Failed states and the rule of law

The last decade has seen an emerging consensus that the rule of law is critical in both domestic and international affairs. ‘Failed’ states generate important issues for both the rule of law and, importantly, for their intersection or interaction. A ‘failed’ state almost inevitably involves a breakdown of the domestic rule of law. When international intervention occurs, it raises concerns over substantive issues. Among these is the application of international law and international norms, including among other, the conventions and treaties, the responsibility to protect and protection of civilians. Where international missions seek to assist the people of ‘failed’ states in rebuilding their nations, establishing the rule of law is often the primary or initial pursuit. Any such international assistance/intervention is more effective if it is clearly subject to the rule of law and provides an exemplar/demonstration of how power should be exercised

International law and the regulation of violence : shifting perceptions of the legitimacy of the jus ad bellum?

International law’s capacity to influence state behaviour by regulating recourse to violence has been a longstanding source of debate among international lawyers and political scientists. On the one hand, sceptics assert that frequent violations of the prohibition on the use of force have rendered article 2(4) of the UN Charter redundant. They contend that national self-interest, rather than international law, is the key determinant of state behaviour regarding the use of force. On the other hand, defenders of article 2(4) argue first, that most states comply with the Charter framework, and second, that state rhetoric continues to acknowledge the existence of the jus ad bellum. In particular, the fact that violators go to considerable lengths to offer legal or factual justifications for their conduct – typically by relying on the right of self-defence – is advanced as evidence that the prohibition on the use of force retains legitimacy in the eyes of states. This paper identifies two potentially significant features of state practice since 2006 which may signal a shift in states’ perceptions of the normative authority of article 2(4). The first aspect is the recent failure by several states to offer explicit legal justifications for their use or force, or to report action taken in self-defence to the Security Council in accordance with Article 51. Four incidents linked to the global “war on terror” are examined here: Israeli airstrikes in Syria in 2007 and in Sudan in 2009, Turkey’s 2006-2008 incursions into northern Iraq, and Ethiopia’s 2006 intervention in Somalia. The second, more troubling feature is the international community’s apparent lack of concern over the legality of these incidents. Each use of force is difficult to reconcile with the strict requirements of the jus ad bellum; yet none attracted genuine legal scrutiny or debate among other states. While it is too early to conclude that these relatively minor incidents presage long term shifts in state practice, viewed together the two developments identified here suggest a possible downgrading of the role of international law in discussions over the use of force, at least in conflicts linked to the “war on terror”. This, in turn, may represent a declining perception of the normative authority of the jus ad bellum, and a concomitant admission of the limits of international law in regulating violence.

Bilski v Kappos : The United States Supreme Court delivers mixed views on patenting non-physical inventions and business methods

The United States Supreme Court has handed down a once in a generation patent law decision that will have important ramifications for the patentability of non-physical methods, both internationally and in Australia. In Bilski v Kappos, the Supreme Court considered whether an invention must either be tied to a machine or apparatus, or transform an article into a different state or thing to be patentable. It also considered for the first time whether business methods are patentable subject matter. The decision will be of particular interest to practitioners who followed the litigation in Grant v Commissioner of Patents, a Federal Court decision in which a Brisbane-based inventor was denied a patent over a method of protecting an asset from the claims of creditors.

Facilitating Malaysia towards innovative society : arguing the case for open access policy

The Malaysian National Innovation Model blueprint states that there is an urgent need to pursue an innovation-oriented economy to improve the nation’s capacity for knowledge, creativity and innovation. In nurturing a pervasive innovation culture, the Malaysian government has declared the year 2010 as an Innovative Year whereby creativity among its population is highly celebrated. However, while Malaysian citizens are encouraged to be creative and innovative, scientific data and information generated from publicly funded research in Malaysia is locked up because of rigid intellectual property licensing regimes and traditional publishing models. Reflecting on these circumstances, this paper looks at, and argue why, scientific data and information should be made available, accessible and re-useable freely to promote the grassroots level of innovation in Malaysia. Using innovation theory as its platform of argument, this paper calls for an open access policy for publicly funded research output to be adopted and implemented in Malaysia. Simultaneously, a normative analytic approach is used to determine the types of open access policy that ought to be adopted to spur greater innovation among Malaysians.

Digital economy future directions

Advances in information and communication technologies have brought about an information revolution, leading to fundamental changes in the way information is collected or generated, shared and distributed. The internet and digital technologies are re-shaping research, innovation and creativity. Economic research has highlighted the importance of information flows and the availability of information for access and re-use. Information is crucial to the efficiency of markets and enhanced information flows promote creativity, innovation and productivity. There is a rapidly expanding body of literature which supports the economic and social benefits of enabling access to and re-use of public sector information.1 (Note that a substantial research project associated with QUT’s Intellectual Property: Knowledge, Culture and Economy (IPKCE) Research Program is engaged in a comprehensive study and analysis of the literature on the economics of access to public sector information.)

