Robbery under arms: Copyright law and the Australia-United States free trade agreement

TThis article considers the radical, sweeping changes to Australian copyright law wrought by the Australia–United States Free Trade Agreement 2004 (AUSFTA). It contends that the agreement will result in a “piracy of the public domain”. Under this new regime, copyright owners will be able to obtain greater monopoly profits at the expense of Australian consumers, libraries and research institutions, as well as intermediaries, such as Internet service providers. Part One observes that the copyright term extension in Australia to life of the author plus 70 years for works will have a negative economic and cultural impact — with Australia’s net royalty payments estimated to be up to $88 million higher per year. Part Two argues that the adoption of stronger protection of technological protection measures modelled upon the Digital Millennium Copyright Act 1998 (U.S.) will override domestic policy–making processes, such as the Phillips Fox Digital Agenda Review, and judicial pronouncements such as the Stevens v Sony litigation. Part Three questions whether the new safe harbours protection for Internet service providers will adversely affect the sale of Telstra. This article concludes that there is a need for judicial restraint in interpreting the AUSFTA. There is an urgent call for the Federal Government to pass ameliorating reforms — such as an open–ended defence of fair use and a mechanism for orphan works. There is a need for caution in negotiating future bilateral trade agreements — lest the multinational system for the protection of copyright law be undermined.

The Jean Chretien Pledge to Africa act: Patent law and humanitarian aid

This article evaluates the implementation of the WTO General Council Decision in 2003, which resolved that developed nations could export patented pharmaceutical drugs to member states in order to address public health issues - such as HIV/AIDS, tuberculosis, malaria and other epidemics. The Jean Chretien Pledge to Africa Act 2004 (Canada) provides authorisation for the export of pharmaceutical drugs from Canada to developing countries to address public health epidemics. The European Union has issued draft regulations governing the export of pharmaceutical drugs. A number of European countries - including Norway, the Netherlands, France, and Switzerland - are seeking to pass domestic legislation to give force to the WTO General Council Decision. Australia has shown little initiative in seeking to implement such international agreements dealing with access to essential medicines. It is argued that Australia should implement humanitarian legislation to embody the WTO General Council Decision, emulating models in Canada, Norway, and the European Union. Ideally, there should be no right of first refusal; the list of pharmaceutical drugs should be open-ended; and the eligible importing countries should not be limited to members of the WTO.

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.

Corporate governance and law reform in Japan: From the lost decade to the end of history?

Japan is in the midst of massive law reform. Mired in ongoing recession since the early 1990s, Japan has been implementing a new regulatory blueprint to kickstart a sluggish economy through structural change. A key element to this reform process is a rethink of corporate governance and its stakeholder relations. With a patchwork of legislative initiatives in areas as diverse as corporate law, finance, labour relations, consumer protection, public administration and civil justice, this new model is beginning to take shape. But to what extent does this model represent a break from the past? Some commentators are breathlessly predicting the "Americanisation" of Japanese law. They see the triumph of Western-style capitalism - the "End of History", to borrow the words of Francis Fukuyama - with its emphasis on market-based, arms-length transactions. Others are more cautious, advancing the view that there new reforms are merely "creative twists" on what is a uniquely (although slowly evolving) strand of Japanese capitalism. This paper takes issue with both interpretations. It argues that the new reforms merely follow Japan's long tradition of 'adopting and adapting' foreign models to suit domestic purposes. They are neither the wholesale importation of "Anglo-Saxon" regulatory principles nor a thin veneer over a 'uniquely unique' form of Confucian cultural capitalism. Rather, they represent a specific and largely political solution (conservative reformism) to a current economic problem (recession). The larger themes of this paper are 'change' and 'continuity'. 'Change' suggests evolution to something identifiable; 'continuity' suggests adhering to an existing state of affairs. Although notionally opposites, 'change' and 'continuity' have something in common - they both suggest some form of predictability and coherence in regulatory reform. Our paper, by contrast, submits that Japanese corporate governance reform or, indeed, law reform more generally in Japan, is context-specific, multi-layered (with different dimensions not necessarily pulling all in the same direction for example, in relations with key outside suppliers), and therefore more random or 'chaotic'.

