A Submission to the Joint Standing Committee on Treaties on the Anti-Counterfeiting Trade Agreement 2011 (# ACTA)

“If Hollywood could order intellectual property laws for Christmas, what would they look like? This is pretty close.” David Fewer “While European and American IP maximalists have pushed for TRIPS-Plus provisions in FTAs and bilateral agreements, they are now pushing for TRIPS-Plus-Plus protections in these various forums.” Susan Sell “ACTA is a threat to the future of a free and open Internet.” Alexander Furnas “Implementing the agreement could open a Pandora's box of potential human rights violations.” Amnesty International. “I will not take part in this masquerade.” Kader Arif, Rapporteur for the Anti-Counterfeiting Trade Agreement 2011 in the European Parliament Executive Summary As an independent scholar and expert in intellectual property, I am of the view that the Australian Parliament should reject the adoption of the Anti-Counterfeiting Trade Agreement 2011. I would take issue with the Department of Foreign Affairs and Trade’s rather partisan account of the negotiations, the consultations, and the outcomes associated with the Anti-Counterfeiting Trade Agreement 2011. In my view, the negotiations were secretive and biased; the local consultations were sometimes farcical because of the lack of information about the draft texts of the agreement; and the final text of the Anti-Counterfeiting Trade Agreement 2011 is not in the best interests of Australia, particularly given that it is a net importer of copyright works and trade mark goods and services. I would also express grave reservations about the quality of the rather pitiful National Interest Analysis – and the lack of any regulatory impact statement – associated with the Anti-Counterfeiting Trade Agreement 2011. The assertion that the Anti-Counterfeiting Trade Agreement 2011 does not require legislative measures is questionable – especially given the United States Trade Representative has called the agreement ‘the highest-standard plurilateral agreement ever achieved concerning the enforcement of intellectual property rights.’ It is worthwhile reiterating that there has been much criticism of the secretive and partisan nature of the negotiations surrounding the Anti-Counterfeiting Trade Agreement 2011. Sean Flynn summarizes these concerns: "The negotiation process for ACTA has been a case study in establishing the conditions for effective industry capture of a lawmaking process. Instead of using the relatively transparent and inclusive multilateral processes, ACTA was launched through a closed and secretive “‘club approach’ in which like-minded jurisdictions define enforcement ‘membership’ rules and then invite other countries to join, presumably via other trade agreements.” The most influential developing countries, including Brazil, India, China and Russia, were excluded. Likewise, a series of manoeuvres ensured that public knowledge about the specifics of the agreement and opportunities for input into the process were severely limited. Negotiations were held with mere hours notice to the public as to when and where they would be convened, often in countries half away around the world from where public interest groups are housed. Once there, all negotiation processes were closed to the public. Draft texts were not released before or after most negotiating rounds, and meetings with stakeholders took place only behind closed doors and off the record. A public release of draft text, in April 2010, was followed by no public or on-the-record meetings with negotiators." Moreover, it is disturbing that the Anti-Counterfeiting Trade Agreement 2011 has been driven by ideology and faith, rather than by any evidence-based policy making Professor Duncan Matthews has raised significant questions about the quality of empirical evidence used to support the proposal of Anti-Counterfeiting Trade Agreement 2011: ‘There are concerns that statements about levels of counterfeiting and piracy are based either on customs seizures, with the actual quantities of infringing goods in free circulation in any particular market largely unknown, or on estimated losses derived from industry surveys.’ It is particularly disturbing that, in spite of past criticism, the Department of Foreign Affairs and Trade has supported the Anti-Counterfeiting Trade Agreement 2011, without engaging the Productivity Commission or the Treasury to do a proper economic analysis of the proposed treaty. Kader Arif, Rapporteur for the Anti-Counterfeiting Trade Agreement 2011 in the European Parliament, quit his position, and said of the process: "I want to denounce in the strongest possible manner the entire process that led to the signature of this agreement: no inclusion of civil society organisations, a lack of transparency from the start of the negotiations, repeated postponing of the signature of the text without an explanation being ever given, exclusion of the EU Parliament's demands that were expressed on several occasions in our assembly. As rapporteur of this text, I have faced never-before-seen manoeuvres from the right wing of this Parliament to impose a rushed calendar before public opinion could