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 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.

The nine lives of Vietnam's new competition law

Vietnam's present draft of the proposed new Law on Competition is currently in its ninth version. Although there is a need to enact legislation as quickly as possible, Vietnam cannot rush the drafting process. Under its Bilateral Trade Agreement with the USA, Vietnam has committed to improve the quality of its laws and consistency of its legislative framework. Since the Law on Competition will be fundamental in establishing the legal framework for a more coherent and effective competition regime, and will have profound influences on Vietnam's objective of becoming a socialist-oriented market economy, its provisions must be well constructed and well considered, and this takes time. This article shows how the proposed Law is being crafted as compared to older drafts which sheds light on changes in policy during the drafting process. Where possible, the Draft is also compared with the laws in other jurisdictions for any assistance they might lend. In this author's opinion not all the changes are positive but any defects in the draft are not intractable and can be remedied prior to promulgation.

Building an effective trade practices commission : the role of Professor Robert Baxt AO

Bob Baxt, the third Chairman of the Trade Practices Commission, served for a single three year term from 1988 to 1991. He followed Bob McComas, who had deliberately adopted a non-litigious approach to preserving the competitive process, believing that he understood business as an insider and that much of what it did was not anti-competitive, when correctly viewed. Baxt was far more pro-active in his approach, and more closely aligned with that of the first Chairman, Ron Bannerman. Baxt sought to push the frontiers of investigation and precedent, and perhaps, more significantly, sought to influence his Ministers, the government, public servants and public opinion about the need to expand the coverage of the Trade Practices Act, increase penalties and properly resource the Commission so that it could perform its assigned roles. This article examines Baxt’s early and on-going role in teaching Australian students and professionals through his interdisciplinary Trade Practices Workshops, the political context of Baxt’s tenure, including his relations with the Attorney-General ,Michael Duffy, and his skilful handling of the Queensland Wire case.

The influence of service quality and trade show effectiveness on post-show purchase intention

Purpose The purpose of this paper is to develop and test an integrative services framework to investigate the role of perceived trade show effectiveness on overall trade show service outcome, conceptualised as the intention to purchase a related product after, rather than during, a show. Design/methodology/approach Drawing on the services marketing and trade show literature, the authors test a model of trade show effectiveness with data collected from 592 attendees at a major automotive trade show in a large metropolitan centre. Findings Results show that improving trade show visitors' perceived service quality positively affects visitor perceptions of trade show effectiveness. Furthermore, both trade show effectiveness and service quality directly influence future purchase intention. Research limitations/implications Employing a services theoretical framework to evaluate trade show visitor experiences provides an alternative to the traditional marketing communications approach. By viewing such visits as service encounters, managers must inevitably consider the effects of service quality and service outcomes in determining the likely success of their shows. The study primarily focuses on one large consumer show and therefore does not constitute a complete, nor necessarily representative, sample of the trade show industry. Originality/value The original contribution of the paper stems from the paucity of research conceptualising trade shows as services and the comparative lack of emphasis placed on visitors rather than exhibitors in the literature. The research not only has utility for trade show organisers but also provides necessary theory-based research in the trade show domain.

