The ghost in the machine: Legal challenges of neural interface devices

Neural interface devices and the melding of mind and machine, challenge the law in determining where civil liability for injury, damage or loss should lie. The ability of the human mind to instruct and control these devices means that in a negligence action against a person with a neural interface device, determining the standard of care owed by him or her will be of paramount importance. This article considers some of the factors that may influence the court’s determination of the appropriate standard of care to be applied in this situation, leading to the conclusion that a new standard of care might evolve.

The empire of cancer: Gene patents and cancer voices

In his book, The Emperor of All Maladies, Siddhartha Mukherjee writes a history of cancer — "It is a chronicle of an ancient disease — once a clandestine, 'whispered-about' illness — that has metamorphosed into a lethal shape-shifting entity imbued with such penetrating metaphorical, medical, scientific, and political potency that cancer is often described as the defining plague of our generation." Increasingly, an important theme in the history of cancer is the role of law, particularly in the field of intellectual property law. It is striking that a number of contemporary policy debates over intellectual property and public health have concerned cancer research, diagnosis, and treatment. In the area of access to essential medicines, there has been much debate over Novartis’ patent application in respect of Glivec, a treatment for leukaemia. India’s Supreme Court held that the Swiss company’s patent application violated a safeguard provision in India’s patent law designed to stop evergreening. In the field of tobacco control, the Australian Government introduced plain packaging for tobacco products in order to address the health burdens associated with the tobacco epidemic. This regime was successfully defended in the High Court of Australia. In the area of intellectual property and biotechnology, there have been significant disputes over the Utah biotechnology company Myriad Genetics and its patents in respect of genetic testing for BRCA1 and BRCA2, which are related to breast cancer and ovarian cancer. The Federal Court of Australia handed down a decision on the validity of Myriad Genetics’ patent in respect of genetic testing for BRCA1 in February 2013. The Supreme Court of the United States heard a challenge to the validity of Myriad Genetics’ patents in this area in April 2013, and handed down a judgment in July 2013. Such disputes have involved tensions between intellectual property rights, and public health. This article focuses upon one of these important test cases involving intellectual property, public health, and cancer research. In June 2010, Cancer Voices Australia and Yvonne D’Arcy brought an action in the Federal Court of Australia against the validity of a BRCA1 patent — held by Myriad Genetics Inc, the Centre de Recherche du Chul, the Cancer Institute of Japan and Genetic Technologies Limited. Yvonne D’Arcy — a Brisbane woman who has had treatment for breast cancer — maintained: "I believe that what they are doing is morally and ethically corrupt and that big companies should not control any parts of the human body." She observed: "For my daughter, I've had her have [sic] mammograms, etc, because of me but I would still like her to be able to have the test to see if the mutation gene is in there from me." The applicants made the following arguments: "Genes and the information represented by human gene sequences are products of nature universally present in each individual, and the information content of a human gene sequence is fixed. Genetic variations or mutations are products of nature. The isolation of the BRCA1 gene mutation from the human body constitutes no more than a medical or scientific discovery of a naturally occurring phenomenon and does not give rise to a patentable invention." The applicants also argued that "the alleged invention is not a patentable invention in that, so far as claimed in claims 1–3, it is not a manner of manufacture within the meaning of s 6 of the Statute of Monopolies". The applicants suggested that "the alleged invention is a mere discovery". Moreover, the applicants contended that "the alleged invention of each of claims 1-3 is not a patentable invention because they are claims for biological processes for the generation of human beings". The applicants, though, later dropped the argument that the patent claims related to