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.

Country of Origin and Internet Publication: Applying the Berne Convention in the Digital Age

Historically, determining the country of origin of a published work presented few challenges, because works were generally published physically – whether in print or otherwise – in a distinct location or few locations. However, publishing opportunities presented by new technologies mean that we now live in a world of simultaneous publication – works that are first published online are published simultaneously to every country in world in which there is Internet connectivity. While this is certainly advantageous for the dissemination and impact of information and creative works, it creates potential complications under the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”), an international intellectual property agreement to which most countries in the world now subscribe. Under the Berne Convention’s national treatment provisions, rights accorded to foreign copyright works may not be subject to any formality, such as registration requirements (although member countries are free to impose formalities in relation to domestic copyright works). In Kernel Records Oy v. Timothy Mosley p/k/a Timbaland, et al. however, the Florida Southern District Court of the United States ruled that first publication of a work on the Internet via an Australian website constituted “simultaneous publication all over the world,” and therefore rendered the work a “United States work” under the definition in section 101 of the U.S. Copyright Act, subjecting the work to registration formality under section 411. This ruling is in sharp contrast with an earlier decision delivered by the Delaware District Court in Håkan Moberg v. 33T LLC, et al. which arrived at an opposite conclusion. The conflicting rulings of the U.S. courts reveal the problems posed by new forms of publishing online and demonstrate a compelling need for further harmonization between the Berne Convention, domestic laws and the practical realities of digital publishing. In this chapter, we argue that even if a work first published online can be considered to be simultaneously published all over the world it does not follow that any country can assert itself as the “country of origin” of the work for the purpose of imposing domestic copyright formalities. More specifically, we argue that the meaning of “United States work” under the U.S. Copyright Act should be interpreted in line with the presumption against extraterritorial application of domestic law to limit its application to only those works with a real and substantial connection to the United States. There are gaps in the Berne Convention’s articulation of “country of origin” which provide scope for judicial interpretation, at a national level, of the most pragmatic way forward in reconciling the goals of the Berne Convention with the practical requirements of domestic law. We believe that the uncertainties arising under the Berne Convention created by new forms of online publishing can be resolved at a national level by the sensible application of principles of statutory interpretation by the courts. While at the international level we may need a clearer consensus on what amounts to “simultaneous publication” in the digital age, state practice may mean that we do not yet need to explore textual changes to the Berne Convention.

Focus on opportunities as a mediator of the relationship between business owners' age and venture growth

Combining upper echelons and lifespan theories, we investigated the mediating effect of focus on opportunities on the negative relationship between business owners' age and venture growth. We also expected that mental health moderates the negative relationship between business owners' age and focus on opportunities. Path analytic findings based on data from 84 business owners (mean age = 44, range 24-74) supported these hypotheses. Findings suggest that focus on opportunities is a psychological mechanism that links business owners' age with venture growth. Our findings also indicate that mental health helps maintain a high level of focus on opportunities with increasing age.

The Catholic Internet discussion on cloning : A study in cognitive rhetoric

This work combines the cognitive theory of folk-theoretical thought with the classical Aristotelian theory of artistic proof in rhetoric. The first half of the work discusses the common ground shared by the elements of artistic proof (logos, pathos, ethos) and the elements of folk-theoretical thought (naïve physics, folk biology, folk psychology, naïve sociology). Combining rhetoric with the cognitive theory of folk-theoretical thought creates a new point of view for argumentation analysis. The logos of an argument can be understood as the inferential relations established between the different parts of an argument. Consequently, within this study the analysis of logos is to be viewed as the analysis of the inferential folk-theoretical elements that make the suggested factual states-of-things appear plausible within given argumentative structures. The pathos of an argumentative structure can be understood as determining the quality of the argumentation in question in the sense that emotive elements play a great part in what can be called a distinction between good and deceptive rhetoric. In the context of this study the analysis of pathos is to be viewed as the analysis of the emotive content of argumentative structures and of whether they aim at facilitating surface- or deep cognitive elaboration of the suggested matters. The ethos of an argumentative structure means both the speaker-presentation and audience-construct that can be discerned within a body of argumentation. In the context of this study, the analysis of ethos is to be understood as the analysis of mutually manifest cognitive environments in the context of argumentation. The theory is used to analyse Catholic Internet discussion concerning cloning. The discussion is divided into six themes: Human Dignity, Sacred Family, Exploitation / Dehumanisation, Playing God, Monsters and Horror Scenarios and Ensoulment. Each theme is analysed for both the rhetorical and the cognitive elements that can be seen creating persuasive force within the argumentative structures presented. It is apparent that the Catholic voices on the Internet extensively oppose cloning. The voices utilise rhetoric that is aggressive and pejorative more often than not. Furthermore, deceptive rhetoric (in the sense presented above) plays a great part in argumentative structures of the Catholic voices. The theory of folk-theoretical thought can be seen as a useful tool for analysing the possible reasons why the Catholic speakers think about cloning and choose to present cloning in their argumentation as they do. The logos utilized in the argumentative structures presented can usually be viewed as based on folk-theoretical inference concerning biology and psychology. The structures of pathos utilized generally appear to aim at generating fear appeal in the assumed audiences, often incorporating counter-intuitive elements. The ethos utilised in the arguments generally revolves around Christian mythology and issues of social responsibility. These structures can also be viewed from the point of view of folk psychology and naïve sociological assumptions.