Happily ever after: Romance, gender and the building blocks of domestic violence

My sister describes the state of something being a psychological or personal 'issue' - such as a trauma, compulsion, phobia, or obsession - as having 'brain spaghetti'. For example, apparently she has spaghetti about me pinning her down as a child and tickling her until she screamed for mercy. She knows this because when her spouse tried to do the same, the experience she had as a child came flooding back as a complex tangle of fears, feelings, and mental images. Notwithstanding the trauma inflicted on a sibling in my youth, the spaghetti metaphor is a simple but useful tool for explaining how complex our experiences are, and I bring it up here because I believe a lot of people have spaghetti about love. So much so, that often love becomes distorted, sometimes to the point of making one completely blind to manipulation and abuse. Part of the blame for 'love spaghetti' can be allotted to media depictions of romance and gender, which helps entrench and maintain our deeply held beliefs about what relationships should look like.

Romantic terrorism? Survivor narratives of psychological and emotional tactics of domestic violence

This paper draws on the theoretical arguments outlined in Hayes (2014) to frame critical analyses of two real life domestic violence narratives. The authors are both academic criminologists and victims/survivors of domestic violence, but within differing contexts – one a conventional heterosexual relationship, the other a female same-sex relationship. Their experiences are intertwined in an extensive collaborative auto-ethnographic analysis that spans seven years of working and socialising together, in which each provided a sounding board and support for the other. The analysis therefore documents two personal journeys. The academic and theoretical are intertwined with the personal and subjective to elicit an evocative and yet empirically validated study. The theoretical underpinnings of romantic love distortion, misogyny and sexism are used to frame these experiences of domestic violence and the differing sexualities of the authors provide a rich context for exploring the ways in which domestic violence victimisation experiences are impacted by gender, sexuality, and heteronormative discourses of love, sex and relationships.

Domestic violence on #qanda: The “Man” question in live Twitter discussion on the Australian Broadcasting Corporation's Q&A

Domestic violence is currently undergoing a period of heightened visibility in Australia. This article uses social media to analyze public discussions about this violence with respect to a specific theoretical frame, which Adrian Howe has called the “Man” question: where and how are men visible or invisible in narratives about their violence against women? The article presents a qualitative study of the Twitter conversation surrounding a special episode of the Australian Broadcasting Corporation's television program Q&A, themed around family violence, which aired in February 2015. We found that the place of men in this conversation was contested. Some tweets privileged men's voices and concerns, as did the organization and production of the program. However, feminist voices were also highly visible via presenting facts, legitimating survivor voices, and recuperating anti-feminist memes to challenge hegemonic patriarchal discourses on men's violence against women. La violence conjugale connait actuellement une visibilité accrue en Australie. Les auteures du présent article utilisent les réseaux sociaux pour analyser les débats publics sur cette violence selon un cadre théorique précis, qu'Adrian Howe a appelé la question de « l'homme » : où et comment les hommes sont-ils visibles ou invisibles dans les récits de leur violence envers les femmes? L'article présente une étude qualitative d'une conversation sur Twitter au sujet d'un épisode axé sur la famille diffusé en février 2015 dans le cadre de l'émission Q & A, à la télévision nationale d'Australie. Nous avons remarqué que dans cette conversation la place des hommes était remise en question. Certains tweets privilégiaient les voix et les craintes des hommes, comme l'ont fait les organisateurs et les producteurs de l'émission. Cependant, il y avait une forte présence de voix féministes dans la présentation des faits, légitimant le point de vue des survivantes et relevant des éléments culturels antiféministes afin de défier les discours hégémoniques et patriarcaux sur la violence des hommes envers les femmes.

The relationship between class participation and law students' learning, engagement and stress: Do demographics matter?

