Beyond blue gene: Intellectual property and bioinformatics

This article considers the challenges posed to intellectual property law by the emerging field of bioinformatics. It examines the intellectual property strategies of established biotechnology companies, such as Celera Genomics, and information technology firms entering into the marketplace, such as IBM. First this paper argues that copyright law is not irrelevant to biotechnology, as some commentators would suggest. It claims that the use of copyright law and contract law is fundamental to the protection of biomedical and genomic databases. Second this article questions whether biotechnology companies are exclusively interested in patenting genes and genetics sequences. Recent evidence suggests that biotechnology companies and IT firms are patenting bioinformatics software and Internet business methods, as well as underlying instrumentation such as microarrays and genechips. Finally, this paper evaluates what impact the privatisation of bioinformatics will have on public research and scientific communication. It raises important questions about integration, interoperability, and the risks of monopoly. It finally considers whether open source software such as the Ensembl Project and peer to peer technology like DSAS will be able to counter this trend of privatisation.

Breakfast at Tiffany's': eBay Inc., trade mark law, and counterfeiting

In an exploration of intellectual property and fashion, this article examines the question of the intermediary liability of online auction-houses for counterfeiting. In the United States, the illustrious jewellery store, Tiffany & Co, brought a legal action against eBay Inc, alleging direct trademark infringement, contributory trademark infringement, false advertising, unfair competition and trademark dilution. The luxury store depicted the online auction-house as a pirate bazaar, a flea-market and a haven for counterfeiting. During epic litigation, eBay Inc successfully defended itself against these allegations in a United States District Court and the United States Court of Appeals for the Second Circuit. Tiffany & Co made a desperate, unsuccessful effort to appeal the matter to the Supreme Court of the United States. The matter featured a number of interventions from amicus curiae — Tiffany was supported by Coty, the Fashion Designer's Guild, and the International Anticounterfeiting Coalition, while eBay was defended by publicly-spirited civil society groups such as Electronic Frontier Foundation, Public Citizen, and Public Knowledge as well as Yahoo!, Google Inc, Amazon.com, and associations representing telecommunications carriers and internet service providers. The litigation in the United States can be counterpointed with the fusillade of legal action against eBay in the European Union. In contrast to Tiffany & Co, Louis Vuitton triumphed over eBay in the French courts — claiming its victory as vindication of the need to protect the commercial interests and cultural heritage of France. However, eBay has fared somewhat better in a dispute with L’Oréal in Great Britain and the European Court of Justice. It is argued that, in a time of flux and uncertainty, Australia should follow the position of the United States courts in Tiffany & Co v eBay Inc. The final part examines the ramifications of this litigation over online auction-houses for trade mark law reform and consumer rights; parallel disputes over intermediary liability and safe harbours in the field of copyright law and the Anti-Counterfeiting Trade Agreement 2010. The conclusion calls for a revision of trade mark law, animated by a respect for consumers’ rights and interests in the electronic marketplace.

Heretic: Copyright law and dramatic works

The production of the play Heretic in 1996 prompted a debate over copyright and the dramatic arts in Australia. The playwright David Williamson argued that the role of the writer was supreme. Although he was willing to acknowledge the contributions of other collaborators, the playwright did not believe that these interpreters deserved copyright protection. The director Wayne Harrison advocated a more collaborative vision of the performing arts. He believed that the role of the director and the position of the producer deserved greater legal recognition. Furthermore he was also willing to countenance limited rights for performers. This article argues that recognition should be accorded to all of the main collaborators in the performing arts. It contends that economic rights and moral rights should not be just limited to the writer, the director, and the producer, but they should extend to the performers and the designers.

Japonica rice: Intellectual property, scientific publishing and data-sharing

This article examines a series of controversies within the life sciences over data sharing. Part 1 focuses upon the agricultural biotechnology firm Syngenta publishing data on the rice genome in the journal Science, and considers proposals to reform scientific publishing and funding to encourage data sharing. Part 2 examines the relationship between intellectual property rights and scientific publishing, in particular copyright protection of databases, and evaluates the declaration of the Human Genome Organisation that genomic databases should be global public goods. Part 3 looks at varying opinions on the information function of patent law, and then considers the proposals of Patrinos and Drell to provide incentives for private corporations to release data into the public domain.

