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.

An ethical approach to sharing school successes in times of high-stakes accountability

High-stakes testing has become an important element of the Australian educational landscape. As one part of the neo-liberal paradigm where beliefs in the individual and the free market are paramount, it is of concern how school leaders can respond to this phenomenon in an ethical manner. Ethics and ethical leadership have increased in prominence both in the educational administration literature and in the media (Cranston, Ehrich, & Kimber, 2006). In this paper we consider ethical theories on which school principals can draw, not only in the leadership of their own schools but in their relationships with other schools. We provide an example of a school leader sharing a successful intervention with other schools, illustrating that school leaders can create spaces for promoting the public good within the context of high-stakes testing.

Breaches of lease between exercise of option to renew and expiry of lease in Queensland

The decision of Greppo v Jam-Cal Bundaberg Pty Ltd [2015] QCA 131 illustrates a defect in s 128 of the Property Law Act 1974(Qld) which gives a right to a lessee to apply for relief against forfeiture against loss of a right to exercise an option to renew. The defect arises because the legislation does not adequately deal with breaches that occur after the exercise of the option but before the expiry of the lease. Most commercial leases of all kinds have a standard provisions, as the lease in this case, as a conditions of the exercise of the option to renew that the lessee will have given notice of exercise within the time specified to the lessor and will have up to the date of expiry of the lease paid all rent and observed all lessee’s covenants. The difficulties occur because invariably an option must be exercised before the expiry of the lease when a lessee may not be in breach of the lease but may later prior to the expiry of the lease fall into breach. As this decision indicates,at least in Queensland, that the lessee who desires to challenge the lessor’s right to enforce those conditions can neither seek relief under s 128 against forfeiture of the right to exercise the option ,or indeed, under s 124 of the Property Law Act 1974 to preserve the agreement for lease brought about by the otherwise regular exercise of the option to renew. The decision cries out for legislative reform along the lines of s 133E of the Conveyancing Act 1919(NSW) which was amended in 2001 to meet this contingency.

Author responsibilities in improving the quality of peer reviews: A rejoinder to Iivari (2016)

In this rejoinder to Iivari (2016), I discuss authors’ responsibilities in the process of ensuring quality reviews. I argue that one overlooked element in quality peer reviewing is authors’ unconstrained right to submit manuscripts in whatever form or quality they desire. As such, I suggest adding some constraints and offering more freedom to reviewers to maintain viability of the scholarly publication system. I offer three responses to Iivari’s suggestions and add two further suggestions for change.

To ask or not to ask? Investigating workers' flexibility requests and the phenomenon of discontented non-requesters

Flexible working arrangements have attracted growing attention in workplaces across Australia and in many other countries in recent years. This contribution utilises the results of two large Australian employee surveys to analyse who asks for flexibility, why, and with what effects on work-life interference. This analysis is set in the context of Australia’s ‘Right to Request’ (RTR) provisions which, at the time of the study, gave parents of preschool children and those with a disabled child aged up to 18 the RTR flexibility. The analysis also draws on a set of qualitative interviews of those we term ‘discontented non-requesters’ (that is, those who are not content with current arrangements but who do not ask for flexibility) to probe beneath the survey results to consider explanations about why some people do not ask for flexibility despite desiring different working arrangements. We conclude with the implications for policy and regulation.

Pacific Islands: Next to slavery

Workers and crew on board vessels in the Pacific tuna fishery rarely enjoy the right to decent living and working conditions...

