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.

Submission to the Productivity Commission draft report business set-up, transfer and closure

The Commission has released a Draft Report on Business Set-Up, Transfer and Closure for public consultation and input. It is pleasing to note that three chapters of the Draft Report address aspects of personal and corporate insolvency. Nevertheless, we continue to make the submission to national policy inquiries and discussions that a comprehensive review should be undertaken of the regulation of insolvency and restructuring in Australia. The last comprehensive review of the insolvency system was by the Australian Law Reform Commission (the Harmer Report) and was handed down in 1988. Whilst there have been aspects of our insolvency laws that have been reviewed since that time, none has been able to provide the clear and comprehensive analysis that is able to come from a more considered review. Such a review ought to be conducted by the Australian Law Reform Commission or similar independent panel set up for the task. We also suggest that there is a lack of data available to assist with addressing questions raised by the Draft Report. There is a need to invest in finding out, in a rigorous and informed way, how the current law operates. Until there is a willingness to make a public investment in such research with less reliance upon the anecdotal (often from well-meaning but ultimately inadequately informed participants and others) the government cannot be sure that the insolvency regime we have provides the most effective regime to underpin Australia’s commercial and financial dealings, nor that any change is justified. We also make the submission that there are benefits in a serious investigation into a merged regulatory architecture of personal and corporate insolvency and a combined personal and corporate insolvency regulator.

Copyright and creativity: An ongoing debate in the creative industries

This paper critically analyzes the divergent perspectives on how copyright and intellectual property laws impact creativity, innovation, and the creative industries. One perspective defines the creative industries based on copyright as the means by which revenues are generated from innovation and the dissemination of new ideas. At the same time, it has been argued that copyright and intellectual property regimes fetter creativity and innovation, and that this has become even more marked in the context of digital media convergence and the networked global creative economy. These issues have resonated in debates around the creative industries, particularly since the initial DCMS mapping study in the UK in 1998 defined creative industries as combining individual creativity and exploitable forms of intellectual property. The issue of competing claims for the relationship between copyright and the creative industries has also arisen in Australia, with a report by the Australian Law Reform Commission entitled Copyright and the Digital Economy. This paper will consider the competing claims surrounding copyright and the creative industries, and the implications for policy-makers internationally.

Intellectual property and climate change: Inventing clean technologies

In the wake of the international summits in Copenhagen and Cancún, there is an urgent need to consider the role of intellectual property law in encouraging research, development, and diffusion of clean technologies to mitigate and adapt to the effects of climate change. This book charts the patent landscapes and legal conflicts emerging in a range of fields of innovation – including renewable forms of energy, such as solar power, wind power, and geothermal energy; as well as biofuels, green chemistry, green vehicles, energy efficiency, and smart grids. As well as reviewing key international treaties, this book provides a detailed analysis of current trends in patent policy and administration in key nation states, and offers clear recommendations for law reform. It considers such options as technology transfer, compulsory licensing, public sector licensing, and patent pools; and analyses the development of Climate Innovation Centres, the Eco-Patent Commons, and environmental prizes, such as the L-Prize, the H-Prize, and the X-Prizes. This book will have particular appeal to policy-makers given its focus upon recent legislative developments and reform proposals, as well as legal practitioners by developing a better understanding of recent legal, scientific, and business developments, and how they affect their practice. Innovators, scientists and researchers will also benefit from reading this book.

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.

Introduction: Who rules Japan?

This chapter reviews the debate about who governs Japan and considers the implications of legal system reforms initiated by the Justice System Reform Council report of 2001.

American lessons: Implementing fair use in Australia

This article discusses the recent Australian Law Reform Commission report proposing a fair use defense to copyright infringement in Australia. It examines the experience of fair use cases in the United States and draws three lessons from the jurisprudential history. First, it suggests that decisions in fair use can only really be understood within a theoretical framework, and that unless we import that framework into Australia any fair use defense will not work as expected. Secondly, the article argues that the area where fair use jurisprudence appears to be most helpful, in dealing with “transformative” works, is actually much more limited than outsiders to the US would expect. And finally, it suggests that any implementation of a factor related to market substitution should take account of the gaming of the system that has gone on in the US.

