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.

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.

A decision support framework for prioritization of engineering asset management activities under uncertainty

Engineers and asset managers must often make decisions on how to best allocate limited resources amongst different interrelated activities, including repair, renewal, inspection, and procurement of new assets. The presence of project interdependencies and the lack of sufficient information on the true value of an activity often produce complex problems and leave the decision maker guessing about the quality and robustness of their decision. In this paper, a decision support framework for uncertain interrelated activities is presented. The framework employs a methodology for multi-criteria ranking in the presence of uncertainty, detailing the effect that uncertain valuations may have on the priority of a particular activity. The framework employs employing semi-quantitative risk measures that can be tailored to an organisation and enable a transparent and simple-to-use uncertainty specification by the decision maker. The framework is then demonstrated on a real world project set from a major Australian utility provider.

Characteristics of the first pre-discharge current pulse in SF6 under a steep fronted impulse voltage

An improved understanding of the characteristics of the pre-discharge current pulses in GIS will lead to improved analyses of the results from the UHF partial discharge detection method. This paper presents the characteristics of the first pre-discharge current pulses from a point-to-plain geometry at 1 bar absolute under both polarities of a 1.1/80 us lightning impulse. The analysis has shown that the pre-discharge current wave shape, peak current magnitude and charge is effected by the instantaneous voltage at which the pre- discharge took place as well as the polarity of the active electrode. The measured results show that protrusions on the electrodes have slower wave shape parameters than those reported for free conducting particles.

Preliminary work on the detection of partial discharges in SF6 under impulse voltages

This paper presents preliminary results of an investigation into the detection of partial discharges on the rise of impulse voltages from a point-to-plane gap in SF6. A parallel RC detection impedance is placed in the earth path of a point. Computer simulations are done to determine the values of R and C that will result in the smallest impulse voltage signal and the largest discharge signal across the detection impedance. These simulations and the experimental work show that the impulse voltage signal can not be sufficiently attenuated during the rise time of the applied voltage impulse using the RC detection impedance alone. An alternative discharge detection method is proposed in which a resonant partial discharge coupler is used. Elimination of noise and the impulse voltage signal can be achieved by shorting the coupler plate to the ground plane in the middle of the disk. However, due to the bandwidth of the measuring equipment and noise from the impulse generator it was not possible to detect discharges on the rising edge of a 1.5s voltage impulse using a coupler shorted in the middle. It was found that for this particular coupler, with no shorting points, and if the rising edge of the voltage impulse is longer than 5us, (10us) PD activity can be detected on the rising edge.

Behaviour and strength of hollow flange channel sections under torsion and bending

Hollow flange channel section is a cold-formed high-strength and thin-walled steel section with a unique shape including two rectangular hollow flanges and a slender web. Due to its mono-symmetric characteristics, it will also be subjected to torsion when subjected to transverse loads in practical applications. Past research on steel beams subject to torsion has concentrated on open sections while very few steel design standards give suitable design rules for torsion design. Since the hollow flange channel section is different from conventional open sections, its torsional behaviour remains unknown to researchers. Therefore the elastic behaviour of hollow flange channel sections subject to uniform and non-uniform torsion, and combined torsion and bending was investigated using the solutions of appropriate differential equilibrium equations. The section torsion shear flow, warping normal stress distribution, and section constants including torsion constant and warping constant were obtained. The results were compared with those from finite element analyses that verified the accuracy of analytical solutions. Parametric studies were undertaken for simply supported beams subject to a uniformly distributed torque and a uniformly distributed transverse load applied away from the shear centre. This paper presents the details of this research into the elastic behaviour and strength of hollow flange channel sections subject to torsion and bending and the results.

