Gifts, the law and functional rationalism

This paper examines the legal facilitation (or rather lack of facilitation) of gifts. The emerging western political ideology of welfare is based on the premise that nonprofit organisations are to play a far greater role in the delivery of welfare services. This role will be enabled in part by increased gifts. The ideology has not addressed the fundamental hostility of the law to the facilitation of gifts. The nature of the legal obstruction of such gifts is compared to equivalent commercial transactions, the reasons given for this obstruction are analysed and the appropriateness of such nonfacilitation is challenged. A state that does not alter the legal hostility to gifts may find that organisations do not attain their expected role in the changing welfare state.

Copyrights and copyfights : copyright law and the digital economy

This paper will consider questions around the reform of copyright law, and how they are increasingly being framed by the challenges of the digital economy. It discusses the review of copyright and the digital economy being undertaken by the Australian Law Reform Commission, with particular reference to the costs and benefits of copyright law to consumers and creative producers. We argue that there is a pressing need to develop fair copyright rules that encourage investment in the digital economy, allow widespread dissemination of knowledge through society, and support the innovative reuse of copyright works. To better align copyright law with these goals, we recommend that Australia introduce an open ended ‘fair use’ style copyright exception, and encourage the development of a digital copyright exchange of the sort discussed in the UK by the Hargreaves and Hooper Reports.

Digitally enabled?! An analysis of law and justice students' use of smart devices

The research seeks to understand the nature of law and justice students’ use of technology for their learning purposes. There is often an assumption made that all students have, and engage with, technology to the same degree. The research tests these assumptions by means of a survey conducted of first year law and justice students to determine their actual use of smart devices inside and outside classes. The analysis of results reveals that while the majority of respondents own at least one smart device; most rarely use their device for their learning purposes.

Populism, law and order and the crimes of the 1%

The article examines the evidence of endemic financial crime in the global financial crisis (GFC), the legal impunity surrounding these crimes and the popular revolt against these abuses in the financial, political and legal systems. This is set against a consideration of the development since the 1970s of a conservative politics championing de-regulation, unfettered markets, welfare cuts and harsh law and order policies. On the one hand, this led to massively increased inequality and concentrations of wealth and political power in the hands of the super-rich, effectively placing them above the law, as the GFC revealed. On the other, a greatly enlarged, more punitive criminal justice system was directed at poor and minority communities. Explanations in terms of the rise of penal populism are helpful in explaining these developments, but it is argued they adopt a limited and reductionist view of populism, failing to see the prospects for a progressive populist politics to re-direct political attention to issues of inequality and corporate and white collar criminality.

Panem et circenses : law, law and power in The Hunger Games

Like many cautionary tales, The Hunger Games takes as its major premise an observation about contemporary society, measuring its ballistic arc in order to present graphically its logical conclusions. The Hunger Games gazes back to the panem et circenses of Ancient Rome, staring equally cynically forward, following the trajectory of reality television to its unbearably barbaric end point – a sadistic voyeurism for an effete elite of consumers. At each end of the historical spectrum (and in the present), the prevailing social form is Arendt’s animal laborans. Consumer or consumed, Panem’s population is (with the exception of the inner circle) either deprived of the possibility of, or distracted from, political action. Within the confines of the Games themselves, Law is abandoned or de‐realised: Law – an elided Other in the pseudo‐Hobbesian nightmare that is the Arena. The Games are played out, as were gladiatorial combats and other diversions of the Roman Empire, against a background resonant of Juvenal’s concern for his contemporaries’ attachment to short term gratification at the expense the civic virtues of justice and caring which are (or would be) constitutive of a contemporary form of Arendt’s homo politicus. While the Games are, on their face, ‘reality’ they are (like the realities presented in contemporary reality television) a simulated reality, de‐realised in a Foucauldian set design constructed as a distraction for Capitol, and for the residents of the Districts, a constant reminder of their subservience to Capitol. Yet contemporary Western culture, for which manipulative reality TV is but a symptom of an underlying malaise, is inscribed at least as an incipient Panem, Its public/political space is diminished by the effective slavery of the poor, the pre‐occupation with and distractions of materiality and modern media, and the increasing concentration of power/wealth into a smaller proportion of the population.

