The government as proprietor, preserver and user of copyright material under the Copyright Act 1968 (CTH)

This thesis examines the role of government as proprietor, preserver and user of copyright material under the Copyright Act 1968 (Cth) and the policy considerations which Australian law should take into account in that role. There are two recurring themes arising in this examination which are significant to the recommendations and conclusions. The first is whether the needs and status of government should be different from private sector institutions, which also obtain copyright protection under the law. This theme stems from the 2005 Report on Crown Copyright by the Copyright Law Review Committee and the earlier Ergas Committee Report which are discussed in Chapters 2 and 8 of this thesis. The second is to identify the relationship between government copyright law and policy, national cultural policy and fundamental governance values. This theme goes to the essence of the thesis. For example, does the law and practice of government copyright properly reflect technological change in the way we now access and use information and does it facilitate the modern information management principles of government? Is the law and practice of government copyright consistent with the greater openness and accountability of government? The thesis concludes that government copyright law and practice in each of the three governmental roles recognised under the Copyright Act 1968 has not responded adequately to the information age and to the desire and the ability of individuals to access information quickly and effectively. The solution offered in this thesis is reform of the law and of public policy that is in step with access to information policy, the promotion of better communication and interaction with the community, and the enhanced preservation of government and private copyright materials for reasons of government accountability, effective administration and national culture and heritage.

Intellectual Property Laws Amendment Bill 2013

This submission relates to the proposed amendment of the Crown Use provisions in the Patents Act 1990 (Cth) (“the Patents Act”),which are contained in Intellectual Property Laws Amendment Bill 2013 (“The Bill”). Specifically, the submission relates to the method of calculation of the remuneration payable to the patent applicant/owner in circumstances where the Crown exercises its rights under Chapter 17 of the Patents Act.