Free software as a democratic principle

Software forms an important part of the interface between citizens and their government. An increasing amount of government functions are being performed, controlled, or delivered electronically. This software, like all language, is never value-neutral, but must, to some extent, reflect the values of the coder and proprietor. The move that many governments are making towards e-governance, and the increasing reliance that is being placed upon software in government, necessitates a rethinking of the relationships of power and control that are embodied in software.

Country of Origin and Internet Publication : Applying the Berne Convention in the Digital Age

Historically, determining the country of origin of a published work presented few challenges, because works were generally published physically – whether in print or otherwise – in a distinct location or few locations. However, publishing opportunities presented by new technologies mean that we now live in a world of simultaneous publication – works that are first published online are published simultaneously to every country in world in which there is Internet connectivity. While this is certainly advantageous for the dissemination and impact of information and creative works, it creates potential complications under the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”), an international intellectual property agreement to which most countries in the world now subscribe. Under the Berne Convention’s national treatment provisions, rights accorded to foreign copyright works may not be subject to any formality, such as registration requirements (although member countries are free to impose formalities in relation to domestic copyright works). In Kernel Records Oy v. Timothy Mosley p/k/a Timbaland, et al. however, the Florida Southern District Court of the United States ruled that first publication of a work on the Internet via an Australian website constituted “simultaneous publication all over the world,” and therefore rendered the work a “United States work” under the definition in section 101 of the U.S. Copyright Act, subjecting the work to registration formality under section 411. This ruling is in sharp contrast with an earlier decision delivered by the Delaware District Court in Håkan Moberg v. 33T LLC, et al. which arrived at an opposite conclusion. The conflicting rulings of the U.S. courts reveal the problems posed by new forms of publishing online and demonstrate a compelling need for further harmonization between the Berne Convention, domestic laws and the practical realities of digital publishing. In this article, we argue that even if a work first published online can be considered to be simultaneously published all over the world it does not follow that any country can assert itself as the “country of origin” of the work for the purpose of imposing domestic copyright formalities. More specifically, we argue that the meaning of “United States work” under the U.S. Copyright Act should be interpreted in line with the presumption against extraterritorial application of domestic law to limit its application to only those works with a real and substantial connection to the United States. There are gaps in the Berne Convention’s articulation of “country of origin” which provide scope for judicial interpretation, at a national level, of the most pragmatic way forward in reconciling the goals of the Berne Convention with the practical requirements of domestic law. We believe that the uncertainties arising under the Berne Convention created by new forms of online publishing can be resolved at a national level by the sensible application of principles of statutory interpretation by the courts. While at the international level we may need a clearer consensus on what amounts to “simultaneous publication” in the digital age, state practice may mean that we do not yet need to explore textual changes to the Berne Convention.

Governing a copyright culture in post-WTO China : copyright in the film and music industries, 2001 - 2005

In 2001 China amended its copyright law in accordance with the requirements of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS). This thesis explores the impact of copyright reform on China’s domestic film and music industries. Through extensive interviews with film and music industry workers – directors, producers, executives, judges, lawyers and musicians – it investigates the role of copyright in film and music’s shift from state driven to commercially focussed. The construction and negotiation of a new ‘copyright culture’ in China is examined through the lens of Yurchak’s (1999) concept of ‘entrepreneurial governmentality.’ Administrative structures put in place prior to China’s economic reform are no longer capable of controlling film and music production and consumption and new approaches to managing it are becoming more important. High levels of unauthorised distribution are forcing these industries to adapt their business models so that they can function in a system with weak copyright protection. Legal, economic and political changes have resulted in the emergence of an ‘entrepreneurial governmentality’ among film and music industry professionals. This commercially focussed group is, in turn, increasing pressure on the state to expand the space in which it can function and support efforts to strengthen the copyright system that allows it to exist. It is suggested that the construction and negotiation of a new ‘copyright culture’ is now taking place. This thesis describes the current situation in the film and music industries. It examines the tension between the theoretical possibilities created by copyright law, and the practical challenges of operating in China. It observes innovative business models being applied by film and music businesses in China. It discusses the impact of traditional attitudes to copying and also examines the role that open licensing models might play in helping limit the negative effects of copyright protection on public access to content and in raising levels of education about copyright among key groups within the community.

