review in the UK essentially recommended changes aimed at promoting SPAC listings. Such reactions are driven by the parameters of the pre-existing regimes, showing that regulators have not identified a balance for these vehicles and that their approach to SPACs has been reactionary. This suggests that regulators may need more time to assess how to regulate SPACs as an investment strategy in its own right, rather than bringing them within the same parameters as the regulations for an initial public offer”, they concluded.
SPACs exploit what critics view as “regulatory arbitrage” to provide financial projections that companies launching IPOs and direct listings would normally avoid. Investors are essentially relying on trust, to a certain extent, as to whether the SPAC will ultimately be successful. But because de-SPAC transactions qualify as mergers, companies can present forward-looking statements and protect themselves from lawsuits under an exemption contained in the Private Securities Litigation Reform Act of 1995. Of course, certain SPACs are designed to allow investors to exit if an acquisition target is identified which does not meet an investor’s investment criteria, but both the process and level of disclosure at the outset of a listing of a SPAC vary significantly from what you would find in a traditional IPO.
It is expected that Gensler, an outspoken Wall Street critic, will consider stronger changes to the SPAC market, possibly calling for bankers to face the same liability risks as they would on underwritten IPOs. Disclosing more information on the names and addresses of investors involved would help identify who stands to profit or lose money, alongside structural changes that would help improve the disclosures made to shareholders, preventing ordinary investors from being ‘scammed’ in the process. The amount of capital sitting in SPACs has also drawn worries that sponsors will not be able to find suitable targets, pushing them towards companies of questionable value, pushing the idea that more clarity and disclosure is needed. Risk will always prevail when an investment becomes popular based on a product that is not yet on the market; market projections are just that, a projection and not a guarantee, and when celebrities hop on board to push the promotion of a SPAC, concerns arise. Providing additional clarity or a safeguard for failed transactions would be useful as it will give market participants greater certainty. Will tighter regulations pop the SPAC bubble? I doubt it.
Examples of prominent SPAC-mergers[4]:
FAQs with Edward Tran, Partner at Katten Muchin Rosenman UK LLP
Two key reasons – appetite for investments among the investor public and the ability of the SPAC route to offer a quicker road to an IPO as opposed to the traditional methods of going public. These factors, and the overall enthusiasm in the market, have led to healthy prices in M&A and driven the enthusiasm for SPACs.
In short, a Special Purpose Acquisition Company, or SPAC, is a vehicle that is essentially an empty shell that is formed and raises capital in an IPO with a view to acquiring a target within a given period, usually within one to two years. The SPAC then acquires the target, which effectively becomes a subsidiary of the listed SPAC. The process has proven itself as an easier means for a company to become listed on the public markets as the traditional IPO process would typically take more time and require additional disclosure and financial information.
SPACs are regulated currently – the question is one of degree and how to apply the existing rules to the large number of companies seeking to go public via a SPAC acquisition.
There is a growing concern amongst regulators that SPACs have become an end run against the rules designed to safeguard the public markets and that SPAC-fuelled acquisitions have attempted to circumvent the rules that would otherwise apply to IPOs.
The very nature of a SPAC entails that when a SPAC initially lists it is generally before the acquisition target has been identified. Investors are taking it on trust to a certain extent as to whether the SPAC will ultimately be successful. Of course, certain SPACs are designed to allow investors to exit if an acquisition target is identified which does not meet an investor’s investment criteria, but both the process and level of disclosure at the outset of a listing of a SPAC vary significantly from what you would find in a traditional IPO.
Shareholder lawsuits are quite common in NY and elsewhere. There are a number of plaintiffs firms that are seeking to use some issues faced by certain SPACs as a means to extract settlements from the SPACs. It is difficult to say whether each of the lawsuits has a meritorious claim, but there are certainly critics of SPACs that would agree with the lawsuits that have been filed.
There is a healthy tension in the market between innovation and regulation. Speaking personally, I think that it is sensible for the regulators to examine emerging market trends, including SPACs, and to consider what changes might be necessary.
I would expect that the regulators will take steps to dial down the frenzy in the marketplace surrounding SPACs. The current environment has something of the feel of a bubble and I understand that the regulators globally will be considering whether that is a good thing and trying to take appropriate steps to reduce any issues.
M&A generally has been on an uptick over the last 6-12 months, and I would expect that this will continue. Any changes that seek to limit the use of SPACs will likely have the effect of cooling the market, but I would expect that the market will nonetheless remain robust in the near to medium term.
Speaking generally, providing additional clarity regarding proposed regulations that would affect SPACs and IPOs generally would be useful, as it would give market participants greater certainty.
