A creature of statute: Copyright law and legal formalism

This article argues that copyright law is not just a creature of statute, but it is also a social and imaginative contruct. It evaluates a number of critiques of legal formalism. Part 1 examines whether the positive rules and principles of copyright law are the product of historical contingency and political expediency. Part 2 considers the social operation of copyright law in terms of its material effects and cultural significance. Part 3 investigates the future of copyright law, in light of the politics of globalisation and the impact of new information technologies.

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.

Daubism: Copyright law and artistic works

An artistic controversy over a group of landscape painters called the Daubists provided impetus for copyright law reform in Australia in the early 1990's. In the first exhibition of Daubism in 1991 driller Jet Armstrong painted a crop circle over a painting of the Olgas by Charles Bannon - an artist, print-maker, and the father of the State Premier at the time, John Bannon. He called the resulting work, Crop Circles on a Bannon Landscape. Armstrong also inserted an inverted crucifix over a painting of the Flinders Ranges by Bannon, and renamed the work The Crop Circle Conspiracy Landscape. In response, Bannon took legal action against Armstrong in the Federal Court of Australia on the grounds of false attribution and defamation. He won an interlocutory injunction against Armstrong and the gallery, but then reached a settlement with the Daubists. An anonymous buyer purchased the work for $650 on the condition that it was returned to the painter. In his fight against the Daubists, Bannon received help and support from the National Association for the Visual Arts (NAVA). This professional group used the controversy to campaign for the reform of copyright law - in particular, the need for a moral rights regime. The artistic controversy over the Daubists was a catalyst for the introduction of the Copyright Amendment (Moral Rights) Act 2000 (Cth) in Australia. It offers an illuminating case study of the operation of copyright law in the visual arts.

Just label it: Consumer rights, GM food labelling, and international trade

In the United States, there has been fierce debate over state, federal and international efforts to engage in genetically modified food labelling (GM food labelling). A grassroots coalition of consumers, environmentalists, organic farmers, and the food movement has pushed for law reform in respect of GM food labelling. The Just Label It campaign has encouraged United States consumers to send comments to the United States Food and Drug Administration to label genetically modified foods. This Chapter explores the various justifications made in respect of genetically modified food labelling. There has been a considerable effort to portray the issue of GM food labelling as one of consumer rights as part of ‘the right to know’. There has been a significant battle amongst farmers over GM food labelling – with organic farmers and biotechnology companies, fighting for precedence. There has also been a significant discussion about the use of GM food labelling as a form of environmental legislation. The prescriptions in GM food labelling regulations may serve to promote eco-labelling, and deter greenwashing. There has been a significant debate over whether GM food labelling may serve to regulate corporations – particularly from the food, agriculture, and biotechnology industries. There are significant issues about the interaction between intellectual property laws – particularly in respect of trade mark law and consumer protection – and regulatory proposals focused upon biotechnology. There has been a lack of international harmonization in respect of GM food labelling. As such, there has been a major use of comparative arguments about regulator models in respect of food labelling. There has also been a discussion about international law, particularly with the emergence of sweeping regional trade proposals, such as the Trans-Pacific Partnership, and the Trans-Atlantic Trade and Investment Partnership. This Chapter considers the United States debates over genetically modified food labelling – at state, federal, and international levels. The battles often involved the use of citizen-initiated referenda. The policy conflicts have been policy-centric disputes – pitting organic farmers, consumers, and environmentalists against the food industry and biotechnology industry. Such battles have raised questions about consumer rights, public health, freedom of speech, and corporate rights. The disputes highlighted larger issues about lobbying, fund-raising, and political influence. The role of money in United States has been a prominent concern of Lawrence Lessig in his recent academic and policy work with the group, Rootstrikers. Part 1 considers the debate in California over Proposition 37. Part 2 explores other key state initiatives in respect of GM food labelling. Part 3 examines the Federal debate in the United States over GM food labelling. Part 4 explores whether regional trade agreements – such as the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Partnership (TTIP) – will impact upon

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.