The empire of cancer: Gene patents and cancer voices

In his book, The Emperor of All Maladies, Siddhartha Mukherjee writes a history of cancer — "It is a chronicle of an ancient disease — once a clandestine, 'whispered-about' illness — that has metamorphosed into a lethal shape-shifting entity imbued with such penetrating metaphorical, medical, scientific, and political potency that cancer is often described as the defining plague of our generation." Increasingly, an important theme in the history of cancer is the role of law, particularly in the field of intellectual property law. It is striking that a number of contemporary policy debates over intellectual property and public health have concerned cancer research, diagnosis, and treatment. In the area of access to essential medicines, there has been much debate over Novartis’ patent application in respect of Glivec, a treatment for leukaemia. India’s Supreme Court held that the Swiss company’s patent application violated a safeguard provision in India’s patent law designed to stop evergreening. In the field of tobacco control, the Australian Government introduced plain packaging for tobacco products in order to address the health burdens associated with the tobacco epidemic. This regime was successfully defended in the High Court of Australia. In the area of intellectual property and biotechnology, there have been significant disputes over the Utah biotechnology company Myriad Genetics and its patents in respect of genetic testing for BRCA1 and BRCA2, which are related to breast cancer and ovarian cancer. The Federal Court of Australia handed down a decision on the validity of Myriad Genetics’ patent in respect of genetic testing for BRCA1 in February 2013. The Supreme Court of the United States heard a challenge to the validity of Myriad Genetics’ patents in this area in April 2013, and handed down a judgment in July 2013. Such disputes have involved tensions between intellectual property rights, and public health. This article focuses upon one of these important test cases involving intellectual property, public health, and cancer research. In June 2010, Cancer Voices Australia and Yvonne D’Arcy brought an action in the Federal Court of Australia against the validity of a BRCA1 patent — held by Myriad Genetics Inc, the Centre de Recherche du Chul, the Cancer Institute of Japan and Genetic Technologies Limited. Yvonne D’Arcy — a Brisbane woman who has had treatment for breast cancer — maintained: "I believe that what they are doing is morally and ethically corrupt and that big companies should not control any parts of the human body." She observed: "For my daughter, I've had her have [sic] mammograms, etc, because of me but I would still like her to be able to have the test to see if the mutation gene is in there from me." The applicants made the following arguments: "Genes and the information represented by human gene sequences are products of nature universally present in each individual, and the information content of a human gene sequence is fixed. Genetic variations or mutations are products of nature. The isolation of the BRCA1 gene mutation from the human body constitutes no more than a medical or scientific discovery of a naturally occurring phenomenon and does not give rise to a patentable invention." The applicants also argued that "the alleged invention is not a patentable invention in that, so far as claimed in claims 1–3, it is not a manner of manufacture within the meaning of s 6 of the Statute of Monopolies". The applicants suggested that "the alleged invention is a mere discovery". Moreover, the applicants contended that "the alleged invention of each of claims 1-3 is not a patentable invention because they are claims for biological processes for the generation of human beings". The applicants, though, later dropped the argument that the patent claims related to biological processes for the generation of human beings. In February 2013, Nicholas J of the Federal Court of Australia considered the case brought by Cancer Voices Australia and Yvonne D’Arcy against Myriad Genetics. The judge presented the issues in the case, as follows: "The issue that arises in this case is of considerable importance. It relates to the patentability of genes, or gene sequences, and the practice of 'gene patenting'. Briefly stated, the issue to be decided is whether under the Patents Act 1990 (Cth) a valid patent may be granted for a claim that covers naturally occurring nucleic acid — either deoxyribonucleic acid (DNA) or ribonucleic acid (RNA) — that has been 'isolated'". In this context, the word "isolated" implies that naturally occurring nucleic acid found in the cells of the human body, whether it be DNA or RNA, has been removed from the cellular environment in which it naturally exists and separated from other cellular components also found there. The genes found in the human body are made of nucleic acid. The particular gene with which the patent in suit is concerned (BRCA1) is a human breast and ovarian cancer disposing gene. Various mutations that may be present in this gene have been linked to various forms of cancer including breast cancer and ovarian cancer.' The judge held in this particular case that Myriad Genetics’ patent claims were a "manner of manufacture" under s 6 of the Statute of Monopolies and s 18(1)(a) of the Patents Act 1990 (Cth). The matter is currently under appeal in the Full Court of the Federal Court of Australia. This article interprets the dispute over Myriad Genetics in light of the scholarly work of Nobel Laureate Professor Joseph Stiglitz on inequality. Such work has significant explanatory power in the context of intellectual property and biotechnology. First, Stiglitz has contended that "societal inequality was a result not just of the laws of economics, but also of how we shape the economy — through politics, including through almost every aspect of our legal system". Stiglitz is concerned that "our intellectual property regime … contributes needlessly to the gravest form of inequality." He maintains: "The right to life should not be contingent on the ability to pay." Second, Stiglitz worries that "some of the most iniquitous aspects of inequality creation within our economic system are a result of 'rent-seeking': profits, and inequality, generated by manipulating social or political conditions to get a larger share of the economic pie, rather than increasing the size of that pie". He observes that "the most iniquitous aspect of this wealth appropriation arises when the wealth that goes to the top comes at the expense of the bottom." Third, Stiglitz comments: "When the legal regime governing intellectual property rights is designed poorly, it facilitates rent-seeking" and "the result is that there is actually less innovation and more inequality." He is concerned that intellectual property regimes "create monopoly rents that impede access to health both create inequality and hamper growth more generally." Finally, Stiglitz has recommended: "Government-financed research, foundations, and the prize system … are alternatives, with major advantages, and without the inequality-increasing disadvantages of the current intellectual property rights system.’" This article provides a critical analysis of the Australian litigation and debate surrounding Myriad Genetics’ patents in respect of genetic testing for BRCA1. First, it considers the ruling of Nicholas J in the Federal Court of Australia that Myriad Genetics’ patent was a manner of manufacture as it related to an artificially created state of affairs, and not mere products of nature. Second, it examines the policy debate over gene patents in Australia, and its relevance to the litigation involving Myriad Genetics. Third, it examines comparative law, and contrasts the ruling by Nicholas J in the Federal Court of Australia with developments in the United States, Canada, and the European Union. Fourth, this piece considers the reaction to the decision of Nicholas at first instance in Australia. Fifth, the article assesses the prospects of an appeal to the Full Federal Court of Australia over the Myriad Genetics’ patents. Finally, this article observes that, whatever happens in respect of litigation against Myriad Genetics, there remains controversy over Genetic Technologies Limited. The Melbourne firm has been aggressively licensing and enforcing its related patents on non-coding DNA and genomic mapping.