Lock the gate: Fracking, investor-state dispute settlement, and the Trans-Pacific Partnership

There has been much debate about the relationship between international trade, the environment, biodiversity protection, and climate change.The Obama Administration has pushed such issues into sharp relief, with its advocacy for sweeping international trade agreements, such as the Trans-Pacific Partnership and the Trans-Atlantic Trade and Investment Partnership. There has been much public concern about the impact of the mega-trade deals upon the protection of the environment. In particular, there has been a debate about whether the Trans-Pacific Partnership will promote dirty fracking. Will the Trans-Pacific Partnership transform the Pacific Rim into a Gasland?There has been a particular focus upon investor-state dispute settlement being used by unconventional mining companies. Investor-state dispute settlement is a mechanism which enables foreign investors to seek compensation from national governments at international arbitration tribunals. In her prescient 2009 book, The Expropriation of Environmental Governance, Kyla Tienhaara foresaw the rise of investor-state dispute resolution of environmental matters. She observed:'Over the last decade there has been an explosive increase of cases investment arbitration. This is significant in terms of not only the number of disputes that have arisen and the number of states that have been involved, but also the novel types of dispute that have emerged. Rather than solely involving straightforward incidences of nationalization or breach of contract, modern disputes often revolve around public policy measures and implicate sensitive issues such as access to drinking water, development on sacred indigenous sites and the protection of biodiversity.'In her study, Kyla Tienhaara observed that investment agreements, foreign investment contracts and investment arbitration had significant implications for the protection for the protection of the environment. She concluded that arbitrators have made it clear that they can, and will, award compensation to investors that claim to have been harmed by environmental regulation. She also found that some of the cases suggest that the mere threat of arbitration is sufficient to chill environmental policy development. Tienhaara was equally concerned by the possibility that a government may use the threat of arbitration as an excuse or cover for its failure to improve environmental regulation. In her view, it is evident that arbitrators have expropriated certain fundamental aspects of environmental governance from states. Tienhaara held: As a result, environmental regulation has become riskier, more expensive, and less democratic, especially in developing countries. This article provides a comparative analysis of the battles over fracking, investment, trade, and the environment in a number of key jurisdictions including the United States, Canada, Australia, and New Zealand. Part 1 focuses upon the United States. Part 2 examines the dispute between the Lone Pine Resources Inc. and the Government of Canada over a fracking moratorium in Quebec. Part 3 charts the rise of the Lock the Gate Alliance in Australia, and its demands for a moratorium in respect of coal seam gas and unconventional mining. Part 4 focuses upon parallel developments in New Zealand. This article concludes that Pacific Rim countries should withdraw from investor-state dispute settlement procedures, because of the threat posed to environmental regulation in respect of air, land, and water.

Rip, mix, burn: The politics of peer to peer and copyright law

Whereas Lessig's recent work engages with questions of culture and creativity in society, this paper looks at the role of culture and creativity in the law. The paper evaluates the Napster, DeCSS, Felten and Sklyarov litigation in terms of the new social, legal, economic and cultural relations being produced. This involves a deep discussion of law's economic relations, and the implications of this for litigation strategy. The paper concludes with a critique of recent attempts to define copyright law in terms of first amendment rights and communicative freedom.

The culture wars of climate change

Of late, there has been a growth in cultural expression about climate change – with the rise of climate fiction (‘cli-fi’); art and photography responding to changes in nature; musical anthems about climate change; plays and dramas about climate change; and environmental documentaries, and climate cinema. Drawing comparisons to past controversies over cultural funding, this paper considers the cultural wars over climate change. This article considers a number of cultural fields. Margaret Atwood made an important creative and critical contribution to the debate over climate change. The work examines Ian McEwan's novel, Solar, a tragi-comedy about authorship, invention, intellectual property, and climate science. After writing a history of Merchants of Doubt, Naomi Oreskes and Erik Conway have experimented with fiction – as well as history. This article focuses upon artistic works about climate change. It analyses James Balog’s work with the Extreme Ice Survey, which involved photography of glaciers under retreat in a warming world. The work was turned into a documentary called Chasing Ice. It also considers the artistic project of 350.org 'to transform the human rights and environmental issues connected to climate change into powerful art that gets people to stop, think and act.' The paper examines musical storytelling in respect of climate change. The paper explores dramatic works about climate change including Steve Waters' The Contingency Plan, Stephen Emmott's Ten Billion, and Andrew Bovell's When the Rain Stops Falling and Hannie Rayson’s Extinction. The paper also examines the role of documentary film-making. It also considers the cinematographic film, Beasts of the Southern Wild. Such a survey will enable a consideration of the larger question of whether creative art about climate change matters; and whether it is deserving of public funding.

