Environmental constitutional reform in the developing world : shifting the perspective of international law?

In recent years a growing number of states have chosen to recognise environmental issues in their national constitutions. Some have added declarations about the value of the environment, some have sought to restrict or regulate government’s ability to take action which would potentially harm the environment, while others have proclaimed that citizens possess a right to an environment of a particular quality. A survey of these constitutional provisions reveals that the majority of reform in this area has come from developing states, including a number of states which have been designated as among the least developed countries in the world. The increasing focus on constitutional environmental rights appears to represent a shift in the attitude of developing and emerging economies, which could in turn be influential in setting the tone of the environmental rights debate more broadly, with potential to shape the future development of international law in the area. This chapter examines constitutional environmental rights in an attempt to determine whether consistent state practice can in fact be identified in this area which might form the basis of an emerging norm. It will also analyse some of the potential contributing factors to the proliferation of a constitutional right to a good environment among developing states, and the implications for the development of customary international law.

Socio-Legal Aspects of the 3D Printing Revolution

Additive manufacturing or ‘3D printing’ has emerged into the mainstream in the last few years, with much hype about its revolutionary potential as the latest ‘disruptive technology’ to destroy existing business models, empower individuals and evade any kind of government control. This book examines the trajectory of 3D printing in practice and how it interacts with various areas of law, including intellectual property, product liability, gun laws, data privacy and fundamental/constitutional rights. A particular comparison is made between 3D printing and the Internet as this has been, legally-speaking, another ‘disruptive technology’ and also one on which 3D printing is partially dependent. This book is the first expert analysis of 3D printing from a legal perspective and provides a critical assessment of the extent to which existing legal regimes can be successfully applied to, and enforced vis-à-vis, 3D printing.

Submission to Senate Standing Committee on Legal and Constitutional Affairs on the Copyright Amendment (Online Infringement) Bill 2015

We argue that safeguards are necessary to ensure human rights are adequately protected. All systems of blocking access to online content necessarily raise difficult and problematic issues of infringement of freedom of speech and access to information. Given the importance of access to information across the breadth of modern life, great care must be taken to ensure that any measures designed to protect copyright by blocking access to online locations are proportionate. Any measures to block access to online content must be carefully tailored to avoid serious and disproportionate impact on human rights. This means first that the measures must be effective and adapted to achieve a legitimate purpose. The experience of foreign jurisdictions suggests that this legislation is unlikely to be effective. Unless and until there is clear evidence that the proposed scheme is likely to increase effective returns to Australian creators, this legislation should not be introduced. Second, the principle of proportionality requires ensuring that the proposed legislation does not unnecessarily burden legitimate speech or access to information. As currently worded, the draft legislation may result in online locations being blocked even though they would, if operated in Australia, not contravene Australian law. This is unacceptable, and if introduced, the law should be drafted so that it is clearly limited only to foreign locations where there is clear and compelling evidence that the location would authorise copyright infringement if it were in Australia. Third, proportionality requires that measures are reasonable and strike an appropriate balance between competing interests. This draft legislation provides few safeguards for the public interest or the interests of private actors who would access legitimate information. New safeguards should be introduced to ensure that the public interest is well represented at both the stage of the primary application and at any applications to rescind or vary injunctions. We recommend that: The legislation not be introduced unless and until there is compelling evidence that it will have a real and significant positive impact on the effective incomes of Australian creators. The ‘facilitates an infringement’ test in s 115A(1)(b) should be replaced with ‘authorises infringement’. The ‘primary purpose’ test in s 115A(1)(c) should be replaced with: “the online location has no substantial non-infringing uses”. An explicit role for public interest groups as amici curiae should be introduced. Costs of successful applications should be borne by applicants. Injunctions should be valid only for renewable two year terms. Section 115A(5) should be clarified, and cl (b) and (c) be removed. The effectiveness of the scheme should be evaluated in two years.

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.

A Submission to the Senate Legal and Constitutional Affairs Committee on the Copyright Amendment (Online Infringement) Bill 2015 (Cth)

