Duty and Control in Intermediary Copyright Liability: An Australian Perspective

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

Australian Property Institute Inc, Submission to the Productivity Commission on Intellectual Property Arrangements – Issues Paper

This submission responds to the document Intellectual Property Arrangements Issues Paper (Issues Paper) released by the Productivity Commission in October 2015 for public consultation and input by 30 November 2015. The API is grateful for the extension of time granted by the Commission to complete and lodge this submission. The overall need for an inquiry into intellectual property is supported by API. In particular it is noted with approval that the Commission states in its Issues Paper that it is to consider the appropriate balance between “incentives for innovation and investments, and the interests of both individuals and businesses in assessing products”.1 However, API is of the view that intellectual property in the area of real property presents a number of issues which are not fully canvassed in the abovementioned Issues Paper. Intellectual property embedded in valuation and other property-related reports of API members involves the acquisition of information which may possibly be confidential. Yet, when engaged in banks and financial institutions the intellectual property in such valuations and/ or reports is commonly required to be passed to the client bank or financial institution. In the Issues Paper it is proposed that there are seven different forms of intellectual property rights.2 It is the view of API that an eight form exists, namely private agreements. The Issues Paper, however, regards private agreements between firms as alternatives to intellectual property rights. The API considers that “secrecy or confidentiality arrangements”3 as identified in the Issues Paper form a much larger part of the manner in which intellectual property is maintained in Australia for the purposes of trade secrecy or more often, financial confidentiality...

Sweetpotato consumer research: insights to increasing consumption

This report provides an evaluation of the behaviours and purchasing drivers of key sweetpotato consumers defined by Nielsen consumer research as Established Couples (two or more adults with no children 17 and under, and head of house 35-59), Senior Couples (two or more adults with no children 17 or under, and head of house 60 or over), and Independent Singles (one person household 35 or over, no children 17 or under). Research was qualitative in nature. Methods used included focus groups, depth interviews and shop-a-longs. The report found that preferences for sweetpotato amongst these groups were varied. In general a smaller torpedo shaped vegetable was valued for ease of preparation and the convenience of being of sufficient size for a meal for two. Satisfaction with sweetpotato was high with negative comments on quality exceedingly rare within discussions. However, shop-a-longs revealed that some quality issues were apparent at retail such as withered product, pitting and occasionally damage. A display with stock resting in any amount of water was a barrier to purchase for consumers and this was apparent on two out 15 occasions. A high quality sweetpotato was of a deep orange/red colour, had a smooth skin and was extremely dense and hard. An inferior sweetpotato was wrinkly, spongy, pitted and damaged. Awareness of sweetpotato was a relatively recent phenomenon amongst the respondents of this study with most recalling eating the vegetable in the last five to 10 years. Life-time eating patterns emerged as a consequence of childhood food experiences such as growing up with a ‘meat and three’ veg philosophy and traditional Australian meals. However, this was dependent on cultural background and those with ties to diverse cultures were more likely to have always known of the vegetable. Sweetpotato trial and consumption coincided with a breaking away from these traditional patterns, or was integrated into conventional meals such as a baked vegetable to accompany roasts. Increased health consciousness also led to awareness of the vegetable. A primary catalyst for consumption within the Established and Senior Couples groups was the health benefits associated with sweetpotato. Consumers had very little knowledge of the specific health properties of the vegetable and were surprised at the number of benefits consumption provided. Sweetpotato was important for diabetics for its low Glycemic Index status. Top-of-the-mind awareness of the vegetable resulted from the onset of the disease. Increasing fibre was a key motive for this demographic and this provided a significant link between consumption and preventing bowel cancer. For those on a weight loss regime, sweetpotato was perceived as a tasty, satisfying food that was low in carbohydrates. Swapping behaviours where white potato was replaced by sweetpotato was often a response to these health concerns. Other health properties mentioned by participants through the course of the research included the precursor β-carotene and Vitamins A & C. The sweetpotato was appreciated for its hedonic and timesaving qualities. For consumers with a high involvement in food, the vegetable was valued for its versatility in meals. These consumers took pride in cooking and the flavour and texture of sweetpotato lent itself to a variety of meals such as soups, salads, roasts, curries, tagines and so on. Participants who had little time or desire to prepare and cook meals valued sweetpotato because it was an easy way to add colour and variety to the plate and because including an orange vegetable to meals is a shortcut to ensuring vitamin intake. Several recommendations are made to the sweetpotato industry. • Vigorously promote the distinct nutritional and health properties of sweetpotatoes, particularly if they can be favourably compared to other vegetables or foods • Promote the salient properties to specific targets such as diabetics, those that are at risk to bowel cancer, and those embarking on a weight-loss regime. Utilise specialist channels of communication such as diabetic magazines and websites • Promote styles of cooking of sweetpotato that would appeal to traditionalists such as roasts and BBQs • Promote the vegetable as a low maintenance vegetable, easy to store, easy to cook and particularly focusing on it as a simple way to boost the appearance and nutritional value of meals. • Promote the vegetable to high food involvement consumers through exotic recipes and linking it to feelings of accomplishment with cooking • Promote the versatility of the vegetable • Devise promotions that link images and tone of communications with enjoying life to the fullest, having time to enjoy family and grandchildren, and of partaking in social activities • Educate retailers on consumer perceptions of quality and ensuring moisture and mould is not present at displays Qualitative information while providing a wealth of detail cannot be extrapolated to the overall target population and this may be considered a limitation to the research. However, within research theory, effective quantitative design is believed to stem from the insights developed from qualitative studies. • Develop and implement a quantitative study on sweetpotato attitudes and behaviours based on the results of this study.