Student participation in the classroom has long been regarded as an important means of increasing student engagement and enhancing learning outcomes by promoting active learning. However, the approach to class participation common in U.S. law schools, commonly referred to as the Socratic method, has been criticised for its negative impacts on student wellbeing. A multiplicity of American studies have identified that participating in law class discussions can be alienating, intimidating and stressful for some law students, and may be especially so for women, and students from minority backgrounds. Using data from the Law School Student Assessment Survey (LSSAS), conducted at UNSW Law School in 2012, this Chapter provides preliminary insights into whether assessable class participation (ACP) at an Australian law school is similarly alienating and stressful for students, including the groups identified in the American literature. In addition, we compare the responses of undergraduate Bachelor of Laws (LLB) and graduate Juris Doctor (JD) students. The LSSAS findings indicate that most respondents recognise the potential learning and social benefits associated with class participation in legal education, but remain divided over their willingness to participate. Further, in alignment with general trends identified in American studies, LLB students, women, international students, and non-native English speakers perceive they contribute less frequently to class discussions than JD students, males, domestic students, and native English speakers, respectively. Importantly, the LSSAS indicates students are more likely to be anxious about contributing to class discussions if they are LLB students (compared to their JD counterparts), and if English is not their first language (compared to native English speakers). There were no significant differences in students’ self-reported anxiety levels based on gender, which diverges from the findings of American research.

Beyond Words : The European Court of Justice and Legal Certainty in Multilingual EU Law

This study addresses the issue of multilingualism in EU law. More specifically, it explores the implications of multilingualism for conceptualising legal certainty, a central principle of law both in domestic and EU legal systems. The main question addressed is how multilingualism and legal certainty may be reconciled in the EU legal system. The study begins with a discussion on the role of translation in drafting EU legislation and its implications for interpreting EU law at the European Court of Justice (ECJ). Uncertainty regarding the meaning of multilingual EU law and the interrelationship between multilingualism and ECJ methods of interpretation are explored. This analysis leads to questioning the importance of linguistic-semantic methods of interpretation, especially the role of comparing language versions for clarifying meaning and the ordinary meaning thesis, and to placing emphasis on other, especially the teleological, purpose-oriented method of interpretation. As regards the principle of legal certainty, the starting-point is a two-dimensional concept consisting of both formal and substantive elements; of predictability and acceptability. Formal legal certainty implies that laws and adjudication, in particular, must be predictable. Substantive legal certainty is related to rational acceptability of judicial decision-making placing emphasis on its acceptability to the legal community in question. Contrary to predictability that one might intuitively relate to linguistic-semantic methods of interpretation, the study suggests a new conception of legal certainty where purpose, telos, and other dynamic methods of interpretation are of particular significance for meaning construction in multilingual EU law. Accordingly, the importance of purposive, teleological interpretation as the standard doctrine of interpretation in a multilingual legal system is highlighted. The focus on rational, substantive acceptability results in emphasising discourse among legal actors among the EU legal community and stressing the need to give reasons in favour of proposed meaning in accordance with dynamic methods of interpretation including considerations related to purposes, aims, objectives and consequences. In this context, the role of ideal discourse situations and communicative action taking the form of interaction among the EU legal community in an ongoing dialogue especially in the preliminary ruling procedure is brought into focus. In order for this dialogue to function, it requires that the ECJ gives persuasive, convincing and acceptable reasons in justifying its decisions. This necessitates transparency, sincerity, and dialogue with the relevant audience.