Reinforcing stigma or delivering a fresh start: Bankruptcy and future engagement in the workforce

In Australia, bankruptcy retains a social stigma, as is often seen as a personal failing, and an indication that the individual cannot be trusted to meet their obligations. Official labelling and informal labelling reinforce this stigmatisation of bankruptcy in employment and business contexts. This occurs through legislation and policy that imposes restrictions on participation in some occupations on the grounds of bankruptcy, and imposes obligations on persons to disclose their bankruptcy to their employer. These restrictions and obligations that are varying in length and extent, both within industries and professions and across industries and professions, and appear to lack a coherent policy justification. Further, informal labelling is facilitated by the law providing for a permanent, publicly accessible record of bankruptcy, and failing to restrict the use of bankruptcy information in employment and business decision-making. This stigmatisation of bankruptcy inhibits the fresh start objective of bankruptcy, and is not supported by a strong correlation between bankruptcy and negative personal or other attributes. This article therefore argues that a review is needed to determine the circumstances in which there is a genuine policy justification for employment restrictions, and the appropriate length and scope of such restrictions. Reform of the Bankruptcy Act should also be considered. Possible areas for law reform including reducing the minimum period of bankruptcy; removing the permanency and/or public accessibility of the bankruptcy record; revising the language used in the Bankruptcy Act; and introducing a prohibition or restriction on the ability of employers to use bankruptcy status in employment decision making. Such changes would promote the fresh start objective of Australia’s bankruptcy system, and increase the likelihood that bankruptcy does not unfairly inhibit an individual’s ability to engage as an economic actor in Australian society and thereby improve their financial well-being.

Introduction: Japan’s gradual transformation in corporate governance

Japan has recovered from a ‘lost decade’ of economic stagnation over the 1990s. Anyway, it has been a ‘found decade’ for civil and criminal justice law reform, especially in corporate and securities law. Yet, have liberalisation and globalisation in those fields led to major changes in the ‘law in action’? Does this represent ‘Americanisation’ of Japan’s corporate governance system, focusing on shareholders rather than other key stakeholders such as ‘main banks’, core employees, and partners within diffuse corporate groups (keiretsu)? This version of our introductory chapter explains how our forthcoming book argues for a more complex ‘gradual transformation’. Such shifts are also found in many other post-industrial economies, but Japan appears to give greater emphasis given to certain modes of achieving change. The book brings together contributions from academics and practitioners from Japan, Australia, New Zealand, Canada and the United States. An early chapter introduces methodology for effective cross-country comparisons and for evaluating the burgeoning but divergent literature on Japanese corporate governance. The concluding chapter compares continuities and changes in Japan’s largest companies now and two decades ago. Other chapters cover ‘lifelong employment’, main banks, the untold story of closely-held companies, the limited uptake of the Committee-based governance form, and the procedural, substantive and FDI policy dimensions of takeovers law and practice.

Japanese women and the ‘new’ administrative state

This chapter questions whether Japanese administrative law reform agenda aimed at promoting greater transparency in decision-making will necessarily lead to better policy outcomes for Japanese women. The chapter evaluates recent legislative reforms and policymaking initiatives in the area of sexual harassment and argues that these developments do not improve the situation for Japanese women. The reason is that the new rules effectively charge corporations with the responsibility to self-regulate, thereby transforming sexual harassment from a public issue of human rights to a domestic issue of corporate governance.

Submission on NSW Attorney-General's Discussion Paper on Amendment of Limitation of Actions Act 1969 to remove time limit for civil claims for child abuse

The New South Wales Attorney-General and Justice Policy Division released a Discussion Paper about reform of the Limitation of Actions Act 1969. The key question was whether and how to amend the statute to better provide access to justice for civil claimants in child abuse cases. This submission draws on published literature and multidisciplinary research to support the Discussion Paper's Option A, namely, to abolish the time limit for civil claims for injuries in criminal child abuse cases, and for this to be made retrospective.