Heritability of head motion during resting state functional MRI in 462 healthy twins

Head motion (HM) is a critical confounding factor in functional MRI. Here we investigate whether HM during resting state functional MRI (RS-fMRI) is influenced by genetic factors in a sample of 462 twins (65% fema≤ 101 MZ (monozygotic) and 130 DZ (dizygotic) twin pairs; mean age: 21 (SD=3.16), range 16-29). Heritability estimates for three HM components-mean translation (MT), maximum translation (MAXT) and mean rotation (MR)-ranged from 37 to 51%. We detected a significant common genetic influence on HM variability, with about two-thirds (genetic correlations range 0.76-1.00) of the variance shared between MR, MT and MAXT. A composite metric (HM-PC1), which aggregated these three, was also moderately heritable (h2=42%). Using a sub-sample (N=35) of the twins we confirmed that mean and maximum translational and rotational motions were consistent "traits" over repeated scans (r=0.53-0.59); reliability was even higher for the composite metric (r=0.66). In addition, phenotypic and cross-trait cross-twin correlations between HM and resting state functional connectivities (RS-FCs) with Brodmann areas (BA) 44 and 45, in which RS-FCs were found to be moderately heritable (BA44: h2-=0.23 (sd=0.041), BA45: h2-=0.26 (sd=0.061)), indicated that HM might not represent a major bias in genetic studies using FCs. Even so, the HM effect on FC was not completely eliminated after regression. HM may be a valuable endophenotype whose relationship with brain disorders remains to be elucidated.

A functional MRI study of the relationship between naming treatment outcomes and resting state functional connectivity in post-stroke aphasia

Background: The majority of studies investigating the neural mechanisms underlying treatment in people with aphasia have examined task-based brain activity. However, the use of resting-state fMRI may provide another method of examining the brain mechanisms responsible for treatment-induced recovery, and allows for investigation into connectivity within complex functional networks Methods: Eight people with aphasia underwent 12 treatment sessions that aimed to improve object naming. Half the sessions employed a phonologically-based task, and half the sessions employed a semantic-based task, with resting-state fMRI conducted pre- and post-treatment. Brain regions in which the amplitude of low frequency fluctuations (ALFF) correlated with treatment outcomes were used as seeds for functional connectivity (FC) analysis. FC maps were compared from pre- to post-treatment, as well as with a group of 12 healthy older controls Results: Pre-treatment ALFF in the right middle temporal gyrus (MTG) correlated with greater outcomes for the phonological treatment, with a shift to the left MTG and supramarginal gyrus, as well as the right inferior frontal gyrus, post-treatment. When compared to controls, participants with aphasia showed both normalization and up-regulation of connectivity within language networks post-treatment, predominantly in the left hemisphere Conclusions: The results provide preliminary evidence that treatments for naming impairments affect the FC of language networks, and may aid in understanding the neural mechanisms underlying the rehabilitation of language post-stroke.

Real-time traffic state estimation in urban corridors from heterogeneous data

In recent years, rapid advances in information technology have led to various data collection systems which are enriching the sources of empirical data for use in transport systems. Currently, traffic data are collected through various sensors including loop detectors, probe vehicles, cell-phones, Bluetooth, video cameras, remote sensing and public transport smart cards. It has been argued that combining the complementary information from multiple sources will generally result in better accuracy, increased robustness and reduced ambiguity. Despite the fact that there have been substantial advances in data assimilation techniques to reconstruct and predict the traffic state from multiple data sources, such methods are generally data-driven and do not fully utilize the power of traffic models. Furthermore, the existing methods are still limited to freeway networks and are not yet applicable in the urban context due to the enhanced complexity of the flow behavior. The main traffic phenomena on urban links are generally caused by the boundary conditions at intersections, un-signalized or signalized, at which the switching of the traffic lights and the turning maneuvers of the road users lead to shock-wave phenomena that propagate upstream of the intersections. This paper develops a new model-based methodology to build up a real-time traffic prediction model for arterial corridors using data from multiple sources, particularly from loop detectors and partial observations from Bluetooth and GPS devices.

