Franklin Barley: Patent law and plant breeders’ rights

This paper considers the relationship between patent law and plant breeders' rights in light of modern developments in biotechnology. It examines how a number of superior courts have sought to manage the tensions and conflicts between these competing schemes of intellectual property protection. Part 1 considers the High Court of Australia case of Grain Pool of Western Australia v the Commonwealth dealing with Franklin barley. Part 2 examines the significance of the Supreme Court of the United States decision in JEM Ag Supply Inc v Pioneer Hi-Bred International Inc with respect to utility patents and hybrid seed. Part 3 considers the Supreme Court of Canada case of Harvard College v the Commissioner of Patents dealing with the transgenic animal, oncomouse, and discusses its implications for the forthcoming appeal from the Federal Court case of Percy Schmeiser v Monsanto.

Heretic: Copyright law and dramatic works

The production of the play Heretic in 1996 prompted a debate over copyright and the dramatic arts in Australia. The playwright David Williamson argued that the role of the writer was supreme. Although he was willing to acknowledge the contributions of other collaborators, the playwright did not believe that these interpreters deserved copyright protection. The director Wayne Harrison advocated a more collaborative vision of the performing arts. He believed that the role of the director and the position of the producer deserved greater legal recognition. Furthermore he was also willing to countenance limited rights for performers. This article argues that recognition should be accorded to all of the main collaborators in the performing arts. It contends that economic rights and moral rights should not be just limited to the writer, the director, and the producer, but they should extend to the performers and the designers.

The attack of the clones: Patent law and stem cell research

This article considers the integral role played by patent law in respect of stem cell research. It highlights concerns about commercialization, access to essential medicines and bioethics. The article maintains that there is a fundamental ambiguity in the Patents Act 1990 (Cth) as to whether stem cell research is patentable subject matter. There is a need to revise the legislation in light of the establishment of the National Stem Cell Centre and the passing of the Research Involving Embryos Act 2002 (Cth). The article raises concerns about the strong patent protection secured by the Wisconsin Alumni Research Foundation and Geron Corporation in respect of stem cell research in the United States. It contends that a number of legal reforms could safeguard access to stem cell lines, and resulting drugs and therapies. Finally, this article explores how ethical concerns are addressed within the framework of the European Biotechnology Directive. It examines the decision of the European Patent Office in relation to the so-called Edinburgh patent, and the inquiry of the European Group on Ethics in Science and New Technologies into The Ethical Aspects of Patenting Involving Human Stem Cells.

The freedom to tinker: Patent law and experimental use

This article considers the origins and the development of the defence of experimental use in patent law - the ’freedom to tinker'. It explores the impact of such an exemption upon a number of important industries - such as agriculture, biotechnology, and pharmaceutical drugs. This article takes a comparative approach in its analysis of patent law and experimental use. It highlights the competing norms, and lack of harmonization between a number of jurisdictions - including the United States, the European Union, and Australia. Section 2 provides a critique of the development of the common law defence of experimental use in the United States. It considers a series of precedents - including Roche Products Inc v Bolar Pharmaceuticals, Madey v Duke University, Integra Lifesciences I Ltd v Merck KgaA, and Applera v MJ Research. Section 3 explores the operation of patent law and experimental use in European jurisdictions. It looks at a number of significant precedents in the United Kingdom, the Netherlands, France, Italy, and Germany. Section 4 considers the policy debate in a number of forums over the defence of experimental use in Australia. It examines the controversy over Genetic Technologies Limited asking research organisations to obtain a licence in respect of its patents associated with non-coding DNA and genomic mapping. It also considers the inquiries of the Australian Law Reform Commission and the Advisory Council on Intellectual Property, as well as the impact of the TRIPS Agreement and the Australia-United States Free Trade Agreement. The conclusion contends that there is a need for a broad-based defence of experimental use for all the member states of the Organisation for Economic Co-operation and Development.

