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 chapter, 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.

Duty and Control in Intermediary Copyright Liability: An Australian Perspective

In the internet age, copyright owners are increasingly looking to online intermediaries to take steps to prevent copyright infringement. Sometimes these intermediaries are closely tied to the acts of infringement; sometimes – as in the case of ISPs – they are not. In 2012, the Australian High Court decided the Roadshow Films v iiNet case, in which it held that an Australian ISP was not liable under copyright’s authorization doctrine, which asks whether the intermediary has sanctioned, approved or countenanced the infringement. The Australian Copyright Act 1968 directs a court to consider, in these situations, whether the intermediary had the power to prevent the infringement and whether it took any reasonable steps to prevent or avoid the infringement. It is generally not difficult for a court to find the power to prevent infringement – power to prevent can include an unrefined technical ability to disconnect users from the copyright source, such as an ISP terminating users’ internet accounts. In the iiNet case, the High Court eschewed this broad approach in favor of focusing on a notion of control that was influenced by principles of tort law. In tort, when a plaintiff asserts that a defendant should be liable for failing to act to prevent harm caused to the plaintiff by a third party, there is a heavy burden on the plaintiff to show that the defendant had a duty to act. The duty must be clear and specific, and will often hinge on the degree of control that the defendant was able to exercise over the third party. Control in these circumstances relates directly to control over the third party’s actions in inflicting the harm. Thus, in iiNet’s case, the control would need to be directed to the third party’s infringing use of BitTorrent; control over a person’s ability to access the internet is too imprecise. Further, when considering omissions to act, tort law differentiates between the ability to control and the ability to hinder. The ability to control may establish a duty to act, and the court will then look to small measures taken to prevent the harm to determine whether these satisfy the duty. But the ability to hinder will not suffice to establish liability in the absence of control. This chapter argues that an inquiry grounded in control as defined in tort law would provide a more principled framework for assessing the liability of passive intermediaries in copyright. In particular, it would set a higher, more stable benchmark for determining the copyright liability of passive intermediaries, based on the degree of actual, direct control that the intermediary can exercise over the infringing actions of its users. This approach would provide greater clarity and consistency than has existed to date in this area of copyright law in Australia.

Enabling Indigenous education success beyond regional borders

Higher education is a powerful tool for reducing social and economic disadvantage. But access to higher education can be difficult, particularly for Indigenous Australians who face multiple levels of social, economic and geographical isolation. While enabling programs can support Indigenous students to gain university entry, the experience at Central Queensland University (CQUniversity) suggests that their past success has been limited. In this paper, the authors describe the enabling program available to Indigenous students at CQUniversity. They suggest that the newly developed, flexible, online version of the program is helping to address geographical and social isolation and improve successful outcomes for Indigenous Australians.

Associations with low rates of postpartum glucose screening after gestational diabetes among Indigenous and non-Indigenous Australian women

OBJECTIVES To explore factors associated with postpartum glucose screening among women with Gestational Diabetes Mellitus (GDM). METHODS A retrospective study using linked records from women with GDM who gave birth at Cairns Hospital in Far North Queensland, Australia, from 1 January 2004 to 31 December 2010. RESULTS The rates of postpartum Oral Glucose Tolerance Test (OGTT) screening, while having increased significantly among both Indigenous* and non-Indigenous women from 2004 to 2010 (HR 1.15 per year, 95%CI 1.08-1.22, p<0.0001), remain low, particularly among Indigenous women (10% versus 27%, respectively at six months postpartum). Indigenous women in Cairns had a longer time to postpartum OGTT than Indigenous women in remote areas (HR 0.58, 0.38-0.71, p=0.01). Non-Indigenous women had a longer time to postpartum OGTT if they: were born in Australia (HR 0.76, 0.59-1.00, 0.05); were aged <25 years (HR 0.45, 0.23-0.89, p=0.02); had parity >5 (HR 0.33, 0.12-0.90, p=0.03); smoked (HR 0.48, 0.31-0.76, p=0.001); and did not breastfeed (HR 0.09, 0.01-0.64, p=0.02). CONCLUSIONS Postpartum diabetes screening rates following GDM in Far North Queensland are low, particularly among Indigenous women, with lower rates seen in the regional centre; and among non-Indigenous women with indicators of low socioeconomic status. IMPLICATIONS Strategies are urgently needed to improve postpartum diabetes screening after GDM that reach women most at risk.

