Statutory Definition Research Articles

Should California’s Film Script Cases Be Merged into Trade Secret Law?

In legal disputes where one party claims that it submitted an idea to another party and alleges that the latter used that idea without permission or compensation, two categories of California intellectual property law have increasingly come to resemble one another: (1) trade secret law, most often applied in business or technical contexts; and (2) idea submission law, primarily applied in cases involving film scripts and other media productions. Over the decades, these regimes have developed separately, within distinct business and legal cultures. But recent developments in California trade secret law have brought the two closer together; in some areas, they may even be approaching a unified body of law. This Article explores that possibility. It concludes that although a partial merger is inevitable, the two core causes of action—for asserted trade secrets, a misappropriation claim; for idea submissions, a so-called Desny claim for breach of implied-in-fact contract—will and should remain distinct. A partial merger, however, would lead to beneficial exchanges in areas where their doctrines already overlap: (1) idea submission’s “independent development” and trade secret’s “independent derivation” defenses; and (2) statutory preemption under California’s Uniform Trade Secrets Act (CUTSA).
 California’s idea submission cases have developed sophisticated and robust means to adjudicate the concept of “independent development”—that is, a defendant’s assertion that despite receiving the plaintiff’s idea, it nonetheless came up with the disputed film, television show, or other concept on its own. By contrast, the important and analogous defense of “independent derivation” in California trade secret law remains underdeveloped. This Article argues that the idea submission cases offer a far more rigorous analysis of the defense and could inform similar decisions under trade secret law. In particular, it proposes a methodology that courts can use to adjudicate the independent derivation defense, inspired by the idea submission cases.
 The idea submission cases largely survived copyright preemption challenges in the 1990s and 2000s after Ninth Circuit rulings preserved the viability of some idea submission causes of action under state law. But surviving copyright preemption is not the same thing as surviving CUTSA trade secret preemption. This more recent form of IP preemption is broad, and it subsumes tort claims seeking to protect information said to be confidential. This Article argues that the CUTSA preempts peripheral idea submission tort claims such as breach of confidence, but it does not preempt the core claim at the heart of California’s idea submission regime—the Desny claim for breach of implied-in-fact contract.
 The proposed partial merger recognizes the public policy ends of each regime: protecting weaker parties who submit ideas to film and media studios (in narrowlydefined circumstances), and ensuring that litigants cannot use tort claims to subvert the protections the CUTSA and related employee mobility rules provide for the free use of publicly available information that does not meet the statutory definition of a trade secret.

The Hallmarks of a Good Test: A Proposal for Applying the 'Functional Equivalent' Rule from County of Maui V. Hawaii Wildlife Fund

The Clean Water Act generally requires a federal permit for the discharge of pollutants “from any point source” to navigable waters. It is undisputed that permits are required for discharges of pollutants from point sources that proceed “directly” to regulated waters. But there is much disagreement over the extent to which indirect point-source discharges are regulated. In an attempt to clarify, the United States Supreme Court in County of Maui v. Hawaii Wildlife Fund ruled that permits are required not just for direct point-source discharges, but also for any point-source discharge that is the “functional equivalent” of a direct point-source discharge. Unfortunately, the Court did not define the term “functional equivalent,” other than to offer a non-exhaustive list of seven factors to consider (emphasizing time and distance), and to admonish lower courts to both respect the states’ traditional authority over water pollution and be mindful of avoiding decisions that would encourage evasion of the Act’s permitting requirements. To pick up where County of Maui left off, this Article proposes the “hallmark” interpretation of the functional equivalent test. According to this approach, a pollutant discharge is the “functional equivalent” of a direct discharge (and therefore requires a permit) if it bears the hallmarks of a direct discharge—in other words, if the discharged pollutants still betray the traces of having been emitted from a “discernible, confined and discrete conveyance” (the statutory definition of “point source”). In contrast, if the pollutants lack those hallmarks, and thus are indistinguishable from pollutants added by nonpoint sources, then their discharge is not a regulated “functional equivalent.” This “hallmark” approach is consistent not only with County of Maui’s articulation of the functional equivalent rule, but also with the Court’s expectation of how that rule should be implemented. In support of the proposed hallmark analysis, the Article defines the reference point (“direct discharge”) and its functions, then explains how to determine whether the hallmarks of the pollutants at issue are equivalent to the hallmarks of a direct discharge. Finally, it cautions that, consistent with County of Maui’s admonition, the functional equivalent analysis must include a “perspective” check to prevent the Act from being used to undercut the states’ traditional authority over water quality, while also respecting Congress’s intent that certain point-source discharges be federally regulated.