Rolling out the future: The current status of the Australian NBN and its impact for property

The future functioning of the digital economy is inextricably linked to the use of high-speed broadband networks. As evidenced by recent Australian federal election campaigns, a focus has been on the rollout of the physical networks. The research seeks to determine the effectiveness of the current NBN rollout as a measure of Australia’s progression towards a fully functioning digital economy. The author examines submissions to the recent RTIRC Telecommunications Review 2015 in order to ascertain the NBN’s current impact upon Australia’s digital economy.

The impact of a streamlined funding application process on application time: Two cross-sectional surveys of Australian researchers

Objective: To examine if streamlining a medical research funding application process saved time for applicants. Design: Cross-sectional surveys before and after the streamlining. Setting: The National Health and Medical Research Council (NHMRC) of Australia. Participants: Researchers who submitted one or more NHMRC Project Grant applications in 2012 or 2014. Main outcome measures: Average researcher time spent preparing an application and the total time for all applications in working days. Results: The average time per application increased from 34 working days before streamlining (95% CI 33 to 35) to 38 working days after streamlining (95% CI 37 to 39; mean difference 4 days, bootstrap p value <0.001). The estimated total time spent by all researchers on applications after streamlining was 614 working years, a 67-year increase from before streamlining. Conclusions: Streamlined applications were shorter but took longer to prepare on average. Researchers may be allocating a fixed amount of time to preparing funding applications based on their expected return, or may be increasing their time in response to increased competition. Many potentially productive years of researcher time are still being lost to preparing failed applications.

Genetic diversity of the Australian National Mango Genebank

Assessment of genetic diversity is an essential component in germplasm characterisation and utilisation. In this study the genetic diversity of mango was determined among 254 Mangifera indica L. accessions and related Mangifera species originating from 12 diverse geographic areas using eleven known simple sequence repeat (SSR) markers from mango. A total of 133 alleles were detected, ranging from eight (LMMA12) to 16 (MIAC-5) alleles per locus with a mean value of 12.36 and an average polymorphism information content (PLC) of 0.72. The mean number of alleles (8.45) was highest in the South East Asian accessions (Indonesia/Malesia) and lowest in the accessions from the Philippines (2.55). Diversity analysis divided the accessions into four major nodes broadly representing their geographical origins. The genetic diversity of 'Kensington Pride' was confirmed as being very low and no parents for this cultivar were identified. No association could be established between SSR markers analysed and embryony. Ten synonymous accessions were identified with matching genetic identity with at least one other accession at all SSR loci examined. Twenty-two unique genotypes were identified for 50 trees previously assigned different accession names. The remaining accessions were genetically distinct from each other. This increased understanding of genetic diversity in the Australian National Mango Genebank will assist breeders to better select parents with the potential to contribute desired genes to the progeny and thus more rapidly deliver improved cultivars to industry to meet consumer demand. Crown Copyright (C) 2012 Published by Elsevier B.V. All rights reserved.

