Creative Commons Australia and Organization for Transformative Works submission to the Australian Government’s online copyright infringement discussion paper

This submission focuses on the adverse effects that the Government’s proposals are likely to have on the legitimate use of copyright works. Copyright exists to support the production of new expression. Because new expression always builds on existing culture, any extension of copyright protection necessarily also increases the costs of creative expression. As a threshold matter, we do not believe that these further increases to the force of copyright law are justified. In recent years, the balance at the heart of copyright law has tipped too far in the direction of established producers and distributors, and now imposes unnecessary costs on ordinary creators. The available evidence does not support a further increase in the penalties and enforcement mechanisms available under copyright law.

Paradigm shifts : global copyright politics and disability rights

Governments around the world need to take immediate coordinated action to reverse the 'book famine.' Disability rights don't conflict with 'normal exploitation' but copyright owners have been wary about all of the possible solutions to providing greater access. The Marrakesh Treaty promises to level out some of the disparity of access between people in developed and developing nations and remove the need for each jurisdiction to digitise a separate copy of each book. It is one of the only international agreements to mandate positive exceptions and may be the start of a pardigm shift in global copyright politics, made all the more remarkable in the face of heated opposition by global copyright industry representatives. It's not a legal problem, but one of political will. Resistance comes from a conflict with ideology: exceptions should be limited and international law should set only minimum standards.

Copyright in 2014 : the year in review

Speakers reflected on the various developments that have occurred in copyright in 2014, from the February release of the ALRC Report on Copyright in the Digital Economy to the Attorney-General’s public consultation on online copyright infringement, as well as corresponding developments in the UK and EU.

Member perceptions of ESG investing through superannuation

Purpose Environmental, social and governance (ESG) risks have the potential to negatively impact financial returns, yet few superannuation funds integrate these considerations into their investment selection. The Cooper Review (2010) identified a lack of member demand as a key impediment to ESG investing by superannuation funds. Given this problem, the aim of this study is to explore superannuation fund members’ perceptions of ESG investing by their funds in order to identify reasons for the lack of demand. Design/methodology/approach An on-line survey was developed and distributed to assess possible reasons why members do not select ESG investment options. In total, 549 Australian superannuation fund members responded to the survey. Findings Results indicate that the majority of superannuation fund members are interested in ESG investing. Members lack awareness of their fund’s approach to ESG investing, and they do not perceive there to be a financial penalty from ESG investing. Finally, members show a preference for consideration of governance issues over both social and environmental issues. Research limitations Respondents are well educated and the majority did not choose their superannuation fund. There was no measure of financial literacy included in the research instrument. There is also a general limitation in surveying superannuation fund members when they lack knowledge about superannuation. Practical implications The results indicate that superannuation members are interested in both superannuation and ESG investing. Given the low take-up of ESG investment options, this finding raises the question of how effectively funds are engaging their members. Social implications The results should be of interest to superannuation funds and may lead to renewed interest in promoting ESG products. Originality/value This is the first study to examine superannuation members’ attitudes and behaviours towards ESG investing in the context of superannuation. The study also adds to our understanding of member decision making in the $1.8 trillion superannuation industry.

Innovative design : developing strategies to improve developer attitudes to sustainable housing

The literature advocates more widespread adoption of a particular type of house – a manufactured high performance green house and/or house components (MHPGH) and this is the focus of the research proposal outlined in this conceptual paper. The aim of the current paper is to outline a robust program of work to improve adoption of MHPGH. The contribution of houses to climate change is investigated, the conservatism of the construction industry is documented, a conceptual framework through which to understand the problem is presented; a program of research to bring about change is outlined; and the benefits of doing so are summarised. The contribution of the paper is the presentation of novel theory and methods to address sustainability problems in the construction industry. Future work will involve execution of the proposal. A limitation of the paper is that the effectiveness of the proposed theory and methods are yet to be tested.

Wide area control of SVCs for first swing stabilisation and damping in longitudinal systems

A non-linear Kalman filter based control strategy for SVCs located in major load groups is presented. This focusses on the limitation and damping of inter-area modes. It does this through treating local modes as noise and uses a tunable nonlinear control algorithm to improve both first swing stability and system damping. Simulation on a four machine system shows that the Kalman filer can successfully lock on to a desired inter-area mode and obtain a 31% improvement in critical clearing time as well as improved damping.