Legislative policy, law and competitiveness: a mysterious and difficult relationship in the EU

The Lisbon Agenda places Europe in a uniquely difficult position globally, most particularly as an example of a social and regulatory experiment which many consider to be doomed to failure. The drive towards economic competitiveness has led to a focus on regulation and its effect on entrepreneurship, productivity and business growth but assessing this relationship is complex for a number of reasons. First, not all regulatory effects can be predicted precisely in relation to behavioural outcomes. Path-dependency scholars have also demonstrated that the regulation will have varying effects depending on context. Second, theoretically it is clear that many non-regulatory factors may contribute to economic and competitive success. Third, there is evidence of internal conflict within the Commission as to the relative importance of the Lisbon goals. Finally, the experience of distinct Member States presents challenges both for assessment and prescriptive remedies. The Commission has estimated that the cost of regulatory compliance obligations on businesses in the EU is between 4% and 6% of gross domestic product and that 15% of this figure is avoidable 'red tape' (the term used specifically to signify unnecessary compliance burdens). This article proposes to assess the likely outcomes of de-regulation as we rapidly approach 2010, the year for attainment of the Lisbon goals.

Law in the community: the University of Greenwich/Greenwich Association of Disabled People Centre for Independent Living (GAD) research project

The GAD Advocacy Service is funded by the London Borough of Greenwich Directorate of Neighbourhood Services; its remit to support disabled people experiencing Hate Crime, Domestic Violence and Harassment. Run by disabled personnel and giving advice to all disabled people it is unique in London. Since its inception in 2004, the Advocacy Service has been stretched to its limit - there is a need to extend the remit of the Advocacy Service to give specialist legal advice on other issues. In 2003, the CEDRM-UK project was set up in the University of Greenwich Law Department as part of the Disability Rights Promotion International Legal Education and Research Project; its objectives were firstly, to facilitate the collection of data on the effectiveness of legislation in promoting the rights of disabled persons; and secondly, to pilot new methods in teaching and training in Human Rights Law – students acquire an expertise in Human Rights Law through research into the practical application of legislation relating to civil and human rights in the daily life of the community. In July 2007, GAD and CEDRM-UK embarked on a joint project to report on the work of the Advocacy Service and to create a database to support its caseload. The 2008-9 Project team will report on their work and findings relating to facilitating equality in the workplace; the inclusion of cancer, HIV and multiple sclerosis within the legal definition of disability and the implications of the statutory duty to promote disability equality for the provision of extracurricular activities for schoolchildren. [From the Author]

The Responses of States to the Comments of the CEDAW Committee on Domestic Violence

This article examines the question of how states have responded to the comments of the United Nations Committee on the Elimination of Discrimination against Women (CEDAW Committee) on the issue of domestic violence, through an analysis of 11 Western European States. It is argued that the majority of the states surveyed are complying with only some of the recommendations of the Committee in relation to domestic violence. This finding serves to highlight the fact that there are certainly major difficulties regarding the implementation of human rights law. This article focuses on the Concluding Observations made by the CEDAW Committee on the reports submitted by the Member States, and problems surrounding these Concluding Observations and the work of the Committee are also examined.

The European Court of Human Rights and Domestic Violence

Domestic violence is an issue that affects vast numbers of women throughout the world. It seems to constitute a clear violation of at least three articles of the European Convention on Human Rights, however it has only been recognised as being a human rights issue relatively recently. Indeed, until 2007 domestic violence had not been directly addressed by the European Court of Human Rights. However, the Court has now addressed the issue in a series of recent cases. This paper discusses what positive obligations states parties to the Convention now have in relation to the issue of domestic violence. It proceeds to discuss the gaps in the Court’s jurisprudence in this area at present and how the case law of the Court may develop in the future.

The Victim Test under the Human Rights Act 1998 and its Implications for Domestic Violence Cases

The European Court of Human Rights has now clearly established that domestic violence constitutes a human rights issue. However, there are a number of difficulties involved in using the Human Rights Act 1998 in relation to violence against women in the home. One of these obstacles is the restrictive test of standing found in the Act, which is problematic as regards an ‘unseen crime’ such as domestic violence. This article examines this test of standing and the difficulties it poses in the context of violence against women in the home. It then considers alternative models for the standing requirement and assesses whether a change in the test of standing would produce beneficial results as regards the issue of domestic violence.