The dead poets society: The copyright term and the public domain

In a victory for corporate control of cultural heritage, the Supreme Court of the United States has rejected a constitutional challenge to the Sonny Bono Copyright Term Extension Act 1998 (U.S.) by a majority of seven to two. This paper evaluates the litigation in terms of policy debate in a number of discourses — history, intellectual property law, constitutional law and freedom of speech, cultural heritage, economics and competition policy, and international trade. It argues that the extension of the copyright term will inhibit the dissemination of cultural works through the use of new technologies — such as Eric Eldred's Eldritch Press and Project Gutenberg. It concludes that there is a need to resist the attempts of copyright owners to establish the Sonny Bono Copyright Term Extension Act 1998 (U.S.) as an international model for other jurisdictions — such as Australia.

The genographic project: Traditional knowledge and population genetics

This article considers the debate over patent law, informed consent, and benefit-sharing in the context of biomedical research in respect of Indigenous communities. In particular, it focuses upon three key controversies over large-scale biology projects, involving Indigenous populations. These case studies are representative of the tensions between research organisations, Indigenous communities, and funding agencies. Section two considers the aims and origins of the Human Genome Diversity Project, and criticisms levelled against the venture by Indigenous peak bodies and anti-biotechnology groups, such as the Rural Advancement Foundation International. It examines the ways in which the United Nations Educational, Scientific, and Cultural Organization (UNESCO) grappled with questions of patent law, informed consent, and benefit sharing in relation to population genetics. Section three focuses upon the ongoing litigation in Tilousi v. Arizona State University, and the Havasupai Tribe v. Arizona State University. In this matter, the Havasupai tribe from the Grand Canyon in the United States brought legal action against the Arizona State University and its researchers for using genetic data for unauthorised purposes - namely, genetic research into schizophrenia, migration, and inbreeding. The litigation raises questions about informed consent, negligence, and larger matters of human rights. Section four explores the legal and ethical issues raised by the Genographic Project. It considers the aims and objectives of the venture, and the criticisms levelled against it by Indigenous communities, and anti-biotechnology groups. It examines the response of the United Nations Permanent Forum on Indigenous Issues to the Genographic Project. It charts the debate over the protection of traditional knowledge in various international fora. The conclusion recommends a number of measures to better regulate large-scale biology projects involving the participation of Indigenous communities.

Determining the drivers of m-banking adoption: A cross cultural study

This study empirically examines the motivators that influence a consumer’s intentions to use mobile banking. A web-based survey was employed to collect data from 348 respondents, split across Thailand and Australia. Data were analysed by employing exploratory and confirmatory factor analyses, path and invariance analyses. The findings indicate that for Australian consumers, perceived ease of use, perceived usefulness and perceived risk were the primary determinants of mobile banking adoption. For Thai consumers, the main factors were perceived usefulness, perceived risk and social influence. National culture was found to impact key antecedents that lead to adoption of m-banking. Interestingly, the actual variance explained by this study’s model was higher in Australia than for Thailand, suggesting future research of m-banking adoption in emerging Asian cultures. The findings of this research give banking organisations a foundational model that can be used to support m-banking implementation. This study is perhaps the first to examine and compare the intention to adopt m-banking across Thai and Australian consumers, and responds to calls for additional research that generalises m-banking and m-services acceptance across cultures. This study has proposed and validated additional constructs that are not present in the original SST Intention to Use model.

Maintaining our rage: Inside Australia's longest-running music video program

This research presents an insider's account of rage, Australia's longest-running music video program. The research's significance is that there has been scarce scholarly analysis of this idiosyncratic ABC program, despite its longevity and uniqueness. The thesis takes a reflective and reflexive narrative journey across rage's decades, presenting the accounts of the program makers, aided by the perspective of an embedded researcher, the program's former Series Producer. This work addresses the rage research gap and contributes to the scholarly discussion on music video and its contexts, the ABC, public service broadcasting, creative labour, and the cultural sense-making of television producers.

Copyright and creativity: An ongoing debate in the creative industries

This paper critically analyzes the divergent perspectives on how copyright and intellectual property laws impact creativity, innovation, and the creative industries. One perspective defines the creative industries based on copyright as the means by which revenues are generated from innovation and the dissemination of new ideas. At the same time, it has been argued that copyright and intellectual property regimes fetter creativity and innovation, and that this has become even more marked in the context of digital media convergence and the networked global creative economy. These issues have resonated in debates around the creative industries, particularly since the initial DCMS mapping study in the UK in 1998 defined creative industries as combining individual creativity and exploitable forms of intellectual property. The issue of competing claims for the relationship between copyright and the creative industries has also arisen in Australia, with a report by the Australian Law Reform Commission entitled Copyright and the Digital Economy. This paper will consider the competing claims surrounding copyright and the creative industries, and the implications for policy-makers internationally.