State of Education for Energy Efficiency in Australian Engineering Education - Summary of Questionnaire Results

In 2007 the National Framework for Energy Efficiency provided funding for the first survey of energy efficiency education across all Australian universities teaching engineering education. The survey asked the question, ‘What is the state of education for energy efficiency in Australian engineering education?’. There was an excellent response to the survey, with 48 course responses from lecturers across 27 universities from every state and territory in Australia, and 260 student responses from 18 courses across 8 universities from all 6 states. It is concluded from the survey findings that the state of education for energy efficiency in Australian engineering education is currently highly variable and ad hoc across universities and engineering disciplines.

Environmental Crime and Specialist Courts: The case for a ‘One-Stop (Judicial) Shop’ in Queensland

The increasing international political, public and scientific engagement in matters of environmental sustainability and development has produced a rapidly expanding body of environmental law and policy. The advent of international protocols, directives, and multilateral agreements has occurred concomitantly with the harmonisation of widespread environmental regimes of governance and enforcement within numerous domestic settings. This has created an unprecedented need for environmental legal apparatuses to manage, regulate and adjudicate legislation seeking to protect, sustain and develop global natural habitats. The evolving literature in green criminology continues to explore these developments within discourses of power, harm and justice. Such critiques have emphasised the role of dedicated environmental courts to address environmental crimes and injustices. In this article, we examine the important role of specialist courts in responding to environmental crime, with specific reference to the State of Queensland. We offer a critique of existing processes and practices for the adjudication of environmental crime and propose new jurisdictional and procedural approaches for enhancing justice. We conclude that specialist environmental courts endowed with broad civil and criminal jurisdiction are an integral part of an effective response to environmental crime.

The Pirate Bazaar: The Social Life of Copyright Law

This thesis provides a cultural history of Australian copyright law and related artistic controversies. It examines a number of disputes over authorship, collaboration, and appropriation across a variety of cultural fields. It considers legal controversies over the plagiarism of texts, the defacing of paintings, the sampling of musical works, the ownership of plays, the co-operation between film-makers, the sharing of MP3 files on the Internet, and the appropriation of Indigenous culture. Such narratives and stories relate to a broad range of works and subject matter that are protected by copyright law. This study offers an archive of oral histories and narratives of artistic creators about copyright law. It is founded upon interviews with creative artists and activists who have been involved in copyright litigation and policy disputes. This dialogical research provides an insight into the material and social effects of copyright law. This thesis concludes that copyright law is not just a ‘creature of statute’, but it is also a social and imaginative construct. In the lived experience of the law, questions of aesthetics and ethics are extremely important. Industry agreements are quite influential. Contracts play an important part in the operation of copyright law. The media profile of personalities involved in litigation and policy debates is pertinent. This thesis claims that copyright law can be explained by a mix of social factors such as ethical standards, legal regulations, market forces, and computer code. It can also be understood in terms of the personal stories and narratives that people tell about litigation and copyright law reform. Table of Contents Prologue 1 Introduction A Creature of Statute: Copyright Law and Legal Formalism 6 Chapter One The Demidenko Affair: Copyright Law and Literary Works 33 Chapter Two Daubism: Copyright Law and Artistic Works 67 Chapter Three The ABCs of Anarchism: Copyright Law and Musical Works 105 Chapter Four Heretic: Copyright Law and Dramatic Works 146 Chapter Five Shine: Copyright Law and Film 186 Chapter Six Napster: Infinite Digital Jukebox or Pirate Bazaar? Copyright Law and Digital Works 232 Chapter Seven Bangarra Dance Theatre: Copyright Law and Indigenous Culture 275 Chapter Eight The Cathedral and the Bazaar: The Future of Copyright Law 319