A quantitative-trait genome-wide association study of alcoholism risk in the community: findings and implications

BACKGROUND Given moderately strong genetic contributions to variation in alcoholism and heaviness of drinking (50% to 60% heritability) with high correlation of genetic influences, we have conducted a quantitative trait genome-wide association study (GWAS) for phenotypes related to alcohol use and dependence. METHODS Diagnostic interview and blood/buccal samples were obtained from sibships ascertained through the Australian Twin Registry. Genome-wide single nucleotide polymorphism (SNP) genotyping was performed with 8754 individuals (2062 alcohol-dependent cases) selected for informativeness for alcohol use disorder and associated quantitative traits. Family-based association tests were performed for alcohol dependence, dependence factor score, and heaviness of drinking factor score, with confirmatory case-population control comparisons using an unassessed population control series of 3393 Australians with genome-wide SNP data. RESULTS No findings reached genome-wide significance (p = 8.4 x 10(-8) for this study), with lowest p value for primary phenotypes of 1.2 x 10(-7). Convergent findings for quantitative consumption and diagnostic and quantitative dependence measures suggest possible roles for a transmembrane protein gene (TMEM108) and for ANKS1A. The major finding, however, was small effect sizes estimated for individual SNPs, suggesting that hundreds of genetic variants make modest contributions (1/4% of variance or less) to alcohol dependence risk. CONCLUSIONS We conclude that: - 1) meta-analyses of consumption data may contribute usefully to gene discovery; - 2) translation of human alcoholism GWAS results to drug discovery or clinically useful prediction of risk will be challenging, and; - 3) through accumulation across studies, GWAS data may become valuable for improved genetic risk differentiation in research in biological psychiatry (e.g., prospective high-risk or resilience studies).

Meta-analysis identifies 13 new loci associated with waist-hip ratio and reveals sexual dimorphism in the genetic basis of fat distribution

Waist-hip ratio (WHR) is a measure of body fat distribution and a predictor of metabolic consequences independent of overall adiposity. WHR is heritable, but few genetic variants influencing this trait have been identified. We conducted a meta-analysis of 32 genome-wide association studies for WHR adjusted for body mass index (comprising up to 77,167 participants), following up 16 loci in an additional 29 studies (comprising up to 113,636 subjects). We identified 13 new loci in or near RSPO3, VEGFA, TBX15-WARS2, NFE2L3, GRB14, DNM3-PIGC, ITPR2-SSPN, LY86, HOXC13, ADAMTS9, ZNRF3-KREMEN1, NISCH-STAB1 and CPEB4 (P = 1.9 × 10−9 to P = 1.8 × 10−40) and the known signal at LYPLAL1. Seven of these loci exhibited marked sexual dimorphism, all with a stronger effect on WHR in women than men (P for sex difference = 1.9 × 10−3 to P = 1.2 × 10−13). These findings provide evidence for multiple loci that modulate body fat distribution independent of overall adiposity and reveal strong gene-by-sex interactions.

Quantitative Trait Loci for CD4:CD8 Lymphocyte Ratio Are Associated with Risk of Type 1 Diabetes and HIV-1 Immune Control

Abnormal expansion or depletion of particular lymphocyte subsets is associated with clinical manifestations such as HIV progression to AIDS and autoimmune disease. We sought to identify genetic predictors of lymphocyte levels and reasoned that these may play a role in immune-related diseases. We tested 2.3 million variants for association with five lymphocyte subsets, measured in 2538 individuals from the general population, including CD4+ T cells, CD8+ T cells, CD56+ natural killer (NK) cells, and the derived measure CD4:CD8 ratio. We identified two regions of strong association. The first was located in the major histocompatibility complex (MHC), with multiple SNPs strongly associated with CD4:CD8 ratio (rs2524054, p = 2.1 × 10−28). The second region was centered within a cluster of genes from the Schlafen family and was associated with NK cell levels (rs1838149, p = 6.1 × 10−14). The MHC association with CD4:CD8 replicated convincingly (p = 1.4 × 10−9) in an independent panel of 988 individuals. Conditional analyses indicate that there are two major independent quantitative trait loci (QTL) in the MHC region that regulate CD4:CD8 ratio: one is located in the class I cluster and influences CD8 levels, whereas the second is located in the class II cluster and regulates CD4 levels. Jointly, both QTL explained 8% of the variance in CD4:CD8 ratio. The class I variants are also strongly associated with durable host control of HIV, and class II variants are associated with type-1 diabetes, suggesting that genetic variation at the MHC may predispose one to immune-related diseases partly through disregulation of T cell homeostasis.

