Remixing Canadian copyright law: A review essay on'An Emerging Intellectual Property Paradigm','Canadian Copyright: A Citizen's Guide'; and'RiP!: A Remix Manifesto', Prometheus, Vol. 27 (3), p. 297-305

In her album, Hymns of the 49th Parallel, the chanteuse K.D. Lang pays tribute to a series of great Canadian songwriters—such as Neil Young, Leonard Cohen, Joni Mitchell and Jane Siberry. In a similar spirit of celebration, this review essay pays homage to a number of recent texts and films dealing with Canadian intellectual property. First, it considers Ysolde Gendreau’s collection, An Emerging Intellectual Property Paradigm: Perspectives from Canada. Second, this essay looks at Laura Murray and Samuel Trosow’s manual, Canadian Copyright: A Citizen’s Guide. Finally, this review evaluates Brett Gaylor’s documentary, RiP! A Remix Manifesto. The three works share certain affinities—a spirit of scepticism about the legitimacy and the efficacy of existing networks of law, policy and bureaucracy; a populist interest in the impact of intellectual property on the everyday lives of citizens, creators and consumers; a passion for human rights; and a melioristic desire for sensible law reform of copyright law and related regimes of intellectual property.

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.

A Submission to the Joint Standing Committee on Treaties on the Korea-Australia Free Trade Agreement (KAFTA)

Australia and South Korea have signed a new free trade agreement - the Korea-Australia Free Trade Agreement (KAFTA). Is it a fair trade fairytale? Or is it a dirty deal done dirt cheap? Or somewhere in between? It is hard to tell, given the initial secrecy of the negotiations, and the complexity of the texts of the agreement There has been much debate in Parliament over the transparency of the trade agreement; the scope of market access provided under the deal; the impact of the investment chapter, with its investor-state dispute settlement clause; the intellectual property chapter; the environment chapter; its impact upon public health; and the labor rights chapter. KAFTA provides an indication of the approach of the new Conservative Government in Australia to other trade deals – such as the Trans-Pacific Partnership.

Arts Subject Area Syllabuses – Literature Review

The following document is a discussion of the key factors and ideas that need to be taken into consideration in the reworking of Arts Subject Area Syllabuses (SAS). The review consists of short summaries of key academic texts, reports and policy documents that may be useful in the rethinking of the subject offerings under the banner of the Arts. The concentration of citations included in this literature review is situated in the last fourteen years of investigation into arts and education from the years 2000 to 2014. The review begins with a summary of key considerations arising from the literature that may be taken into account when redeveloping SAS syllabi in the arts subject areas. Immediately following the summary is the review of literature captured under the following headings – role of the arts in educational contexts, arts engagement, learners & achievement, content, teaching and learning approaches, skills for the 21st century workforce, national and international syllabus directions.

Speaking the bitter truth: The role of the creative imagination in the process of healing

This chapter is concerned with the complexity and difficulty of truth telling as it is played out in two graphic novels: Stitches: A Memoir (Small 2009) and Why We Broke Up (Handler & Kalman, 2011). These texts establish a link between creative imagination and pain as the central protagonists come to see the therapeutic value of literature and film in helping them understand the complex emotional worlds they inhabit and the bitter truths about love and relationships. The discussion examines how these texts privilege a particular kind of independent subjectivity through aesthetic creation and appropriation. It also considers how speaking and silence are co-present elements in gender relations and each has its part to play in the double process of suffering and healing.

Let’s talk about lex: Narrative analysis as both research method and teaching technique in law

Law is narration: it is narrative, narrator and the narrated. As a narrative, the law is constituted by a constellation of texts – from official sources such as statutes, treaties and cases, to private arrangements such as commercial contracts, deeds and parenting plans. All are a collection of stories: cases are narrative contests of facts and rights; statutes are recitations of the substantive and procedural bases for social, economic and political interactions; private agreements are plots for future relationships, whether personal or professional. As a narrator, law speaks in the language of modern liberalism. It describes its world in abstractions rather than in concrete experience, universal principles rather than individual subjectivity. It casts people into ‘parties’ to legal relationships; structures human interactions into ‘issues’ or ‘problems’; and tells individual stories within larger narrative arcs such as ‘the rule of law’ and ‘the interests of justice’. As the narrated, the law is a character in its own story. The scholarship of law, for example, is a type of story-telling with law as its central character. For positivists, still the dominant group in the legal genre, law is a closed system of formal rules with an “immanent rationality” and its own “structure, substantive content, procedure and tradition,” dedicated to finality of judgment. For scholars inspired by the interpretative tradition in the humanities, law is a more ambivalent character, susceptible to influences from outside its realm and masking a hidden ideological agenda under its cloak of universality and neutrality. For social scientists, law is a protagonist on a wider social stage, impacting on society, the economy and the polity is often surprising ways.