Bending and torsion of hollow flange channel beams

The LiteSteel beam (LSB) is a cold-formed high strength steel channel section made of two torsionally rigid closed flanges and a slender web. Due to its mono-symmetric characteristics, its centroid and shear centre do not coincide. The LSBs can be used in floor systems as joists or bearers and in these applications they are often subjected to transverse loads that are applied away from the shear centre. Hence they are often subjected to combined bending and torsion actions. Previous researches on LSBs have concentrated on their bending or shear behaviour and strengths, and only limited research has been undertaken on their combined bending and torsion behaviour. Therefore in this research a series of nine experiments was first conducted on LSBs subject to combined bending and torsion. Three LSB sections were tested to failure under eccentric loading at mid-span, and appropriate results were obtained from seven tests. A special test rig was used to simulate two different eccentricities and to provide accurate simple boundary conditions at the supports. Finite element models of tested LSBs were developed using ANSYS, and the ultimate strengths, failure modes, and load–displacement curves were obtained and compared with corresponding test results. Finite element analyses agreed well with test results and hence the developed models were used in a parametric study to investigate the effects of load locations, eccentricities, and spans on the combined bending and torsion behaviour of LSBs. The interaction between the ultimate bending and torsional moment capacities was studied and a simple design rule was proposed. This paper presents the details of the tests, finite element analyses, and parametric study of LSBs subject to combined bending and torsion, and the results.

An investigation of Nano-particle deposition in cylindrical tubes under Laminar condition using Lagrangian transport model

Aerosol deposition in cylindrical tubes is a subject of interest to researchers and engineers in many applications of aerosol physics and metrology. Investigation of nano-particles in different aspects such as lungs, upper airways, batteries and vehicle exhaust gases is vital due the smaller size, adverse health effect and higher trouble for trapping than the micro-particles. The Lagrangian particle tracking provides an effective method for simulating the deposition of nano-particles as well as micro-particles as it accounts for the particle inertia effect as well as the Brownian excitation. However, using the Lagrangian approach for simulating ultrafine particles has been limited due to computational cost and numerical difficulties. In this paper, the deposition of nano-particles in cylindrical tubes under laminar condition is studied using the Lagrangian particle tracking method. The commercial Fluent software is used to simulate the fluid flow in the pipes and to study the deposition and dispersion of nano-particles. Different particle diameters as well as different flow rates are examined. The point analysis in a uniform flow is performed for validating the Brownian motion. The results show good agreement between the calculated deposition efficiency and the analytic correlations in the literature. Furthermore, for the nano-particles with the diameter more than 40 nm, the calculated deposition efficiency by the Lagrangian method is less than the analytic correlations based on Eulerian method due to statistical error or the inertia effect.

Experimental studies of lipped channel beams subject to web crippling under ETF and ITF load cases

Lipped channel beams (LCBs) are commonly used as floor joists and bearers in buildings. However, they are subjected to specific failure modes such as web crippling. Despite considerable web crippling research, recent studies [1-6] have shown that the current web crippling design rules are unable to predict the test capacities under ETF and ITF load cases. In many instances, the predictions by the available design standards such as AISI S100, AS/NZS 4600 and Eurocode 3 Part 1-3 [7-9] are inconsistent. Hence thirty-six tests were conducted to assess the web crippling behaviour and strengths of LCBs under two flange load cases. Experimental web crippling capacities were then compared with the predictions from the current design rules. These comparisons showed that AS/NZS 4600 and AISI S100 design equations are very unconservative for LCB sections under ETF load case and are conservative for ITF load case. Hence improved equations were proposed to determine the web crippling capacities of LCBs. Suitable design rules were also developed using the direct strength method. This paper presents the details of this study and the results including improved design rules.

Revisiting the Task-Capability interface model for incorporating human factors into car-following models

Human factors such as distraction, fatigue, alcohol and drug use are generally ignored in car-following (CF) models. Such ignorance overestimates driver capability and leads to most CF models’ inability in realistically explaining human driving behaviors. This paper proposes a novel car-following modeling framework by introducing the difficulty of driving task measured as the dynamic interaction between driving task demand and driver capability. Task difficulty is formulated based on the famous Task Capability Interface (TCI) model, which explains the motivations behind driver’s decision making. The proposed method is applied to enhance two popular CF models: Gipps’ model and IDM, and named as TDGipps and TDIDM respectively. The behavioral soundness of TDGipps and TDIDM are discussed and their stabilities are analyzed. Moreover, the enhanced models are calibrated with the vehicle trajectory data, and validated to explain both regular and human factor influenced CF behavior (which is distraction caused by hand-held mobile phone conversation in this paper). Both the models show better performance than their predecessors, especially in presence of human factors.

