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.

Corrections: Association of variants in MMEL1 and CTLA4 with rheumatoid arthritis in the Han Chinese population (Annals of the Rheumatic Diseases (2011) 70, (1793-1797))

Patrick Danoy, Meng Wei, Hadler Johanna, et al. Association of variants in MMEL1 and CTLA4 with rheumatoid arthritis in the Han Chinese population. Ann Rheum Dis 2011;70:1793–97. The following authors were listed as contributing equally to the study...

Multiple primary cancers associated with Merkel cell carcinoma in Queensland, Australia, 1982-2011

The relatively high incidence of Merkel cell carcinoma (MCC) in Queensland provides a valuable opportunity to examine links with other cancers. A retrospective cohort study was performed using data from the Queensland Cancer Registry. Standardized incidence ratios (SIRs) were used to approximate the relative risk of being diagnosed with another primary cancer either following or prior to MCC. Patients with an eligible first primary MCC (n=787) had more than double the expected number of subsequent primary cancers (SIR=2.19, 95% confidence interval (CI)=1.84–2.60; P<0.001). Conversely, people who were initially diagnosed with cancers other than MCC were about two and a half times more likely to have a subsequent primary MCC (n=244) compared with the general population (SIR=2.69, 95% CI=2.36–3.05; P<0.001). Significantly increased bi-directional relative risks were found for melanoma, lip cancer, head and neck cancer, lung cancer, myelodysplastic diseases, and cancer with unknown primary site. In addition, risks were elevated for female breast cancer and kidney cancer following a first primary MCC, and for subsequent MCCs following first primary colorectal cancer, prostate cancer, non-Hodgkin lymphoma, or lymphoid leukemia. These results suggest that several shared pathways are likely for MCC and other cancers, including immunosuppression, UV radiation, and genetics.

Role of enhanced vector transmission of a new West Nile virus strain in an outbreak of equine disease in Australia in 2011

Background In 2011, a variant of West Nile virus Kunjin strain (WNVKUN) caused an unprecedented epidemic of neurological disease in horses in southeast Australia, resulting in almost 1,000 cases and a 9% fatality rate. We investigated whether increased fitness of the virus in the primary vector, Culex annulirostris, and another potential vector, Culex australicus, contributed to the widespread nature of the outbreak. Methods Mosquitoes were exposed to infectious blood meals containing either the virus strain responsible for the outbreak, designated WNVKUN2011, or WNVKUN2009, a strain of low virulence that is typical of historical strains of this virus. WNVKUN infection in mosquito samples was detected using a fixed cell culture enzyme immunoassay and a WNVKUN- specific monoclonal antibody. Probit analysis was used to determine mosquito susceptibility to infection. Infection, dissemination and transmission rates for selected days post-exposure were compared using Fisher’s exact test. Virus titers in bodies and saliva expectorates were compared using t-tests. Results There were few significant differences between the two virus strains in the susceptibility of Cx. annulirostris to infection, the kinetics of virus replication and the ability of this mosquito species to transmit either strain. Both strains were transmitted by Cx. annulirostris for the first time on day 5 post-exposure. The highest transmission rates (proportion of mosquitoes with virus detected in saliva) observed were 68% for WNVKUN2011 on day 12 and 72% for WNVKUN2009 on day 14. On days 12 and 14 post-exposure, significantly more WNVKUN2011 than WNVKUN2009 was expectorated by infected mosquitoes. Infection, dissemination and transmission rates of the two strains were not significantly different in Culex australicus. However, transmission rates and the amount of virus expectorated were significantly lower in Cx. australicus than Cx. annulirostris. Conclusions The higher amount of WNVKUN2011 expectorated by infected mosquitoes may be an indication that this virus strain is transmitted more efficiently by Cx. annulirostris compared to other WNVKUN strains. Combined with other factors, such as a convergence of abundant mosquito and wading bird populations, and mammalian and avian feeding behaviour by Cx. annulirostris, this may have contributed to the scale of the 2011 equine epidemic.