Point and Shoot: Originality, Authorship, and the Identification of the Copyright Work in Modern Photography

This article explores how profound technological developments in photography have problematised concepts of the photograph, authorship, and originality in Australian copyright law. Radical technological change has resulted in highly automated and ubiquitous photographs, inviting questions about what constitutes a ‘photograph’ as defined in the Australian Copyright Act, when a photograph is sufficiently original, and how the definition of an ‘author’ of a photograph as the person who ‘took’ it should be interpreted. The paper is the first to analyse these issues, ameliorating the relative dearth of serious scholarly investigation of the contemporary photograph under Australian copyright law and a paucity of judicial attention. The article considers the meaning of ‘photograph’ and ‘photography’ under the Australian Copyright Act and how software and explains how new practices in a ‘post-photography’ world challenge those concepts. It then explores photographic originality and investigates how increasingly automated modes of photography diminish if not eviscerate originality in contemporary photography. The article then focuses on photographic authorship, interrogating the statutory definition of the author of a photograph as ‘the person who took it’. The article proposes a number of copyright law reform suggestions to better align copyright law with contemporary photographic technological developments and artistic practice.

The Position of the Nigerian Copyright Act in this Digital Age.

This paper crystallizes the Nigerian copyright act position through the statement of the loopholes that demerit the act and diminish the standard of the act to meet the modern standard of the digital age. Ab initio, I expressly stated the definition of copyright which was not given a statutory definition in the Nigerian copyright act. We further meticulously x-rayed the historical evolution of the act beginning from the colonial era to the post-colonial era. I also examined the effect of digital technology in the copyright field and expressly brought out the trait statistics that rank Nigeria as one of the countries that the rate of piracy is beyond average. This paper also stretched eye to other factors that devalue the said copyright legislation. Towards the dusk of the paper, I respectfully brought out practical solutions to the existing problems of the copyright legislation to meet the needs of the digital age, and at the tail end, I furnished my conclusion.

The Correlates of Unfitness to Stand Trial in Victoria, Australia

Understanding the correlates of fitness to stand trial is essential to undertaking efficient, evidence-based assessments. We retrospectively analyzed 248 fitness assessment reports pertaining to 115 defendants in Victoria, Australia. Cognitive disorders (e.g., intellectual disability, brain injury) were the strongest predictor of unfitness whereas psychosis was unrelated. Psychiatrists authored the majority of reports (62.4%). Psychologists spent more time assessing the defendant, wrote longer reports, and reviewed more collateral materials. The reports expressly noted that malingering and feigning were considered in only 19% of reports. Fitness evaluations could be improved with standardized interviews, more consideration of statutory definitions of unfitness legal precedent, and embedding feigned unfitness measures into a general assessment procedure.