Variation in the walking time to bus stop by the degree of transit captivity

Measures of transit accessibility are important in evaluating transit services, planning for future services and investment on land use development. Existing tools measure transit accessibility using averaged walking distance or walking time to public transit. Although the mode captivity may have significant implications on one’s willingness to walk to use public transit, this has not been addressed in the literature to date. Failed to distinguish transit captive users may lead to overestimated ridership and spatial coverage of transit services. The aim of this research is to integrate the concept of transit captivity into the analysis of walking access to public transit. The conventional way of defining “captive” and “choice” transit users showed no significant difference in their walking times according to a preliminary analysis. A cluster analysis technique is used to further divide “choice” users by three main factors, namely age group, labour force status and personal income. After eliminating “true captive” users, defined as those without driver’s licence or without a car in respective household, “non-true captive” users were classified into a total of eight groups having similar socio-economic characteristics. The analysis revealed significant differences in the walking times and patterns by their level of captivity to public transit. This paper challenges the rule-of-thumb of 400m walking distance to bus stops. In average, people’s willingness to walk dropped drastically at 268m and continued to drop constantly until it reached the mark of 670m, where there was another drastic drop of 17%, which left with only 10% of the total bus riders willing to walk 670m or more. This research found that mothers working part time were the ones with lowest transit captivity and thus most sensitive to the walking time, followed by high-income earners and the elderly. The level of captivity increases when public transit users earned lesser income, such as students and students working part time.

To ask or not to ask? Investigating workers' flexibility requests and the phenomenon of discontented non-requesters

Flexible working arrangements have attracted growing attention in workplaces across Australia and in many other countries in recent years. This contribution utilises the results of two large Australian employee surveys to analyse who asks for flexibility, why, and with what effects on work-life interference. This analysis is set in the context of Australia’s ‘Right to Request’ (RTR) provisions which, at the time of the study, gave parents of preschool children and those with a disabled child aged up to 18 the RTR flexibility. The analysis also draws on a set of qualitative interviews of those we term ‘discontented non-requesters’ (that is, those who are not content with current arrangements but who do not ask for flexibility) to probe beneath the survey results to consider explanations about why some people do not ask for flexibility despite desiring different working arrangements. We conclude with the implications for policy and regulation.

Developing a moderation community of practice

This paper reports on a study to evaluate technology-based processes for assessment moderation. The aim was to evaluate standard features found in an institutional Learning Management System, and their compatibility with the values and practices of a large teaching team. The process used an online discussion board forum for tutors, the paring of more experienced tutors with those new to the process, and further meetings conducted in both face-to-face and web conferencing environments. Online rubrics were used for assessing student work and the provision of feedback. A focus group conducted after marking was concluded and the analysis of the discussion board forum demonstrated a strong community of practice with a shared understanding of assessment requirements.

Perceptions of audio feedback in higher education assessment

The aim of this paper is to present results of research investigating the effectiveness of audio feedback in a third year undergraduate unit. While there is a large and growing body of literature about providing assessment feedback, there is little focussing on the use of audio media. This study employs a mixed method approach, involving semi-structured interviews with academic staff and a survey of students. Analysis of the interview data suggests that there are a number of issues surrounding acceptance of using audio feedback by lecturers. The next stage of the study is to examine the extent to which lecturers change their perceptions as they use audio feedback and to analyse the perceptions of the students (n=120), including the perceived importance of feedback, the ways in which they used the audio feedback and the extent to which they believe they control events that affect them. Ultimately, this study seeks to provide recommendations appropriate to the implementation of audio feedback in higher education.

