Creation and copyright law: The case of 3D printing

The Australian Law Reform Commission is conducting an inquiry into copyright law and the digital economy in 2012 and 2013.The President, Rosalind Croucher, stated: “While the Copyright Act has been amended on occasion over the past 12 years to account for digital developments, these changes occurred before the digital economy took off. The Australian Law Reform Commission will need to find reforms that are responsive to this new environment, and to future scenarios that are still in the realm of the imagination. It is a complex and important area of law and we are looking forward to some robust debate and discussion during the course of this very important Inquiry.”

Julia Gillard, Big Pharma, patent law and public health

It takes a lot of bravery for governments to stand up to big business. But the Gillard government has shown a lot of guts during its tenure. It stood up to Big Tobacco in the battle over plain packaging of tobacco products and has defended individuals and families affected by asbestos. It took on Big Oil in its Clean Energy Future reforms and stood up to the resource barons with the mining tax. The government is now considering Big Pharma - the pharmaceutical industry and their patents – and has launched several inquiries into patent law and pharmaceutical drugs...

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.

Ethical leadership in a time of increasing accountability

Australia, like many other countries, has embraced national testing as part of wider reforms and increased accountability in schooling. Results for standardised testing programs, such as NAPLAN, are widely published yet form only one part of accountability for educators. We argue that accountability also has moral, ethical and professional dimensions. In this paper we offer a discussion of background to our study of ethical leadership in a time of data driven or contractual accountability. Based on Starratt’s (1996) model, we define ethical leadership as a social, relational practice concerned with the moral purpose of education (Angus, 2006). Our central thesis is that given increasing accountabilities, school leaders need to consider approaches to ethical leadership to improve quality and equity in education and achieve equitable outcomes for all students. The paper concludes with key implications for school leaders.

Corporate Governance in the 21st Century: Japan's Gradual Transformation

The 'lost' decade of economic stagnation in Japan during the 1990s has become a 'found decade' for regulatory and institutional reform. With nearly all areas of the 'law in the books' reviewed, revised and rewritten, the Japanese legal system is no longer the system that foreign commentators felt they were finally starting to understand by the 1980s. Nowhere is this more evident than in corporate governance. Corporate and securities legislation has been comprehensively revamped over 1993-2007, creating a more flexible and transparent regime for shareholders and managers. Financial markets law and regulatory institutions have changed, too, creating a new context for Japan's 'main banks' as alternative or additional outside monitors of managerial performance in borrowing firms. Even the legislation surrounding labour regulations has been amended, reinforcing the lifelong security privileges for elite employee-stakeholders, yet also hastening the growth of other atypical employment relationships. But how do such legislative reforms affecting key players in Japanese firms, covering areas central to the design of Japanese capitlaism, play out in the 'law in action'? Overall, this book argues that a significant gradual transformation has occurred. Although this is evident also in other advanced industrialised democracies, such as Germany, Japan reveals especially complex interactions in the various fields that sometimes emphasise different ways of achieving such transformation.

Litigiousness in Japan: Land of the rising law suit?

For over two decades, Japanese politicians and bureaucrats have struggled to resurrect a lifeless economy. With the 1990s marred by crippling financial crisis, a spate of corporate insolvencies, ongoing scandals in Japan’s premier economic ministries, rising unemployment and low to negative growth, policy-makers responded with successive legislative reforms aimed at restructuring public administration and private governance of the economy. The Big Bang financial reforms, large-scale reform of Japanese corporate law, and a restructured bureaucracy are representative examples of this reform effort.

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.

Australian Media Law [5th Edition]

Australian Media Law details and explains the complex case law, legislation and regulations governing media practice in areas as diverse as journalism, advertising, multimedia and broadcasting. It examines the issues affecting traditional forms of media such as television, radio, film and newspapers as well as for recent forms such as the internet, online forums and digital technology, in a clear and accessible format. New additions to the fifth edition include: - the implications of new anti-terrorism legislation for journalists; - developments in privacy law, including Law Reform recommendations for a statutory cause of action to protect personal privacy in Australia and the expanding privacy jurisprudence in the United Kingdom and New Zealand; - liability for defamation of internet search engines and service providers; - the High Court decision in Roadshow v iiNet and the position of internet service providers in relation to copyright infringement via their services; - new suppression order regimes; - statutory reforms providing journalists with a rebuttable presumption of non-disclosure when called upon to reveal their sources in a court of law; - recent developments regarding whether journalists can use electronic devices to collect and disseminate information about court proceedings; - contempt committed by jurors via social media; and an examination of recent decisions on defamation, confidentiality, vilification, copyright and contempt.