新第三纪红河盆地特征及红河断裂活动对其形成与发育的控制

Based on geodynamic analysis of sedimentary basins, combined sedimentology with structural geology and other methods, the author studied the Honghe basin located in Yunnan province of Southwestern China. Sandstone slice grain size analysis, combined with field geology and indoors study indicate that a set of inland alluvial fan diposits, fluvial deposites, delta deposits and some lacustrine sediments are in Honghe basin. Studying on shape of the Honghe basin, sedimentary and structural characteristic and distribution of different kinds of conglomerate and its structural significance, we hold the idea that the formation and evolution of Honghe basin are controlled by the activity of Red River faut. Correlation of lithostratic cross section in Honghe basin and studying on activity of Red River fault indicate that Honghe basin was formed in two stages. It is a complex basin constitutes of the first-stage trans-releasing basin and the second-stage trans-downfaulted basin. Due to the uplift of Qinghai-Xizang plateau and deformation of orogeny, the western Yunnan and adjacent area move to SE direction as a result of Tectonic Escape. Right lateral strike slip occurred along Red River fault, trans-releasing basin formed at the bend part of the fault due to stress relexation. As the block escaping, it moves away from the other block of the Red River fault, the upper block move down obliquely and trans-downfaulted basin formed. Combined the age of phytolite and regional structural events, we think the first-stage transreleasing basin was formed in late Miocene, on the other words, the dextral strike slip of Red River fault may began in late Miocene (10-7Ma). The second-stage trans-downfaulted basin may be formed in early stage of Pliocene (about 4.7Ma). Subsequently, the bilateral faults dipping to the inside of the plateau and thrusting outwards occurred in the marginal region of Qinghai-Xizang plateau during its uplifting as a fan-shaped mountain body, this results in the uplift of the strata to the east of Red River fault and supply large quantity of provenance for the Honghe basin. In last Pliocene (about 3Ma), strong uplift of Qinghai-Xizang plateau leads to massive clastic sediment entered Honghe basin and causes its closure. As a kind of trans-tentional basin, trans-releasing basin is different to pull-apart basin. The author compared the Mosha trans-releasing basin with Jinggu pull-apart basin in SW Yunan, China, and described their character correspondingly. Otherwise, the author combined the predecessors' studding with conclusion of own study, discussed the kinematics of Ailaoshan-Red River belt in Cenozoic, and the relationship between the formation of Honghe basin and uplifting of Qinghai-Xizang plateau.

云南岩石圈流变学及多震层孕震环境

The Study on rheology of the lithosphere and the environments of the seismogenic layer is currently the basic project of the international earthquake research. Yunnan is the ideal place for studying this project. Through the multi-disciplinary comprehensive study of petrology, geophysics, seismo-geology, rock mechanics, etc., the depth-strength profiles of the lithosphere have been firstly constructed, and the seismogenic layer and its geophysical and tectonic environments in Yunnan have been systematically expounded in this paper. The related results achieved are of the important significances for further understanding the mechanism of strong earthquake generation, dividing the potential foci and exposing recent geodynamical processes in Yunnan. Through the comprehensive contrast of the metamorphic rocks in early and middle Proterozoic outcropping on the surface, DSS data and experimental data of rock seismic velocity under high temperature and high pressure, the petrological structure of the crust and upper mantle has been studied on Yunnan: the upper, middle and lower crust is composed of the metamorphic rocks of greenschist, amphibolite and granulite facies, respectively or granitoids, diorites and gabbros, respectively, and the upper mantle composed of the peridotites. Through the contrast studies of the heat flow and epicenters of the strong earthquakes, the distribution of the geotemperature and the data of focal depth, the relationship of between seismicity and geothermal structure of the lithosphere in Yunnan has been studied: the strong earthquakes with magnitude M ≥ 6.0 mainly take place at the geothermal gradient zone, and the seismic foci densely distribute between 200～500 ℃ isogeotherms. On the basis of studies of the rock properties and constituents of the crust and upper mantle and geothermal structure of the lithosphere, the structure of the rheological stratification of the lithosphere has been studied, and the corresponding depth-strength profiles have been constructed in Yunnan. The lithosphere in majority region of Yunnan has the structure of the rheological stratification, i.e. the brittle regime in the upper crust or upper part of the upper crust, ductile regime in the middle crust or lower part of the upper crust to middle crust, ductile regime in the lower crust and ductile regime in the subcrustal lithosphere. The rheological stratification has the quite marked lateral variations in the various tectonic units. The distributions of the seismogenic layer have been determined by using the high accurate data of focal depth. Through the contrast of the petrological structure, the structure of seismic velocity, electric structure, geotemperature structure, and rheological structure and the study of the focal mechanism in the seismogenic layer, the geophysical environments of the seismogenic layer in Yunnan have been studied. The seismogenic layer in Yunnan is located at the depths of 3 ～ 20 km; the rocks in the seismogenic layer are composed of the metamorphic rocks of greenschist to amphibolite facies (or granites to diorites); the seismogenic layer and its internal focal regions of strong earthquakes have the structure of medium properties with the relatively high seismic velocity, high density and high resistivity; there exists the intracrustal low seismic velocity and high conductivity layer bellow the seismogenic layer, the geotemperature is generally 100～500 ℃ in the depth range in which the seismogenic layer is located. The horizontal stress field predominates in the seismogenic layer, the seismogenic layer corresponds to the brittle regime of the upper crust or brittle regime of the upper crust to semibrittle regime of the middle crust. The formation of the seismogenic layer, preparedness and occurrence of the strong earthquakes is the result of the comprehensive actions of the source fault, rock constituent, structure of the medium properties, distribution of the geotemperature, rheological structure of the seismogenic layer and its external environments. Through the study of the structure, active nature, slip rate, segmentation of the active faults, and seismogenic faults, the tectonic environments of the seismogenic layer in Yunnan have been studied. The source faults of the seismogenic layer in Yunnan are mainly A-type ones and embody mainly the strike slip faults with high dip angle. the source faults are the right-lateral strike slip ones with NW-NNW trend and left-lateral strike slip ones with NE-NEE trend in Southwestern Yunnan, the right-lateral strike slip ones with NNW trend and left-lateral strike slip ones with NNE trend (partially normal ones) in Northwestern Yunnan, the right-lateral strike slip ones with NWW trend in Central Yunnan and left-lateral strike slip ones with NW-NNW trend in Eastern Yunnan. Taking Lijiang earthquake with Ms = 7.0 for example. The generating environments of the strong earthquake and seismogenic mechanical mechanism have been studied: the source region of the strong earthquake has the media structure with the relatively high seismic velocity and high resistivity, there exists the intracrustal low velocity and high conductivity layer bellow it and the strong earthquakes occur near the transitional zone of the crustal brittle to ductile deformation. These characteristics are the generality of the generating environments of strong earthquakes. However, the specific seismogenic tectonic environments and action of the stress field of the seismic source in the various regions, correspondingly constrains the dislocation and rupture mechanical mechanism of source fault of strong earthquake.