Human body stability in floodwaters: The 2011 flood in Brisbane CBD

The flooding of urbanised areas constitutes a hazard to the population and infrastructure. Floods through inundated urban environments have been studied recently and the potential impact of flowing waters on pedestrians is not well known. Herein the stability of individuals in floodwaters is reviewed based upon the re-analysis of detailed field measurements in an inundated section of the central business district of the City of Brisbane (Australia) during the 2011 flood. Detailed water elevation and velocity data were recorded. On-site observations showed some hydrodynamic instability linked to local topographic effects, in the form of a combination of fast turbulent fluctuations and (very) slow fluctuations of water level and velocity associated with surges. The flow conditions in Gardens Point Road was unsafe for individuals and a review of past guidelines suggests that many previous recommendations are over-optimistic and unsafe in real floodwaters.

Prevalence and characteristics of road traffic injuries among young drivers in Oman, 2009-2011

Objectives Studies from different parts of the world have indicated that the impact of road traffic incidents disproportionally affects young adults. Few known studies have been forthcoming from Arabian Gulf countries. Within Oman, a high proportion of the population is under the age of 20. Coupled with the drastic increase of motorization in recent years there is a need to understand the state of road safety among young people in Oman. The current research aimed to explore the prevalence and characteristics of road traffic injuries among young drivers aged 17-25 years. Methods Crash data from 2009-2011 was extracted from the Directorate General of Traffic, Royal Oman Police (ROP) database in Oman. The data was analyzed to explore the impact of road crashes on young people (17-25 years), the characteristics of young driver crashes and how these differ from older drivers and to identify key predictors of fatalities in young driver crashes. Results Overall, young people were over-represented in injuries and fatalities within the sample time period. While it is true that many young people in crashes were driving at the time, it was also evident that young people were often a victim in a crash caused by someone else. Thus, to reduce the impact of road crashes on young people, there is a need to generally address road safety within Oman. When young drivers were involved in crashes they were predominantly male. The types of crashes these drivers have can be broadly attributed to risk taking and inexperience. Speeding and night time driving were the key risk factors for fatalities. Conclusion The results highlight the need to address young driver safety in Oman. From these findings, the introduction of a graduated driver licensing system with night time driving restrictions could significantly improve young driver safety.

African mahogany. Abstracts from 'Darwin 2011 - African Mahogany Plantation Industry Forum'

This publication summarises the talks presented at ‘Darwin 2011 – African Mahogany Plantation Industry Forum’ held at the Department of Resources Research Facility, Berrimah, Darwin, 31st August and 1st September 2011. The forum brought together a vast amount of experience and knowledge about African mahogany and its prospects as a plantation timber tree in the dry tropics of northern Australia. The abstracts and references represent a valuable body of knowledge building on that recorded in previous African mahogany workshops in Mareeba (2004) and Townsville (2006). Besides the presenters’ abstracts, this publication provides a list of all the authors and their contact details and a complete list of all the cited references and further reading.

The diet of the dingo (Canis lupus dingo and hybrids) in north-eastern Australia: a supplement to the paper of Brook and Kutt (2011)

Dingoes and other wild dogs (Canis lupus dingo and hybrids) are generalist predators that consume a wide variety of different prey species within their range. Little is known, however, of the diets of dingoes in north-eastern Australia where the potential for impacts by dingoes exists. Recently new information has been provided on the diets of dingoes from several sites in Queensland, Australia, significantly adding to the body of published knowledge on ecosystems within this region. Further information on the diet of dingoes in north-eastern Australia is added from 1460 scats collected from five sites, representing tropical savannahs, tropical offshore islands (and a matched mainland area), dry sclerophyll forests and peri-urban areas on the fringe of Townsville. Macropods, possums and bandicoots were found to be common prey for dingoes in these areas. Evidence suggested that the frequency of prey remains in scats can be an unreliable indicator of predation risk to potential prey and it was found that novel and unexpected prey species appear in dingo diets as preferred prey become unavailable. The results support the generalisation that dingoes prefer medium- to large-sized native prey species when available but also highlight the capacity for dingoes to exploit populations of both large and small prey species that might not initially be considered at risk from predation based solely on data on scats.