The last taboo: Patenting human beings

This article considers the efforts of the Australian Law Reform Commission to clarify the meaning of section 18(2) of the Australian Patents Act 1990 (Cth): ’Human beings and the biological processes for their generation are not patentable inventions.' It provides a critique of the proposals of the Commission with respect to patent law and stem cell research. The Commission has recommended that IP Australia should develop examination guidelines to explain how the criteria for patentability apply to inventions involving stem cell technologies. It has advised the Australian Government that the practice code of the United Kingdom Patent Office (UKPO) would be a good model for such guidelines, with its distinction between totipotent and pluripotent stem cells. Arguably, though, there is a need to codify this proposal in a legislative directive, and not merely in examination guidelines. The Commission has been reluctant to take account of the ethical considerations with respect to patent law and stem cell research. There could be greater scope for such considerations, by the use of expert advisory boards, opposition proceedings and the requirement of informed consent. The Commission has put forward a number of general and specific recommendations to enhance access to patented stem cell technologies. It recommends the development of a research exemption, and the modernisation of compulsory licensing and crown use provisions. It also explores the establishment of a stem cell bank and the promulgation of guidelines by funding agencies. Such proposals to promote greater public access to stem cell research are to be welcomed.

Toward robust image detection of crown-of-thorns starfish for autonomous population monitoring

Robust texture recognition in underwater image sequences for marine pest population control such as Crown-Of-Thorns Starfish (COTS) is a relatively unexplored area of research. Typically, humans count COTS by laboriously processing individual images taken during surveys. Being able to autonomously collect and process images of reef habitat and segment out the various marine biota holds the promise of allowing researchers to gain a greater understanding of the marine ecosystem and evaluate the impact of different environmental variables. This research applies and extends the use of Local Binary Patterns (LBP) as a method for texture-based identification of COTS from survey images. The performance and accuracy of the algorithms are evaluated on a image data set taken on the Great Barrier Reef.

The use of Creative Commons licensing to enable open access to public sector information and publicly funded research results : an overview of recent Australian developments

This chapter provides an account of the use of Creative Commons (CC) licensing as a legally and operationally effective means by which governments can implement systems to enable open access to and reuse of their public sector information (PSI). It describes the experience of governments in Australia in applying CC licences to PSI in a context where a vast range of material and information produced, collected, commissioned of funded by government is subject to copyright. By applying CC licences, governments can give effect to their open access policies and create a public domain of PSI which is available for resue by other governmental agencies and the community at large.

Crown copyright

Copyright protects much of the creative, cultural, educational, scientific and informational material generated by federal, State/Territory and local governments and their constituent departments and agencies. Governments at all levels develop, manage and distribute a vast array of materials in the form of documents, reports, websites, datasets and databases on CD or DVD and files that can be downloaded from a website. Under the Copyright Act 1968 (Cth), with few exceptions government copyright is treated the same as copyright owned by non-government parties insofar as the range of protected materials and the exclusive proprietary rights attaching to them are concerned. However, the rationale for recognizing copyright in public sector materials and vesting ownership of copyright in governments is fundamentally different to the main rationales underpinning copyright generally. The central justification for recognizing Crown copyright is to ensure that government documents and materials created for public administrative purposes are disseminated in an accurate and reliable form. Consequently, the exclusive rights held by governments as copyright owners must be exercised in a manner consistent with the rationale for conferring copyright ownership on them. Since Crown copyright exists primarily to ensure that documents and materials produced for use in the conduct of government are circulated in an accurate and reliable form, governments should exercise their exclusive rights to ensure that their copyright materials are made available for access and reuse, in accordance with any laws and policies relating to access to public sector materials. While copyright law vests copyright owners with extensive bundles of exclusive rights which can be exercised to prevent others making use of the copyright material, in the case of Crown copyright materials these rights should rarely be asserted by government to deviate from the general rule that Crown copyright materials will be available for “full and free reproduction” by the community at large.