be alerted, thus depriving the Parliament of its right to expression and of the tools at its disposal to convey citizens' legitimate demands.” Everyone knows the ACTA agreement is problematic, whether it is its impact on civil liberties, the way it makes Internet access providers liable, its consequences on generic drugs manufacturing, or how little protection it gives to our geographical indications. This agreement might have major consequences on citizens' lives, and still, everything is being done to prevent the European Parliament from having its say in this matter. That is why today, as I release this report for which I was in charge, I want to send a strong signal and alert the public opinion about this unacceptable situation. I will not take part in this masquerade." There have been parallel concerns about the process and substance of the Anti-Counterfeiting Trade Agreement 2011 in the context of Australia. I have a number of concerns about the substance of the Anti-Counterfeiting Trade Agreement 2011. First, I am concerned that the Anti-Counterfeiting Trade Agreement 2011 fails to provide appropriate safeguards in respect of human rights, consumer protection, competition, and privacy laws. It is recommended that the new Joint Parliamentary Committee on Human Rights investigate this treaty. Second, I argue that there is a lack of balance to the copyright measures in the Anti-Counterfeiting Trade Agreement 2011 – the definition of piracy is overbroad; the suite of civil remedies, criminal offences, and border measures is excessive; and there is a lack of suitable protection for copyright exceptions, limitations, and remedies. Third, I discuss trade mark law, intermediary liability, and counterfeiting. I express my concerns, in this context, that the Anti-Counterfeiting Trade Agreement 2011 could have an adverse impact upon consumer interests, competition policy, and innovation in the digital economy. I also note, with concern, the lobbying by tobacco industries for the Anti-Counterfeiting Trade Agreement 2011 – and the lack of any recognition in the treaty for the capacity of countries to take measures of tobacco control under the World Health Organization Framework Convention on Tobacco Control. Fourth, I note that the Anti-Counterfeiting Trade Agreement 2011 provides no positive obligations to promote access to essential medicines. It is particularly lamentable that Australia and the United States of America have failed to implement the Doha Declaration on the TRIPS Agreement and Public Health 2001 and the WTO General Council Decision 2003. Fifth, I express concerns about the border measures in the Anti-Counterfeiting Trade Agreement 2011. Such measures lack balance – and unduly favour the interests of intellectual property owners over consumers, importers, and exporters. Moreover, such measures will be costly, as they involve shifting the burden of intellectual property enforcement to customs and border authorities. Interdicting, seizing, and destroying goods may also raise significant trade issues. Finally, I express concern that the Anti-Counterfeiting Trade Agreement 2011 undermines the role of existing international organisations, such as the United Nations, the World Intellectual Property Organization and the World Trade Organization, and subverts international initiatives such as the WIPO Development Agenda 2007. I also question the raison d'être, independence, transparency, and accountability of the proposed new ‘ACTA Committee’. In this context, I am concerned by the shift in the position of the Labor Party in its approach to international treaty-making in relation to intellectual property. The Australian Parliament adopted the Australia-United States Free Trade Agreement 2004, which included a large Chapter on intellectual property. The treaty was a ‘TRIPs-Plus’ agreement, because the obligations were much more extensive and prescriptive than those required under the multilateral framework established by the TRIPS Agreement 1994. During the debate over the Australia-United States Free Trade Agreement 2004, the Labor Party expressed the view that it would seek to mitigate the effects of the TRIPS-Plus Agreement, when at such time it gained power. Far from seeking to ameliorate the effects of the Australia-United States Free Trade Agreement 2004, the Labor Government would seek to lock Australia into a TRIPS-Double Plus Agreement – the Anti-Counterfeiting Trade Agreement 2011. There has not been a clear political explanation for this change in approach to international intellectual property. For both reasons of process and substance, I conclude that the Australian Parliament and the Australian Government should reject the Anti-Counterfeiting Trade Agreement 2011. The Australian Government would do better to endorse the Washington Declaration on Intellectual Property and the Public Interest 2011, and implement its outstanding obligations in respect of access to knowledge, access to essential medicines, and the WIPO Development Agenda 2007. The case study of the Anti-Counterfeiting Trade Agreement 2011 highlights the need for further reforms to the process by which Australia engages in international treaty-making.