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.

A legal perspective of carbon rights and benefit sharing under REDD+: A conceptual framework and examples from Cambodia and Kenya

This article discusses two key issues in REDD+ design and implementation at the national level – carbon rights, and benefit sharing. Both carbon rights and benefit sharing can be understood as new legal concepts (although they build on existing law), and as legal concepts they offer a framework for addressing related areas of REDD+ policy. Many countries are currently considering how to manage carbon rights and benefit sharing issues, including Cambodia and Kenya. Both of these countries host existing forest carbon projects and are also in the process of designing national REDD+ programmes. This article uses a conceptual framework for carbon rights and benefit sharing derived from legal analysis to consider the cases of both Cambodia and Kenya, and also includes a general discussion of the challenges countries might encounter when considering how to manage carbon rights and benefit sharing in the context of REDD+ implementation.

Experimental study of cold-formed steel floors made of hollow flange channel section joists under fire conditions

Fire safety plays a vital role in building design because appropriate level of fire safety is important to safeguard lives and property. Cold-formed steel channel sections along with fire-resistive plasterboards are used to construct light-gauge steel frame (LSF) floor systems to provide adequate fire resistance ratings (FRR). It is common practice to use lipped channel sections (LCS) as joists in LSF floor systems, and past research has only considered such systems. This research focuses on adopting improved joist sections such as hollow flange channel (HFC) sections to improve the structural performance and FRR of cold-formed LSF floor systems under standard fire conditions. The structural and thermal performances of LSF floor systems made of a welded HFC, LiteSteel Beams (LSB), with different plasterboard and insulation configurations, were investigated using four full-scale fire tests under standard fires. These fire tests showed that the new LSF floor system with LSB joists improved the FRR in comparison to that of conventional LCS joists. Fire tests have provided valuable structural and thermal performance data of tested floor systems that included time-temperature profiles and failure times, temperatures, and modes. This paper presents the details of the fire tests conducted in this study and their results along with some important findings.

Direct photocatalytic conversion of aldehydes to esters using supported gold nanoparticles under visible light irradiation at room temperature

Visible light can drive esteri fi cation from aldehydes and alcohols using supported gold nanoparticles (Au/Al 2 O 3 ) as photo- catalysts at ambient temperatures. The gold nanoparticles (AuNPs) absorb visible light due to the localized surface plasmon resonance (LSPR) e ff ect, and the conduction electrons of the AuNPs gain the energy of the incident light. The energetic electrons, which concentrate at the NP surface, facilitate the activation of a range of aldehyde and alcohol substrates. The photocatalytic e ffi ciencies strongly depend on the Au loading, particle sizes of the AuNPs, irradiance, and wavelength of the light irradiation. Finally, a plausible reaction mechanism was proposed, and the Au/Al 2 O 3 catalysts can be reused several times without signi fi cantly losing activity. The knowledge acquired in this study may inspire further studies in new e ffi cient recyclable photocatalysts and a wide range of organic synthesis driven by sunlight.

The exhaustive reduction of formylporphyrins to methylporphyrins using dimethylformamide/water as reductant under microwave irradiation

The reduction of meso-formyl derivatives of 5,15-diaryl- and 5,10,15-triphenylporphyrin (and their nickel(II) complexes) to the corresponding meso-methyl porphyrins is achieved in high yield by microwave heating of the substrate in dimethylformamide (DMF) in the presence of acids such as trifluoroacetic acid, or even just with added water. The reactions are complete in less than 30 min at 250 °C. The reaction is strongly suppressed in very dry DMF in the absence of added acid. The meso-hydroxymethyl porphyrins are also reduced to the methyl derivatives, suggesting the primary alcohols may be intermediates in the exhaustive reduction. UV-visible spectra taken at intervals during reaction at 240 °C indicated that at least one other intermediate is present, but it was not identified. In d7-DMF, the methylporphyrin isolated was mainly Por-CD2H, showing that both of the added hydrogens arise from the solvent, and not from the added water or acid.