The bias and assumptions in the Aboriginal and Torres Strait Islander Education Action Plan

This presentation argues that “genuine” engagement and consultation is required where Indigenous voice is included within the policy development process for “true” progress to be achieved. With the ever increasing engagement of Aboriginal and Torres Strait Islander people in the decision making processes of Indigenous education, it is anticipated that there will be provision of opportunities for better outcomes and a greater acceptance of the policy within community (Department of Prime Minister and Cabinet, 2014). This presentation is derived from a larger project where the Aboriginal and Torres Strait Islander Education Action Plan (MCEECDYA, 2011) was critically analysed using Fairclough’s (2001) Critical Discourse Analysis framework and Rigney’s (1999) Indigenist Research Principles. Within this study, the underlying assumptions and bias identified within the policy and how it positions Aboriginal and Torres Strait Islander people were articulated. The major findings that emerged from the data included: - a) the homogenous grouping of Aboriginal and Torres Strait Islander people; - b) the maintenance of the prevalent dominant ideology within policy, and finally; - c) the expectation by the power elite of increased engagement and connections by Aboriginal and Torres Strait Islander peoples without consideration of the detrimental effects of past policies and reforms.

Phoenix activity: Regulatory challenges and the law

Remedying the mischief of phoenix activity is of practical importance. The benefits include continued confidence in our economy, law that inspires best practice among directors, and law that is articulated in a manner such that penalties act as a sufficient deterrent and the regulatory system is able to detect offenders and bring them to account. Any further reforms must accommodate and tolerate legal phoenix activity. Phoenix activity pushes tolerance of entrepreneurial activity to its absolute limits. The wisest approach would be to front end the reforms so as to alleviate the considerable detection and enforcement burden upon regulatory bodies. There is little doubt that breach of the existing law is difficult and expensive to detect; and this is a significant burden when regulators have shrinking budgets and are rapidly losing feet on the ground. This front end approach may need to include restrictions on access to limited liability. The more limited liability is misused, the stronger the argument to limit access to limited liability. This paper proposes that such an approach is a legitimate next step for a robust and mature capitalist economy.

A road safety strategy for Norfolk Island, an Australian external territory

Norfolk Island is an Australian external territory in Oceania. The significant road safety reforms in Australia from the 1970s onward bypassed the island, and most road safety ‘silver bullets’ adopted in other Australian jurisdictions were not introduced. While legislative amendments in 2010 introduced mandatory seat belt wearing for vehicle occupants on Norfolk Island, other critical issues face the community including drink driving by residents and visitors, occupant protection for vehicle passengers, and the provision of a more protective road environment. The release of the first Norfolk Island road safety strategy 2014-2016 proposed, inter alia: • a lower BAC of 0.05 and the introduction of compulsory driver alcohol and drug testing by police; • targeted enforcement of occupant protection for vehicle passengers, particularly for passengers riding on vehicle tray backs; • education interventions to challenge values held by some members of the community that support unsafe road use; • ensuring that driver information, training and testing is adequate for all drivers; • identification and rectification of hazardous roadside infrastructure, particularly barrier protection at “high drop locations” within the road network; and • developing a specification for vehicle standards for vehicles imported into Norfolk Island. Norfolk Island is engaging in a process of integration with the Australian community, and wider issues relating to funding and resources have impacted on the implementation of the road safety strategy. The response to the strategy will be discussed, particularly in terms of current attempts to address drink driving and the provision of a safer road environment.

Corporate governance and law reform in Japan: From the lost decade to the end of history?

Japan is in the midst of massive law reform. Mired in ongoing recession since the early 1990s, Japan has been implementing a new regulatory blueprint to kickstart a sluggish economy through structural change. A key element to this reform process is a rethink of corporate governance and its stakeholder relations. With a patchwork of legislative initiatives in areas as diverse as corporate law, finance, labour relations, consumer protection, public administration and civil justice, this new model is beginning to take shape. But to what extent does this model represent a break from the past? Some commentators are breathlessly predicting the "Americanisation" of Japanese law. They see the triumph of Western-style capitalism - the "End of History", to borrow the words of Francis Fukuyama - with its emphasis on market-based, arms-length transactions. Others are more cautious, advancing the view that there new reforms are merely "creative twists" on what is a uniquely (although slowly evolving) strand of Japanese capitalism. This paper takes issue with both interpretations. It argues that the new reforms merely follow Japan's long tradition of 'adopting and adapting' foreign models to suit domestic purposes. They are neither the wholesale importation of "Anglo-Saxon" regulatory principles nor a thin veneer over a 'uniquely unique' form of Confucian cultural capitalism. Rather, they represent a specific and largely political solution (conservative reformism) to a current economic problem (recession). The larger themes of this paper are 'change' and 'continuity'. 'Change' suggests evolution to something identifiable; 'continuity' suggests adhering to an existing state of affairs. Although notionally opposites, 'change' and 'continuity' have something in common - they both suggest some form of predictability and coherence in regulatory reform. Our paper, by contrast, submits that Japanese corporate governance reform or, indeed, law reform more generally in Japan, is context-specific, multi-layered (with different dimensions not necessarily pulling all in the same direction for example, in relations with key outside suppliers), and therefore more random or 'chaotic'.

