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John Melis
John Melis,
Category: Australia Law
Satisfied Customers: 341
Experience:  Principal Lawyer at Legal AU Pty Ltd
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I am starting my own solo natural therapies business,

Customer Question

Hi I am starting my own solo natural therapies business, reflexology, holistic counselling, tarot I want to know the best disclaimer in wording to protect myself from people Sue my legally and also how do I word a copyright and where best spot to put it. I want to be thorough in this please
Submitted: 2 months ago.
Category: Australia Law
Expert:  John Melis replied 2 months ago.

Dear Customer, your brief is requesting to be advised on the types of disclaimer to use, and associated matters with copyright, with the start of a new business venture, and to not being sued.

The disclaimer that is drafted needs to be specific to the business purpose. However, disclaimers will also be subject to the Australian Consumer Law, and other state and federal legislation. It is common for a person to think that a disclaimer is simple to draft, as usually they are short. However, the wording and the sentence structure is crucial for the protection of the party using the disclaimer. Good disclaimer are usually lengthy and refer to other terms and conditions. The disclaimer should be drafted by a solicitor after a consultation on the type of business structure that will be used to operate under for the new venture.

In relation to 'copyright'; copyright is the ownership of original literary works, original dramatic works, original musical works, original artistic works, sound recordings, film, television, and published works.

If a person, company, or other entity uses the material that fits within the copyright categories mentioned above without the authority of the copyright owner, whether by reproducing or copying an original expression of an idea, there has been a breach of copyright and a damages claim may apply.

An example of copyright is the love letters written by Princess Diana to James Hewitt. In 2003 James Hewitt wanted to sell 64 love letters for an estimated $28 million. Copyright does not stop the sale of the love letters, though copyright did stop the copying or publishing of these letters in the media without the written consent of the copyright owner.

Copyright law is governed in Australia by the Copyright Act1968 (Cth). The Australian constitution gives rights to the commonwealth to make laws that concern copyright.

There is no requirement of registration of materials for copyright, because copy right applies once the original material is produced, whether unpublished or published.

Copyright of original material may exist with several levels. As example, a published novel, the author has an original copyright in the literary work, and the publisher will have a copyright in the published edition.

The Copyright Act does not require that the © symbol is used, though many parties use that symbol to avoid doubt that copyright is asserted in the material produced.

Generally, the copyright life duration will last for 70 years. However, there are exceptions, with television and broadcasting lasting 50 years and for printed editions 25 years. Copyright subsists in perpetuity in any literacy, dramatic and musical work, engraving, sound recordings and cinematographic films which remain unpublished when the author dies.

Let’s have a look at a couple of cases that demonstrate copyright.

In Data Access Corporation v Powerflex Services Pty Ltd (1999), the two companies created computer software which used similar words in the processing of the program. Data Access Corporation claimed the words used for the computer program where are literary work, and Powerflex Services Pty Ltd disputed this claim. This case was argued under the 1984 definition of a computer program, and the court held that the words claimed as literary work, was not the case, as the words did not perform an operating function of the computer program, and the court denied the claim.

Then in Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010], Fairfax who publishes the Australian Financial Review, claimed that copyright existed in headlines of its literary works. The respondent used the headlines in their publishing and claimed that copyright did not apply. The court held that copyright did not apply in the headline of an article, as they are too short, do not form part of an article and are insubstantial to qualify for copyright protection as literary works.

Everyone has a right to protect what they originally produce.

Customer: replied 2 months ago.
Wow that's lengthy thanks. However lets stick to the Disclaimer or protecting me legally from liability etc. can you kindly word what I should put for my alternative therapies services please as your reply confuses me.
Customer: replied 2 months ago.
It does not need to be too long, as I am working solo small business.
Expert:  John Melis replied 2 months ago.

Dear Customer, I understand that you require a disclaimer to be drafted. Under the Legal Profession Uniform Law it is a requirement that as a solicitor who is engaged to provide a service that a cost agreement is issued to the client, which explains the legal service that is to be provided. Drafting a disclaimer is complex in relation to mitigating risk. If you wish to engage the full service of myself as a solicitor, it will be necessary to increase the service fee option and to speak with you directly by telephone. Please advise if you wish to proceed?

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