Comparing the effectiveness of education and technology in reducing wood smoke pollution: A field experiment

This study describes a field experiment assessing the effectiveness of education and technological innovation in reducing air pollution generated by domestic wood heaters. Two-hundred and twenty four households from a small regional center in Australia were randomly assigned to one of four experimental conditions: (1) Education only – households received a wood smoke reduction education pack containing information about the negative health impacts of wood smoke pollution, and advice about wood heater operation and firewood management; (2) SmartBurn only – households received a SmartBurn canister designed to improve combustion and help wood fires burn more efficiently, (3) Education and SmartBurn, and (4) neither Education nor SmartBurn (control). Analysis of covariance, controlling for pre-intervention household wood smoke emissions, wood moisture content, and wood heater age, revealed that education and SmartBurn were both associated with significant reduction in wood smoke emissions during the post-intervention period. Follow-up mediation analyses indicated that education reduced emissions by improving wood heater operation practices, but not by increasing health risk perceptions. As predicted, SmartBurn exerted a direct effect on emission levels, unmediated by wood heater operation practices or health risk perceptions.

Peer leadership and capability building in law and justice

The aim of this project was to create a model mapping the scaffolding and development of: peer leadership opportunities and capacity; and graduate capabilities, work-related skills and outcomes, across the range of peer assisted learning programs offered in the Faculty of Law during 2013. In doing so, it conceptualised Law and Justice students’ roles and opportunities for peer leadership across the whole of their learning experience and aimed to raise awareness of the benefits to leaders of participating in peer programs (relevant to the development of their graduate capabilities and employability). Through the mapping, the project also sought to increase student understanding of the range of peer leader opportunities available across the Faculty and therefore promote participation in such programs.

Cosmo, Cosmolino: Patent law and nanotechnology

Patent law has a significant instrumental and symbolic role in regulating nanotechnology. A 2011 report of the United States Federal Trade Commission noted that ‘the patent system plays a critical role in promoting innovation across industries from biotechnology to nanotechnology, and by entities from large corporations to independent inventors’. This chapter considers the much contested legal, ethical and social issues involved with regulating the patenting of nanotechnology. Section I considers the efforts of patent offices to classify nanotechnology and the empirical evidence about patent filing rates. Section II examines whether there is a ‘tragedy of the anticommons’ emerging in respect of nanotechnology. It contemplates access mechanisms – such as the defence of experimental use, patent pools, open innovation models and technology transfer. Section III explores ethical and social concerns associated with nanotechnology – in particular, issues about the impact upon human health and the environment.

23andMe Inc.: Patent law and lifestyle genetics

The venture, 23andMe Inc., raises a host of issues in respect of patent law, policy, and practice in respect of lifestyle genetics and personalised medicine. The company observes: ‘We recognize that the availability of personal genetic information raises important issues at the nexus of ethics, law, and public policy’. 23andMe Inc. has tested the boundaries of patent law, with its patent applications, which cut across information technology, medicine, and biotechnology. The company’s research raises fundamental issues about patentability, especially in light of the litigation in Bilski v. Kappos, Mayo Collaborative Services v. Prometheus Laboratories Inc. and Association for Molecular Pathology v. United States Patent and Trademark Office and Myriad Genetics Inc. There has been much debate and controversy over 23andMe Inc. filing patent applications – particularly in respect of its granted patent on ‘Polymorphisms associated with Parkinson’s Disease’. The direct-to-consumer marketing of genetic testing by 23andMe Inc. has also raised important questions of bioethics and human rights. It is queried whether the terms of service for 23andMe Inc. provide adequate recognition of the concepts of informed consent and benefit-sharing, especially in light of litigation in this area in the United States. Given the patent thickets surrounding genetic testing, the case study of 23andMe Inc. also highlights questions about patent infringement and patent exceptions. The future reform of patent law, policy, and practice needs to take into account new developments in lifestyle genetics and personalised medicine – as exemplified by 23andMe Inc.

Heretic: Copyright law and dramatic works

The production of the play Heretic in 1996 prompted a debate over copyright and the dramatic arts in Australia. The playwright David Williamson argued that the role of the writer was supreme. Although he was willing to acknowledge the contributions of other collaborators, the playwright did not believe that these interpreters deserved copyright protection. The director Wayne Harrison advocated a more collaborative vision of the performing arts. He believed that the role of the director and the position of the producer deserved greater legal recognition. Furthermore he was also willing to countenance limited rights for performers. This article argues that recognition should be accorded to all of the main collaborators in the performing arts. It contends that economic rights and moral rights should not be just limited to the writer, the director, and the producer, but they should extend to the performers and the designers.

Incentives for global public health: Patent law and access to essential medicines

This portrait of the global debate over patent law and access to essential medicines focuses on public health concerns about HIV/AIDS, malaria, tuberculosis, the SARS virus, influenza, and diseases of poverty. The essays explore the diplomatic negotiations and disputes in key international fora, such as the World Trade Organization, the World Health Organization and the World Intellectual Property Organization. Drawing upon international trade law, innovation policy, intellectual property law, health law, human rights and philosophy, the authors seek to canvass policy solutions which encourage and reward worthwhile pharmaceutical innovation while ensuring affordable access to advanced medicines. A number of creative policy options are critically assessed, including the development of a Health Impact Fund, prizes for medical innovation, the use of patent pools, open-source drug development and forms of 'creative capitalism'.

