The road to Copenhagen: Intellectual property and climate change

In the lead-up to the discussions over IP and climate change in Copenhagen in 2009, the US House of Representatives passed a resolution that it should be the policy of US government officials in discussions over the long-term action under the United Nations Framework on Climate Change to ‘prevent any weakening of, and ensure robust compliance with and enforcement of, existing international legal requirements as of the date of the enactment of this Act for the protection of IP rights related to energy or environmental technology’.

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.

An agreement to negotiate a contract in good faith: No legal content and too uncertain for enforcement

The decision of Baldwin v Icon Energy Ltd [2015] QSC 12 is generally instructive upon the issue of the minimum required to enforce an agreement to negotiate .The language of these agreements is always couched in terms which include the expressions “good faith” and “reasonable endeavours” as descriptive of the yardstick of behaviour of each party in the intended negotiation to follow such an agreement. However, the mere statement of these intended characteristics of negotiation may not be sufficient to ensure that the agreement to negotiate is enforceable.

Submission to ALRC IP 46 – Interim Report 127

In Chapter 6 of IP46, vested property rights are recognised to include “copyright and other intellectual property rights”. For the purposes of the Inquiry “the ALRC [identified it was to consider] ‘vested property rights’ more in its broad, rhetorical sense, than in its technical sense, in which there are distinct shades of meaning of ‘vested’”. However, the Interim Report states that any ‘vested right’ of users of copyright works “has not been identified yet in law”. It is assumed from this that the ALRC is proposing not to further consider the contracting out of the fair dealing exceptions. In light of its prior stated purpose it is submitted this is not appropriate...

Sleepy driving and drink driving: attitudes, behaviours, and perceived legitimacy of enforcement of younger and older drivers

Sleepy driving and drink driving are two risky driving behaviours that substantially contribute to road crashes. Several studies demonstrate equivalent levels of impairment from both sleepy and drink driving. Yet, drivers perceive sleepy and drink driving distinctly different, with younger and older drivers engaging in these two risky driving behaviours at different rates. The current study sought to examine the sleepy and drink driving behaviours and perceptions in a sample of 114 younger (17-29 years) and 177 older (30+ years) drivers. Compared to older drivers, younger drivers reported more positive attitudes toward sleepy and drink driving behaviours, as well as more negative views regarding perceived legitimacy of sleepy driving enforcement. Younger drivers were also more likely to report performing sleepy driving behaviours than older drivers. Younger drivers reported greater likelihood to drive while sleepy, lower perceptions of legitimacy for sleepy driving, and more positive attitudes towards sleepy driving when compared to drink driving and the same pattern was found for older drivers as well. Subsequently, the self-reported likelihood of driving while sleepy was greater than drink driving in both age groups. Overall, the results suggest that sleepy driving is not viewed as equally dangerous as drink driving with younger drivers’ perceptions being more lenient than older drivers’ perceptions. It is likely that change is needed regarding the perceptions of dangerousness of sleepy driving with a particular focus on younger drivers seemingly needed.

Recognition and enforcement in cross-border insolvency law: A proposal for judicial gap-filling

This Article analyzes the recognition and enforcement of cross-border insolvency judgments from the United States, United Kingdom, and Australia to determine whether the UNCITRAL Model Law’s goal of modified universalism is currently being practiced, and subjects the Model Law to analysis through the lens of international relations theories to elaborate a way forward. We posit that courts could use the express language of the Model Law text to confer recognition and enforcement of foreign insolvency judgments. The adoption of our proposal will reduce costs, maximize recovery for creditors, and ensure predictability for all parties.

Uncertainty in length measurements of live coral trout: implications for compliance and enforcement of minimum legal size limits.

Report on evidence of shrinkage of live coral trout during professional fishing operations on the Great Barrier Reef in 2000. Excel data includes the following fields: Column A. Fish (fish number from 1 -24) Column B. Bin (1-8, container the fish was held in during the experiment) Column C. Measure (1-7, number of the measurement of each fish) Column D. Observer (1 or 2, making the measurement) Column E. Time 2 Column F. Time (time of the day the measurement was made) Column G. FL (Fork Length) Column H. TL (Total Length) Column I. Difference (difference in length between measures) Column J. Order Column K. Temperature (surface water temp under the boat)

IP Mobility in Wireless Operator Networks

Wireless network access is gaining increased heterogeneity in terms of the types of IP capable access technologies. The access network heterogeneity is an outcome of incremental and evolutionary approach of building new infrastructure. The recent success of multi-radio terminals drives both building a new infrastructure and implicit deployment of heterogeneous access networks. Typically there is no economical reason to replace the existing infrastructure when building a new one. The gradual migration phase usually takes several years. IP-based mobility across different access networks may involve both horizontal and vertical handovers. Depending on the networking environment, the mobile terminal may be attached to the network through multiple access technologies. Consequently, the terminal may send and receive packets through multiple networks simultaneously. This dissertation addresses the introduction of IP Mobility paradigm into the existing mobile operator network infrastructure that have not originally been designed for multi-access and IP Mobility. We propose a model for the future wireless networking and roaming architecture that does not require revolutionary technology changes and can be deployed without unnecessary complexity. The model proposes a clear separation of operator roles: (i) access operator, (ii) service operator, and (iii) inter-connection and roaming provider. The separation allows each type of an operator to have their own development path and business models without artificial bindings with each other. We also propose minimum requirements for the new model. We present the state of the art of IP Mobility. We also present results of standardization efforts in IP-based wireless architectures. Finally, we present experimentation results of IP-level mobility in various wireless operator deployments.