Pioneering use of narrative method in a first-year law course to provide an authentic, inquiry-based entry into the discipline of law

Law is saturated with stories. People tell their stories to lawyers; lawyers tell their client's stories to courts; and legislators develop regulation to respond to their constituent's stories of injustice or inequality. My approach to first-year legal education respects this narrative tradition. Both my curriculum design and assessment scheme in the compulsory first-year subject Australian Legal System deploy narrative methodology as the central teaching and learning device. Throughout the course, students work on resolving the problems of four hypothetical clients. Like a murder mystery, pieces of the puzzle come together as students learn more about legal institutions and the texts they produce, the process of legal research, the analysis and interpretation of primary legal sources, the steps in legal problem-solving, the genre conventions of legal writing style, the practical skills and ethical dimensions of professional practice, and critical inquiry into the normative underpinnings and impacts of the law. The assessment scheme mirrors this design. In their portfolio-based assignment, for example, students devise their own client profile, research the client's legal position and prepare a memorandum of advice.

Global standard for the composition of infant formula: Recommendations of an ESPGHAN coordinated international expert group

The Codex Alimentarius Commission of the Food and Agriculture Organization of the United Nations (FAO) and the World Health Organization (WHO) develops food standards, guidelines and related texts for protecting consumer health and ensuring fair trade practices globally. The major part of the world's population lives in more than 160 countries that are members of the Codex Alimentarius. The Codex Standard on Infant Formula was adopted in 1981 based on scientific knowledge available in the 1970s and is currently being revised. As part of this process, the Codex Committee on Nutrition and Foods for Special Dietary Uses asked the ESPGHAN Committee on Nutrition to initiate a consultation process with the international scientific community to provide a proposal on nutrient levels in infant formulae, based on scientific analysis and taking into account existing scientific reports on the subject. ESPGHAN accepted the request and, in collaboration with its sister societies in the Federation of International Societies on Pediatric Gastroenterology, Hepatology and Nutrition, invited highly qualified experts in the area of infant nutrition to form an International Expert Group (IEG) to review the issues raised. The group arrived at recommendations on the compositional requirements for a global infant formula standard which are reported here.

Kissing fish: Rex Hunt, popular culture, sustainability and fishing practices

Natural resource managers and scientists focus on the behaviour of individual recreational fishers to understand environmental problems associated with this leisure activity. They do this in an effort to identify ways to change attitudes in order to facilitate environmentally friendly choices. This applied use of ABC psychology (attitude, behaviour, choice) has not delivered the expected results. This article offers a different approach by investigating an emergent practice in diverse fishing communities, rather than looking to the responsibility of the individual recreational fisher. Using practice theory, I trace the change from take-all to catch-and-release fishing in Australia by analysing the texts of celebrity fisher Rex Hunt, who is an advocate for releasing fish. I combine this with oral history testimony from a sample of recreational fishers from the broader Australian community to show how change happened. The practice of catch-and-release fishing emerged through the combination of sociotechnical and historically specific elements present in popular culture, including the media. Paying attention to the way different elements catalyse provides a rich account of the changing modes of sustainability in recreational fishing communities.

Doing Digital Composition on the Social Web: Knowledge Processes in Literacy Learning

The power to influence others in ever-expanding social networks in the new knowledge economy is tied to capabilities with digital media production. This chapter draws on research in elementary classrooms to examine the repertoires of cross-disciplinary knowledge that literacy learners need to produce innovative digital media via the “social web”. It focuses on the knowledge processes that occurred when elementary students engaged in multimodal text production with new digital media. It draws on Kalantzis and Cope’s (2008) heuristic for theorizing “Knowledge Processes” in the Learning by Design approach to pedagogy. Learners demonstrate eight “Knowledge Processes” across different subject domains, skills areas, and sensibilities. Drawing data from media-based lessons across several classroom and schools, this chapter examines what kinds of knowledge students utilize when they produce digital, multimodal texts in the classroom. The Learning by Design framework is used as an analytic tool to theorize how students learn when they engaged in a specific domain of learning – digital media production.