Malay Kingship in Kedah : Religion, Trade, and Society

The book probes and examines traditional sources of royal power and control, as well as indigenous socio-political systems in the Malay world. It is focused on the north-western Malaysian Sultanate of Kedah which is acknowledged as the oldest unbroken independent kingship line in the ‘Malay and Islamic world’ with 1,000 years of history. Little scholarly attention has been paid to its pre-modern history, society, religion, system of government and unique geographic situation, potentially controlling both land and sea lines of communication into the remainder of Southeast Asia. It will thus provide the first comprehensive treatment in English, or other languages, on Kedah’s pre-modern and nineteenth century historiography and can provide a foundation for comparative studies of the various Malay states which is presently lacking. The proposed book also sheds much needed light on a range of important topics in Malay history including: Kedah and the northern Melaka Straits history, colonial expansion and rivalry, Southeast Asian history and politics, interregional migration and the influence of the sea peoples or orang laut, traditional Malay socio-political and economic life, Islamic influences and the course of Thai-Malay relations. The book attempts to offer a new understanding, not only of Kedah, but of the political and cultural development of the entire Malay world and of its relationships with the broader forces in both its continental and maritime settings. It argues that Kedah does not seem to follow, and in fact, often seems to contradict what has been commonly been accepted as the “typical model” of the traditional Malay state. Thus it concludes that the ruling dynasty has historically exploited a wide range of unique environmental conditions, local traditions, global spiritual trends and economic forces to preserve and strengthen its political position. The scope and theme of book The Kedah Sultanate is the oldest unbroken independent kingship lines in the “Malay world” with 1,000 years of history, and arguably one of the oldest in the Islamic world. In this study I examine key geopolitical and spiritual attributes of Malay kingship that have traditionally cemented the ruler, the peoples, and the environment. Brief description of the primary audience for the book: There is little written in English or Malay on Kedah’s pre twentieth century history. The available sources only look at certain aspects of Kedah’s history, are outdated or are confined to a specific period often outside the scope of the book. It is therefore anticipated that the readership and market for the book includes: • Scholars of Southeast Asian history, Islam, kingship, trade. • Academics & Historians (including: Asian, Thai history, Islamic, Maritime, Persian, South Asian, Southeast Asian and Colonial) • Libraries • Students, particularly those in Malaysia (especially the states of Kedah, Perlis and Penang), Thailand and Singapore. • Universities • Scholars and students in Political Science & International Relations

Monitoring the impacts of trade agreements on food environments

The liberalization of international trade and foreign direct investment through multilateral, regional and bilateral agreements has had profound implications for the structure and nature of food systems, and therefore, for the availability, nutritional quality, accessibility, price and promotion of foods in different locations. Public health attention has only relatively recently turned to the links between trade and investment agreements, diets and health, and there is currently no systematic monitoring of this area. This paper reviews the available evidence on the links between trade agreements, food environments and diets from an obesity and non-communicable disease (NCD) perspective. Based on the key issues identified through the review, the paper outlines an approach for monitoring the potential impact of trade agreements on food environments and obesity/NCD risks. The proposed monitoring approach encompasses a set of guiding principles, recommended procedures for data collection and analysis, and quantifiable ‘minimal’, ‘expanded’ and ‘optimal’ measurement indicators to be tailored to national priorities, capacity and resources. Formal risk assessment processes of existing and evolving trade and investment agreements, which focus on their impacts on food environments will help inform the development of healthy trade policy, strengthen domestic nutrition and health policy space and ultimately protect population nutrition.

Consumer perceptions of trade show effectiveness : scale development and validation within a B2C context

Purpose This paper develops and estimates a model to measure consumer perceptions of trade show effectiveness. Design/methodology/approach Data were collected at three separate B2C trade shows. Study 1 (n=47) involved field interviews with data subjected to qualitative item generation and content analysis. Study 2 data (n=147) were subjected to exploratory factor analysis and item-total correlation to identify a preliminary factor structure for the effectiveness construct and to test for reliability. In Study 3 (n=592), confirmatory factor analysis was undertaken to more rigorously test the factor structure and generalise across industries. Validity testing was also performed. Findings A three-dimensional factor structure for assessing consumer visitors’ perceptions of trade show effectiveness was produced incorporating research, operational, and entertainment components. Research limitations/implications Data were collected in Australia and results may not generalise across cultural boundaries. Practical implications The resulting measurement model may be used as a reliable post-hoc diagnostic tool to identify areas of trade show effectiveness where specific performance improvements are needed. Results indicate that exhibitors and organisers of B2C trade shows should consider effectiveness as a multidimensional phenomenon with entertainment, product / industry research, and the facilitation of purchase decision-making processes and problem resolution being key objectives for consumer attendees. These elements of effectiveness should each be addressed by exhibitors and organisers in planning their displays and events. Originality/value This is the first study to provide an empirically valid model for assessing trade show effectiveness from the consumer visitor’s perspective.

Trade marks for the design and layout of retail premises

In January 2013, Apple Inc obtained United States trademarks for the design and layout of its retail stores. While innovative brand protection strategies of this kind are not without precedent in the United States, traders in Australia have seemingly not adopted them. This article considers the prospects of an applicant seeking to register a similar trade mark in Australia and the protection such a registration would likely provide.

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.