biological processes for the generation of human beings. In February 2013, Nicholas J of the Federal Court of Australia considered the case brought by Cancer Voices Australia and Yvonne D’Arcy against Myriad Genetics. The judge presented the issues in the case, as follows: "The issue that arises in this case is of considerable importance. It relates to the patentability of genes, or gene sequences, and the practice of 'gene patenting'. Briefly stated, the issue to be decided is whether under the Patents Act 1990 (Cth) a valid patent may be granted for a claim that covers naturally occurring nucleic acid — either deoxyribonucleic acid (DNA) or ribonucleic acid (RNA) — that has been 'isolated'". In this context, the word "isolated" implies that naturally occurring nucleic acid found in the cells of the human body, whether it be DNA or RNA, has been removed from the cellular environment in which it naturally exists and separated from other cellular components also found there. The genes found in the human body are made of nucleic acid. The particular gene with which the patent in suit is concerned (BRCA1) is a human breast and ovarian cancer disposing gene. Various mutations that may be present in this gene have been linked to various forms of cancer including breast cancer and ovarian cancer.' The judge held in this particular case that Myriad Genetics’ patent claims were a "manner of manufacture" under s 6 of the Statute of Monopolies and s 18(1)(a) of the Patents Act 1990 (Cth). The matter is currently under appeal in the Full Court of the Federal Court of Australia. This article interprets the dispute over Myriad Genetics in light of the scholarly work of Nobel Laureate Professor Joseph Stiglitz on inequality. Such work has significant explanatory power in the context of intellectual property and biotechnology. First, Stiglitz has contended that "societal inequality was a result not just of the laws of economics, but also of how we shape the economy — through politics, including through almost every aspect of our legal system". Stiglitz is concerned that "our intellectual property regime … contributes needlessly to the gravest form of inequality." He maintains: "The right to life should not be contingent on the ability to pay." Second, Stiglitz worries that "some of the most iniquitous aspects of inequality creation within our economic system are a result of 'rent-seeking': profits, and inequality, generated by manipulating social or political conditions to get a larger share of the economic pie, rather than increasing the size of that pie". He observes that "the most iniquitous aspect of this wealth appropriation arises when the wealth that goes to the top comes at the expense of the bottom." Third, Stiglitz comments: "When the legal regime governing intellectual property rights is designed poorly, it facilitates rent-seeking" and "the result is that there is actually less innovation and more inequality." He is concerned that intellectual property regimes "create monopoly rents that impede access to health both create inequality and hamper growth more generally." Finally, Stiglitz has recommended: "Government-financed research, foundations, and the prize system … are alternatives, with major advantages, and without the inequality-increasing disadvantages of the current intellectual property rights system.’" This article provides a critical analysis of the Australian litigation and debate surrounding Myriad Genetics’ patents in respect of genetic testing for BRCA1. First, it considers the ruling of Nicholas J in the Federal Court of Australia that Myriad Genetics’ patent was a manner of manufacture as it related to an artificially created state of affairs, and not mere products of nature. Second, it examines the policy debate over gene patents in Australia, and its relevance to the litigation involving Myriad Genetics. Third, it examines comparative law, and contrasts the ruling by Nicholas J in the Federal Court of Australia with developments in the United States, Canada, and the European Union. Fourth, this piece considers the reaction to the decision of Nicholas at first instance in Australia. Fifth, the article assesses the prospects of an appeal to the Full Federal Court of Australia over the Myriad Genetics’ patents. Finally, this article observes that, whatever happens in respect of litigation against Myriad Genetics, there remains controversy over Genetic Technologies Limited. The Melbourne firm has been aggressively licensing and enforcing its related patents on non-coding DNA and genomic mapping.