The alchemy of junk: patent law and non-coding DNA

This article considers the recent international controversy over the patents held by a Melbourne firm, Genetic Technologies Limited (GTG), in respect of non-coding DNA and genomic mapping. It explores the ramifications of the GTG dispute in terms of licensing, litigation, and policy reform, and—as a result of this dispute—the perceived conflict between law and science. GTG has embarked upon an ambitious licensing program with twenty seven commercial licensees and five research licensees. Most significantly, GTG has obtained an exclusive licence from Myriad Genetics to use and exploit its medical diagnostics in Australia, New Zealand, and the Asia-Pacific region. In the US, GTG brought a legal action for patent infringement against the Applera Corporation and its subsidiaries. In response, Applera counterclaimed that the patents of GTG were invalid because they failed to comply with the requirements of US patent law, such as novelty, inventive step, and written specifications. In New Zealand, the Auckland District Health Board brought legal action in the High Court, seeking a declaration that the patents of GTG were invalid, and that, in any case, the Board has not infringed them. The New Zealand Ministry of Health and the Ministry of Economic Development have reported to Cabinet on the issues relating to the patenting of genetic material. Similarly, the Australian Law Reform Commission (ALRC) has also engaged in an inquiry into gene patents and human health; and the Advisory Council on Intellectual Property (ACIP) has considered whether there should be a new defence in respect of experimental use and research.

Safety culture and speeding in the Australian heavy vehicle industry

Inappropriate speed and speeding are among the highest causes of crashes in the heavy vehicle industry. Truck drivers are subjected to a broad range of influences on their behaviour including industrial pressures, company monitoring and police enforcement. Further, drivers have a high level of autonomy over their own behaviour. As such it is important to understand how these external influences interact with commonly shared beliefs, attitudes and values of heavy vehicle drivers to influence their behaviour. The present study uses a re-conceptualisation of safety culture to explore the behaviours of driving at an inappropriate speed and speeding in the heavy vehicle industry. A series of case studies, consisting of interviews and ride-along observations, were conducted with three transport organisations to explore the effect of culture on safety in the heavy vehicle industry. Results relevant to inappropriate speed are reported and discussed. It was found that organisational management through monitoring, enforcement and payment, police enforcement, customer standards and vehicle design factors could all reduce the likelihood of driving at inappropriate speeds under some circumstances. However, due to weaknesses in the ability to accurately monitor appropriate speed, this behaviour was primarily influenced by cultural beliefs, attitudes and values. Truck drivers had a tendency to view speeding as relatively safe, had a desire to speed to save time and increase personal income, and thus often attempted to speed without detection. When drivers saw speeding as dangerous, however, they were more likely to drive safely. Implications for intervention are discussed.

The Role of the Law in Communicating Patient Safety

This chapter considers the role of the law in communicating patient safety. Downie, Lahey, Ford, et al’s (2006) preventing, knowing and responding theoretical framework is adopted to classify the different elements of patient safety law. Rather than setting out all relevant patient safety laws in detail, this chapter highlights key legal strategies which are employed to: prevent the occurrence of patient safety incidents (preventing); support the discovery and open discussion of patient safety incidents when they do occur (knowing),; and guide responses after they occur (responding) (Downie, Lahey, Ford, et al 2006). The law is increasingly being invoked to facilitate open discussion of and communication surrounding patient safety. After highlighting some legal strategies used to communicate patient safety, two practice examples are presented. The practice examples highlight different aspects of patient safety law and are indicative of communication issues commonly faced in practice. The first practice example focuses on the role of the Ccoroner in communicating patient safety. This example highlights the investigative role of the law in relation to patient safety (knowing). It also showcases the preventing responding and preventing elements in respect of the significant number of communication errors that can occur in a multi-disciplinary, networked health system. The main focus of the second practice example is responding example illustrates how the law responds to health service providers’ and professionals’ miscommunication (and subsequent incidents) during treatment, however it also touches upon knowing and preventing.