The film company, Roadshow, the pay television company Foxtel, and Rupert Murdoch’s News Corp and News Limited — as well as copyright industries — have been clamouring for new copyright powers and remedies. In the summer break, the Coalition Government has responded to such entreaties from its industry supporters and donors, with a new package of copyright laws and policies. There has been significant debate over the proposals between the odd couple of Attorney-General George Brandis and the Minister for Communications, Malcolm Turnbull. There has been deep, philosophical differences between the two Ministers over the copyright agenda. The Attorney-General George Brandis has supported a model of copyright maximalism, with strong rights and remedies for the copyright empires in film, television, and publishing. He has shown little empathy for the information technology companies of the digital economy. The Attorney-General has been impatient to press ahead with a copyright regime. The Minister for Communications, Malcolm Turnbull, has been somewhat more circumspect,recognising that there is a need to ensure that copyright laws do not adversely impact upon competition in the digital economy. The final proposal is a somewhat awkward compromise between the discipline-and-punish regime preferred by Brandis, and the responsive regulation model favoured by Turnbull. In his new book, Information Doesn’t Want to Be Free: Laws for the Internet Age, Cory Doctorow has some sage advice for copyright owners: Things that don’t make money: * Complaining about piracy. * Calling your customers thieves. * Treating your customers like thieves. In this context, the push by copyright owners and the Coalition Government to have a copyright crackdown may well be counter-productive to their interests. This submission considers a number of key elements of the Coalition Government’s Copyright Crackdown. Part 1 examines the proposals in respect of the Copyright Amendment (Online Infringement) Bill 2015 (Cth). Part 2 focuses upon the proposed Copyright Code. Part 3 considers the question of safe harbours for intermediaries. Part 4 examines the question of copyright exceptions – particularly looking at the proposal of the Australian Law Reform Commission for the introduction of a defence of fair use. Part 5 highlights the recommendations of the IT Pricing Inquiry and the Harper Competition Policy Review in respect of copyright law, consumer rights, and competition law.

Electronic workplace surveillance and employee privacy : a comparative analysis of privacy protection in Australia and the United States

More than a century ago in their definitive work “The Right to Privacy” Samuel D. Warren and Louis D. Brandeis highlighted the challenges posed to individual privacy by advancing technology. Today’s workplace is characterised by its reliance on computer technology, particularly the use of email and the Internet to perform critical business functions. Increasingly these and other workplace activities are the focus of monitoring by employers. There is little formal regulation of electronic monitoring in Australian or United States workplaces. Without reasonable limits or controls, this has the potential to adversely affect employees’ privacy rights. Australia has a history of legislating to protect privacy rights, whereas the United States has relied on a combination of constitutional guarantees, federal and state statutes, and the common law. This thesis examines a number of existing and proposed statutory and other workplace privacy laws in Australia and the United States. The analysis demonstrates that existing measures fail to adequately regulate monitoring or provide employees with suitable remedies where unjustifiable intrusions occur. The thesis ultimately supports the view that enacting uniform legislation at the national level provides a more effective and comprehensive solution for both employers and employees. Chapter One provides a general introduction and briefly discusses issues relevant to electronic monitoring in the workplace. Chapter Two contains an overview of privacy law as it relates to electronic monitoring in Australian and United States workplaces. In Chapter Three there is an examination of the complaint process and remedies available to a hypothetical employee (Mary) who is concerned about protecting her privacy rights at work. Chapter Four provides an analysis of the major themes emerging from the research, and also discusses the draft national uniform legislation. Chapter Five details the proposed legislation in the form of the Workplace Surveillance and Monitoring Act, and Chapter Six contains the conclusion.

Regulating Multi-National Corporations Through State-Based Laws : Problems with Enforcing Human Rights Under The Alien Tort Statute

Under the Alien Tort Statute United States of America (“America”) Federal Courts have the jurisdiction to hear claims for civil wrongs, committed against non-American citizens, which were perpetrated outside America’s national borders. The operation of this law has confronted American Federal Courts with difficulties on how to manage conflicts between American executive foreign policy and judicial interpretations of international law. Courts began to pass judgment over conduct which was approved by foreign governments. Then in 2005 the American Supreme Court wound back the scope of the Alien Tort Statute. This article will review the problems with the expansion of the Alien Tort Statute and the reasons for its subsequent narrowing.

Mobiles In-a-Box : Reflections on Developing a Toolkit with Grassroots Human Rights Advocates

In 2008 Tactical Tech published 'Mobiles in-a-box': a toolkit designed to help human rights organisations and advocates use mobile technology in their work in Africa. This chapter reflects on the participatory development process used to develop the toolkit.

Enforcing P3P policies using a digital rights management system

The protection of privacy has gained considerable attention recently. In response to this, new privacy protection systems are being introduced. SITDRM is one such system that protects private data through the enforcement of licenses provided by consumers. Prior to supplying data, data owners are expected to construct a detailed license for the potential data users. A license specifies whom, under what conditions, may have what type of access to the protected data. The specification of a license by a data owner binds the enterprise data handling to the consumer’s privacy preferences. However, licenses are very detailed, may reveal the internal structure of the enterprise and need to be kept synchronous with the enterprise privacy policy. To deal with this, we employ the Platform for Privacy Preferences Language (P3P) to communicate enterprise privacy policies to consumers and enable them to easily construct data licenses. A P3P policy is more abstract than a license, allows data owners to specify the purposes for which data are being collected and directly reflects the privacy policy of an enterprise.