A study of the extent to which Irish law, policy and practice allow for Ireland's application of the United Nations Convention on the Rights of the Child, 1989 to pre-natal children

The central research question of this thesis asks the extent to which Irish law, policy and practice allow for the application of the United Nations Convention on the Rights of the Child (CRC) to pre-natal children. First, it is demonstrated that pre-natal children can fall within the definition of ‘child’ under the Convention and so the possibility of applying the Convention to children before birth is opened. Many State Parties to the CRC have interpreted it as applicable to pre-natal children, while others have expressed that it only applies from birth. Ireland has not clarified whether or not it interprets it as being applicable from conception, birth, or some other point. The remainder of the thesis examines the extent to which Ireland interprets the CRC as applicable to the pre-natal child. First, the question of whether Ireland affords to the pre-natal child the right to life under Article 6(1) of the Convention is analysed. Given the importance of the indivisibility of rights under the Convention, the extent to which Ireland applies other CRC rights to pre-natal children is examined. The rights analysed are the right to protection from harm, the right to the provision of health care and the procedural right to representation. It is concluded that Ireland’s laws, policies and practices require urgent clarification on the issue of the extent to which rights such as protection, health care and representation apply to children before birth. In general, there are mixed and ad hoc approaches to these issues in Ireland and there exists a great deal of confusion amongst those working on the frontline with such children, such as health care professionals and social workers. The thesis calls for significant reform in this area in terms of law and policy, which will inform practice.

