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.

Evidence-based practice

This chapter traces the history of evidence-based practice (EBP) from its roots in evidence-based medicine to contemporary thinking about its usefulness to public health practice. It defines EBP and differentiates it from ‘evidence-based medicine’, ‘evidence-based policy’ and ‘evidence-based healthcare’. As it is important to understand the subjective nature of knowledge and the research process, this chapter describes the nature and production of knowledge. This chapter considers the necessary skills for EBP, and the processes of attaining the necessary evidence. We examine the barriers and facilitators to identifying and implementing ‘best practice’, and when EBP is appropriate to use. There is a discussion about the limitations of EBP and the use of other information sources to guide practice, and concluding information about the application of evidence to guide policy and practice.

Understanding who cares: Creating the evidence to address the long-standing policy problem of staff shortages in early childhood education and care

Evidence-based policy is a means of ensuring that policy is informed by more than ideology or expedience. However, what constitutes robust evidence is highly contested. In this paper, we argue policy must draw on quantitative and qualitative data. We do this in relation to a long entrenched problem in Australian early childhood education and care (ECEC) workforce policy. A critical shortage of qualified staff threatens the attainment of broader child and family policy objectives linked to the provision of ECEC and has not been successfully addressed by initiatives to date. We establish some of the limitations of existing quantitative data sets and consider the potential of qualitative studies to inform ECEC workforce policy. The adoption of both quantitative and qualitative methods is needed to illuminate the complex nature of the work undertaken by early childhood educators, as well as the environmental factors that sustain job satisfaction in a demanding and poorly understood working environment.

Of citizen's rights and wrongs of the state

Argues that a human rights based concsiousness needs to supersede legal technocracy to avoid the wrongs of deporting family members. Response to public discussion over deportation of two elderly grandmothers from Finland.

Telling stories, understanding lives, working toward change

Stories are helping us learn more about the livelihoods of the fishers and farmers with whom we work in eastern India. We are engaged with these communities in processes and activities aimed at improving their lives and promoting changes in government policy and service delivery in aquaculture and fisheries. Stories are told in several languages by women and men who fish and farm, about their lives, their livelihoods and significant changes they have experienced. We also record stories as narrated to us by colleague-informants. The written and spoken word, photographs, drawings and films – all are used to document the stories of people’s lives, sometimes prompted by questions as simple as “What do people talk about in the village?” Through the power of language, stories can be an entry point into livelihoods programming, monitoring and evaluation, conflict transformation and ultimately a way of giving life to a rights-based approach to development. (PDF contains 10 pages).

Approaches and frameworks for management and research in small-scale fisheries in the developing world

Commonly adopted approaches to managing small-scale fisheries (SSFs) in developing countries do not ensure sustainability. Progress is impeded by a gap between innovative SSF research and slower-moving SSF management. The paper aims to bridge the gap by showing that the three primary bases of SSF management--ecosystem, stakeholders’ rights and resilience--are mutually consistent and complementary. It nominates the ecosystem approach as an appropriate starting point because it is established in national and international law and policy. Within this approach, the emerging resilience perspective and associated concepts of adaptive management and institutional learning can move management beyond traditional control and resource-use optimization, which largely ignore the different expectations of stakeholders; the complexity of ecosystem dynamics; and how ecological, social, political and economic subsystems are linked. Integrating a rights-based perspective helps balance the ecological bias of ecosystem-based and resilience approaches. The paper introduces three management implementation frameworks that can lend structure and order to research and management regardless of the management approach chosen. Finally, it outlines possible research approaches to overcome the heretofore limited capacity of fishery research to integrate across ecological, social and economic dimensions and so better serve the management objective of avoiding fishery failure by nurturing and preserving the ecological, social and institutional attributes that enable it to renew and reorganize itself. (PDF contains 29 pages)

Student voice in Irish post-primary schools: a drama of voices

This research is an exploration of the expression of student voice in Irish post-primary schools and how its affordance could impact on students’ and teachers’ experiences in the classroom, and at whole-school level through a student council. Student voice refers to the inclusion of students in decisions that shape their experiences in classrooms and schools, and is fundamental to a rights-based perspective that facilitates students to have a voice and a say in their education. Student voice is essential to the development of democratic principles, active citizenship, and learning and pedagogy. This qualitative research, based in three post-primary case-study schools, concerns teachers in eighteen classrooms engaging in dialogic consultation with their students over one school year. Teachers considered the students’ commentary and then adjusted their practice. The operation of student councils was also examined through the voices of council members, liaison teachers and school principals. Theorised within socio-cultural (social constructivist), social constructionist and poststructural frames, the complexity of student voice emerges from its conceptualisation and enactment. Affording students a voice in their classroom presented positive findings in the context of relationships, pedagogical change and students’ engagement, participation and achievement. The power and authority of the teacher and discordant student voices, particularly relating to examinations, presented challenges affecting teachers’ practice and students’ expectations. The functional redundancy of the student council as a construct for student voice at whole-school level, and its partial redundancy as a construct to reflect prefigurative democracy and active citizenship also emerge from the research. Current policy initiatives in Irish education situate student voice in pedagogy and as dialogic consultation at classroom and whole-school level. This work endorses the necessity for and benefit of such a positioning with the author further arguing that it should not become the instrumental student voice of data source, accountability and performativity.