Patent law and biological inventions

In response to scientific breakthroughs in biotechnology, the development of new technologies, and the demands of a hungry capitalist marketplace, patent law has expanded to accommodate a range of biological inventions. There has been much academic and public debate as to whether gene patents have a positive impact upon research and development, health-care, and the protection of the environment. In a satire of prevailing patenting practices, the English poet and part-time casino waitress, Donna MacLean, sought a patent application - GB0000180.0 - in respect of herself. She explained that she had satisfied the usual patent criteria - in that she was novel, inventive, and useful: It has taken 30 years of hard labor for me to discover and invent myself, and now I wish to protect my invention from unauthorized exploitation, genetic or otherwise. I am new: I have led a private existence and I have not made the invention of myself public. I am not obvious (2000: 18). MacLean said she had many industrial applications. 'For example, my genes can be used in medical research to extremely profitable ends - I therefore wish to have sole control of my own genetic material' (2000: 18). She observed in an interview: 'There's a kind of unpleasant, grasping, greedy atmosphere at the moment around the mapping of the human genome ... I wanted to see if a human being could protect their own genes in law' (Meek, 2000). This special issue of Law in Context charts a new era in the long-standing debate over biological inventions. In the wake of the expansion of patentable subject matter, there has been great strain placed upon patent criteria - such as 'novelty', 'inventive step', and 'utility'. Furthermore, there has been a new focus upon legal doctrines which facilitate access to patented inventions - like the defence of experimental use, the 'Bolar' exception, patent pooling, and compulsory licensing. There has been a concerted effort to renew patent law with an infusion of ethical principles dealing with informed consent and benefit sharing. There has also been a backlash against the commercialisation of biological inventions, and a call by some activists for the abolition of patents on genetic inventions. This collection considers a wide range of biological inventions - ranging from micro-organisms, plants and flowers and transgenic animals to genes, express sequence tags, and research tools, as well as genetic diagnostic tests and pharmaceutical drugs. It is thus an important corrective to much policy work, which has been limited in its purview to merely gene patents and biomedical research. This collection compares and contrasts the various approaches of a number of jurisdictions to the legal problems in respect of biological inventions. In particular, it looks at the complexities of the 1998 European Union Directive on the Legal Protection of Biotechnological Inventions, as well as decisions of member states, such as the Netherlands, and peripheral states, like Iceland. The edition considers US jurisprudence on patent law and policy, as well as recent developments in Canada. It also focuses upon recent developments in Australia - especially in the wake of parallel policy inquiries into gene patents and access to genetic resources.

Inventing life: Patent law and synthetic biology

With promises of improved medical treatments, greener energy and even artificial life, the field of synthetic biology has captured the public imagination and attracted significant government and commercial investment. This excitement reached a crescendo on 21 May 2010, when scientists at the J Craig Venter Institute in the United States announced that they had made a “self-replicating synthetic bacterial cell”. This was the first living cell to have an entirely human-made genome, which means that all of the cell’s characteristics were controlled by a DNA sequence designed by scientists. This achievement in biological engineering was made possible by combining molecular biotechnology, gene synthesis technology and information technology.

The law and policy for electricity generated by renewable energy: Greening the power in three Middle Eastern jurisdictions

This thesis examines the law and policy concerning renewable energy electricity generation in Palestine, Jordan, and Abu Dhabi. The thesis gives greater attention to the promotion of solar power owing to the abundance and viability. It appears that energy security profoundly underpins the utilisation of renewable electricity, and the motivation of climate change mitigation also pays a role in the promotion of renewable energy in these jurisdictions. However, current policies and regulations are not fully able to promote the renewables in the power sector. The thesis submits that reforms of law and policy are necessary to enhance the achievement of environmental and energy goals.

The law and ethics of ‘self-quantified’ health information: An Australian perspective

This exploratory article examines the phenomenon of the ‘Quantified Self’—until recently, a subculture of enthusiasts who aim to discover knowledge about themselves and their bodies through self-tracking, usually using wearable devices to do so—and its implications for laws concerned with regulating and protecting health information. Quantified Self techniques and the ‘wearable devices’ and software that facilitate them—in which large transnational technology corporations are now involved—often involve the gathering of what would be considered ‘health information’ according to legal definitions, yet may occur outside the provision of traditional health services (including ‘e-health’) and the regulatory frameworks that govern them. This article explores the legal and regulatory framework for self-quantified health information and wearable devices in Australia and determines the extent to which this framework addresses privacy and other concerns that these techniques engender, along with suggestions for reform.