Critically deconstructing race through a multimodal analysis of iPad Tellagami videos

Drawing on multimodal texts produced by an Indigenous school community in Australia, I apply critical race theory and multimodal analysis (Jewitt, 2011) to decolonise digital heritage practices for Indigenous students. This study focuses on the particular ways in which students’ counter-narratives about race were embedded in multimodal and digital design in the development of a digital cultural heritage (Giaccardi, 2012). Data analysis involved applying multimodal analysis to the students’ Gamis, following social semiotic categories and principles theorised by Kress and Bezemer (2008), and Jewitt (2006, 2011). This includes attending to the following semiotic elements: visual design, movement and gesture, gaze, and recorded speech, and their interrelationships. The analysis also draws on critical race theory to interpret the students’ representations of race. In particular, the multimodal texts were analysed as a site for students’ views of Indigenous oppression in relation to the colonial powers and ownership of the land in Australian history (Ladson-Billings, 2009). Pedagogies that explore counter-narratives of cultural heritage in the official curriculum can encourage students to reframe their own racial identity, while challenging dominant white, historical narratives of colonial conquest, race, and power (Gutierrez, 2008). The children’s multimodal “Gami” videos, created with the iPad application, Tellagami, enabled the students to imagine hybrid, digital social identities and perspectives of Australian history that were tied to their Indigenous cultural heritage (Kamberelis, 2001).

Valuing Indigenous heritage through multimodal literacy

The study on which this presentation is based focuses on the particular ways in which students’ counter-narratives about race were embedded in multimodal and digital design in the development of a digital cultural heritage. The multimodal texts were analysed as a site for students’ views of Indigenous oppression in relation to the colonial powers and ownership of the land in Australian history. In this presentation, Kathy will demonstrate how pedagogies that explore counter-narratives of cultural heritage in the official curriculum can encourage students to reframe their own racial identity, while challenging dominant white, historical narratives of colonial conquest, race, and power. In the second part of this session, Indigenous Principal, John Davis and teachers from HymbaYumba Community Hub will provide a school-based, Indigenous panel to inspire educators with authentic ways to embed Indigenous knowledge in the curriculum.

From the genius of man to the man of genius, part one: A slippery subject

The two articles that comprise this analysis springboard from the availability and increased popularity of the term genius to nineteenth and twentieth century educational scholars and its (temporary) location along a continuum of mindedness that was relatively new (i.e., as opposite to insanity). Three generations of analysis playfully structure the argument, taking form around the gen‐ root’s historical association with tropes of production and reproduction. Of particular interest in the analysis is how subject‐formation, including perceptions of non‐formation and elusivity, occurs. I examine this process of (non)formation within and across key texts on genius, especially in relation to their narrative structures, key binaries and sources of authority that collectively produce and embed specific cosmologies and their moral boundaries. The argument is staged across two articles that embody the three generations of analysis.

Rationality, governmentality, natio(norm)ality: Shaping social science, scientific objects, and the invisible

The discipline of education in Anglophone-dominant contexts has always grappled with a kind of status anxiety relative to other disciplines. This is in part due to the ways in which evidence has been thought about in the theoretico-experimental sciences relative to the ethico-redemptive ones. By examining that which was considered to fall to the side of science, even of social science, this paper complexifies contemporary debates over educational science and research, including debates over evidence-based education or assumed divisions between the quantitative/qualitative and empirical/conceptual. It reapproaches historical vagaries in discourses of vision that underscore the arbitrariness of approaches to social scientific research and its objects. A less-considered set of spatializations and regionalisms in social scientific conceptions of rationality especially are exposed through a close reading of the Harvard University philosopher William James' more marginalized texts.

William James, Sciences of Mind, and Anti-imperial Discourse

In the past few decades, the humanities and social sciences have developed new methods of reorienting their conceptual frameworks in a “world without frontiers.” In this book, Bernadette M. Baker offers an innovative approach to rethinking sciences of mind as they formed at the turn of the twentieth century, via the concerns that have emerged at the turn of the twenty-first. The less-visited texts of Harvard philosopher and psychologist William James provide a window into contemporary debates over principles of toleration, anti-imperial discourse, and the nature of ethics. Baker revisits Jamesian approaches to the formation of scientific objects including the child mind, exceptional mental states, and the ghost to explore the possibilities and limits of social scientific thought dedicated to mind development and discipline formation around the construct of the West.