„So Far and No Further!” – Thoughts on Legitimacy of the Hungarian Border Fence

In 2015, Hungary was unexpectedly affected by the irregular migration flow, which marked a beginning of a new era in the history of the European migration – in terms of its quality and its size. The European countries have been forced to admit irregular migrants from the developing countries in increasing numbers. Mass migration – not only because of its irregular nature, but also because of its qualitative and quantitative changes – has created a major challenge for the authorities concerning the legal respones. In many countries, including in Hungary, the public opinion related to the irregular migration has forced the legislators to take the necessary measures against it in order to protect the public safety. In Hungary – although the irregular migration is a multifaceted phenomenon, therefore the legal respones affect many parts of the internal legal system – the law enforcement and the criminal law have been focused by the legislator. In the face of the increased migratory pressure - in order to protect the security of Hungary – the Hungarian government has accepted a package of the legal measures. The first step was the construction of the physical border fence at the Serbian-Hungarian and the Croatian-Hungarian border, and as a second stage the Hungarian Parliament adopted the Act CXL of 2015 which created the legal framework on protection of the mentioned border fence (for example creating new statutory definitions). Whereas not only the Hungarian Criminal Code, but also the Act of Criminal Procedure were amended by the mentioned act, it is necessary to deal whether the construction of the border fence can be considered as a legitimate step with special reference to the international and European commitments of Hungary. The mentioned question is considered as a preliminary one, because in default of legitimacy all of the measures adopted by the Hungarian Parliament and the Government would be considered unlawful. The paper deals with the mentioned problem and analyzes the legitimacy of the Hungarian border fence taking into consideration the international and European standards.

A fair CoP? MRF sampling, testing and reporting: Big problems caused by small particles. Part 1: Compliance difficulties and data validity.

The Regulations governing Materials Recovery Facilities (MRFs) in England require that they report on the quality of both the incoming mixed wastes and the single-stream recyclate products, with the results being made available on a public register. In this investigation, tests were conducted on a number of mixed wastes from different suppliers being processed at a qualifying MRF to evaluate how effective the Regulations (or MRF Code of Practice (MRF CoP)) were in generating useful, meaningful information. The empirical evidence obtained showed that MRF CoP in its current form has a number of serious flaws which detract from the validity and value of the reported operational data. The statutory definition of 'material particles' in the mixed wastes given in the MRF CoP means that compliance with the MRF CoP is impracticable, and in order to overcome this it will be necessary to re-word the definition of 'material particles'. Empirical evidence also invalidated the explicit assumption made in the MRF CoP that the composition of the material particles is identical to that of the bulk materials, and consequently the basis for the mandatory apportioning of the weight of the material particles has no logical foundation and apportioning leads to distortion in the reported data. Changes will be required to the present statutory requirements for reporting operational results if the recorded information is to have meaning and relevance for stakeholders in the system.

Artificial Intelligence Will Merely Kill Us, Not Take Our Jobs

A prominent recent development in governance of artificial intelligence is the White House Office of Management and Budget’s 2020 Guidance for Regulation of Artificial Intelligence Applications (Federal Register Doc. 2020–00261, Filed 1–10–20), directed at heads of federal executive branch agencies, in fulfillment of Trump E.O. 13859 and building upon it. While the directive strikes the right tone in some instances, it opens the door to federal agencies too widely for oversight. Top-down federal funding and governance of scientific and technology research will be increasingly incompatible with a future of lightly regulated science and technology specifically, and with limited government generally. First is the the lack of concern that a key driver of investment and in turn trajectory of the sector is military and intelligence-based. Not to be flip about it, but when it comes to robotics and military, the concern is that Isaac Asimov’s widely famous but fictional Laws of Robotics (devised to forbid the harm of humans) are programmed out, not in. This is a part of what makes fusion of big government and private AI deployment problematic at the outset. Second is the insufficient appreciation of the extent to which the broader progressive regulatory bureaucracy at which the guidance is aimed holds a vision of “rule of law” entirely at odds from a more classical liberal frame of reference. Today’s administrative state has its own set of value pursuits and visions, of what are costs and what are benefits, and the sources of each. Make no mistake, the new AI guidance constitutes a set of regulatory principles rather than laissez-faire, property rights based principles, especially as they will be interpreted by less market-oriented administrations that later assume the helm and the agencies they direct. The White House guidance invites agencies to “consider whether a change in regulatory policy is needed due to the adoption of AI applications in an already regulated industry, or due to the development of substantially new industries facilitated by AI.” Unless externally restrained, a regulatory bureaucracy’s inclination is to answer the question, “Is there call for regulation?” in the affirmative, and this guidance does not restrain that impulse but adds to it. For example: Agencies are instructed to produce “Statutory Authorities Directing or Authorizing Agency Regulation of AI Applications” and to “List and describe any statutes that direct or authorize your agency to issue regulations specifically on the development and use of AI applications.” But no statutory definition of AI even existed at the time any such supposed predicates came to be. The guidance is favorable toward antitrust regulation. The guidance invites social policy regulatory experimentation. The guidance may undermine simultaneous reforms from the Trump administration to restrain the overuse of these very sort of sub-regulatory guidance measures to influence the private sector. Given public policy fears, real and imagined, over artificial intelligence, it is an area ripe for political predation. While big science need not entail big government; the alignment of forces in play at the moment implies that it likely will.