Can the Gates Foundation be convinced to dump fossil fuels?

This week, The Guardian newspaper has campaigned for the Bill and Melinda Gates Foundation to divest its fossil fuel investments – which the newspaper claims are worth US$1.4 billion. The foundation can and should address the climate crisis, particularly given the threat it poses to food security, public health, human rights, and the development agenda.

Finding the leverage point in the sustainability crisis: Global, national and regional Australian responses

From an economic perspective, the sustainability crisis is ultimately characterized by a worsening relationship between the resources required to support the global population and the ability of the earth to supply them. Despite the ever-increasing threat of a calamity, modern society appears unable to alter its course. The very systems which underpin global human endeavor seem to actively prevent meaningful change and the one irrepressible goal to which all societies seem to strive is the very thing that makes such endeavor ultimately life threatening: that of global growth. Using the Australian experience as an exemplar, this paper explores how the concept of growth infiltrates societal reactions to the crisis at various scales – global, national and regional. Analysis includes historic studies, a critique of current misconceptions around population demographics, comparative evaluation of various interventions in the Australian context and considerations around potential ways to address the crisis.

The political decisions and policy leading to the Royal Australian Air Force having no fighters or interceptors for the coming war against Japan

The thesis provides an understanding of the ignored need for a modern air defence system for the Australian air force to meet the growing threat from Japan in the 1930s and early 1940s. The quality of advice provided to, and accepted by, Australian politicians was misleading and eliminated the need for fighters and interceptors despite glaring evidence to the contrary. Based on primary source material, including official documents, Allied and Axis pilot memoirs, popular aviation literature and newspaper and magazine articles and interviews, the thesis highlights the inability of Australian politicians to face the reality of the international situation.

Vaccination of koalas (Phascolarctos cinereus) with a recombinant chlamydial major outer membrane protein adjuvanted with poly I:C, a host defense peptide and polyphosphazine, elicits strong and long lasting cellular and humoral immune responses

Chlamydial infections are wide spread in koalas across their range and a solution to this debilitating disease has been sought for over a decade. Antibiotics are the currently accepted therapeutic measure, but are not an effective treatment due to the asymptomatic nature of some infections and a low efficacy rate. Thus, a vaccine would be an ideal way to address this infectious disease threat in the wild. Previous vaccine trials have used a three-dose regimen; however this is very difficult to apply in the field as it would require multiple capture events, which are stressful and invasive processes for the koala. In addition, it requires skilled koala handlers and a significant monetary investment. To overcome these challenges, in this study we utilized a polyphosphazine based poly I:C and a host defense peptide adjuvant combined with recombinant chlamydial major outer membrane protein (rMOMP) antigen to induce long lasting (54 weeks) cellular and humoral immunity in female koalas with a novel single immunizing dose. Immunized koalas produced a strong IgG response in plasma, as well as at mucosal sites. Moreover, they showed high levels of C. pecorum specific neutralizing antibodies in the plasma as well as vaginal and conjunctival secretions. Lastly, Chlamydia-specific lymphocyte proliferation responses were produced against both whole chlamydial elementary bodies and rMOMP protein, over the 12-month period. The results of this study suggest that a single dose rMOMP vaccine incorporating a poly I:C, host defense peptide and polyphosphazine adjuvant is able to stimulate both arms of the immune system in koalas, thereby providing an alternative to antibiotic treatment and/or a three-dose vaccine regime.