A life cycle assessment approach to quantifying greenhouse gas emissions from land-use change for beef production in eastern Australia

In life cycle assessment studies, greenhouse gas (GHG) emissions from direct land-use change have been estimated to make a significant contribution to the global warming potential of agricultural products. However, these estimates have a high uncertainty due to the complexity of data requirements and difficulty in attribution of land-use change. This paper presents estimates of GHG emissions from direct land-use change from native woodland to grazing land for two beef production regions in eastern Australia, which were the subject of a multi-impact life cycle assessment study for premium beef production. Spatially- and temporally consistent datasets were derived for areas of forest cover and biomass carbon stocks using published remotely sensed tree-cover data and regionally applicable allometric equations consistent with Australia's national GHG inventory report. Standard life cycle assessment methodology was used to estimate GHG emissions and removals from direct land-use change attributed to beef production. For the northern-central New South Wales region of Australia estimates ranged from a net emission of 0.03 t CO2-e ha-1 year-1 to net removal of 0.12 t CO2-e ha-1 year-1 using low and high scenarios, respectively, for sequestration in regrowing forests. For the same period (1990-2010), the study region in southern-central Queensland was estimated to have net emissions from land-use change in the range of 0.45-0.25 t CO2-e ha-1 year-1. The difference between regions reflects continuation of higher rates of deforestation in Queensland until strict regulation in 2006 whereas native vegetation protection laws were introduced earlier in New South Wales. On the basis of liveweight produced at the farm-gate, emissions from direct land-use change for 1990-2010 were comparable in magnitude to those from other on-farm sources, which were dominated by enteric methane. However, calculation of land-use change impacts for the Queensland region for a period starting 2006, gave a range from net emissions of 0.11 t CO2-e ha-1 year-1 to net removals of 0.07 t CO2-e ha-1 year-1. This study demonstrated a method for deriving spatially- and temporally consistent datasets to improve estimates for direct land-use change impacts in life cycle assessment. It identified areas of uncertainty, including rates of sequestration in woody regrowth and impacts of land-use change on soil carbon stocks in grazed woodlands, but also showed the potential for direct land-use change to represent a net sink for GHG.

Intellectual Property and Biotechnology: Biological Inventions

This book documents and evaluates the dramatic expansion of intellectual property law to accommodate various forms of biotechnology from micro-organisms, plants, and animals to human genes and stem cells. It makes a unique theoretical contribution to the controversial public debate over the commercialization of biological inventions. The author also considers the contradictions between the Supreme Court of Canada rulings in respect of the Harvard oncomouse, and genetically modified canola. He explores law, policy, and practice in both Australia and New Zealand in respect to gene patents and non-coding DNA. This study charts the rebellion against the European Union Biotechnology Directive – particularly in respect of Myriad Genetics’ BRCA1 and BRCA2 patents, and stem cell patent applications. The book also considers whether patent law will accommodate frontier technologies – such as bioinformatics, haplotype mapping, proteomics, pharmacogenomics, and nanotechnology. Intellectual Property and Biotechnology will be of prime interest to lawyers and patent attorneys, scientists and researchers, business managers and technology transfer specialists.

Digital copyright and the consumer revolution: Hands off my iPod

This book documents and evaluates the growing consumer revolution against digital copyright law, and makes a unique theoretical contribution to the debate surrounding this issue. With a focus on recent US copyright law, the book charts the consumer rebellion against the Sonny Bono Copyright Term Extension Act 1998 (US) and the Digital Millennium Copyright Act 1998 (US). The author explores the significance of key judicial rulings and considers legal controversies over new technologies, such as the iPod, TiVo, Sony Playstation II, Google Book Search, and peer-to-peer networks. The book also highlights cultural developments, such as the emergence of digital sampling and mash-ups, the construction of the BBC Creative Archive, and the evolution of the Creative Commons. Digital Copyright and the Consumer Revolution will be of prime interest to academics, law students and lawyers interested in the ramifications of copyright law, as well as policymakers given its focus upon recent legislative developments and reform proposals. The book will also appeal to librarians, information managers, creative artists, consumers, technology developers, and other users of copyright material.