Analysis of Heterogeneous IP Traffic in Wireless Environment

Wireless access is expected to play a crucial role in the future of the Internet. The demands of the wireless environment are not always compatible with the assumptions that were made on the era of the wired links. At the same time, new services that take advantage of the advances in many areas of technology are invented. These services include delivery of mass media like television and radio, Internet phone calls, and video conferencing. The network must be able to deliver these services with acceptable performance and quality to the end user. This thesis presents an experimental study to measure the performance of bulk data TCP transfers, streaming audio flows, and HTTP transfers which compete the limited bandwidth of the GPRS/UMTS-like wireless link. The wireless link characteristics are modeled with a wireless network emulator. We analyze how different competing workload types behave with regular TPC and how the active queue management, the Differentiated services (DiffServ), and a combination of TCP enhancements affect the performance and the quality of service. We test on four link types including an error-free link and the links with different Automatic Repeat reQuest (ARQ) persistency. The analysis consists of comparing the resulting performance in different configurations based on defined metrics. We observed that DiffServ and Random Early Detection (RED) with Explicit Congestion Notification (ECN) are useful, and in some conditions necessary, for quality of service and fairness because a long queuing delay and congestion related packet losses cause problems without DiffServ and RED. However, we observed situations, where there is still room for significant improvements if the link-level is aware of the quality of service. Only very error-prone link diminishes the benefits to nil. The combination of TCP enhancements improves performance. These include initial window of four, Control Block Interdependence (CBI) and Forward RTO recovery (F-RTO). The initial window of four helps a later starting TCP flow to start faster but generates congestion under some conditions. CBI prevents slow-start overshoot and balances slow start in the presence of error drops, and F-RTO reduces unnecessary retransmissions successfully.

The influence of the elements of procedural justice and speed camera enforcement on young novice driver self-reported speeding

Road policing is an important tool used to modify road user behaviour. While other theories, such as deterrence theory, are significant in road policing, there may be a role for using procedural justice as a framework to improve outcomes in common police citizen interactions such as traffic law enforcement. This study, using a sample of 237 young novice drivers, considered how the four elements of procedural justice (voice, neutrality, respect and trustworthiness) were perceived in relation to two forms of speed enforcement: point-to-point (or average) speed and mobile speed cameras. Only neutrality was related to both speed camera types suggesting that it may be possible to influence behaviour by emphasising one or more elements, rather than using all components of procedural justice. This study is important as it indicates that including at least some elements of procedural justice in more automated policing encounters can encourage citizen compliance.

Young driver perceptions of police traffic enforcement and self reported driving offences

Purpose Road policing is a key method used to improve driver compliance with road laws. However, we have a very limited understanding of the perceptions of young drivers regarding police enforcement of road laws. This paper addresses this gap. Design/Methodology/Approach Within this study 238 young drivers from Queensland, Australia, aged 17-24 years (M = 18, SD = 1.54), with a provisional (intermediate) driver’s licence completed an online survey regarding their perceptions of police enforcement and their driver thrill seeking tendencies. This study considered whether these factors influenced self-reported transient (e.g., travelling speed) and fixed (e.g., blood alcohol concentration) road violations by the young drivers. Findings The results indicate that being detected by police for a traffic offence, and the frequency with which they display P-plates on their vehicle to indicate their licence status, are associated with both self-reported transient and fixed rule violations. Licence type, police avoidance behaviours and driver thrill seeking affected transient rule violations only, while perceptions of police enforcement affected fixed rule violations only. Practical implications This study suggests that police enforcement of young driver violations of traffic laws may not be as effective as expected and that we need to improve the way in which police enforce road laws for young novice drivers. Originality/value: This paper identifies that perceptions of police enforcement by young drivers does not influence all types of road offences.

Personal health data - Privacy policy harmonization and global enforcement

This workshop is jointly organized by EFMI Working Groups Security, Safety and Ethics and Personal Portable Devices in cooperation with IMIA Working Group "Security in Health Information Systems". In contemporary healthcare and personal health management the collection and use of personal health information takes place in different contexts and jurisdictions. Global use of health data is also expanding. The approach taken by different experts, health service providers, data subjects and secondary users in understanding privacy and the privacy expectations others may have is strongly context dependent. To make eHealth, global healthcare, mHealth and personal health management successful and to enable fair secondary use of personal health data, it is necessary to find a practical and functional balance between privacy expectations of stakeholder groups. The workshop will highlight these privacy concerns by presenting different cases and approaches. Workshop participants will analyse stakeholder privacy expectations that take place in different real-life contexts such as portable health devices and personal health records, and develop a mechanism to balance them in such a way that global protection of health data and its meaningful use is realized simultaneously. Based on the results of the workshop, initial requirements for a global healthcare information certification framework will be developed.

Recommendations for driver licensing and traffic law enforcement in India aiming to improve road safety

During the last decade, developing countries such as India have been exhibiting rapid increase in human population and vehicles, and increase in road accidents. Inappropriate driving behaviour is considered one of the major causes of road accidents in India as compared to defective geometric design of pavement or mechanical defects in vehicles. It can result in conditions such as lack of lane discipline, disregard to traffic laws, frequent traffic violations, increase in crashes due to self-centred driving, etc. It also demotivates educated drivers from following good driving practices. Hence, improved driver behaviour can be an effective countermeasure to reduce the vulnerability of road users and inhibit crash risks. This article highlights improved driver behaviour through better driver education, driver training and licensing procedures along with good on-road enforcement; as an effective countermeasure to ensure road safety in India. Based on the review and analysis, the article also recommends certain measures pertaining to driver licensing and traffic law enforcement in India aimed at improving road safety.