Rio+ 20: Who owns the green economy?

The Rio+20 summit has raised a number of difficult questions about law and technology: what is the relationship between intellectual property and the environment? What role does intellectual property play in sustainable development? Who will own and control the Green Economy? What is the best way to encourage the transfer of environmentally sound technologies? Should intellectual property provide incentives for fossil fuels? What are the respective roles of the public sector and the private sector in green innovation? How should biodiversity, traditional knowledge and Indigenous intellectual property be protected?

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.

Finding the leverage point in the sustainability crisis: Global, national and regional Australian responses

From an economic perspective, the sustainability crisis is ultimately characterized by a worsening relationship between the resources required to support the global population and the ability of the earth to supply them. Despite the ever-increasing threat of a calamity, modern society appears unable to alter its course. The very systems which underpin global human endeavor seem to actively prevent meaningful change and the one irrepressible goal to which all societies seem to strive is the very thing that makes such endeavor ultimately life threatening: that of global growth. Using the Australian experience as an exemplar, this paper explores how the concept of growth infiltrates societal reactions to the crisis at various scales – global, national and regional. Analysis includes historic studies, a critique of current misconceptions around population demographics, comparative evaluation of various interventions in the Australian context and considerations around potential ways to address the crisis.

Re-thinking ancillary: Australian screen content in education

The use of Australian screen content in Australian schools and universities is undergoing rapid change due to digital and online distribution capacity on the supply side and digital and online affordance embedded in student cultures. This paper examines the ways in which Australian screen content and its distribution are beginning to adapt to educational usage. Issues facing content rights holders, distribution companies and emerging digital platforms reflect broad-based digital disruption patterns. Learning opportunities that can coincide with the growth in uptake of Australian screen content in Australia's education sector are not immune to the challenges posed by emerging digital consumption behaviours and issues of sustainability. At the same time, the growth in the use of digital and online screen content learning resources, under current copyright conditions, poses significant increases in the underlying cost structure for educational interests. This paper examines the innovations occurring in both the supply and the demand sides of Australian screen content and the expanded learning opportunities arising out of emerging digital affordances. Precedents in the UK are explored that demonstrate how stronger connections can be forged between nationally produced film and media content and a national curriculum. While addressing recent issues arising out of the Australian Law Review Commission's inquiry into copyright in the digital economy, the purpose of this discussion is not to assess policy debates about fair use versus fair dealing. What is clear, however, is that independent research is required that draws upon research-based evidence with an aim to better understanding the needs of the education sector against the transformative shifts taking place in digital-based learning materials and their modes of delivery.

Effectiveness of on-line resources to enhance student learning and engagement

BACKGROUND For engineering graduates to be work-ready with marketable skills they must not only be well-versed with engineering science and its applications, but also able to adapt to using commercial software that is widely used in engineering practice. Hydrological/hydraulic modelling is one aspect of engineering practice which demands the ability to apply fundamentals into design and construction using software. The user manuals for such software are usually tailored for the experienced engineer but not for undergraduates who typically are novices to concepts of modelling and software tools. As the focus of a course such as Advanced Water Engineering is on the wider aspects of engineering application of hydrological and hydraulic concepts, it is ineffective for the lecturers to direct the students to user manuals as students have neither the time nor the desire to sift through numerous pages in a manual. An alternative and efficient way to demonstrate the use of the software is enabling students to develop a model to simulate real-world scenario using the tools of the software and directing them to make informed decisions based on outcomes. PURPOSE Past experience of the lecturer showed that the resources available for the students left a knowledge gap leading to numerous student queries outside contact hours. The purpose of this study is to assess how effective purpose-built video resources can be in supplementing the traditional learning resources to enhance student learning. APPROACH Short-length animated video clips comprising guided step-by-step instructions were prepared using screen capture software to capture screen activity and later edited to focus on specific features using pop-up annotations; Vocal narration was purposely excluded to avoid disturbances due to noise and allow different learning paces of individual students. The video clips were made available to the students alongside the traditional resources/approaches such as in-class demonstrations, guideline notes, and tips for efficient and error-free procedural descriptions. The number of queries the lecturer received from the student cohort outside the lecture times was recorded. An anonymous survey to assess the usefulness and adequacy of the courseware was conducted. OUTCOMES While a significant decline in the number of student queries was noted, an overwhelming majority of the survey respondents confirmed the usefulness of the purpose-developed courseware. CONCLUSIONS/RECOMMENDATIONS/SUMMARY The survey and lecturer’s experience indicated that animated demonstration video clips illustrating the various steps involved in developing hydrologic and hydraulic models and simulating design scenarios is an effective supplement for traditional learning resources. Among the many advantages of the custom-made video clips as a learning resource are that they (1) highlight the aspects that are important to undergraduate learning but not available in the software manuals as the latter are designed for more mature users/learners; (2) provide short, to-the point communication in a step-by-step manner; (3) allow students flexibility to self-learn at their own pace; (4) enhance student learning; and (5) enable time savings for the lecturer in the long term by avoiding queries of a repetitive nature. It is expected that these newly developed resources will be improved to incorporate students’ suggestions before being offered to future cohorts of students. The concept can also be expanded to other relevant courses where animated demonstrations of key modelling steps are beneficial to student learning.

Practice patterns of radiation therapy technology in Australia: Results of a national audit

This article presents the results of a single-day census of radiation therapy (RT) treatment and technology use in Australia. The primary aim of the study was to ascertain patterns of RT practice and technology in use across Australia. These data were primarily collated to inform curriculum development of academic programs, thereby ensuring that training is matched to workforce patterns of practice. Methods: The study design was a census method with all 59 RT centres in Australia being invited to provide quantitative summary data relating to patient case mix and technology use on a randomly selected but common date. Anonymous and demographic-free data were analysed using descriptive statistics. Results: Overall data were provided across all six Australian States by 29 centres of a possible 59, yielding a response rate of 49% and representing a total of 2743 patients. Findings from this study indicate the increasing use of emerging intensity-modulated radiotherapy (IMRT), image fusion and image-guided radiation therapy (IGRT) technology in Australian RT planning and delivery phases. IMRT in particular was used for 37% of patients, indicating a high uptake of the technology in Australia when compared to other published data. The results also highlight the resource-intensive nature of benign tumour radiotherapy. Conclusions: In the absence of routine national data collection, the single-day census method offers a relatively convenient means of measuring and tracking RT resource utilisation. Wider use of this tool has the potential to not only track trends in technology implementation but also inform evidence-based guidelines for referral and resource planning.

Acquaintance or partner? Social economy organisations, institutional logics and regional development in Australia

The social economy as a regional development actor is gaining greater attention given its purported ability to address social and environmental problems. This growth in interest is occurring within a global environment that is calling for a more holistic understanding of development compared to traditionally economic-centric conceptions. While regional development policies and practices have long considered for-profit businesses as agents for regional growth, there is a relatively limited understanding of the role of the social economy as a development actor. The institutional environment is a large determinant of all kinds of entrepreneurial activity, and therefore understanding the relationships between the social economy and broader regional development processes is warranted. This paper moves beyond suggestions of an economic-centric focus of regional development by utilising institutional logics as a theoretical framework for understanding the role of social enterprise in regional development. A multiple case study of ten social enterprises in two regional locations in Australia suggests that social enterprise can represent competing logics to economic-centric institutional values and systems. The paper argues that dominant institutional logics can constrain or promote the inter-play between the social and the economic aspects of development, in the context of social enterprise.