[1] https://www.investmentweek.co.uk/opinion/4030831/hardly-phase-spacs-stay
[2] https://markets.businessinsider.com/news/stocks/spac-market-q1-statistics-volume-166-billion-growing-adoption-2021-3-1030194528
[3] https://www.whatinvestment.co.uk/what-are-spacs-how-do-they-work-and-should-you-care-2619226/
[4] https://www.whatinvestment.co.uk/what-are-spacs-how-do-they-work-and-should-you-care-2619226/
By now you have likely heard about the latest technology craze: Non-Fungible Tokens (NFTs).
In 2021 alone, we have seen A-list names like Michael Jordan, Mark Cuban and 2 Chainz investing millions in NFT-based start-ups and auctions for NFT-linked assets fetching astounding sums of money, including Jack Dorsey’s first tweet ($2.9 million) and collections of digital artworks by Grimes ($6 million) and “Beeple” ($69 million), just to scratch the surface.[i]
While often linked to digital assets, NFTs (and Smart Contracts) can also be used to sell discrete physical assets like one-of-a-kind sneakers, vinyl records and concert tickets,[ii] and the future could see their use in transactions for major purchases like cars and houses. However, before you or your clients start minting, selling, buying or trading NFTs, you should understand what NFTs and Smart Contracts are, the rights involved in NFT transactions, and some lurking dangers.
What are NFTs? A “token” is a digital asset stored on a secure, but transparent distributed blockchain ledger. Non-fungible means one-of-a-kind—like a record-breaking homerun ball, a bootleg concert recording, or collectables like baseball cards. Thus, an NFT is a digital asset that is linked to a discrete and unique asset. In contrast, a fungible token such as Bitcoin is an asset in itself—its value fluctuates relative to other currencies, but all bitcoins are the same and equal fractioned amounts of bitcoin will have equal value against each other. The process of creating an NFT is called “minting.”
Like Bitcoin, NFTs enjoy the security, transparency and immutability of cryptographic storage, but whereas bitcoins are divisible to 10-8 degree, NFTs are indivisible and can store significant amounts of data, including unique information. This is what makes a particular token “non-fungible,” and it is stored in a “Smart Contract,” computer code that automatically executes upon the occurrence of a set of preconditions.
Combining a Smart Contract with other unique identifying metadata — such as the identity of the owner, and secure file links — along with the security afforded by blockchain, provides practically irrefutable proof of ownership and authenticity to prospective buyers.[iii] Smart Contracts can prevent someone from transferring an NFT or accessing an underlying asset unless all preconditions specified in the contract are satisfied, including potentially paying royalties on the resale of the NFT. While most early NFTs can be resold without restrictions, some NFT marketplaces are encoded to enforce Smart Contracts royalty “clauses” which, upon the resale of an NFT, automatically pay a fee to the minter-seller, usually as a fixed percentage of the resale price.[iv]
In layman’s terms, NFTs and Smart Contracts act simultaneously as a “certificate of authenticity” for the underlying asset and as a valuable representation of ownership of a real asset like a stock.
While NFT auctions have yielded jaw-dropping real dollar figures, what does a buyer really possess? Ultimately, an NFT owner has access to the underlying asset, but they may lack exclusive access to or control of the asset, let alone ownership of the asset or any intellectual property (IP). Indeed, the default rule is that a patentee or copyright owner retains all IP unless it is clear from the language of a signed writing (e.g. the Smart Contract) that ownership of an intellectual property right is being transferred.[v] In most cases, Smart Contracts do not transfer IP rights.
In layman’s terms, NFTs and Smart Contracts act simultaneously as a “certificate of authenticity” for the underlying asset and as a valuable representation of ownership of a real asset like a stock.
An NFT owner may have an implied license in the same way that the purchaser of a useful machine is not infringing a patent by using it as intended or how the purchaser of music is not infringing copyrights by privately singing along with their copy of a record. For example, hundreds of people bought the NFT version of the new Kings of Leon album and received exclusive digital and physical collectibles, but the same music was released via traditional streaming and purchase outlets and the Kings of Leon (or their label) still retain all copyrights. In collectible cases like this, owning an NFT is like owning one of the roughly 10,000 copies of Nolan Ryan’s 1968 Topps rookie card, with the added bonus that your version of the card is authenticated and you are provably the owner. Thus, the value in buying an NFT is often in creating a collectible (non-fungible) version of an otherwise a replicable (fungible) asset.