Exploring changing culture and building capacity in research with consumers, carers and consumer companions

Background Australian policy mandates consumer and carer participation in mental health services at all levels including research. Inspired by a UK model - Service Users Group Advising on Research [SUGAR] - we conducted a scoping project in 2013 with a view to create a consumer and carer led research process that moves beyond stigma and tokenism, that values the unique knowledge of lived experience and leads to people being treated better when accessing services. This poster presents the initial findings. Aims The project’s purpose was to explore with consumers, consumer companions and carers at the Metro North Mental Health-RBWH their interest in and views about research partnerships with academic and clinical colleagues. Methods This poster overviews the initial findings from three audio-recorded focus groups conducted with a total of 14 consumers, carers and consumer companions at the Brisbane site. Analysis Our work was guided by framework analysis (Gale et al. 2013). It defines 5 steps for analysing narrative data: familiarising; development of categories; indexing; charting and interpretation. Eight main ideas were initially developed and were divided between the authors to further index. This process identified 37 related analytic ideas. The authors integrated these by combining, removing and redefining them by consensus though a mapping process. The final step is the return of the analysis to the participants for feedback and input into the interpretation of the focus group discussions. Results 1. Value & Respect: Feeling Valued & Respected, Tokenism, Stigma, Governance, Valuing prior knowledge / background 2. Pathways to Knowledge and Involvement in Research: ‘Where to begin’, Support, Unity & partnership, Communication, Co-ordination, Flexibility due to fluctuating capacity 3. Personal Context: Barriers regarding Commitments & the nature of mental illness, Wellbeing needs, Prior experience of research, Motivators, Attributes 4. What is research? Developing Knowledge, What to do research on, how and why? Conclusion and Discussion Initial analysis suggests that participants saw potential for ‘amazing things’ in mental health research such as reflecting their priorities and moving beyond stigma and tokenism. The main needs identified were education, mentoring, funding support and research processes that fitted consumers’ and carers’limitations and fluctuating capacities. They identified maintaining motivation and interest as an issue since research processes are often extended by ethics and funding applications. Participants felt that consumer and carer led research would value the unique knowledge that the lived experience of consumers and carers brings and lead to people being treated better when accessing services.

Conclaves and concurrent expert evidence: A positive development in Australian legal practice?

Many Australian courts now prefer pre-hearing meetings of experts (conclaves) being convened to prepare joint reports to identify areas of agreement and disagreement, followed by concurrent expert evidence at trial. This contrasts to the traditional approach where experts did not meet before trial and did not give evidence together. Most judges, lawyers and expert witnesses favour this as a positive development in Australian legal practice, at least for civil disputes. This new approach impacts medical practitioners who are called upon to give expert evidence, or who are parties to disputes before the courts. Arguably, it is too soon to tell whether the relative lack of transparency at the conclave stage will give rise to difficulties in the coronial, disciplinary and criminal arenas.

School policies on bullying and cyberbullying: Perspectives across three Australian states

Background Despite decades of research, bullying in all its forms is still a significant problem within schools in Australia, as it is internationally. Anti-bullying policies and guidelines are thought to be one strategy as part of a whole school approach to reduce bullying. However, although Australian schools are required to have these policies, their effectiveness is not clear. As policies and guidelines about bullying and cyberbullying are developed within education departments, this paper explores the perspectives of those who are involved in their construction. Purpose This study examined the perspectives of professionals involved in policy construction, across three different Australian states. The aim was to determine how their relative jurisdictions define bullying and cyberbullying, the processes for developing policy, the bullying prevention and intervention recommendations given to schools and the content considered essential in current policies. Sample Eleven key stakeholders from three Australian states with similar education systems were invited to participate. The sample selection criteria included professionals with experience and training in education, cyber-safety and the responsibility to contribute to or make decisions which inform policy in this area for schools in their state. Design and methods Participants were interviewed about the definitions of bullying they used in their state policy frameworks; the extent to which cyberbullying was included; and the content they considered essential for schools to include in anti-bullying policies. Data were collected through in-depth, semi-structured interviews and analysed thematically. Findings Seven themes were identified in the data: - (1) Definition of bullying and cyberbullying; - (2) Existence of a policy template; - (3) Policy location; - (4) Adding cyberbullying; - (5) Distinguishing between bullying and cyberbullying; - (6) Effective policy, and; - (7) Policy as a prevention or intervention tool. The results were similar both across state boundaries and also across different disciplines. Conclusion Analysis of the data suggested that, across the themes, there was some lack of information about bullying and cyberbullying. This limitation could affect the subsequent development, dissemination and sustainability of school anti-bullying policies, which have implications for the translation of research to inform better student outcomes.

