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Moral rights - something that you can take with you

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If deep down you are a Latin, fiery-tempered, Hemingway sort caught in the world of the metro male, then moral rights are for you, as they are about honour, respect and reputation.  Moral rights are:  1. For attribution of authorship. Meaning, when people use your holiday photographs, they must say that it was your creative work. This right can often be waived in common law countries like Australia, which is a great relief in the case of some works.  2. Against your work being falsely attributed to another. If you create something worthwhile, other people will step forward to say it is theirs. In some cases, they are right.  3. For integrity of authorship against derogatory treatment of your work. This means unauthorised alterations, or, more hysterically, “distortions and mutilations” that are prejudicial to your honour or reputation, for instance, alterations which associate the author with something that he is not, e.g., strong drink, or places doubt on the author’s skills, e.g., lo

Fights Over the Carcass

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Here is a seven point checklist of the predictable disputes between shareholders/partners who do not have a partnership or shareholders agreement: 1.   Bidding for the business name and domain name registrations belonging to the partnership -Note that these registrations do not mean that you own the name as only a registered trademark confers ownership. Therefore, they have limited value. You could agree not to use the registrations, but this is a waste, isn't it? 2.   Preparing final accounts- Should this not be done by an independent accountant so it is all above board? Well yes, if you both don't mind paying more for an accountant who is unfamiliar with the business, charging more and taking longer. 3.   Competition- You could agree to split the client list and look after your own clients. But what fun is that? Outright war may be inevitable, especially if you are the stronger partner. 4.   Threatening to sue your ex-partner- You may see this as one of the benefits of not ha

Oppression, oppression… of minority shareholders

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Management getting you down?  Wait a minute, you are management. You are a band of four equals growing a company to sell it for a killing. Initially, your conservative, systematic approach mixes well with their knockabout, cavalier manner.  However, as the company becomes more successful, the other three shareholders increasingly play the three musketeers as if you were one of the Cardinal’s men.  Voting in the board meetings becomes three to one and not one for all. They decide to make your life a misery so that you leave without insisting on a full 25% share.  They deliberately criticize or ignore everything you say, treating you like an employee and starving you of information to upset you, despite you being a director.  This strategy can be very successful Sun Tzu advised that it was better to crush your enemy’s will without fighting. You tell your lawyer that it is like having a nagging spouse who does not listen to what you say and spends money like water without consulting you. 

Plagiarism is the sincerest form of flattery

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After years of waiting, someone has finally copied my work. They have used a nom de plume. Being copied, even by a fictitious entity, does not take away that warm fuzzy feeling of knowing that someone likes my work as much as I do, maybe more. I once wrote an article about a law firm being blessed by the Pope. You can find it online here.   It was accepted by a legal magazine for publication online. When I did not hear from them, I found that they had taken lines, which we clearly both thought funny, from my article and used them in their own piece as if they were their original work. Moral rights or, as we the plagiarized like to say, “Moral, I know my Rights” provides for a right for you to be named if your work is copied, and to control the form of the work, but there are exceptions. Also, there is “reverse passing off”, which covers plagiarism. The editor would not explain, apologize or print the article in full, but did take down the offending web page, and she offered a mention o

Breaking Up is Hard to Do

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  You r business partner  is not pulling their weight. Unless you can lower your expectations there will come a time when you decide to go it alone.  You go to the lawyer who has been acting for the partnership to whinge about the other partner. However, he tells you that he has a conflict of interest and he cannot act for you.   You choose another lawyer. He will be tempted to lecture you on the imprudence of entering into business without a partnership agreement. If this takes any more than half an hour, you may not have made the right choice of lawyer. Of course, you don't have a partnership agreement! Who does he think you are, BHP?   If you do not have a partnership agreement then the law generally lays down about ten ground rules:   1.   Partners must make financial contributions equally; 2.   Partners are equally responsible for the debts of the partnership; 3.   A partner may need to pay up the whole debt, not just half, and then seek reimbursement from the other partner; 4

The Mechanics of Termination

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There are five things to bear in mind when terminating a contract due to the other parties failure to complete: 1.     Set a firm completion date (“Completion Date”). To make it clear that it must be delivered on a certain day, use the term “time is of the essence” in the contract.  2.    Depending on the circumstances, if you do not use the term “time of the essence” and the other party does not compete on the appointed day, or there is no appointed day for completion you may need to serve written notice giving a reasonable period appointing a day by which the other party must sell to or purchase from you (“Notice to Complete”). For instance, in the purchase of a property which is not “time of the essence” if the seller does not sell on the date appointed you serve a Notice to Complete giving say three weeks notice of the Completion Date. 3.    Where you have adhered to the above procedures and the other party is in breach of contract if it fails to complete on the Completion Date (“B

Terminating a Contract- it is not over until it is over

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Terminating a contract, after a party fails to honour its obligations, can be risky. Terminating it when it looks like the party will not be able to honour its future obligations is dangerous. In either circumstance, go to your lawyer and get advice on how to manage the termination process in such a way that the other party is the defaulting party. This means setting up the right amount of evidence of default.  However, much the other party is messing around, the innocent party (you) must be able to demonstrate to a Court that you not only had the disposition to complete but also the capacity. Lawyers call this being “ready, willing and able” to complete.  For example, if you do not have the money to complete the contract you will not get damages from the other party failing to turn up. If a court finds that you wrongfully terminated a contract even the day after signing it and the other party suffers loss, you will be liable. Loss includes costs of assembling the products, getting rid