Creating a legal framework for copyright management of open access within the Australian academic and research sector

This chapter analyses the copyright law framework needed to ensure open access to outputs of the Australian academic and research sector such as journal articles and theses. It overviews the new knowledge landscape, the principles of copyright law, the concept of open access to knowledge, the recently developed open content models of copyright licensing and the challenges faced in providing greater access to knowledge and research outputs.

Hand, foot and mouth disease in China: Evaluating an automated system for the detection of outbreaks

Objective To evaluate the performance of China’s infectious disease automated alert and response system in the detection of outbreaks of hand, foot and mouth (HFM) disease. Methods We estimated size, duration and delay in reporting HFM disease outbreaks from cases notified between 1 May 2008 and 30 April 2010 and between 1 May 2010 and 30 April 2012, before and after automatic alert and response included HFM disease. Sensitivity, specificity and timeliness of detection of aberrations in the incidence of HFM disease outbreaks were estimated by comparing automated detections to observations of public health staff. Findings The alert and response system recorded 106 005 aberrations in the incidence of HFM disease between 1 May 2010 and 30 April 2012 – a mean of 5.6 aberrations per 100 days in each county that reported HFM disease. The response system had a sensitivity of 92.7% and a specificity of 95.0%. The mean delay between the reporting of the first case of an outbreak and detection of that outbreak by the response system was 2.1 days. Between the first and second study periods, the mean size of an HFM disease outbreak decreased from 19.4 to 15.8 cases and the mean interval between the onset and initial reporting of such an outbreak to the public health emergency reporting system decreased from 10.0 to 9.1 days. Conclusion The automated alert and response system shows good sensitivity in the detection of HFM disease outbreaks and appears to be relatively rapid. Continued use of this system should allow more effective prevention and limitation of such outbreaks in China.

Duty and control in intermediary copyright liability: An Australian perspective

In the internet age, copyright owners are increasingly looking to online intermediaries to take steps to prevent copyright infringement. Sometimes these intermediaries are closely tied to the acts of infringement; sometimes – as in the case of ISPs – they are not. In 2012, the Australian High Court decided the Roadshow Films v iiNet case, in which it held that an Australian ISP was not liable under copyright’s authorization doctrine, which asks whether the intermediary has sanctioned, approved or countenanced the infringement. The Australian Copyright Act 1968 directs a court to consider, in these situations, whether the intermediary had the power to prevent the infringement and whether it took any reasonable steps to prevent or avoid the infringement. It is generally not difficult for a court to find the power to prevent infringement – power to prevent can include an unrefined technical ability to disconnect users from the copyright source, such as an ISP terminating users’ internet accounts. In the iiNet case, the High Court eschewed this broad approach in favor of focusing on a notion of control that was influenced by principles of tort law. In tort, when a plaintiff asserts that a defendant should be liable for failing to act to prevent harm caused to the plaintiff by a third party, there is a heavy burden on the plaintiff to show that the defendant had a duty to act. The duty must be clear and specific, and will often hinge on the degree of control that the defendant was able to exercise over the third party. Control in these circumstances relates directly to control over the third party’s actions in inflicting the harm. Thus, in iiNet’s case, the control would need to be directed to the third party’s infringing use of BitTorrent; control over a person’s ability to access the internet is too imprecise. Further, when considering omissions to act, tort law differentiates between the ability to control and the ability to hinder. The ability to control may establish a duty to act, and the court will then look to small measures taken to prevent the harm to determine whether these satisfy the duty. But the ability to hinder will not suffice to establish liability in the absence of control. This article argues that an inquiry grounded in control as defined in tort law would provide a more principled framework for assessing the liability of passive intermediaries in copyright. In particular, it would set a higher, more stable benchmark for determining the copyright liability of passive intermediaries, based on the degree of actual, direct control that the intermediary can exercise over the infringing actions of its users. This approach would provide greater clarity and consistency than has existed to date in this area of copyright law in Australia.