Policing online fraud in Australia: The emergence of a victim‐oriented approach

Online fraud is a global problem. Millions of individuals worldwide are losing money and experiencing the devastation associated with becoming a victim of online fraud. In 2014, Australians reported losses of $82 million as a result of online fraud to the Australian Competition and Consumer Commission (ACCC). Given that the ACCC is one of many agencies that receives victim complaints, and the extent of under‐reporting of online fraud, this figure is likely to represent only a fraction of the actual monetary losses incurred. The successful policing of online fraud is hampered by its transnational nature, the prevalence of false/stolen identities used by offenders, and a lack of resources available to investigate offences. In addition, police are restricted by the geographical boundaries of their own jurisdictions which conflicts with the lack of boundaries afforded to offenders by the virtual world. In response to this, Australia is witnessing the emergence of victim‐oriented policing approaches to counter online fraud victimisation. This incorporates the use of financial intelligence as a tool to proactively notify potential victims of online fraud. Using a variety of Australian examples, this paper documents the history to this new approach and considers the significance that such a shift represents to policing in a broader context. It also details the value that this approach can have to both victims and law enforcement agencies. Overall, it is argued that a victim‐oriented approach to policing online fraud can have substantial benefits to police and victims alike.

Doctors’ perspectives on law and life-sustaining treatment: Survey design and recruitment strategies for a challenging cohort

- Background Palliative medicine and other specialists play significant legal roles in decisions to withhold and withdraw life-sustaining treatment at the end of life. Yet little is known about their knowledge of or attitudes to the law, and the role they think it should play in medical practice. Consideration of doctors’ views is critical to optimizing patient outcomes at the end of life. However, doctors are difficult to engage as participants in empirical research, presenting challenges for researchers seeking to understand doctors’ experiences and perspectives. - Aims To determine how to engage doctors involved in end-of-life care in empirical research about knowledge of the law and the role it plays in medical practice at the end of life. - Methods Postal survey of all specialists in palliative medicine, emergency medicine, geriatric medicine, intensive care, medical oncology, renal medicine, and respiratory medicine in three Australian states: New South Wales, Victoria, and Queensland. The survey was sent in hard copy with two reminders and a follow up reminder letter was also sent to the directors of hospital emergency departments. Awareness was further promoted through engagement with the relevant medical colleges and publications in professional journals; various incentives to respond were also used. The key measure is the response rate of doctors to the survey. - Results Thirty-two percent of doctors in the main study completed their survey with response rate by specialty ranging from 52% (palliative care) to 24% (medical oncology). This overall response rate was twice that of the reweighted pilot study (16%). - Conclusions Doctors remain a difficult cohort to engage in survey research but strategic recruitment efforts can be effective in increasing response rate. Collaboration with doctors and their professional bodies in both the development of the survey instrument and recruitment of participants is essential.