Zawartość metali ciężkich jako czynnik determinujący bezpieczeństwo spożywania syropu brzozowego i kategorię jego rejestracji

Introduction. Birch syrup is a unique foodstuff produced only in the several areas of the world through the evaporation of water from birch sap. It is a sweetener addition to various dishes and, at the same time, a rich, comprehensive source of minerals. The Polish forest environment provides sufficient raw material base for the production of birch syrup, but previous studies of native birch sap have highlighted the significant content of heavy metals. Aim. Verify the cadmium and lead content in birch syrup produced from the sap of birches growing on agricultural land in a region considered ecologically clean. Material and methods. Birch sap collection was carried out on 7-16 March 2019. The daily volume of sap from 20 trees was evaporated to a syrup consistency (68.5 ± 1.15°Brix) to obtain a foodstuff that complies with the recommendations. Cadmium and lead content was examined in an accredited laboratory using atomic absorption spectrometry. Results. An increase in heavy metal content has been observed over time. The cadmium content ranged from 0.16 to 0.36 mg/kg, and for lead, respectively 0.046 to 0.14 mg/kg. These concentrations should be considered high and disqualifying birch syrup in the light of health safety standards specified for the vast majority of foodstuffs. In addition, the very high percentage of implementation of the TWI for cadmium, already when consuming small amounts of birch syrup, indicates that its home production and consumption may be associated with serious health risks. Conclusions. Dietary supplements are the only category of foodstuffs for which the measured levels of cadmium and lead did not exceed the permitted safety standards. Registration of birch syrup as a dietary supplement is fully justified by the statutory definition of this group of foodstuffs, a form that allows dosage in limited quantities, as well as the chemical composition, characterized by a high content of minerals.

Fraudulent Sex Criminalisation in Australia: Disparity, Disarray and the Underrated Procurement Offence

This article critically investigates the criminalisation of fraudulent sex across Australia’s eight states and territories. Through situating the statutory definition of sexual consent alongside the respective treatment of the procurement offence (a sexual offence that punishes obtaining sex through any false representation), this article identifies the four distinct approaches of criminalising fraudulent sex and demonstrates the surprising stark divergence in legal outcomes. This article argues that the approaches adopted by half of the surveyed jurisdictions are flawed from the perspective of legislative design, and highlights the deficient legislative processes that failed to pay due regard to the procurement offence. In this regard, this article proposes statutory reform to enhance the coherency and clarity of fraudulent sex criminalisation.

Copyright Protection for Applied Art and Works of Artistic Craftsmanship after Star Athletica

As the very first session proclaimed, the Star Athletica case has not been a model of total clarity on the Supreme Court’s part. I’m going to explore that proposition. I will go through some basic elements of the copyright statute, and will then apply those rules to several examples. The Copyright Act sets out the category of pictorial, graphic, and sculptural (“PGS”) works, whose statutory definition includes applied art. That was the subject matter at issue in Star Athletica. The statute also provides that PGS works “shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned.” “Works of artistic craftsmanship” has been a somewhat overlooked category, but I think, as a result of Star Athletica and also the pending amendments of the Compendium of U.S. Copyright Office Practices, that this category will receive a lot more attention. It does not, however, necessarily follow that the meaning of that category will be any clearer than the standard for what is a PGS work.