Victims' rights in Ireland: influences, illusions and impacts

Following international trends victims of crime in Ireland have increasingly become a source of political, policy and to a lesser extent academic concern. Although it is assumed that the Irish victims’ rights movement is having a profound impact on the criminal justice system there are very few studies addressing this assumption or the genesis of the Irish movement. At the time a victims’ rights movement was established in Ireland there were movements already established in the U.S. and Britain. To determine which model Ireland followed, if any, in establishing its movement a comparative analysis of the emergence of the victims’ rights movements in these three common law jurisdictions was undertaken. This research examines possible victim policy transfer to test the transfer route perception that the victims’ movement began in the U.S., was transferred into Britain and then onto Ireland. At the same time that the victims’ rights movements were emerging in the U.S., Britain and Ireland, and asserting pressure on their national governments for beneficial changes for victims of crime, international organisations such as the U.N. and Council of Europe were being pressured by victims’ rights groups into introducing victim centered instruments of guidance and best practice for member states. Eventually the E.U. became involved and enacted a binding instrument in 2001. These victim centered instruments provide legal and service provision rights to Irish victims of crime, but they do not generate much academic interest. This research, in addition to providing a detailed account of the victim centered instruments, analyses the jurisprudence of the European Court of Human Rights, and identifies and analyses the primary victim centered statutory modifications and case law in Ireland over the past three decades. Lastly, the current law and practices in Ireland are evaluated against Ireland’s obligations under international and E.U. law.

The Justice Gap in Global Forest Governance

Claims of injustice in global forest governance are prolific: assertions of colonization, marginalization and disenfranchisement of forest-dependent people, and privatization of common resources are some of the most severe allegations of injustice resulting from globally-driven forest conservation initiatives. At its core, the debate over the future of the world's forests is fraught with ethical concerns. Policy makers are not only deciding how forests should be governed, but also who will be winners, losers, and who should have a voice in the decision-making processes. For 30 years, policy makers have sought to redress the concerns of the world's 1.6 billion forest-dependent poor by introducing rights-based and participatory approaches to conservation. Despite these efforts, however, claims of injustice persist. This research examines possible explanations for continued claims of injustice by asking: What are the barriers to delivering justice to forest-dependent communities? Using data collected through surveys, interviews, and collaborative event ethnography in Laos and at the Tenth Conference of Parties to the Convention on Biological Diversity, this dissertation examines the pursuit of justice in global forest governance across multiple scales of governance. The findings reveal that particular conceptualizations of justice have become a central part of the metanormative fabric of global environmental governance, inhibiting institutional evolution and therewith perpetuating the justice gap in global forest governance.

Putting down routes: an examination of local government cultural policy shaping the development of heritage trails

This paper explores the significance of trails within local government cultural strategies by presenting the results of an audit of 1000 trails, content analysis of local cultural strategies and a series of interviews with local government cultural officers. It highlights the growing sophistication of trails as flexible and multi-faceted products promising an array of social, environmental, cultural and economic benefits. However, key issues emerge as challenges for local government cultural officers. These include the need for a realistic assessment of the relative importance of competing rationales, the design of methodologies to enable evidence-based policy making and more effective engagement with commercial organisations.

Where there is smoke, there is (the potential for) fire: soft indicators of research and policy impact

There is a growing literature examining the impact of research on informing policy, and of research and policy on practice. Research and policy do not have the same types of impact on practice but can be evaluated using similar approaches. Sometimes the literature provides a platform for methodological debate but mostly it is concerned with how research can link to improvements in the process and outcomes of education, how it can promote innovative policies and practice, and how it may be successfully disseminated. Whether research-informed or research-based, policy and its implementation is often assessed on such 'hard' indicators of impact as changes in the number of students gaining five or more A to C grades in national examinations or a percentage fall in the number of exclusions in inner city schools. Such measures are necessarily crude, with large samples smoothing out errors and disguising instances of significant success or failure. Even when 'measurable' in such a fashion, however, the impact of any educational change or intervention may require a period of years to become observable. This paper considers circumstances in which short-term change may be implausible or difficult to observe. It explores how impact is currently theorized and researched and promotes the concept of 'soft' indicators of impact in circumstances in which the pursuit of conventional quantitative and qualitative evidence is rendered impractical within a reasonable cost and timeframe. Such indicators are characterized by their avowedly subjective, anecdotal and impressionistic provenance and have particular importance in the context of complex community education issues where the assessment of any impact often faces considerable problems of access. These indicators include the testimonies of those on whom the research intervention or policy focuses (for example, students, adult learners), the formative effects that are often reported (for example, by head teachers, community leaders) and media coverage. The collation and convergence of a wide variety of soft indicators (Where there is smoke …) is argued to offer a credible means of identifying subtle processes that are often neglected as evidence of potential and actual impact (… there is fire).

