The responsibility of intermediaries: Emerging IP protection schemes, from Content ID, to three-strikes and follow-the-money

The only effective and scalable way to regulate the actions of people on the internet is through online intermediaries. These are the institutions that facilitate communication: internet service providers, search engines, content hosts, and social networks. Governments, private firms, and civil society organisations are increasingly seeking to influence these intermediaries to take more responsibility to prevent or respond to IP infringements. Around the world, intermediaries are increasingly subject to a variety of obligations to help enforce IP rights, ranging from informal social and governmental pressure, to industry codes and private negotiated agreements, to formal legislative schemes. This paper provides an overview of this emerging shift in regulatory approaches, away from legal liability and towards increased responsibilities for intermediaries. This shift straddles two different potential futures: an optimistic set of more effective, more efficient mechanisms for regulating user behaviour, and a dystopian vision of rule by algorithm and private power, without the legitimising influence of the rule of law.

Blue future: Maude Barlow, water rights, investor clauses, and trade deals

Maude Barlow is the chairperson of the Council of Canadians, and the founder of the Blue Planet Project. She is a recipient of Sweden’s Right Livelihood Award, and a Lannan Cultural Freedom Fellowship. As well as being a noted human rights and trade activist, Barlow is the author of a number of books on water rights — including Blue Gold, Blue Covenant, and Blue Future. She has been particularly vocal on the impact of trade and investment agreements upon water rights. Barlow has been critical of the push to include investor-state dispute settlement clauses in trade agreements — such as the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union, the Trans-Pacific Partnership (TPP), and the Trans-Atlantic Trade and Investment Partnership Agreement (TTIP). She has also been concerned by the Trade in Services Agreement (TISA) leaked by WikiLeaks.

Robbery under arms: Copyright law and the Australia-United States free trade agreement

TThis article considers the radical, sweeping changes to Australian copyright law wrought by the Australia–United States Free Trade Agreement 2004 (AUSFTA). It contends that the agreement will result in a “piracy of the public domain”. Under this new regime, copyright owners will be able to obtain greater monopoly profits at the expense of Australian consumers, libraries and research institutions, as well as intermediaries, such as Internet service providers. Part One observes that the copyright term extension in Australia to life of the author plus 70 years for works will have a negative economic and cultural impact — with Australia’s net royalty payments estimated to be up to $88 million higher per year. Part Two argues that the adoption of stronger protection of technological protection measures modelled upon the Digital Millennium Copyright Act 1998 (U.S.) will override domestic policy–making processes, such as the Phillips Fox Digital Agenda Review, and judicial pronouncements such as the Stevens v Sony litigation. Part Three questions whether the new safe harbours protection for Internet service providers will adversely affect the sale of Telstra. This article concludes that there is a need for judicial restraint in interpreting the AUSFTA. There is an urgent call for the Federal Government to pass ameliorating reforms — such as an open–ended defence of fair use and a mechanism for orphan works. There is a need for caution in negotiating future bilateral trade agreements — lest the multinational system for the protection of copyright law be undermined.

The Sorcerer II expedition: Intellectual property and biodiscovery

This article considers the significance of a leading marine biodiscovery initiative. In March 2004, Dr. J. Craig Venter announced the official launch of the Sorcerer II Expedition, a scientific expedition of discovery, which would survey marine and terrestrial microbial populations. The Expedition has the potential to uncover tens of thousands of new microbial species and tens of millions of new genes. Venter has disavowed that the Sorcerer II Expedition has any commercial ambitions. However, some have viewed the Sorcerer II Expedition with suspicion. Various civil society groups have accused the Expedition of engaging in 'biopiracy'. This article investigates the Convention on Biological Diversity 1992 and other relevant international treaties, various national and regional regimes to govern access to genetic resources, and benefit-sharing agreements. It considers the intersection of intellectual property law, contract law, environmental law, and international law in this field. This article provides a blueprint for a nationally consistent scheme for access to genetic resources, and a model for future international developments.

Patenting free energy: The BlackLight litigation and the hydrogen economy

Legal Context In the wake of the Copenhagen Accord 2009 and the Cancun Agreements 2010, a number of patent offices have introduced fast-track mechanisms to encourage patent applications in relation to clean technologies - such as those pertaining to hydrogen. However, patent offices will be under increasing pressure to ensure that the granted patents satisfy the requisite patent thresholds, as well as to identify and reject cases of fraud, hoaxes, scams, and swindles. Key Points This article examines the BlackLight litigation in the United States, the United Kingdom, and the European Patent Office, and considers how patent offices and courts deal with patent applications in respect of clean energy and perpetual motion machines. Practical Significance The capacity of patent offices to grant sound and reliable patents is critical to the credibility of the patent system, particularly in the context of the current focus upon promoting clean technologies.