Discrimination by definition: are definitions of ‘income’ used in New Zealand statutes compatible with the state’s duty to protect human rights?

ABSTRACT This article examines whether the social policies manifest in different statutory definitions of ‘income’ in New Zealand discriminate against the poor. We adopt a benchmark of fundamental human rights to assess discrimination. Specifically, we examine definitions of income under income tax, welfare, accident compensation, legal aid, and student allowance legislation. We categorise income tax, accident compensation and student allowance as ‘deserving income’ and welfare and legal aid as ‘undeserving income’. We consider three types of receipt—cash gifts, gifts in kind, and compensation—to assess the effects of using different definitions and interpretations of income. We conclude that, although overt policy discrimination may not be manifest in definitions of income, it is present and insidious, and incompatible with the state’s duty to protect human rights.

Brain death in early pregnancy: A legal and ethical challenge coming to your intensive care unit?

Increasingly, reports are emerging of maternal physiological support after brain death in pregnant women declared brain dead long before the gestational age of foetal viability. While these 'miracle babies' often receive significant media attention - such as the recent case of Catarina Sequeira - it is difficult to estimate the probability of a live birth in such circumstances given a clear publication bias in favour of reporting good outcomes. In a number of highly publicised cases, continuation of maternal physiological support after brain death has been attempted against the express wishes of the patient's family in jurisdictions where a foetal right to life is given weight in law. The legal issues around discontinuation of maternal physiological support after brain death have not yet been assessed by a UK court. The scenario is easily envisioned, however, where conflict emerges as to the appropriateness of such support. While there is no statutory definition of death in the UK, the courts have accepted brain-dead patients as legally dead upon completion of brainstem testing. However, as UK law grants few explicit legal rights to a foetus, it is unclear as to how conflicts are to be resolved. This article is not intended as a systematic review of the medical or legal academic literature, nor as a review of the clinical management of the pregnant brain-dead patient; rather, it aims to summarise the evidence base for maternal physiological support after brain death and the relevant case law. Using a recent case as an example, this article will outline the legal approach to death in the UK, contrast the status in law of a brain-dead mother and her foetus, and advance an argument of the circumstances in which maternal physiological support after brain death may be ethically justifiable. The authors hope this will assist the UK intensivist in the complex decision-making such cases demand.

CBD products that resemble tobacco products enter traditional retail outlets

The US Food and Drug Administration issued a final rule in 2016 deeming new tobacco products (any product made or derived from tobacco that is intended for human consumption, including...

Administrative Contracts in Serbian Law – Specificities of the New Statutory Regime

The subject of this paper is the special legal regime for administrative contracts under the recently enacted Serbian Law on General Administrative Procedure of 2016. We offer a comprehensive analysis of the new statutory rules, and examine their relationship to the general rules and principles of Serbian contract law. In addition, we identify the main shortcomings of the new regime, especially in the context of the lack of any statutory, scholarly and judicial typology of administrative contracts in Serbia. Furthermore, we highlight the lack of references to the notions of public interest, public purpose or public needs in the statutory definition of administrative contracts. This is cause for concern, since only the need to protect the public interest could justify the new statutory provisions, which significantly improve the contractual position of a public body as a contracting party in relation to the position of a private entity as the other party in administrative contracts. There is as yet no case law pertaining to administrative contracts in Serbia. This is why we turn to practical experience in the Croatian legal system, which is sufficiently similar and historically connected to Serbia via a shared Yugoslav heritage. We also consider German and French legal models, since they traditionally serve as comparative points of reference for Serbian legal scholars, judges and law makers.

Case Law Considerations in the Use of ASPD in SVP/SDP Evaluations.