Submission to Communications Alliance Industry Code: Copyright Notice Scheme

In making this submission, we suggest that Australia learn from the experiences of other jurisdictions, and avoid some of the mistakes that have been made. In particular, this involves: * Ensuring that adequate information is available to evaluate the success of the scheme * Ensuring that notices sent to consumers provide full and accurate information that helps them understand their rights and options * Limiting the potential abuse of the system, and particularly attempts to intimidate consumers into paying unfair penalties through ‘speculative invoicing’ * Avoiding the potential for actual or perceived bias in the scheme’s oversight body

Adaptive nature of coordinated road traffic injury prevention responses in some OECD countries

This study examines the context of coordinated responses, triggers for coordinated responses, and preference for or choice of coordinating strategies in road traffic injury prevention at a local level in some OECD countries. This aim is achieved through a mixed-methodology. In this respect, 22 semi-structured interviews were conducted with road traffic injury prevention experts from five OECD countries. In addition, 31 professional road traffic injury prevention stakeholders from seven OECD nations completed a self-administered, online survey. It found that there was resource limitation and inter-dependence across actors within the context of road traffic injury prevention at a local level. Furthermore, this study unveiled the realization of resource-dependency as a trigger for coordinated responses at a local level. Moreover, the present examination has revealed two coordinating strategies favored by experts in road traffic injury prevention – i.e. self-organizing community groups, which are deemed to have a platform to deliver programs within communities, and the funding of community groups to forge partnerships. However, the present study did not appear to endorse other strategies such as the formalization of coordinated responses or a legal mandate to coordinate responses. In essence, this study appears to suggest a need to manage coordinated responses from an adaptive perspective with interactions across road traffic injury prevention programs being forged on a mutual understanding of inter-dependency arising out of resource scarcity. In fact, the role of legislation and top-down national models in local level management of coordinated responses is likely to be one of identifying opportunities to interact with self-organized community groups and fund partnership-based road traffic injury prevention events.

Inhibiting Eph kinase activity may not be “Eph”ective for cancer treatment

Several Eph receptor tyrosine kinases (RTKs) are commonly over-expressed in epithelial and mesenchymal cancers and are recognized as promising therapeutic targets. Although normal interaction between Eph receptors and their ephrin ligands stimulates kinase activity and is generally tumor suppressive, significant Eph over-expression allows activation of ligand- and/or kinase-independent signaling pathways that promote oncogenesis. Single-agent kinase inhibitors are widely used to target RTK-driven tumors but acquired and de novo resistance to such agents is a major limitation to effective clinical use. Accumulating evidence suggests that Ephs can be inhibited by “leaky” or low-specificity kinase inhibitors targeted at other RTKs. Such off-target effects may therefore inadvertently promote ligand- and/or kinase-independent oncogenic Eph signaling, thereby providing a new mechanism by which resistance to the RTK inhibitors can emerge. We propose that combining specific, non-leaky kinase inhibitors with tumor-suppressive stimulators of Eph signaling may provide more effective treatment options for overcoming treatment-induced resistance and clinical failure.

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.

Claiming the moral high ground in the copyright wars

Copyright was once one of the more obscure areas of law. It applied primarily to resolve disputes between rival publishers, and there was a time, not too long ago, when ordinary people gave it no thought. Copyright disputes were like subatomic particles: everyone knew that they existed, but nobody had ever seen one. In the digital age, however, copyright has become a heated, passionate, bloody battleground. The 'copyright wars' now pitch readers against authors, pirates against publishers, and content owners against communications providers. Everyone has heard a movie producer decry the rampant infringement of streaming sites, or a music executive suggest that BitTorrent is the end of civilisation as we know it. But everyone infringes copyright on an almost constant basis - streaming amateur videos with a soundtrack that isn't quite licensed, filesharing mp3s, copying LOLcat pictures from Facebook, posting pictures on Pinterest without permission, and so on - and most know full well they're in breach of the law.

Amendments potentially time-barred : A practical approach

In Mineral Resources Engineering Services Pty Ltd as Trustee for the Meakin Investment Trust v Commonwealth Bank of Australia: Hay v Commonwealth Bank of Australia [2015] QSC 62 Philip McMurdo J considered challenges to amended statements of claim in two related actions. The amendments were potentially time-barred and his Honour considered in particular the date from which the amendments should take effect.