Copyright enforcement in the networked society : guiding principles for protecting copyright

This paper argues that any future copyright policy should be proportional and flexible and be developed from a clear and evidence-based approach. An approach is required that carefully balances the incentives and rewards provided to economic rights holders against fundamental rights of privacy, self-expression, due process and the user rights embodied in copyright law to protect access, learning, critique, and reuse. This paper also suggests that while adequate enforcement measures are certainly part of a solution to a well functioning lawful, enforcement alone can never solve the root cause of unlawful file-sharing, since it utterly fails to address supply-side market barriers. Focus on enforcement measures alone continues to leave out a legitimate but un-served market demand, susceptible to unlawful alternatives. A competitive and consumer friendly digital content market and an appropriate legal framework to enable easy lawful access to digital content are essential preconditions for the creation of a culture of lawful, rather than unlawful, consumption.

Access, progress, and fairness : rethinking exclusivity in copyright

This article provides a detailed critique of the incentives-access binary in copyright discourse. Mainstream copyright theory generally accepts that copyright is a balance between providing incentives to authors to invest in the production of cultural works and enhancing the dissemination of those works to the public. This Article argues that dominant copyright theory obscures the possibility of developing a model of copyright that is able to support authors without necessarily limiting access to creative works. The abundance that the Internet allows suggests that increasing access to cultural works to enhance learning, sharing, and creative play should be a fundamental goal of copyright policy. This Article examines models of supporting and coordinating cultural production without exclusivity, including crowdfunding, tips, levies, restitution, and service-based models. In their current forms, each of these models fails to provide a cohesive and convincing vision of the two main functions of copyright: instrumentally (how cultural production can be funded) and fairness (how authors can be adequately rewarded). This article provides three avenues for future research to investigate the viability of alternate copyright models: (1) a better theory of fairness in copyright rewards; (2) more empirical study of commons models of cultural production; and (3) a critical examination of the noneconomic harm limiting function that exclusivity in copyright provides.

Digitisation of books in Australia for the public good

The National Cultural Policy (NCP) Discussion Paper highlights that the ‘National Broadband Network, with its high-speed broadband, will enable new opportunities for developing and delivering Australian content and applications reflecting our diverse culture and interests’.1 A significant source of content and knowledge is our books, in particular, out of print, in copyright books and books in the public domain. More and more people, especially those who are digitally literate, will demand that the store of knowledge in these hard-to-find (and at times, decaying) books be digitised and made readily accessible on the internet...

Free our cultural archives.

Australians are the creators and custodians of a broad range of cultural materials. This material includes literary, photographic, video and audio archives. These archives should be made available to all Australians for access and reuse, as part of a pre-competitive platform which promotes the interests of the Australian public in gaining access to a diverse range of content that contributes to the development of national and cultural identity. This does not mean that all material must be made available for access and reuse for free and in an unrestricted fashion. But for publicly funded content, free and unrestricted access should be the default. The Venturous Australia report on the National Innovation System recommended that “[t]o the maximum extent possible, information, research and content funded by Australian governments – including national collections – should be made freely available over the internet as part of the global public commons.”1 The report further stated that “both for its direct and indirect benefits to Australia and for the greater global good, Australia should energetically and proudly maximise the extent to which it makes government funded content available as part of the global digital commons...

Copyright vision : copyright jails

This article, published in ON LINE Opinion on 26 October 2006, discusses the broad ranging amendments to the Copyright Act which (in part) implement obligations under the Australia-US Free Trade Agreement (AUSFTA) which were introduced into parliament on October 19, 2006. It covers issues relating to the criminalisation of copyright infringement, user rights and liabilities, and Technological Protection Measures (TPMs).

A positive unsettlement: the story of Sakshi Anmatyerre

This article tells the story of the mass marketing on stationery of the work of an artist, Sakshi Anmatyerre, whose claims to an lndigenous heritage and to the authority to paint particular designs, totems and motifs were vigorously contested, leading to the withdrawal of the stationery from sale. The efforts made by the publisher, Steve Parish, to atone for the offence caused to the Anmatyerre people are detailed. The article illustrates some of the issues involved in the commodification and commercial exchange of lndigenous artistic or cultural work - or rather, work which relies upon lndigenous connections for its aesthetic and financial value. The story told in this article is enlightening for what it reveals about the state of unsettlement that characterises debate over the 'appropriate' commercial use of lndigenous intellectual and cultural property, for the ways in which it is possible to achieve restitution when an offence agalnst lndigenous law is alleged, and for the effects the process of seeking restitution has had on the business practices of one company.