Preserving patent policy space and securing access to medicines in developing countries: the role of states and pharmaceutical corporations

This thesis examines the tension between patent rights and the right to health and it recognizes patent rights on pharmaceutical products as one of the factors responsible for the problem of lack of access to affordable medicines in developing countries. The thesis contends that, in order to preserve their patent policy space and secure access to affordable medicines for their citizens, developing countries should incorporate a model of human rights into the design, implementation, interpretation, and enforcement of their national patent laws. The thesis provides a systematic analysis of court decisions from four key developing countries (Brazil, India, Kenya, and South Africa) and it assesses how the national courts in these countries resolve the tension between patent rights and the right to health. Essentially, this thesis demonstrates how a model of human rights can be incorporated into the adjudication of disputes involving patent rights in national courts. Focusing specifically on Brazil, the thesis equally demonstrates how policy makers and law makers at the national level can incorporate a model of human rights into the design or amendment of their national patent law. This thesis also contributes to the ongoing debate in the field of business and human rights with regard to the mechanisms that can be used to hold corporate actors accountable for their human rights responsibilities. This thesis recognizes that, while states bear the primary responsibility to respect, protect, and fulfil the right to health, corporate actors such as pharmaceutical companies also have a baseline responsibility to respect the right to health. This thesis therefore contends that pharmaceutical companies that own patent rights on pharmaceutical products can be held accountable for their right to health responsibilities at the national level through the incorporation of a model of civic participation into a country’s patent law system.

Options to renew leases: time for legislative relief?

Argues that England should follow the example of Australia and New Zealand and give the courts statutory power to grant a tenant relief against forfeiture of the right to exercise an option to renew a lease by reason of the tenant being in breach of covenant. Suggests the legislative provision introducing this power should adopt wording mirroring that in the Law of Property Act 1925 s.146(2).

Duty to mitigate in leasehold law

Discusses by reference to case law, including Commonwealth authorities, the rights and duties of landlords where demised premises are abandoned by a tenant who has defaulted on the rent, including the remedies available to the landlord, the limitations on his right to sue for loss of rent due between abandonment and expiration of the term, and the applicability of the contractual doctrine of mitigation of damages in leasehold law. Examines the Court of Appeal decision in Reichman v Beveridge on the duty of mitigate loss in an action merely seeking recovery of rent as it accrues due.

Horsham Properties Group Ltd v Clark: possession - mortgagee's right or discretionary remedy?

Comments on the Chancery Division decision in Horsham Properties Group Ltd v Clark on whether a mortgagee's exercise of its contractual right, on the mortgagor falling into arrears, to appoint receivers such that the property could be sold and possession obtained without triggering the court's discretionary powers pursuant to the Administration of Justice Act 1970 s.36 infringed the mortgagor's rights under the European Convention on Human Rights 1950 Protocol 1 art.1. Considers the implications of proposed reforms recasting the mortgagee's right to possession as a discretionary remedy. [From Legal Journals Index]

The Rights of Religious Associations to External Relations: A Comparative Study of the OSCE and the Council of Europe

This paper argues that religious associations have a number of substantive rights when it comes to their external relations. It does so though comparing the position of the OSCE and the Council of Europe. This paper considers whether the emerging framework includes: (1) a right to legal entity status, (2) a right to establish and run charitable or educational institutions, (3) a right to privileges and substantive benefits and (4) a right to anything else. It concludes that the current developments are welcome because religious freedom has a collective aspect that is essential to the lives of many believers.

Defending the Faith(s)?:Democracy and Hereditary Right in England

The persistence of traditional monarchies in modern societies, which are otherwise characterized by democratic and egalitarian values, remains a paradox in the social sciences. In part this is attributable to the lack of psychological investigation into the relationship between subject and sovereign, and in particular the ways in which the political and social values of the citizenry shape understandings of a hereditary monarch’s right to represent a national community. Adopting the qualitative analysis methods of discursive psychology and grounded theory, the current study examines vernacular accounts of nationhood and monarchy in England in both formalized conversational interviews (n = 60) and impromptu street interviews (n = 56). Focusing on accounts of Prince Charles’s recent proposal to change the role of the monarch, from “Defender of the (Christian) Faith” to “Defender of Faiths,” those in favor treated it as a positive step towards reflecting a diverse (religious) community, bringing the monarchy into line with current concerns of pluralism and upholding
values of personal choice and individual rights. Participants who rejected the proposed change in title construed it as antithetical to these values in terms of reflecting personal stake and interest, an abuse of power, or an imposition on other faiths. In all accounts, the prime concern was in safeguarding the political and social values of the citizenry. In conclusion it is argued that the study of subjects’ relationship to the monarch, its function and legitimacy, can provide an opportunity to examine how values can characterize a national community and facilitate national diversity.