The use of antisocial personality disorder (ASPD) as a qualifying mental disorder for a sexually violent predator (SVP) or a sexually dangerous person (SDP) commitment continues to arouse controversy. Two common questions arise. Is ASPD considered a qualifying mental disorder in statutory or case law definitions? Can ASPD be the sole qualifying mental disorder? We review case law for guidance as to when ASPD may serve as a sole qualifying diagnosis in SVP/SDP evaluations. Other than the federal government and New York, all other jurisdictions with SVP/SDP commitments permit the use of ASPD as a stand-alone diagnosis when it can be linked to sexually violent behavior. ASPD is a viable qualifying disorder when the pattern of offending is atypical, severe, and can be linked to the risk for further sexual offending. ASPD is less viable as a qualifying diagnosis when it is manifested primarily by criminal behavior, the sex crimes are situational in context (e.g., substance abuse, negative peer affiliation), or the disorder cannot be linked to future sexual offending. Case law can provide guidelines, but the forensic clinician as the diagnostic expert bears the responsibility of providing a cogent and sound rationale as to why ASPD drives the risk for sexual reoffense.

Statutory and operative definitions of legal terms in the tax law

In this paper the author discusses the question of defining legal terms in the tax law. The author divides the definitions of legal terms contained in the tax law into statutory and operative definitions. This division is based on the distinction between statutory and operative law. Moreover, the author points to the operative definitions of legal terms in the tax law, which are of a quasi -statutory nature.

Copyright at the Museum: Using the Publication Doctrine to Free Art and History

This Article is the first to use the copyright publication doctrine to clarify whether art, photographs, films, and historical documents that fill our museums and libraries are in the public domain. Knowing whether a photo, painting, film, or original letter was published is critically important to anyone who wants to use it today. Before 1989, publishing a work with no copyright notice dedicated the work to the public domain. Unpublished works without a notice are likely protected by copyright, and their unauthorized use can result in severe federal penalties. Unfortunately, the meaning of “publication” in copyright law is notoriously ambiguous. The federal statutory definition suggests that works “made available” to the public are published, while leading treatises generally assume that works given to public museums and libraries are unpublished. Confronted with this uncertainty, risk averse institutions too often assume that archived works are protected by copyright. Misunderstanding the law can keep cultural treasures locked in dark archives, vaults and basements, preventing their use as a foundation for new expression and distorting our sense of history.This Article critically examines mistaken assumptions about copyright publication. It finds that neither the statutory definition nor leading treatises adequately identify when a work is published. A better standard for determining when a work is published and in the public domain is needed to free works from being locked up by copyright uncertainty. The best solution would clarify the boundaries of a stable public domain. In a recent decision, the Supreme Court took a wrong turn in dismissing the importance of the public domain. Knowing what content may be freely used is critical to preserving First Amendment values and freeing cultural treasures from copyright’s bondage. The copyright ambiguity of archived works should be resolved in a way that honors the expressive and historical value of the public domain. After considering several alternatives, this Article shows how precedential patterns point to the best solution to the publication ambiguity. Drawing on empirical analysis of federal cases interpreting copyright publication, I identify the variables that are most important in determining whether archived works are published. The suggested solution focuses on copyright owner intent and the availability of authorized copies. Other factors described as significant in leading treatises — such as the type of work or archive — actually mask these two fundamental inquiries. The proposed standard provides a much needed solution to clarify which pieces of our cultural heritage are in the public domain and freely available as raw materials for educational sharing, expressive work, historical research, and public discourse.

Understanding the essential principles of landlord and tenant laws in Nigeria through judicial decisions

Tenancy relationships in Nigeria are largely regulated by statutes. Most of the provisions of these statutes to lawyers and other stakeholders are susceptible to inconsistent interpretations. In recent times, the courts in Nigeria have taken steps to look beyond the law books and give flesh to areas in tenancy matters where there seem to be inadequacies in the provisions of the laws. In doing this, the courts have come up with some legal principles that the relevant statutes do not explicitly provide for, but arguably flow from the provisions of such statutes – a good example being the principle that a tenant who contests ownership with the landlord loses right to statutory notice to quit. Terms such as ‘landlord’ and ‘tenant’ are not as simple as they appear, especially considering the statutory definitions given to them by some of the tenancy statutes in Nigeria – particular attention is given in this regard to Tenancy Law of Lagos State 2011. This paper considers the intricacies of the definition of and relationship between the landlord and the tenant as provided in statutes and as interpreted by overtime by courts in Nigeria. The paper analyses the nature of the relationship between the landlord and the tenant as may be conceived and disambiguates the scope of law of a landlord and tenant relationship in Nigeria.