The Trans-Pacific partnership: Brunei, trade, and human rights

The Prime Minister of Australia, Tony Abbott, has said that ‘Australia is Open for Business’. His trade and investment minister, Andrew Robb, has vigorously pursued bilateral trade agreements with neighbours, South Korea, Japan, China, and India — as well as the regional trade agreement, the Trans-Pacific Partnership. Such trade activity raises questions about the relationship between trade policy and human rights. If we are open for business, should we be open for business for countries engaged in human rights abuses? Should enter into trade agreements, which could have an adverse upon human rights? The Trans-Pacific Partnership highlights a range of problems with Australia’s treaty-making process. One important issue is the question of the relationship between trade and human rights.

Author's reply to: Ankylosing spondylitis: evidence for a non-HLA-B*27 protective effect, Sjef Van Der Linden, Desieree Van Der Heijde

As mentioned in the letter by van der Linden and van der Heijde, Jurgen Braun’s excellent recent paper describing a survey of blood donors by questionnaire, clinical, and magnetic resonance imaging examinations revealed a prevalence of ankylosing spondylitis in B27 positive blood donors (6.4%)1-1 very similar to that reported by Gran et al(6.7%).1-2 It is probable that some of the differences in reported prevalence of ankylosing spondylitis by the various studies are because of methodological differences.

Omission of author name in the article by Davidson et al (Arthritis Rheum, July 2013)

This article corrects: Brief Report: High-Throughput Sequencing of IL23R Reveals a Low-Frequency, Nonsynonymous Single-Nucleotide Polymorphism That Is Associated With Ankylosing Spondylitis in a Han Chinese Population Vol. 65, Issue 7, 1747–1752, Article first published online: 2 JUL 2013

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.

Land grabs, bio-piracy and the inversion of justice in Colombia

The possibility of commercially exploiting plant, animal and human genetic resources unlocked by biotechnology has given rise to a wide range of cultural, environmental, ethical and economic conflicts. While supporters describe this activity as bioprospecting, critics refer to it as biopiracy. According to this latter view, international legal agreements and treaties have disregarded opposition and legalized the possibility of appropriating genetic resources and their derivative products through the use of patents. The legal framework that permits the appropriation of natural genetic products in Colombia also criminalizes aspects of traditional ways of life and enables a legally approved but socially harmful land-grabbing process. The article describes these processes and impact in terms of the inversion of justice and the erosion of environmental sustainability.

Climate change and human rights: Intellectual property challenges and opportunities

Mitigating and adapting to the effects of climate change will require innovation and the development of new technologies. Intellectual property laws have a key part to play in the global transfer of climate technologies. However, failures to properly utilize flexibilities in intellectual property regimes or comply with technology transfer obligations under international climate change agreements calls for a human rights based analysis of climate technology transfer. Climate change is an unprecedented challenge and requires unprecedented strategies. Given the substantial impact of climate change on all of humanity and the ethical imperative to act, a complete rethink of traditional intellectual property approaches is warranted. This report proposes a series of intellectual property law policy options, through a human rights framework, aimed at promoting access to technologies to reduce the human suffering caused by climate change.

Australian Property Institute Inc, Submission to the Productivity Commission on Intellectual Property Arrangements – Issues Paper

This submission responds to the document Intellectual Property Arrangements Issues Paper (Issues Paper) released by the Productivity Commission in October 2015 for public consultation and input by 30 November 2015. The API is grateful for the extension of time granted by the Commission to complete and lodge this submission. The overall need for an inquiry into intellectual property is supported by API. In particular it is noted with approval that the Commission states in its Issues Paper that it is to consider the appropriate balance between “incentives for innovation and investments, and the interests of both individuals and businesses in assessing products”.1 However, API is of the view that intellectual property in the area of real property presents a number of issues which are not fully canvassed in the abovementioned Issues Paper. Intellectual property embedded in valuation and other property-related reports of API members involves the acquisition of information which may possibly be confidential. Yet, when engaged in banks and financial institutions the intellectual property in such valuations and/ or reports is commonly required to be passed to the client bank or financial institution. In the Issues Paper it is proposed that there are seven different forms of intellectual property rights.2 It is the view of API that an eight form exists, namely private agreements. The Issues Paper, however, regards private agreements between firms as alternatives to intellectual property rights. The API considers that “secrecy or confidentiality arrangements”3 as identified in the Issues Paper form a much larger part of the manner in which intellectual property is maintained in Australia for the purposes of trade secrecy or more often, financial confidentiality...

Author responsibilities in improving the quality of peer reviews: A rejoinder to Iivari (2016)

In this rejoinder to Iivari (2016), I discuss authors’ responsibilities in the process of ensuring quality reviews. I argue that one overlooked element in quality peer reviewing is authors’ unconstrained right to submit manuscripts in whatever form or quality they desire. As such, I suggest adding some constraints and offering more freedom to reviewers to maintain viability of the scholarly publication system. I offer three responses to Iivari’s suggestions and add two further suggestions for change.