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.

The use of animation to promote student learning about the importance of mental well-being for tertiary study success

It is now widely acknowledged that student mental well-being is a critical factor in the tertiary student learning experience and is important to student learning success. The issue of student mental well-being also has implications for effective student transition out of university and into the world of work. It is therefore vital that intentional strategies are adopted by universities both within the formal curriculum, and outside it, to promote student well-being and to work proactively and preventatively to avoid a decline in student psychological well-being. This paper describes how the Queensland University of Technology Law School is using animation to teach students about the importance for their learning success of the protection of their mental well-being. Mayer and Moreno (2002) define an animation as an external representation with three main characteristics: (1) it is a pictorial representation, (2) it depicts apparent movement, and (3) it consists of objects that are artificially created through drawing or some other modelling technique. Research into the effectiveness of animation as a tool for tertiary student learning engagement is relatively new and growing field of enquiry. Nash argues, for example, that animations provide a “rich, immersive environment [that] encourages action and interactivity, which overcome an often dehumanizing learning management system approach” (Nash, 2009, 25). Nicholas states that contemporary millennial students in universities today, have been immersed in animated multimedia since their birth and in fact need multimedia to learn and communicate effectively (2008). However, it has also been established, for example through the work of Lowe (2003, 2004, 2008) that animations can place additional perceptual, attentional, and cognitive demands on students that they are not always equipped to cope with. There are many different genres of animation. The dominant style of animation used in the university learning environment is expository animation. This approach is a useful tool for visualising dynamic processes and is used to support student understanding of subjects and themes that might otherwise be perceived as theoretically difficult and disengaging. It is also a form of animation that can be constructed to avoid any potential negative impact on cognitive load that the animated genre might have. However, the nature of expository animation has limitations for engaging students, and can present as clinical and static. For this reason, the project applied Kombartzky, Ploetzner, Schlag, and Metz’s (2010) cognitive strategy for effective student learning from expository animation, and developed a hybrid form of animation that takes advantage of the best elements of expository animation techniques along with more engaging short narrative techniques. First, the paper examines the existing literature on the use of animation in tertiary educational contexts. Second, the paper describes how animation was used at QUT Law School to teach students about the issue of mental well-being and its importance to their learning success. Finally, the paper analyses the potential of the use of animation, and of the cognitive strategy and animation approach trialled in the project, as a teaching tool for the promotion of student learning about the importance of mental well-being.

Turning up the Heat on Admissions: A Study of the Impacts of Extreme Heat Events on Tasmanian Hospital Admissions 2003-2010

Introduction: Extreme heat events (both heat waves and extremely hot days) are increasing in frequency and duration globally and cause more deaths in Australia than any other extreme weather event. Numerous studies have demonstrated a link between extreme heat events and an increased risk of morbidity and death. In this study, the researchers sought to identify if extreme heat events in the Tasmanian population were associated with any changes in emergency department admissions to the Royal Hobart Hospital (RHH) for the period 2003-2010. Methods: Non-identifiable RHH emergency department data and climate data from the Australian Bureau of Meteorology were obtained for the period 2003-2010. Statistical analyses were conducted using the computer statistical computer software ‘R’ with a distributed lag non-linear model (DLNM) package used to fit a quassi-Poisson generalised linear regression model. Results: This study showed that RR of admission to RHH during 2003-2010 was significant over temperatures of 24 C with a lag effect lasting 12 days and main effect noted one day after the extreme heat event. Discussion: This study demonstrated that extreme heat events have a significant impact on public hospital admissions. Two limitations were identified: admissions data rather than presentations data were used and further analysis could be done to compare types of admissions and presentations between heat and non-heat events. Conclusion: With the impacts of climate change already being felt in Australia, public health organisations in Tasmania and the rest of Australia need to implement adaptation strategies to enhance resilience to protect the public from the adverse health effects of heat events and climate change.

Lower limb amputation in Northern Netherlands: Unchanged incidence from 1991-1992 to 2003-2004

Background Investigating population changes gives insight into effectiveness and need for prevention and rehabilitation services. Incidence rates of amputation are highly varied, making it difficult to meaningfully compare rates between studies and regions or to compare changes over time. Study Design Historical cohort study of transtibial amputation, knee disarticulation, and transfemoral amputations resulting from vascular disease or infection, with/without diabetes, in 2003-2004, in the three Northern provinces of the Netherlands. Objectives To report the incidence of first transtibial amputation, knee disarticulation, or transfemoral amputation in 2003-2004 and the characteristics of this population, and to compare these outcomes to an earlier reported cohort from 1991 to 1992. Methods Population-based incidence rates were calculated per 100,000 person-years and compared across the two cohorts. Results Incidence of amputation was 8.8 (all age groups) and 23.6 (≥45 years) per 100,000 person-years. This was unchanged from the earlier study of 1991-1992. The relative risk of amputation was 12 times greater for people with diabetes than for people without diabetes. Conclusions Investigation is needed into reasons for the unchanged incidence with respect to the provision of services from a range of disciplines, including vascular surgery, diabetes care, and multidisciplinary foot clinics. Clinical relevance This study shows an unchanged incidence of amputation over time and a high risk of amputation related to diabetes. Given the increased prevalence of diabetes and population aging, both of which present an increase in the population at risk of amputation, finding methods for reducing the rate of amputation is of importance.

Tracking brand positioning for an emerging destination: 2003 to 2015

Few published studies have monitored destination brand image over time. This temporal aspect is an important gap in the literature, given consensus around the role perceptions play in consumers’ decision making, and the ensuing emphasis on imagery in destination branding collateral. Whereas most destination image studies have been a snapshot of perceptions at one point in time, this paper presents findings from a survey implemented four times between 2003 and 2015. Brand image is the core construct in modelling destination branding performance, which has emerged as a relatively new field of research in the past decade. Using the consumer-based brand equity (CBBE) hierarchy, the project has benchmarked and monitored destination brand salience, image and resonance for an emerging regional destination, relative to key competitors, in the domestic Australian market; and the survey instrument has been demonstrated to be reliable in the context of short break holidays by car. What is particularly interesting to date is there has been relatively little change in the market positions of the five destinations, in spite of over a decade of marketing communications by the regional tourism organisations and their stakeholders, and more recently the mass of user-generated travel content on social media. The project didn’t analyse the actual marketing communications for each of the DMOs. Therefore an important implication is that irrespective of the level of marketing undertaken the DMOs seem to have had little control over the perceptions held in their largest market during this time period. Therefore it must be recognised any improvement in perceptions will likely take a long period of time, and so branding needs to be underpinned by a philosophy of a long term financial investment as well as commitment to a consistency of message over time; which given the politics of DMO decision making represents a considerable challenge.