The koala immunological toolkit: Sequence identification and comparison of key markers of the koala (Phascolarctos cinereus) immune response

The koala (Phascolarctos cinereus) is an Australian marsupial that continues to experience significant population declines. Infectious diseases caused by pathogens such as Chlamydia are proposed to have a major role. Very few species-specific immunological reagents are available, severely hindering our ability to respond to the threat of infectious diseases in the koala. In this study, we utilise data from the sequencing of the koala transcriptome to identify key immunological markers of the koala adaptive immune response and cytokines known to be important in the host response to chlamydial infection in other species. This report describes the identification and preliminary sequence analysis of (1) T lymphocyte glycoprotein markers (CD4, CD8); (2) IL-4, a marker for the Th2 response; (3) cytokines such as IL-6, IL-12 and IL-1β, that have been shown to have a role in chlamydial clearance and pathology in other hosts; and (4) the sequences for the koala immunoglobulins, IgA, IgG, IgE and IgM. These sequences will enable the development of a range of immunological reagents for understanding the koala’s innate and adaptive immune responses, while also providing a resource that will enable continued investigations into the origin and evolution of the marsupial immune system.

How yak farmers can hold back a glacial tsunami

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Drink driving among Indigenous people in Far North Queensland and northern New South Wales: A summary of the qualitative findings

Purpose In response to the threat that drink drivers pose to themselves and others, drink driving programs form an important part of a suite of countermeasures used in Australia and internationally. Unlike New Zealand/Aotearoa, United States and Canada that have programs catering for their First Peoples, all Australian programs are designed for the general driver population. The aim of this study was to identify the factors that contribute to Indigenous drink driving in order to inform appropriate recommendations related to developing a community-based program for Indigenous communities. Broader drivers licensing policy recommendations are also discussed. Methods A sample of 73 Indigenous people from Queensland and in New South Wales with one or more drink driving convictions completed a semi-structured interview in respect of the to their drink driving behaviour. Participants were asked to disclose information regarding their drink driving history, and alcohol and drug use. If participants self-reported no longer drink driving, they were probed about what factors had assisted them to avoid further offending. Results Key themes which emerged to maintain drink driving include motivations to drink and drive, and belief in the ability to manage the associated risks. Factors that appeared to support others from avoiding further offending include re-connecting with culture and family support. Conclusions and Implications A range of recommendations regarding delivery and content of a program for regional and remote communities as well as other policy implications are discussed.

Identifying and addressing equivocal trouble in understanding within classroom interaction

Maintaining intersubjectivity is crucial for accomplishing coordinated social action. Although conversational repair is a recognised defence of intersubjectivity and routinely used to address ostensible sources of trouble in social interaction, it is less clear how people address more equivocal trouble. This study uses conversation analysis to examine preschool classroom interaction, focusing on practices used to identify and address such trouble. Repair is found to be a recurrent frontline practice for addressing equivocal trouble, occasioning space for further information that might enable identifying a specific trouble source. Where further information is forthcoming, a range of strategies are subsequently employed to address the trouble. Where this is not possible or does not succeed, a secondary option is to progress a broader activity-in-progress. This allows for the possibility of another opportunity to identify and address the trouble. Given misunderstandings can jeopardise interactants’ ability to mutually accomplish courses of action, these practices defend intersubjectivity against the threat of equivocal trouble.

Dystopian fiction for young people: Instructive tales of resilience

The rise and popularity of dystopian fiction in recent years is quite marked and critics often attribute such high sales of books and box office as being linked to the impact September 11 has had on the world, especially in the United States. While the events of September 11, 2001 saw a heightened anxiety by nations and their citizens about the fear and threat of terrorism – an anxiety which is paradoxically lowered and raised by increased surveillance practices, security checks and warnings – other changes since the last stages of the twentieth century have also raised concerns and anxieties. In this paper I use examples of Young Adult (YA) dystopian fiction to illustrate the potential these texts have for providing their readers with alternative ways of thinking about the challenges that others face and their capacity for resilience.