The inside story: A survey of social work students' supervision and learning opportunities on placement

Practice learning accounts for half of the content of the bachelor of social work degree course requirements in Northern Ireland in their field education programmes and share a professional and ethical responsibility with practice teachers to provide appropriate learning environments to prepare students as competent and professional practitioners. The accreditation standards for practice learning require the placement to provide students with regular supervision and exposure to a range of learning strategies, but there is little research that actually identifies the types of placements offering this learning and the key activities provided. This paper builds on an Australian study and surveys social work students in two programmes in Northern Ireland about their exposure to a range of learning activities, how frequently they were provided and how it compares to what is required by the Northern Ireland practice standards. The results indicated that, although most students were satisfied with the supervision and support they received during their placement, the frequency of supervision and type of learning activities varied according to different settings, year levels and who provided the learning opportunities.

On the Geographic Location of Internet Resources

One relatively unexplored question about the Internet's physical structure concerns the geographical location of its components: routers, links and autonomous systems (ASes). We study this question using two large inventories of Internet routers and links, collected by different methods and about two years apart. We first map each router to its geographical location using two different state-of-the-art tools. We then study the relationship between router location and population density; between geographic distance and link density; and between the size and geographic extent of ASes. Our findings are consistent across the two datasets and both mapping methods. First, as expected, router density per person varies widely over different economic regions; however, in economically homogeneous regions, router density shows a strong superlinear relationship to population density. Second, the probability that two routers are directly connected is strongly dependent on distance; our data is consistent with a model in which a majority (up to 75-95%) of link formation is based on geographical distance (as in the Waxman topology generation method). Finally, we find that ASes show high variability in geographic size, which is correlated with other measures of AS size (degree and number of interfaces). Among small to medium ASes, ASes show wide variability in their geographic dispersal; however, all ASes exceeding a certain threshold in size are maximally dispersed geographically. These findings have many implications for the next generation of topology generators, which we envisage as producing router-level graphs annotated with attributes such as link latencies, AS identifiers and geographical locations.

On the Origin of Power Laws in Internet Topologies

Recent empirical studies have shown that Internet topologies exhibit power laws of the form for the following relationships: (P1) outdegree of node (domain or router) versus rank; (P2) number of nodes versus outdegree; (P3) number of node pairs y = x^α within a neighborhood versus neighborhood size (in hops); and (P4) eigenvalues of the adjacency matrix versus rank. However, causes for the appearance of such power laws have not been convincingly given. In this paper, we examine four factors in the formation of Internet topologies. These factors are (F1) preferential connectivity of a new node to existing nodes; (F2) incremental growth of the network; (F3) distribution of nodes in space; and (F4) locality of edge connections. In synthetically generated network topologies, we study the relevance of each factor in causing the aforementioned power laws as well as other properties, namely diameter, average path length and clustering coefficient. Different kinds of network topologies are generated: (T1) topologies generated using our parametrized generator, we call BRITE; (T2) random topologies generated using the well-known Waxman model; (T3) Transit-Stub topologies generated using GT-ITM tool; and (T4) regular grid topologies. We observe that some generated topologies may not obey power laws P1 and P2. Thus, the existence of these power laws can be used to validate the accuracy of a given tool in generating representative Internet topologies. Power laws P3 and P4 were observed in nearly all considered topologies, but different topologies showed different values of the power exponent α. Thus, while the presence of power laws P3 and P4 do not give strong evidence for the representativeness of a generated topology, the value of α in P3 and P4 can be used as a litmus test for the representativeness of a generated topology. We also find that factors F1 and F2 are the key contributors in our study which provide the resemblance of our generated topologies to that of the Internet.

The Entrepreneurial Facets as Precursor to Vietnam’s Economic Renovation in 1986

In this research, we aim to develop a conceptual framework to assess the entrepreneurial properties of the Vietnamese reform, known as Doi Moi, even before the kickoff of Doi Moi policy itself. We argued that unlike many other scholars’ assertion, economic crisis and harsh realities were neither necessary nor sufficient conditions for the reform to take place, but the entrepreurial elements and undertaking were, at least for case of Vietnam’s reform. Entrepreneurial process on the one hand sought for structural changes, kicked off innovation, and on the other its induced outcome further invited changes and associated opportunities. The paper also concludes that an assessment of possibility for the next stage of Doi Moi in should take into account the entrepreneurial factors of the economy, and by predicting the emergence of new entrepreneurial facets in the next phase of economic development.