Making decisions about antibiotic use in the Australian primary healthcare sector

Background Australia has one of the highest rates of antibiotic use amongst OECD countries. Data from the Australian primary healthcare sector suggests unnecessary antibiotics were prescribed for self-resolving conditions. We need to better understand what drives general practitioners (GPs) to prescribe antibiotics, consumers to seek antibiotics, and pharmacists to fill repeat antibiotic prescriptions. It is also not clear how these individuals trade-off between the possible benefits that antibiotics may provide in the immediate/short term, against the longer term societal risk of antimicrobial resistance. This project investigates what factors drive decisions to use antibiotics for GPs, pharmacists and consumers, and how these individuals discount the future. Methods Factors will be gleaned from published literature and from semi-structured interviews, to inform the development of Discrete Choice Experiments (DCEs). Three DCEs will be constructed – one for each group of interest – to allow investigation of which factors are more important in influencing (a) GPs to prescribe antibiotics, (b) consumers to seek antibiotics, and (c) pharmacists to fill legally valid but old or repeat prescriptions of antibiotics. Regression analysis will be conducted to understand the relative importance of these factors. A Time Trade Off exercise will be developed to investigate how these individuals discount the future. Results Findings from the DCEs will provide an insight into which factors are more important in driving decision making in antibiotic use for GPs, pharmacists and consumers. Findings from the Time Trade Off exercise will show what individuals are willing to trade for preserving the miracle of antibiotics. Conclusion Research findings will contribute to existing national programs to bring about a reduction in inappropriate use of antibiotic in Australia. Specifically, influencing how key messages and public health campaigns are crafted, and clinical education and empowerment of GPs and pharmacists to play a more responsive role as stewards of antibiotic use in the community.

Questionable antibiotic practices: Obtaining reliable estimates of consumer behaviours

Background: Significant recent attention has focussed on the role of antibiotic prescribing and usage with the aim of combating antibiotic resistance, a growing worldwide health concern. A significant gap in this literature concerns the consumption patterns and beliefs of consumers about antibiotics and their effects. We seek to remedy this gap by exploring a range of questionable antibiotic practices and obtaining reliable estimates of their prevalence as well as their normative status. Methods: We conducted an online survey of over 100 consumers. We used a new incentive compatible technique, the Bayesian Truth Serum (BTS), to elicit more truthful responding than standard self-report measures. We asked participants to indicate whether they engaged in a number of practices including whether they had: taken antibiotics when they are out of date and stored antibiotics at home for later use. We then sought estimates of the percentage of other patients (like them) who had engaged in each behaviour, as well as asking them among those patients who had, the percentage that would admit to having done so. We also asked about social acceptability and responsibility of the practices. Results: These results will show for each type of questionable practice how prevalent it is and whether consumers view it as both socially acceptable and socially responsible. We will gain the relative prevalence of each of these practices. Conclusion: These findings are of paramount importance in gaining a better understanding of consumers’ antibiotic consumption patterns. These will be vital for better targeting educational campaigns to lower inappropriate antibiotic consumption.

The doctrinal method: Incorporating interdisciplinary methods in reforming the law

The doctrinal methodology is in a period of change and transition. Realising that the scope of the doctrinal method is too constricting, academic lawyers are becoming eclectic in their use of research method. In this transitional time, legal scholars are increasingly infusing evidence (and methods) from other disciplines into their reasoning to bolster their reform recommendations. This article considers three examples of the interplay of the discipline of law with other disciplines in the pursuit of law reform. Firstly the article reviews studies on the extent of methodologies and reformist frameworks in PhD research in Australia. Secondly it analyses a ‘snapshot’ of recently published Australian journal articles on criminal law reform. Thirdly, it focuses on the law reform commissions, those independent government committees that play such an important role in law reform in common law jurisdictions. This examination demonstrates that while the doctrinal core of legal scholarship remains intact, legal scholars are endeavouring to accommodate statistics, comparative perspectives, social science evidence and methods, and theoretical analysis, within the legal research framework, in order to provide additional ballast to the recommendations for reform.

Child abuse and neglect: A socio-legal study of mandatory reporting in Australia - Report for the Australian Government

This report presents the results of a national study exploring the law and practice of mandatory reporting of child abuse and neglect. Government administrative data over a decade (2003-2012) were accessed and analysed to map trends in reporting of different types of child abuse and neglect (physical abuse, sexual abuse, emotional abuse, and neglect) by different reporter groups (both mandated reporters e.g., police, teachers, doctors, nurses depending on the jurisdiction, and non-mandated reporters e.g., family members, neighbours, depending on the jurisdiction), and the outcomes of these reports (whether investigated, and whether substantiated or not). The study was funded by the Australian Government and administered through the Government of Victoria.