Sustainable me - a pharmacist’s role in reducing the carbon footprint of healthcare delivery

Introduction Climate change has been described as the most significant global health threat of the 21st century. Already, negative impacts on human health and wellbeing are being observed. These impacts present enormous challenges for the healthcare sector and the time has come for healthcare professionals to demonstrate leadership in addressing these challenges. Since any unsustainable organizational practices of healthcare organisations may ultimately have a negative impact on human health, there is an implicit moral obligation for these organisations and the people who work in them, to deliver healthcare more sustainably. If one considers that in 2010 pharmaceuticals comprised 22% of the carbon footprint of the NHS England (equating to 4.4 million tonnes of CO2 emissions) and 3% of England’s total carbon footprint (NHS Sustainable Development Unit, 2012), by reducing the carbon footprint of pharmaceuticals used in their healthcare organisations, pharmacists can have a significant impact on reducing the organisation’s total carbon footprint and ultimately on the public’s health. Aims The engagement of pharmacists with sustainability initiatives in the workplace has been largely unreported in international and national pharmacy journals. This paper aims to highlight the important role that pharmacists can play in helping to reduce the carbon footprint of healthcare delivery. Methods Literature was reviewed to identify areas where pharmacists could influence the more sustainable use of pharmaceuticals in their organisations. Discussion Much of the carbon footprint of pharmaceuticals is embedded carbon from their manufacture and delivery. Through efficient inventory management practices, pharmacists can reduce the number of orders and potentially reduce the number of deliveries required. Pharmacists can also help to reduce the amount of pharmaceutical waste generated. Of the waste that is generated, they can help improve the segregation of waste streams to increase the amount of non-contaminated packaging waste that is recycled and reduce the amount of pharmaceutical waste being incinerated or ending up in landfill. Reference NHS Sustainable Development Unit. (2012). Sustainability in the NHS Health Check 2012. NHS Sustainable Development Unit. Cambridge, UK: NHS Sustainable Devlopment Unit.

Inconsistencies in and the inadequacies of the family counselling and FDR confidentiality and admissibility provisions: The need for reform

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Evaluation of transgenic bananas expressing anti-apoptotic genes for resistance against Fusarium wilt

The banana industry worldwide is under threat from a fungal disease known as Fusarium wilt, a disease for which there is no chemical control. Conventional breeding approaches to generate resistant banana varieties are lengthy and very difficult. As such, genetic engineering for disease resistance is considered the most viable control option. In this PhD thesis, genetically modified banana plants were generated using several different stress tolerance genes. When challenged with Fusarium wilt in glasshouse trials, some lines showed increased resistance to the disease. The promising elite lines generated in this study will now require testing in field trials.

Drink driving among indigenous people in Far North Queensland and Northern New South Wales: A summary of qualitative findings

In response to the threat that drink drivers pose to themselves and others, drink driving programs form an important part of a suite of countermeasures used in Australia and internationally. Unlike New Zealand/Aotearoa, United States and Canada that have programs catering for their First Peoples, all Australian programs are designed for the general driver population. The aim of this study was to identify the factors that contribute to Indigenous drink driving in order to inform appropriate recommendations related to developing a community-based program for Indigenous communities. Broader drivers licensing policy recommendations are also discussed. A sample of 73 Indigenous people from Queensland and in New South Wales with one or more drink driving convictions completed a semi-structured interview regarding their drink driving behaviour. Participants were asked to disclose information regarding their drink driving history, and alcohol and drug use. If participants self-reported no longer drink driving, they were probed about what factors had assisted them to avoid further offending. Key themes which emerged to maintain drink driving include motivations to drink and drive, and belief in the ability to manage the associated risks. Factors that appeared to support others from avoiding further offending include re-connecting with culture and family support. A range of recommendations regarding delivery and content of a program for regional and remote communities as well as other policy implications are discussed.

Contemplating Knudsen's Baseline: Where small is not so beautiful

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