Just label it: Consumer rights, GM food labelling, and international trade

In the United States, there has been fierce debate over state, federal and international efforts to engage in genetically modified food labelling (GM food labelling). A grassroots coalition of consumers, environmentalists, organic farmers, and the food movement has pushed for law reform in respect of GM food labelling. The Just Label It campaign has encouraged United States consumers to send comments to the United States Food and Drug Administration to label genetically modified foods. This Chapter explores the various justifications made in respect of genetically modified food labelling. There has been a considerable effort to portray the issue of GM food labelling as one of consumer rights as part of ‘the right to know’. There has been a significant battle amongst farmers over GM food labelling – with organic farmers and biotechnology companies, fighting for precedence. There has also been a significant discussion about the use of GM food labelling as a form of environmental legislation. The prescriptions in GM food labelling regulations may serve to promote eco-labelling, and deter greenwashing. There has been a significant debate over whether GM food labelling may serve to regulate corporations – particularly from the food, agriculture, and biotechnology industries. There are significant issues about the interaction between intellectual property laws – particularly in respect of trade mark law and consumer protection – and regulatory proposals focused upon biotechnology. There has been a lack of international harmonization in respect of GM food labelling. As such, there has been a major use of comparative arguments about regulator models in respect of food labelling. There has also been a discussion about international law, particularly with the emergence of sweeping regional trade proposals, such as the Trans-Pacific Partnership, and the Trans-Atlantic Trade and Investment Partnership. This Chapter considers the United States debates over genetically modified food labelling – at state, federal, and international levels. The battles often involved the use of citizen-initiated referenda. The policy conflicts have been policy-centric disputes – pitting organic farmers, consumers, and environmentalists against the food industry and biotechnology industry. Such battles have raised questions about consumer rights, public health, freedom of speech, and corporate rights. The disputes highlighted larger issues about lobbying, fund-raising, and political influence. The role of money in United States has been a prominent concern of Lawrence Lessig in his recent academic and policy work with the group, Rootstrikers. Part 1 considers the debate in California over Proposition 37. Part 2 explores other key state initiatives in respect of GM food labelling. Part 3 examines the Federal debate in the United States over GM food labelling. Part 4 explores whether regional trade agreements – such as the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Partnership (TTIP) – will impact upon

Albert Namatjira: copyright estates and traditional knowledge

Albert Namatjira was Australia's first Indigenous professional artist. He adapted Western-style painting to express his cultural knowledge of the Arrernte country, for which he was a traditional custodian. In his lifetime, Albert Namatjira achieved great acclaim for his exceptional ability as an artist. However, after his untimely death, he was ignored by the mainstream Australian art world, because of the aesthetic prejudices and social policies of the time. A recent exhibition entitled Seeing the Centre: The art of Albert Namatjira (1902-1959) curated by Alison French has sought to redress this neglect, and provide a retrospective of his work. The exhibition has brought to light that the copyright in the artistic works of Albert Namatjira has not been passed onto his family descendants. In June 1957, Namatjira entered into a copyright agreement with John Brackenreg, the owner of a publishing company by the name of Legend Press, and the associated Artarmon Galleries in Sydney. It was agreed that Legend Press would pay royalties to Namatjira for the sole right to reproduce all of his paintings. Following Namatjira's death in 1959, the administration of his estate passed to the Public Trustee for the Northern Territory Government. The Public Trustee of the Northern Territory Government authorised the sale of Namatjira's copyright to Legend Press in 1983, thereby ending the ability of the descendents of Namatjira to benefit from on-going income from the reproduction of his works. Senator Aden Ridgeway of the Democrats has called on the Federal Government to enter into discussions with the Northern Territory Government to buy back the copyright in Albert Namatjira's works. He argued that exclusive control of the use and reproduction of his works should be restored to his descendants, as well as the receipt of all financial benefits that result from the use and reproduction of his works under copyright protection. The Senator said: 'By doing this, we will all be rewarded, because finally, belatedly, we will be showing Albert Namatjira the reverence that he has always deserved. We will be protecting his legacy for future generations'.

Who killed fair use? A copyright murder mystery down under

Fair Use Week has been celebrated this week in the United States, with great gusto and enthusiasm. At Harvard Library, Kyle Courtney commented: ‘Fair use is critical and important to innovation, scholarship and research in the United States.’ Kenneth Crews emphasized that ‘the new technological ventures, like other creative pursuits, require fair use and other copyright limitations for experimentation and success.’ Legal director Corynne McSherry of the Electronic Frontier Foundation has highlighted the significance and the importance of the defence of fair use: ‘Fair use provides breathing space in copyright law, making sure that control of the right to copy and distribute doesn’t become control of the right to create and innovate.’ For Techdirt, Mike Masnick has emphasized that fair use is a right – and not an exception or a mere defence. Peter Jaszi and Pat Aufderheide have highlighted the contextual operation of fair use in particular artistic communities. Molly Van Houweling of the Authors Alliance has written about the ecstasy of influence – the role of inspiration and appropriation in all acts of artistic creation. Fair use has been celebrated as a many-splendored legal creation.