Pathogenicity of Blumeria graminis f. sp. hordei in Australia in 2010 and 2011

A survey of the Australian barley powdery mildew (Blumeria graminis f. sp. hordei) population was conducted in 2010 and 2011. Three hundred and sixty-two isolates of the pathogen were collected from 18 locations across all six states of Australia. Thirty-two barley differentials were used and 11 genotypes were able to differentiate the population with virulence frequencies varying from 14.5 % to 96.6 %. Twenty-seven pathotypes were detected. Fifteen of them were found in both years and they represented 92.0 % of all isolates examined. No virulence was found on a further 16 major genes for resistance (Mla1, Mla3, Mla6, Mla7, Mla9, Mla10, Mla12, Mla13, Mla23, MlaN81, Mlh, MlLa, Mlp1, Ml(IM9), Ml(St) and mlo) indicating a relatively simple population and the ready availability of diverse sources of resistance. This paper reports the powdery mildew virulences present in Australia, provides intelligence for future resistance breeding and sets a basis for further virulence studies.

Editorial of "International Journal of Critical Indigenous Studies Volume 4, Number 1, 2011"

This special edition of the International Journal of Critical Indigenous Studies highlights the work of emerging scholars in the field of Indigenous Studies. The five featured authors were all finalists for the prize awarded by the Native American and Indigenous Studies Association (NAISA) to the best post-graduate student paper at the NAISA meeting held in 2010 in Tucson, Arizona. While the breadth of scholarship encompassed by the term ‘Indigenous Studies’ and the global representation of Indigenous peoples at NAISA mean that the topics and approaches vary widely, a common thematic of fraught post-colonial relations can be discerned within all five articles.

MACHAL [Mitnadvei Hutz LaAretz] and Aliyah Bet Records, undated, 1930-2011

The MACHAL, the acronym for “Mitnadvei Hutz LaAretz” ("Volunteers from Abroad"), consisted of about 3500 men and women from over 40 countries from a variety of social and religious backgrounds who volunteered to fight for the establishment of Israel. This collection is unique in that it deals specifically with the experience of MACHAL and Aliyah Bet volunteers from Canada and the United States and others living in the United States. The collections consists of files on 500 volunteers, over 2000 original and reproduction photographs, numerous audio-visual material, books, manuscripts, and memoirs.

Editorial of "International Journal of Critical Indigenous Studies Volume 4, Number 2, 2011"

This special edition of the International Journal of Critical Indigenous Studies focuses upon the work scholars within the growing discipline of Aboriginal and Torres Strait Islander health studies. The lamentable state of Indigenous health in Australia is reflected in Indigenous populations elsewhere, especially where settler colonialism has left an indelible mark. This special edition therefore speaks to where Indigenous health outcomes and the efficacy of remedies are causing concern. Common to all is the demand that Indigenous people are placed front and centre of all attempts to improve health outcomes and that improvements are sought in culturally sensitive ways. Terry Dunbar presents findings from a research study that set out to investigate the Indigenous experiences of health and family services in the Northern Territory, Australia. The study asserts that cultural security is an integral and vital element of any policy that will impact upon Indigenous peoples. Dunbar concludes by arguing that in seeking positive change with regard to cultural security or otherwise, the most vociferous champions of that change are likely to be the Aboriginal communities affected. The article by Bronwyn Fredericks, Karen Adams, Sandra Angus and Melissa Walker also highlights the need to involve Aboriginal and Torres Strait Islander people, in this case women, in the design and development of strategies affecting their lives. Utilising routine communication methods such the ‘talking circle’ and the process referred to as ‘talkin’ up’, where women ‘talk back’ to one another about issues of personal importance, the article argues that the health strategy which emerged through these consultation approaches was more accurately informed by and responsive to women’s health need. Indeed, the resulting strategy reflected the women’s sense of themselves and the clear direction they felt their health services and polices should take.