Collectivising the Gig Economy in Australia

18 | International Union Rights | 27/3 FOCUS | IMPACTS OF COVID-19 ON WORK AND THE CHALLENGE FOR UNION RIGHTS Collectivising the Gig Economy in Australia In July 2020, the Report of the Inquiry into the Victorian On-Demand Workforce was released1. This was the first full-scale government inquiry into platform work in Australia, possibly even globally. Inquiry Chair, Natalie James, tackled head-on the problem at the core of the gig economy: work status, and therefore access to protective employment regulation, is generally controlled by the platforms. The Inquiry found that platforms exercise significant levels of discretion and control over how gig work is organised, with no independent oversight. This presents challenges to Australia’s system of labour regulation, and uncertainty about which laws apply to gig workers. Arguably one of the most striking features of the Report is its public calling-out of what we know platforms like Uber, Uber Eats, Deliveroo and Foodora have been doing around the world for years: While there are a small number of notable exceptions, the arrangements established by the platforms with the workers are usually consciously framed to avoid an employment relationship arising between the worker and the platform. The Report also exploded the myth, propagated by the platforms, that gig workers are (universally) flexibility-seeking entrepreneurs who do not wish to be stifled by conventional employment arrangements: While certain platforms may characterise their workers as ‘entrepreneurs’, some platform workers do not fit the typical epitome of self-determined, selfemployed small businesses or ‘non-employee’ workers. Further, some platforms are highly controlling in how they organise elements of the work including, in some cases, setting prices for end users. A significant consequence of these arrangements, the Inquiry found, is that many gig workers are paid less than the Australian minimum wage (once the various costs and payment structures applicable to non-employee platform workers are calculated). Further, many platforms design contracts and control systems which are imposed on workers on a ‘take it or leave it’ basis, including work allocation through algorithms. This level of control, the Inquiry concluded, does not sit comfortably with the platforms’ entrepreneurship narrative. Noting that a person’s work status is ‘pivotal’, the Report went on to observe that the determination of that status ‘is rarely the subject of formal or regulatory scrutiny at the outset’ of a platform work relationship. The question of the worker’s true legal status is only tested if they challenge the presumption that they are not an employee and fall outside applicable employment law rules. However the putative contractor status of gig workers has been successfully contested in only one Australian case to date2. The Inquiry found, further, that: Platforms are unapologetic that they have chosen to operate outside the employment regulatory framework. … Platforms claim to be inhibited from extending more beneficial arrangements to workers by the risk that the relationship might then be characterised as employment, making their model untenable. The arrangements they have put in place are designed to mitigate this ‘reclassification risk’. The Inquiry made a series of recommendations for reform of Victorian and federal law to provide more choice, fairness and certainty for gig workers – in other words, to counter the platforms’ deliberate structuring of contractual and work arrangements in their favour. One critical recommendation was to ‘codify work status’ through a new statutory definition in the Fair Work Act, rather than relying on the present imprecise common law tests. This would involve placing the concept of entrepreneurship at the core of the employee/independent contractor distinction3. It would ensure that only genuinely self-employed, autonomous business people operate under commercial arrangements – and workers who operate as part of another’s business or enterprise are covered by protective labour regulation. Union representation and collective bargaining for gig workers The Victorian Inquiry noted that there are significant legal barriers to platform workers seeking to improve their pay and conditions by organising collectively. Their assigned contractor status excludes them from access to collective bargaining under the Fair Work Act, which is only available to employees. At the same time, as self-employed small business operators (unless they prove to the contrary in the courts), they are precluded from...