Digital design interventions for creating new presentations of self in public urban places

During everyday urban life, people spend time in public urban places waiting for specific events to occur. During these times, people sometimes tend to engage with their information and communication technology (ICT) devices in a way that shuts off interactions with collocated people. These devices could also be used to better connect with the urban space and collocated people within. This chapter presents and discusses the impact of three design interventions on the urban user experience enabling collocated people to share lightweight, non-privacy-sensitive data in the urban space. We investigate and discuss the impact on the urban experience under the notions of people, place, and technology with an emphasis on how the sharing of non-privacy-sensitive data can positively transform anonymous public urban places in various ways through anonymous digital augmentations.

Design patterns for urban gardening

Urban agriculture is practiced in many forms within urban spaces, ranging from large organised community gardens to individuals with a backyard or balcony. We present the synthesis of findings from three studies exploring different types of urban agriculture: city farms, residential gardeners, and a grassroots group that supports local communities. Where the findings of individual studies are used to justify a design approach, there are often difficulties encountered because of different context of the original study. Through our understanding and synthesis of multiple studies, we propose a set of design patterns. The proposed patterns can be utilised concurrently depending on the scale and context of both the physical garden, and community. The relationships between the patterns and their concurrent use are discussed, and the resulting links provided the foundation for a pattern language. The eight initial patterns provide a foundation on which we would encourage other researchers to contribute, in order to develop a pattern language to holistically consider urban agriculture beyond the scope of our experiences in Brisbane, and to enrich the patterns with a variety of gardening practices.

Optimizing the quantum dot: Plasmon interaction in a nano gap waveguide

Spontaneous emission (SE) of a Quantum emitter depends mainly on the transmission strength between the upper and lower energy levels as well as the Local Density of States (LDOS)[1]. When a QD is placed in near a plasmon waveguide, LDOS of the QD is increased due to addition of the non-radiative decay and a plasmonic decay channel to free space emission[2-4]. The slow velocity and dramatic concentration of the electric field of the plasmon can capture majority of the SE into guided plasmon mode (Гpl ). This paper focused on studying the effect of waveguide height on the efficiency of coupling QD decay into plasmon mode using a numerical model based on finite elemental method (FEM). Symmetric gap waveguide considered in this paper support single mode and QD as a dipole emitter. 2D simulation models are done to find normalized Гpl and 3D models are used to find probability of SE decaying into plasmon mode ( β) including all three decay channels. It is found out that changing gap height can increase QD-plasmon coupling, by up to a factor of 5 and optimally placed QD up to a factor of 8. To make the paper more realistic we briefly studied the effect of sharpness of the waveguide edge on SE emission into guided plasmon mode. Preliminary nano gap waveguide fabrication and testing are already underway. Authors expect to compare the theoretical results with experimental outcomes in the future

Disability Standards for Education

This chapter of Higher Education and the Law considers the scope of the obligation of Australian Universities to make reasonable adjustments to facilities, procedures and curriculum, for students with disability. It reflects upon relevant case law to inform analysis of problematic aspects of that scope including, for example, the accommodation of students with problem behaviour flowing from disability and adjustment to assessment for students with disability.

Accounting for risk: The advent of capped conveyancing title insurance

Title insurance companies originating from America, have, in the past 15 years become part of the Australian conveyancing landscape. However for most residential freehold owners, their activities would be a mystery. A purchaser does not routinely obtain title insurance, with the companies presently focussing on servicing the mortgagee sector. While the lack of penetration in the residential purchaser market may be attributed to the consumer’s lack of knowledge, evidence from Ontario and New Zealand illustrates that title insurance is likely to become an additional cost in the conveyancing process in Australia. In this article we highlight the reasons why, and demonstrate how title insurers have, by working with the legal profession been able to subtly move the risk of responsibility for compensation for loss, (at least in the first instance) from the state to the insurer, but with the added benefit for the state and the conveyancing agents that the cost of the insurance is ultimately borne by the consumer. In New Zealand this development is being accelerated by the introduction of capped conveyancing title insurance. Whether title insurance will become part of the conveyancing process is no longer the relevant question for Australia, (it undoubtedly will), but the unknown issue is just how title insurance companies will work with conveyancing agents to infiltrate the market, and what response this infiltration will have in terms of the state’s view as to their continued role in the provision of assurance. We suggest that developments from New Zealand in relation to capped conveyancing insurance are likely to be replicated in Australia in the near future, and that the state’s role in providing an assurance fund will continue, though the state may seek to expand the areas in which the right to compensation is restricted.