Applying an International Human Rights Framework to State Budget Allocations: Rights and Resources

Human rights based budget analysis projects have emerged at a time when the United Nations has asserted the indivisibility of all human rights and attention is increasingly focused on the role of non-judicial bodies in promoting and protecting human rights. This book seeks to develop the human rights framework for such budget analyses, by exploring the international law obligations of the International Covenant on Economic, Social and Cultural Rights (ICESCR) in relation to budgetary processes. The book outlines international experiences and comparative practice in relation to economic and social rights budget analysis and budgeting.

The book sets out an ICESCR-based methodology for analysing budget and resource allocations and focuses on the legal obligation imposed on state parties by article 2(1) of ICESCR to progressively realise economic and social rights to 'the maximum of available resources'. Taking Northern Ireland as a key case study, the book demonstrates and promotes the use of a ‘rights-based’ approach in budgetary decision-making.

The book will be relevant to a global audience currently considering how to engage in the budget process from a human rights perspective. It will be of interest to students and researchers of international human rights law and public law, as well as economic and social rights advocacy and lobbying groups.

Bills of Rights:A Comparative Perspective

Bills of rights are currently a much debated topic in various jurisdictions throughout the world. Almost all democratic nations, with the exception of Australia, now have a bill of rights. These take a variety of forms, ranging from constitutionally entrenched bills of rights, such as those of the United States and South Africa, to non-binding statements of rights. Falling between these approaches are non-entrenched, statutory bills of rights. As regards the latter, a model which has become increasingly popular is that of bills of rights based on interpretative obligations, whereby duties are placed upon courts to interpret national legislation in accordance with human rights standards. The aim of this book is to provide a comparative analysis of the bills of rights of a number of jurisdictions which have chosen to adopt such an approach. The jurisdictions considered are New Zealand, the United Kingdom, the Australian Capital Territory and the Australian state of Victoria.

There have been very few books published to date which contain a detailed comparative analysis of the bills of rights which this book addresses. The book adopts a unique thematic approach, whereby six aspects of the bills of rights in question have been selected for comparative analysis and a chapter is allocated to each aspect. This approach serves to facilitate the comparative discussion and emphasise the centrality of the comparative methodology.

Supported decision making: a review of the international literature

Supported decision making (SDM) refers to the process of supporting people, whose decision making ability may be impaired, to make decisions and so promote autonomy and prevent the need for substitute decision making. There have been developments in SDM but mainly in the areas of intellectual disabilities and end-of-life care rather than in mental health. The main aim of this review was to provide an overview of the available evidence relevant to SDM and so facilitate discussion of how this aspect of law, policy and practice may be further developed in mental health services. The method used for this review was a Rapid Evidence Assessment which involved: developing appropriate search strategies; searching relevant databases and grey literature; then assessing, including and reviewing relevant studies. Included studies were grouped into four main themes: studies reporting stakeholders’ views on SDM; studies identifying barriers to the implementation of SDM; studies highlighting ways to improve implementation; and studies on the impact of SDM. The available evidence on implementation and impact, identified by this review, is limited but there are important rights-based, effectiveness and pragmatic arguments for further developing and researching SDM for people with mental health problems.

Short comment: To Nail a Jellyfish? Finding a progressive agenda for EU anti-discrimination law

The title of this short (about 4500 words) intervention translates to "To Nail a Jellyfish? Finding a progressive agenda for EU anti-discrimination law". I engage with those criticising EU anti-discrimination law as yet another emanation of the EU's "neo-liberal" nature which fails to establish a viable social policy regime. I criticise this in two directions. First, I take issue with the theory that anti-discrimination law and policy has to be part of social policy. Actually, the field has a mission which differs from social policy, in that it addresses disadvantage resulting from othering, combating stereotypes as well as promoting accomodation of difference. Second, I show how the critique of judicialisation of policy is not unique to anti-discrimination law and policy. The so called turn to rights based employment law has been criticised under this mantra by those who fear that collective labour law mechanisms will become less prevalent. Further, those who have engaged with anti-discrimination law for a much longer time than those criticising it have also devised means to overcome the individualistic tendencies of rights adjudication. They have (partly successfully) argued in favour of establishing equality bodies and creating positive obligations. Thus, the critique neglects the field it takes on, and does not accept the fact that anti-discrimination law and policy must be considered a field in its own right instead of the servant of social law and policy.
Now, this is more a summary than an abstract - since I realise that not everyone reads German.