Despite the security offered by blockchain, this new industry is ripe for fraud and misuse, particularly in attempts to mint and sell NFTs linked to assets not owned by the minter-seller, be it a copyrighted work, trademarked brand or celebrity likeness. In a recent example, an NFT auction for a drawing by Jean-Michel Basquiat that purportedly included “reproduction and IP rights...in perpetuity” was pulled after Basquiat’s estate clarified that it still owned all copyrights in the sketch and that the NFT seller had no rights to give away.[vi]
While there are no laws yet relating to cryptographic assets, legal systems should largely be able to adapt existing laws and principles to blockchain technology as was done for online activities. For starters, most disputes between a buyer and seller of NFTs should be easily resolved either by the Smart Contract or by a judge applying traditional principles of contract law. In Internet-based copyright infringement lawsuits between parties of different nationalities, US courts apply a two-step “conflict of laws” analysis, determining the validity of the IP right under the laws of the nation where the work was created, and determining liability for infringement under the laws of the nation where the tort occurred. Similar rules could apply to this context.
While there are no laws yet relating to cryptographic assets, legal systems should largely be able to adapt existing laws and principles to blockchain technology as was done for online activities.
Another issue is that, since NFTs are, in the end, data stored in cyberspace, there is a risk of non-permanency and losing access to digital assets linked to NFTs. In the meantime, the NFT craze is just beginning and we can either continue to gawk at lofty sales or join the fray.
Shane Wax, Associate
Gottlieb, Rackman & Reisman, PC
Address: 270 Madison Avenue, 8th Floor, New York, New York 10016-0601
Tel: (212) 684-3900
Fax: (212) 684-3999
Email: info@grr.com
Gottlieb, Rackman & Reisman, PC is a New York-based firm that provides legal advice and guidance on all aspects of patent, trademark, copyright, and unfair competition law. It is recognised as a Top Ranked Law Firm for the past two consecutive years, receiving a Martindale-Hubbell AV Preeminent® peer review rating.
Shane Wax’s practice focuses on transactional, enforcement and litigation work related to all areas of intellectual property, including patents, copyrights, trademarks, trade dress and trade secrets. Shane also provides general client counseling related to protection and enforcement of intellectual property rights.
References
[i] See Jon Blistein, RollingStone, Twitter’s Jack Dorsey Sells First Tweet as Non-Fungible Token, Mar. 22, 2021, https://www.rollingstone.com/culture/culture-news/twitter-jack-dorsey-first-tweet-nft-cryptocurrency-1138401/; Gerrit De Vynck and Douglas MacMillan, The Washington Post, He just spent $69 million on a digital piece of art. It’s not his first Beeple, Mar. 18, 2021, available at https://www.washingtonpost.com/technology/2021/03/17/nft-beeple-metakovan-christies/; Danny Nelson, Coindesk, Michael Jordan Joins $305M Investment in Firm Behind NBA Top Shot, Mar. 30, 2021, https://www.coindesk.com/michael-jordan-joins-305m-investment-in-firm-behind-nba-top-shot; Tim Hakki, Decrypt, Mark Cuban Invests in NFT Tracker CryptoSlam, Apr. 17, 2021, https://decrypt.co/66897/mark-cuban-invests-nft-tracker-cryptoslam; Will Gottsegen, Decrypt, Grimes Just Sold Her Crypto Art NFT Collection for $6 Million, Mar. 1, 2021, https://decrypt.co/59827/grimes-nfts-crypto-art.
[ii] See, e.g., Cam Wolf, GQ, What Is an NFT Sneaker, and Why Is It Worth $10,000? Apr. 28, 2021, https://www.gq.com/story/nft-fashion-sneakers; Samantha Hissong, RollingStone, Kings of Leon Will Be the First Band to Release an Album as an NFT, Mar. 3, 2021, https://www.rollingstone.com/pro/news/kings-of-leon-when-you-see-yourself-album-nft-crypto-1135192/; Claire Shaffer, RollingStone, The White Stripes Drop ‘Seven Nation Army’ Remix, NFT Release, Apr. 23, 2021, https://www.rollingstone.com/music/music-news/the-white-stripes-seven-nation-army-remix-nft-1157823/; Jacob Gallagher, Wall St. J., NFTs Are the Biggest Internet Craze. Do They Work for Sneakers?, Mar. 15, 20221, https://www.wsj.com/articles/nfts-and-fashion-collectors-pay-big-money-for-virtual-sneakers-11615829266 (sub req.).