Gendering and racialising self-determination: Indigenous women and patriarchal whiteness

Indigenous peoples have the right of self-determination, in accordance with international law by virtue of which tehy may freely determine their political status and institutions and freely pursue their economic, social and cultural development. an integral part of this is the right to autonomy and self-government. The essential feature of racism is not hostility or misperception, but rather the defense [sic] of a system from which advantage is derived on the basis of race. The manner in which the defense [sic] is articulated - either as hostility or subtlety - is not nearly as important as the fact that it insures the continuation of a privileged relationship.

Liberty relighting, 20 years later

Recognized around the world as a powerful beacon for freedom, hope, and opportunity, the Statue of Liberty's light is not just metaphorical: her dramatic illumination is a perfect example of American ingenuity and engineering. Since the statue's installation in New York Harbor in 1886, lighting engineers and designers had struggled to illuminate the 150-foot copper-clad monument in a manner becoming an American icon. It took the thoughtful and creative approach of Howard Brandston-a legend in his own right-to solve this lighting challenge. In 1984, the designer was asked to give the statue a much-needed lighting makeover in preparation for its centennial. In order to avoid the shortcomings of previous attempts, he studied the monument from every angle and in all lighting conditions, discovering that it looked best in the light of dawn. Brandston determined that he would need 'one lamp to mimic the morning sun and one lamp to mimic the morning sky.' Learning that no existing lamps could simulate these conditions, Brandston partnered with General Electric to develop two new metal halide products. With only a short time for R&D, a team of engineers at GE's Nela Park laboratories assembled a 'top secret' testing room dedicated to the Statue of Liberty project. After nearly two years of work to perfect the new lamps, the 'dawn's early light' effect was finally achieved just days before the centennial celebrations were to take place in 1986. 'It was truly a labor of love,' he recalls.

Dancing into the second phase of creative industries

As we enter the second phase of creative industries there is a shift away from the early 1990s ideology of the arts as a creative content provider for the wealth generating ‘knowledge’ economy to an expanded rhetoric encompassing ‘cultural capital’ and its symbolic value. A renewed focus on culture is examined through a regional scan of creative industries in which social engineering of the arts occurs through policy imperatives driven by ‘profit oriented conceptualisations of culture’ (Hornidge 2011, p. 263) In the push for artists to become ‘culturpreneurs’ a trend has emerged where demand for ‘embedded creatives’ (Cunningham 2013) sees an exodus from arts-based employment through use of transferable skills into areas outside the arts. For those that stay, within the performing arts in particular, employment remains project-based, sporadic, underpaid, self-initiated and often self-financed, requiring adaptive career paths. Artist entrepreneurs must balance creation and performance of their art with increasing amounts of time spent on branding, compliance, fundraising and the logistical and commercial requirements of operating in a CI paradigm. The artists’ key challenge thus becomes one of aligning core creative and aesthetic values with market and business considerations. There is also the perceived threat posed by the ‘prosumer’ phenomenon (Bruns 2008), in which digital on-line products are created and produced by those formerly seen as consumers of art or audiences for art. Despite negative aspects to this scenario, a recent study (Steiner & Schneider 2013) reveals that artists are happier and more satisfied than other workers within and outside the creative industries. A lively hybridisation of creative practice is occurring through mobile and interactive technologies with dynamic connections to social media. Continued growth in arts festivals attracts participation in international and transdisciplinary collaborations, whilst cross-sectoral partnerships provide artists with opportunities beyond a socio-cultural setting into business, health, science and education. This is occurring alongside a renewed engagement with place through the rise of cultural precincts in ‘creative cities’ (Florida 2008, Landry 2000), providing revitalised spaces for artists to gather and work. Finally, a reconsideration of the specialist attributes and transferable skills that artists bring to the creative industries suggests ways to dance through both the challenges and opportunities occasioned by the current complexities of arts’ practices.