The use of computerised simulators for training of transthoracic and transoesophageal echocardiography. The future of echocardiographic training?

Echocardiography is the commonest form of non-invasive cardiac imaging and is fundamental to patient management. However, due to its methodology, it is also operator dependent. There are well defined pathways in training and ongoing accreditation to achieve and maintain competency. To satisfy these requirements, significant time has to be dedicated to scanning patients, often in the time pressured clinical environment. Alternative, computer based training methods are being considered to augment echocardiographic training. Numerous advances in technology have resulted in the development of interactive programmes and simulators to teach trainees the skills to perform particular procedures, including transthoracic and transoesophageal echocardiography. 82 sonographers and TOE proceduralists utilised an echocardiographic simulator and assessed its utility using defined criteria. 40 trainee sonographers assessed the simulator and were taught how to obtain an apical 2 chamber (A2C) view and image the superior vena cava (SVC). 100% and 88% found the simulator useful in obtaining the SVC or A2C view respectively. All users found it easy to use and the majority found it helped with image acquisition and interpretation. 42 attendees of a TOE training day utilising the simulator assessed the simulator with 100% finding it easy to use, as well as the augmented reality graphics benefiting image acquisition. 90% felt that it was realistic. This study revealed that both trainee sonographers and TOE proceduralists found the simulation process was realistic, helped in image acquisition and improved assessment of spatial relationships. Echocardiographic simulators may play an important role in the future training of echocardiographic skills.

The use of navigation to achieve soft tissue balance in total knee arthroplasty : a randomised clinical study

Background: Achieving soft tissue balance is an operative goal in total knee arthroplasty. This randomised, prospective study compared computer navigation to conventional techniques in achieving soft tissue balance. Methods: Forty one consecutive knee arthroplasties were randomised to either a non-navigated or navigated group. In the non-navigated group, balancing was carried out using surgeon judgement. In the navigated group, balancing was carried out using navigation software. In both groups, the navigation software was used as a measuring tool. Results: Balancing of the mediolateral extension gap was superior in the navigation group (p=0.001). No significant difference was found between the two groups in balancing the mediolateral flexion gap or in achieving equal flexion and extension gaps. Conclusions: Computer navigation offered little advantage over experienced surgeon judgement in achieving soft tissue balance in knee replacement. However, the method employed in the navigated group did provide a reproducible and objective assessment of flexion and extension gaps and may therefore benefit surgeons in training.

A needle in a haystack : the use of routinely collected emergency department injury surveillance data to help identify physical child abuse

A retrospective, descriptive analysis of a sample of children under 18 years presenting to a hospital emergency department (ED) for treatment of an injury was conducted. The aim was to explore characteristics and identify differences between children assigned abuse codes and children assigned unintentional injury codes using an injury surveillance database. Only 0.1% of children had been assigned the abuse code and 3.9% a code indicating possible abuse. Children between 2-5 years formed the largest proportion of those coded to abuse. Superficial injury and bruising were the most common types of injury seen in children in the abuse group and the possible abuse group (26.9% and 18.8% respectively), whereas those with unintentional injury were most likely to present with open wounds (18.4%). This study demonstrates that routinely collected injury surveillance data can be a useful source of information for describing injury characteristics in children assigned abuse codes compared to those assigned no abuse codes.

Robotic detection and tracking of Crown-Of-Thorns starfish

This paper presents a novel vision-based underwater robotic system for the identification and control of Crown-Of-Thorns starfish (COTS) in coral reef environments. COTS have been identified as one of the most significant threats to Australia's Great Barrier Reef. These starfish literally eat coral, impacting large areas of reef and the marine ecosystem that depends on it. Evidence has suggested that land-based nutrient runoff has accelerated recent outbreaks of COTS requiring extensive use of divers to manually inject biological agents into the starfish in an attempt to control population numbers. Facilitating this control program using robotics is the goal of our research. In this paper we introduce a vision-based COTS detection and tracking system based on a Random Forest Classifier (RFC) trained on images from underwater footage. To track COTS with a moving camera, we embed the RFC in a particle filter detector and tracker where the predicted class probability of the RFC is used as an observation probability to weight the particles, and we use a sparse optical flow estimation for the prediction step of the filter. The system is experimentally evaluated in a realistic laboratory setup using a robotic arm that moves a camera at different speeds and heights over a range of real-size images of COTS in a reef environment.