[iii] See Josie Thaddeus-John, N.Y. Times, What Are NFTs, Anyway? One Just Sold for $69 Million., Apr. 13, 2021, https://www.nytimes.com/2021/03/11/arts/design/what-is-an-nft.html; Rakesh Sharma, Investopedia, Non-Fungible Token (NFT) Definition, Mar. 8, 2021, https://www.investopedia.com/non-fungible-tokens-nft-5115211; Jake Frankenfield, Investopedia, Smart Contracts, Mar. 25, 2021, https://www.investopedia.com/terms/s/smart-contracts.asp; Stuart D. Levi and Alex B. Lipon, Harvard Law School Forum on Corporate Governance, An Introduction to Smart Contracts and Their Potential and Inherent Limitations, May 26, 2018), available at https://corpgov.law.harvard.edu/2018/05/26/an-introduction-to-smart-contracts-and-their-potential-and-inherent-limitations/; Melanie Kramer and Daniel Phillips, Decrypt, Non-Fungible Tokens (NFT): Beginner's Guide, Feb. 4, 2021, https://decrypt.co/resources/non-fungible-tokens-nfts-explained-guide-learn-blockchain; Matt Hussey and Daniel Phillips, Decrypt, What Are Smart Contracts and How Do They Work?, Jan. 8, 2011, https://decrypt.co/resources/smart-contracts.
[iv] See James Beck, Consensys, Can NFTs Crack Royalties And Give More Value To Artists?, Mar. 2, 2021, https://consensys.net/blog/blockchain-explained/can-nfts-crack-royalties-and-give-more-value-to-artists/; Zach Burks, James Morgan, Blaine Malone, James Seibel, Ethereum Improvement Proposals, EIP-2981: ERC-721 Royalty Standard, Sept. 15, 2020, https://eips.ethereum.org/EIPS/eip-2981#optional-royalty-payments; Eileen Brown, ZDNet, New platform uses NFTs as a gateway for digital rights management, Mar. 4, 2021, https://www.zdnet.com/article/new-platform-uses-nfts-as-a-gateway-for-digital-rights-management/.
[v] See 35 U.S.C. § 261 (“Applications for patent, patents, or any interest therein, shall be assignable in law by an instrument in writing.”); 17 U.S.C. § 204(a) (“A transfer of copyright ownership . . . is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights”).
[vi] See Anny Shaw, Art Newspaper, Basquiat NFT withdrawn from auction after artist’s estate intervenes, Apr. 28, 2021, https://www.theartnewspaper.com/news/basquiat-nft-withdrawn-from-auction-after-artist-s-estate-intervenes
Facing your mortality is never an easy thing to do. The very thought of not being around for your family when they need you is challenging for even the strongest people. However, if you have assets and wishes for those assets, creating an end-of-life plan is essential.
There is never any guarantee that those closest to you will make sure your preferences and wishes are carried out. There is even a risk that some of your wishes will be contested by your loved ones. However, by doing the following things, you may be able to reduce the risk of that happening.
If you’ve only spoken to a select few family members about what you wish to happen when you pass, it can make it much harder for your wish to be granted. Plans that aren’t set in stone, such as those not put into an end-of-life plan, can simply be viewed as off-the-cuff comments.
If you have firm views about your last wishes, assets, and even body preparation, create a written plan. While your family doesn’t necessarily have to follow that plan, they can at least be aware of your exact wishes and do their best to let them play out.
While you’re planning your last wishes, you might decide to make some potentially controversial decisions into a will. For example, you may choose to donate your car to a charity or give one child more money than the others.
While some family members may view your decisions as unfair, you can insert a no-contest clause to deter anyone from going against your wishes. This clause means that if anyone challenges your will, they don’t receive anything from your estate.
[ymal]
An end-of-life plan can help make sure your family knows where to find your important documents and understand your preferences for your body and assets. However, you can also look at revocable living trusts if you are stressed about the prospect of family contesting your wishes.
A revocable living trust allows you to put all your assets into a trust while you are alive. When you pass, they are given to trust beneficiaries according to your trust’s terms. Since they don’t go through a probate process like wills, they are seldom contested.
Many people keep the details of their will or end of life plan secret until they die. If some of your wishes will surprise some people, there may be a risk of them being contested. To reduce that risk, consider informing your family of your intentions and why you have made the decisions you have while you’re still alive.
For example, if you are leaving one family member significantly more money than another so they can study, explain your reasoning. This way, they will be less likely to question why your assets weren’t divvied out evenly.
Just as there are no guarantees in life, there are also none in death. You may never be able to prevent your family member from contesting your end-of-life wishes. However, there are certainly plenty of ways you can reduce the risk. Have your wishes written out clearly, look at your trust options, and if you think it’s necessary, include a no-contest clause in your will.