Copyright law and mash-ups: A policy paper

This report provides an analysis of the cultural, policy and legal implications of ‘mash-ups’. This study provides a short history of mash-ups, explaining how the current ‘remix culture’ builds upon a range of creative antecedents and cultural traditions, which valorised appropriation, quotation, and transformation. It provides modern examples of mash-ups, such as sound recordings, musical works, film and artistic works, focusing on works seen on You Tube and other online applications. In particular, it considers - * Literary mash-ups of canonical texts, including Pride and Prejudice and Zombies, The Wind Done Gone, After the Rain, and 60 Years Later; * Artistic mash-ups, highlighting the Obama Hope poster, the ‘Column’ case, and the competition for extending famous album covers; * Geographical mash-ups, most notably, the Google Australia bushfires map; * Musical mash-ups, such as The Grey Album and the work of Girl Talk; * Cinematic mash-ups, including remixes of There Will Be Blood and The Downfall; and This survey provides an analysis of why mash-up culture is valuable. It highlights the range of aesthetic, political, comic, and commercial impulses behind the creation and the dissemination of mash-ups. This report highlights the tensions between copyright law and mash-ups in particular cultural sectors. Second, this report emphasizes the importance of civil society institutions in promoting and defending mash-ups in both copyright litigation and policy debates. It provides a study of key organisations – including: * The Fair Use Project; * The Organization for Transformative Works; * Public Knowledge; * The Electronic Frontier Foundation; and * The Chilling Effects Clearinghouse This report suggests that much can be learnt from this network of organisations in the United States. There is a dearth of comparable legal clinics, advocacy groups, and creative institutions in Australia. As a result, the public interest values of copyright law have only received weak, incidental support from defendant companies – such as Network Ten and IceTV – with other copyright agendas. Third, this report canvasses a succinct model for legislative reform in respect of copyright law and mash-ups. It highlights: * The extent to which mash-ups are ‘tolerated uses’; * The conflicting judicial precedents on substantiality in Australia and the United States; * The debate over copyright exceptions relating to mash-ups and remixes; * The use of the take-down and notice system under the safe harbours regime by copyright owners in respect of mash-ups; * The impact of technological protection measures on mash-ups and remixes; * The possibility of statutory licensing in respect of mash-ups; * The use of Creative Commons licences; * The impact of moral rights protection upon mash-ups; * The interaction between economic and moral rights under copyright law; and * Questions of copyright law, freedom of expression, and political mash-ups.

The Trans-Pacific Partnership, Copyright Law and Education

There is much concern across the Pacific rim about the impact of the Trans-Pacific Partnership (TPP) upon public education. The secretive trade agreement involves a dozen nations across the Pacific, including Australia, New Zealand, Canada and the United States, and Indonesia may soon join. Although the text was finalised at the Atlanta talks in October 2015, the Agreement has not yet been made public. (The NTEU has joined with other unions and civil society organisations in calling for the agreement to be revealed to facilitate public debate before any decisions are made by Parliament.) So whilst we cannot examine all the text that may impact on public educations, WikiLeaks has published the final version of the Intellectual Property Chapter of the TPP. The Intellectual Property Chapter of the TPP alone, with its copyright term extension, limits on copyright exceptions, and enforcement measures, will have a significant impact for educators and public education.

The law and ethics of ‘self-quantified’ health information: An Australian perspective

This exploratory article examines the phenomenon of the ‘Quantified Self’—until recently, a subculture of enthusiasts who aim to discover knowledge about themselves and their bodies through self-tracking, usually using wearable devices to do so—and its implications for laws concerned with regulating and protecting health information. Quantified Self techniques and the ‘wearable devices’ and software that facilitate them—in which large transnational technology corporations are now involved—often involve the gathering of what would be considered ‘health information’ according to legal definitions, yet may occur outside the provision of traditional health services (including ‘e-health’) and the regulatory frameworks that govern them. This article explores the legal and regulatory framework for self-quantified health information and wearable devices in Australia and determines the extent to which this framework addresses privacy and other concerns that these techniques engender, along with suggestions for reform.

Australian fly-in, fly-out operations: Impacts on communities, safety workers and their families

Background Australia’s mineral, resource and infrastructure sectors continues to expand as operations in rural and remote locations increasingly rely on fly-in, fly-out or drive-in, drive-out workforces in order to become economically competitive. The issues in employing these workforces are becoming more apparent and include a range of physical, mental, psychosocial, safety and community challenges. Objectives This review aims to consolidate a range of research conducted to communicate potential challenges for industry in relation to a wide variety of issues when engaging and using FIFO/DIDO workforces which includes roster design, working hours, fatigue, safety performance, employee wellbeing, turnover, psychosocial relationships and community concerns. Methods A wide literature review was performed using EBSCOhost and Google Scholar, with a focus on FIFO or DIDO workforces engaged within the resources sector. Results A number of existing gaps in the management of FIFO workforces and potential for future research were identified. This included the identification of various roster designs and hours worked across the resources industry and how to best understand the influences of roster swings, and work hours on fatigue, safety, psychological wellbeing and job satisfaction. Fatigue management, particularly in relation to travelling after extended work shifts can increase the risk for road safety and influence safety performance while at work due to a culmination of long hours, roster cycle and accumulated sleep debt. Further challenges associated with the engagement of this workforce include feelings of isolation, physiological and general health and lifestyle concerns. Conclusions FIFO workforces appear to be at an increased risk physically and mentally due to a wide range of influences of this unique lifestyle, particularly in relation to rosters, length of shift and feelings of community disengagement. Research and data collected has been limited in understanding the influences on employee engagement, satisfaction, retention and safety. Ensuring the challenges associated with FIFO employment are understood, addressed and communicated to workers and their families may assist.