'Take away from the dry sixties style marking': Lecturer and student perceptions and experiences of audio feedback

Providing audio feedback to assessment is relatively uncommon in higher education. However, published research suggests that it is preferred over written feedback by students but lecturers were less convinced. The aim of this paper is to examine further these findings in the context of a third year business ethics unit. Data was collected from two sources. The first is a series of in-depth, semi-structured interviews conducted with three lecturers providing audio feeback for the first time in Semester One 2011. The second source of data was drawn from the university student evaluation system. A total of 363 responses were used providing 'before' and 'after' perspectives about the effectiveness of audio feedback versus written feedback. Between 2005 and 2009 the survey data provided information about student attitudes to written assessment feedback (n=261). From 2010 onwards the data relates to audio (mp3) feedback (n=102). The analysis of he interview data indicated that introducing audio feedback should be done with care. The perception of the participating lecturers was mixed, ranging from sceptism to outright enthusiasm, but over time the overall approach became positive. It was found that particular attention needs to be paid to small (but important) technical details, and lecturers need to be convinced of its effectieness, especially that it is not necessarily more time consuming than providing written feedback. For students, the analysis revealed a clear preference for audio feedback. It is concluded that there is cause for concern and reason for optimism. It is a cause for concern because there is a possibility that scepticism on the part of academic staff seems to be based on assumptions about what students prefer and a concern about using the technology. There is reason for optimism because the evidence points towards students preferring audio feedback and as academic staff become more familiar with the technology the scepticism tends to evaporate. While this study is limited in scope, questions are raised about tackling negative staff perceptions of audio feedback that are worthy of further research.

Transforming higher education and student engagement through collaborative review to inform educational design

This paper reports on staff perceptions arising from a review process designed to assist staff in making informed decisions regarding educational design, approaches to engage students in learning, and the technology to support engagement in the classroom and across multiple locations and delivery modes. The aim of the review process was to transform the level of student engagement in the business faculty of an Australian university. The process took a collaborative approach through consultation with academic staff involved in the design and delivery of the units under review, and included targeted professional development as necessary. An institutional framework that characterises engagement indicator contexts and their attributes facilitated dialog during the review process. This paper reports on a mixed method study that included a survey of participants, and purposeful interviews to evaluate the effectiveness of the process. Although the study identified factors that hindered implementation and operationalization of review recommendations in some instances, study participants were generally of the view that recommendations would enhance student engagement. It is demonstrated that the bottom-up approach described in this paper is consistent with theoretical frameworks for transformational change in teaching and learning and the adoption of innovations.

Higher-resolution structure of the human insulin receptor ectodomain: Multi-modal inclusion of the insert domain

Insulin receptor (IR) signaling is critical to controlling nutrient uptake and metabolism. However, only a low-resolution (3.8 Å) structure currently exists for the IR ectodomain, with some segments ill-defined or unmodeled due to disorder. Here, we revise this structure using new diffraction data to 3.3 Å resolution that allow improved modeling of the N-linked glycans, the first and third fibronectin type III domains, and the insert domain. A novel haptic interactive molecular dynamics strategy was used to aid fitting to low-resolution electron density maps. The resulting model provides a foundation for investigation of structural transitions in IR upon ligand binding.

Understanding the civic impact of journalism

The importance of journalism to civil society is constantly proclaimed, but empirical evidence on journalism's impact, and how this operates, is surprisingly thin. Indeed, there is confusion even about what is meant by the term “impact”. Meanwhile, the issue of the role of journalism is becoming increasingly urgent as a consequence of the rapid changes engulfing the news media, brought about by technological change and the flow-on effect to the traditional advertising-supported business model. Assessing the impact of journalism has recently been the topic of debate among practitioners and scholars particularly in the United States, where philanthropists have responded to the perceived crisis in investigative journalism by funding not-for-profit newsrooms, with resulting new pressures being placed on journalists and editors to quantify their impact on society. These recent attempts have so far failed to achieve clarity or a satisfactory conclusion, which is not surprising given the complex web of causation within which journalism operates. In this paper, the authors propose a stratified definition of journalistic impact and function. They propose a methodology for studying impact drawing on realistic evaluation—a theory-based approach developed primarily to assess large social programmes occurring in open systems. The authors argue this could allow a conceptual and methodological advance on the question of media impacts, leading to research capable of usefully informing responses at a time of worrying change.