A Submission to the Inquiry into the Resale Royalty Right for Visual Artists Bill 2008 (Cth)

A right of resale, or droit de suite (a right to follow), is a legislative instrument under intellectual property law, which enables artists to receive a percentage of the sale price whenever artistic works are resold. A French legal scholar, Albert Vaunois, first articulated the need for a 'droit de suite' in connection with fine art back in 1893. The French Government introduced a scheme to protect the right of resale in 1920, after controversy over artists living in poverty, while public auction houses were profiting from the resale of their artistic creations. In the United States, there has been less support for a right of resale amongst legislatures. After lobbying from artists such as the king of pop art, Robert Rauschenberg, the state of California passed the Resale Royalties Act in 1977. At a Federal level, the United States Congress has shown some reluctance in providing national recognition for a right of resale in the United States. A number of other European countries have established a right of resale. In 2001, the European Council adopted the Artists' Resale directive and recognised that the 'artist's resale right forms an integral part of copyright and is an essential prerogative for authors.' In 2006, the United Kingdom promulgated regulations, giving effect to a right of resale in that jurisdiction. However, a number of Latin American and African countries have established a right of resale. The New Zealand Parliament has debated a bill on a right of resale.

Access to essential medicines: Public health and international law

Historically, there have been intense conflicts over the ownership and exploitation of pharmaceutical drugs and diagnostic tests dealing with infectious diseases. Throughout the 1980’s, there was much scientific, legal, and ethical debate about which scientific group should be credited with the discovery of the human immunodeficiency virus, and the invention of the blood test devised to detect antibodies to the virus. In May 1983, Luc Montagnier, Françoise Barré-Sinoussi, and other French scientists from the Pasteur Institute in Paris, published a paper in Science, detailing the discovery of a virus called lymphadenopathy (LAV). A scientific rival, Robert Gallo of the National Cancer Institute, identified the AIDS virus and published his findings in the May 1984 issue of Science. In May 1985, the United States Patent and Trademark Office awarded the American patent for the AIDS blood test to Gallo and the Department of Health and Human Services. In December 1985, the Institut Pasteur sued the Department of Health and Human Services, contending that the French were the first to identify the AIDS virus and to invent the antibody test, and that the American test was dependent upon the French research. In March 1987, an agreement was brokered by President Ronald Reagan and French Prime Minister Jacques Chirac, which resulted in the Department of Health and Human Services and the Institut Pasteur sharing the patent rights to the blood test for AIDS. In 1992, the Federal Office of Research Integrity found that Gallo had committed scientific misconduct, by falsely reporting facts in his 1984 scientific paper. A subsequent investigation by the National Institutes of Health, the United States Congress, and the US attorney-general cleared Gallo of any wrongdoing. In 1994, the United States government and French government renegotiated their agreement regarding the AIDS blood test patent, in order to make the distribution of royalties more equitable... The dispute between Luc Montagnier and Robert Gallo was not an isolated case of scientific rivalry and patent races. It foreshadowed further patent conflicts over research in respect of HIV/AIDS. Michael Kirby, former Justice of the High Court of Australia diagnosed a clash between two distinct schools of philosophy - ‘scientists of the old school... working by serendipity with free sharing of knowledge and research’, and ‘those of the new school who saw the hope of progress as lying in huge investments in scientific experimentation.’ Indeed, the patent race between Robert Gallo and Luc Montagnier has been a precursor to broader trade disputes over access to essential medicines in the 1990s and 2000s. The dispute between Robert Gallo and Luc Montagnier captures in microcosm a number of themes of this book: the fierce competition for intellectual property rights; the clash between sovereign states over access to medicines; the pressing need to defend human rights, particularly the right to health; and the need for new incentives for research and development to combat infectious diseases as both an international and domestic issue.