Discrepancy between human resource research and practice : comparison of industrial/organisational psychologists and human resource practitioners' beliefs

There is a large and growing body of research to show that human resource (HR) practices affect individual performance, organisational productivity and organisational performance. Academic findings about effective HR practices, however, have not readily been adopted by practitioners. A variety of theoretical and practical explanations have been advanced about the research-practice gap. Research by Rynes, Colbert, and Brown (2002) suggested that the research-practice gap is due to a lack of knowledge, but the extent to which these findings apply to the Australian context is unknown. The sample consisted of 102 industrial/organisational (I/O) psychologists and 89 HR practitioners. The main aim of the present study was to replicate and extend the work of Rynes et al. by examining and comparing the knowledge of I/O psychologists and HR practitioners. It was found that overall I/O psychologists were better informed about HR research than HR practitioners; in particular, they were more knowledgeable about management practices and recruitment and selection. In both groups, of the five content areas examined (Management Practices; General Employment Practices; Training and Development; Recruitment and Selection; and Compensation and Benefits), the greatest gaps were in Recruitment and Selection.

'Homophobia' in the university classroom : law and justice students' conceptualizations of queer identity

Heteronormative discourses provide the most common lens through which sexuality is understood within university curricula. This means that sexuality is discussed in terms of categories of identity, with heterosexuality accorded primacy and all ‘others’ indeed ‘othered.’ This paper reports on research carried out by the authors in a core first year university justice class, in which students of law and/or justice were required to engage with, discuss, and reflect on discourses on sexuality. It uses a poststructural framework to identify how students understand non-heterosexualities and how they personally relate to queer identities, in the sense that it asks questions about gender and sexual identity, and the discourses surrounding them. It was found that strongly negative attitudes to non-heterosexualities are quite resistant to challenge, and that some students express being confronted with queerness as a deep-seated fear of being drawn into otherness against their will. The result was that, while many students were able to unpack their attitudes towards queerness and engage in critical reflection and re-evaluation of their attitudes, students with strongly negative views towards non-heterosexualities conversely refused to engage at all, typically perceiving even the engagement itself as a threat to their core heterosexual identity. However, the authors caution against relying on the idea that students are simply “homophobic” to explain this reluctance, as this term does not necessarily account for the complexity of the discourses that inform students’ reactions in this context. This “homophobia” may simply be related to a way of performing gender and sexual identity as opposed to overt discrimination and fear.

Undressing Kellerman, Uncovering Broadhurst : the modern woman and "un-Australia"

This article explores the contributions of two unique Australian women, Annette Kellerman and Florence Broadhurst, to global fashion and aesthetics through subverting and challenging female gender roles of the early twentieth century. These two women are brought together here as a means of highlighting their markedly contrasting social tactics: undressing versus layering. Kellerman's body became an instrument in her quest for global fame, engaging in daring public "undress" in swimming and diving performances around the world that served to show case her innovative swimwear design. In contrast, Broadhurst, through repeated reconstructions of her persona and constant relayering of identities, concocted versions of herself in order to pass through Shanghai, London, and Sydney societies. Their lives exist as binaristic parallels, expressing contrasting values of un-Australianness - the disavowal of national identity; and Australianness - the promotion of national identity. Both Kellerman and Broadhurst tested the limits of body, dress and national identity as vehicles for global recognition. The recent interest in their historical roles is evidenced in the films "The original Mermaid"( 2004) and "Unfolding Florence" (2005) in addition to numerous books and journal articles. Despite this resurgent public recognition of their lives and achievements, scholarly analysis of their legacies in the fields of fashion and design are still relatively neglected. This article explores their contributions to celebrity and modernity, fashion and gender as modern un-Australian women.

Traceability : retracing law and public policy on measurement standards

This presentation outlines key aspects of public policy in broad terms insofar as they relate to establishment, implementation and compliance with legal measurement standards. It refers in particular to traceability of a legal measurement unit from its source in a single international standard as a compliance issue. It comments on accreditation of legal measurement and liability concerned with errors in measurement.