Development of a switch mode assisted linear amplifier for use as a high fidelity voltage source

Frequency Domain Spectroscopy (FDS) is one of the major techniques used for determining the condition of the cellulose based paper and pressboard components in large oil/paper insulated power transformers. This technique typically makes use of a sinusoidal voltage source swept from 0.1 mHz to 1 kHz. The excitation test voltage source used must meet certain characteristics, such as high output voltage, high fidelity, low noise and low harmonic content. The amplifier used; in the test voltage source; must be able to drive highly capacitive loads. This paper proposes that a switch-mode assisted linear amplifier (SMALA) can be used in the test voltage source to meet these criteria. A three level SMALA prototype amplifier was built to experimentally demonstrate the effectiveness of this proposal. The developed SMALA prototype shows no discernable harmonic distortion in the output voltage waveform, or the need for output filters, and is therefore seen as a preferable option to pulse width modulated digital amplifiers. The lack of harmonic distortion and high frequency switching noise in the output voltage of this SMALA prototype demonstrates its feasibility for applications in FDS, particularly on highly capacitive test objects such as transformer insulation systems.

Rhizoctonia crown and root rot of the pasture legume, sulla (Hedysarum coronarium)

Rhizoctonia solani AG-2-2 was isolated from wilting and dying plants of sulla (Hedysarum coronarium), which is currently being assessed in eastern and southern Australia for its potential as a pasture and forage legume. Infected plants in the field had extensive rotting of the taproot, lateral roots and crown. Koch's postulates were fulfilled using three inoculation methods. The disease may pose a considerable threat to the potential use of H. coronarium in the dryland, grazing farming systems of Australia, with resistance offering the most viable option for minimising its impact.

The use of temperate species in the Australian subtropics.

Temperate species and tropical crop silage are the basis for forage production for the dairy industry in the Australian subtropics. Irrigation is the key resource needed for production, with little survival of temperate species under rain-grown conditions except for lucerne. Annual ryegrass (Lolium multiflorum), fertilised with either inorganic nitrogen or grown with clovers, is the main cool season forage for the dairy industry. It is sown into fully prepared seedbeds, oversown into tropical grasses, especially kikuyu (Pennisetum clandestinum) or sown after mulching. There has been a continual improvement in the performance of annual and hybrid ryegrass cultivars over the last 25 years. In small plot, cutting experiments, yields of annual ryegrass typically range from 15 to 21 t DM/ha, with equivalent on-farm yields of 7 to 14 t DM/ha of utilised material. Rust (Puccinia coronata) remains the major concern although resistance is more stable than in oats. There have also been major improvements in the performance of perennial ryegrass (L. perenne) cultivars although their persistence under grazing is insufficient to make them a reliable forage source for the subtropics. On the other hand, tall fescue (Festuca arundinacea) and prairie grass (Bromus willdenowii) cultivars perform well under cutting and grazing, although farmer resistance to the use of tall fescue is strong. White clover (Trifolium repens) is a reliable and persistent performer although disease usually reduces its performance in the third year after sowing. Persian (Shaftal) annual clover (T. resupinatum) gives good winter production but the performance of berseem clover (T. alexandrinum) is less reliable and the sub clovers (T. subterraneum) are generally not suited to clay soils of neutral to alkaline pH. Lucerne (Medicago sativa), either as a pure stand or in mixtures, is a high producing legume under both irrigation and natural rainfall. Understanding the importance of leaf and crown diseases, and the development of resistant cultivars, have been the reasons for its reliability. Insects on temperate species are not as serious a problem in the subtropics as in New Zealand (NZ). Fungal and viral diseases, on the other hand, cause many problems and forage performance would benefit from more research into resistance.