Acceptance of prostitution and its social determinants in Canada

The nature of collective perception of prostitution is understudied in Canada. Except some rudimentary reports on the percentages of the key legal options, multivariate analysis has never been used to analyze the details of public opinion on prostitution. The current study explores the trend of public attitude toward prostitution acceptability in Canada over a 25-year span and examines the social determinants of the acceptability of prostitution, using structural equation modeling (SEM), which allows researchers to elaborate both direct and indirect effects (through mediating variables) on the outcome variable. Results show that the public has become more acceptant of prostitution over time. In addition, the less religious, less authoritarian, and more educated are more acceptant of prostitution than the more religious, more authoritarian, and less well educated. The effects of religiosity and authoritarianism mediate out the direct effects of age, gender, gender equality, marriage, marriage as an outdated institution, Quebec, race, and tolerance. The findings may serve as a reference point for the law reform regarding the regulation of prostitution in Canada.

Owning the new economy: A guide to intellectual property management for Australia's clean technology sector

Australia's history of developing and managing the intellectual property rights of domestic innovations is – at best – mixed. The relevant immaturity of Australia's public sector commercialisation infrastructure has, over recent decades, been the subject of both stinging academic commentary and not insubstantial juridical disbelief. That said, improvements have been observed, and increasingly, private sector involvement in public sector innovation has allowed for a deepening refinement of domestic approaches to IP retention and ongoing management. Rather than a bare critique of Australia's IP management track-record, or a call for specific law reform, this manual engages at a more practical level some of the foundational questions that ought be asked by entities involved in the 'cleantech' industries. Beginning simply at what is IP and why it matters, this manual examines the models of IP management available to market participants around the world. The process of IP management is defined and assessed through a commercial lens; assessing the 'pros' and 'cons' of each management choice with a view to equipping the reader to determine which approach may be best adapted to their given clean tech project. The manual concludes with a brief survey of alternative models of Intellectual Property management, including relevant examples from overseas and prominent suggestions arising out of the academic discourse. It appears inevitable that the global warming challenge will prompt specific legislative, regulatory and multi-lateral responses by nation states, however, the ultimate form of any such response remains a highly contested political and social issue. Accordingly, the structure of this manual, and the discussion points raised herein, seek introduce the reader to some of the more contentious debates occurring around the world at the intersection between IP and climate change.

Key change: The role of the creative industries in climate change action

The role of the creative industries – arts and artists – in helping to drive the changes in laws and behaviours that are necessary to tackle climate change, while not superficially obvious, is a deep one. Arts and artists of all kinds, as cultural practitioners, have been closely entwined with social change and social control since time immemorial, in large part because they help shape our understanding of the world, framing ideas, prefiguring change, and opening hearts and minds to new ways of thinking. They have played a major role in campaigns for law reform on many issues, and climate change should be no exception. Indeed, with climate change increasingly being seen as a deeply cultural issue, and its solutions as cultural ones to do with changing the way we understand our world and our place in it, the role of cultural practitioners in helping to address it should also increasingly be seen as central. It is curious, then, how comparatively little artistic engagement with climate change has taken place, how little engagement with the arts the climate movement has attempted, and how little theoretical and critical analysis has been undertaken on the role of the creative arts in climate change action. Through a literature review and a series of interviews with individuals working in relevant fields in Australia, this study examines and evaluates the role of the creative industries in climate change action and places it in a historical and theoretical context. It covers examples of the kind of artistic and activist collaborations that have been undertaken, the different roles in communication, campaigning for law reform, and deep culture change that arts and artists can play, and the risks and dangers inherent in the involvement of artists, both to climate change action and to the artist. It concludes that, despite the risks, a deeper and more thoughtful engagement of and by the creative industries in climate action would not only be useful but is perhaps vital to the success of the endeavours.

Porn, censorship, classification and free speech: Global paradoxes in the governance of media content

In this presentation, I reflect upon the global landscape surrounding the governance and classification of media content, at a time of rapid change in media platforms and services for content production and distribution, and contested cultural and social norms. I discuss the tensions and contradictions arising in the relationship between national, regional and global dimensions of media content distribution, as well as the changing relationships between state and non-state actors. These issues will be explored through consideration of issues such as: recent debates over film censorship; the review of the National Classification Scheme conducted by the Australian Law Reform Commission; online controversies such as the future of the Reddit social media site; and videos posted online by the militant group ISIS.