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.

Literaturnaja skazka A.M. Remizova (1900-1920-e gody)

Literary tale of A.M. Remizov (1900’s – 1920’s) The thesis is devoted to a detailed historical-literary description of a tale as a genre tradition in the creative work of Alexei Mikhailovich Remizov (1877-1957), one of the major Russian prose writers of the 20’s century. This very approach allows to specify the place and functional meaning of this genre in literary practice of the writer and to appeal to one of the key problems of the 20-21 century literature history – a specific of modernistic literature composition principle and a role of montage techniques in its formation. Remizov was working on tales during his whole life, though the most productive years of folklore studies fell to 1900’s – 1910’s. During this period he intensively studied folklore materials, narrated several hundreds of folk tales and in 1900’s – 1920’s published eight tale collections which played a significant role in the formation of stylistic and compositional principles of his prose of the 1910’s – 1920’s, especially montage techniques, which in its turn influenced the development of the narrative forms in the Russian post-revolutionary literature. At the same time a tale has specified not only poetics but also problematics of Remizov’s creative work, as when choosing folklore sources the writer always alluded to modern themes and relevant intellectual trends. The current research work, based on various archive materials and a wide spectrum of modern historical-literary data, complies four chapters with a consistent description of creation history, publication and critics’ reviews of Remizov’s tale collections and single tales contributing to his creative evolution characteristic. Furthermore, the work refers to composition and subject of the particular collections. On the whole it enables to follow up genre dynamics. The first chapter of the work is devoted to Posolon’ (Sunwise), the earliest tale collection of Remizov. The main feature of the collection is that its composition is oriented on the agrarian calendar and the subject – on the system of mythological views reflected in the Russian folklore. This very collection to a large extent corresponds to the writer’s views on the myth represented in Pis’mo v redaktsiyu (Letter to the Editor). The history of this manifesto appearing is analyzed in the second chapter. The incident which caused its forthcoming contributed to ‘legitimization’ of Remizov’s narrations as a relevant genre of modern literature and to upgrading the writer in professional hierarchy. The third chapter analyzes Remizov’s collections of 1900’s – early 1920’s, a result of Remizov’s scrupulous work with a specific tale material. He is acting here as a tale repertory researcher and in some cases as a collector as well. The means of such collections’ topical organization is not the myth but the hero of the tale. According to this principle single pieces are grouped into cycles, which then form complicated montage constructs. Texts themselves can be viewed as a sort of hyper-quotations, as they in fact entirely coincide with their original sources. Besides, collections usually have their own ideal patterns. In the fourth chapter a connection of Remizov’s creative work with folk fun culture and a tradition of the folklore noel story is being demonstrated on Zavetnyie skazy (Secret Tales) material. A consistent collections’ history creation analysis convinces us that the tale was a sort of laboratory in which main writer’s prose methods were being worked out.

Internationalizing school curriculum in Australasia: As niche, by test, or at heart?

Global citizenship has emerged as a pressing curricular priority which all educational systems are currently grappling with. The challenge is to negotiate how this orientation might sit alongside the more traditional mission of mass school curriculum in building collective ballast for a national identity through a common morality and shared narratives, or may conflict with efforts to protect and promote indigenous and minority identities. As a case study of how these agendas interact, this chapter will consider curricular responses to global imperatives in the variegated conditions across the Australasian region (defined as Australia, New Zealand and Papua New Guinea). The chapter will outline recent developments in the social, economic and political contexts surrounding curricular reforms in these settings, and demonstrate how these developments have changed the conditions of possibility and strength of purpose behind efforts to internationalise school curricula. Three types of systemic responses are then described: firstly, an appetite for globally branded curricula such as the International Baccalaureate, Montessori, and Cambridge University Certificates to distinguish some in a stratified market; secondly, convergence in curriculum to improve national performance on international standardised tests; and thirdly, the infusion of cosmopolitan sensibilities, regional identities and intercultural competencies as a core curricular goal for all. The chapter considers the various pragmatic interpretations of ‘internationalisation’ in these responses, and argues that the third response seems both the most difficult to enact, and the most vulnerable to political interference.