23 August 2019

Protecting stinky cheese and artisanal ham? Geographical Indications

Another day in what one undergrad intellectual property student dubs the stinky foreign cheese wars!

The Department of Foreign Affairs and Trade has released information regarding 'Public objections procedure concerning terms proposed by the European Union for protection as geographical indications in Australia'.

DFAT states
In June 2018 the Australian Government launched negotiations for a comprehensive and ambitious Free Trade Agreement (FTA) with the European Union (EU), which will provide increased commercial opportunities for Australian exporters. As a bloc, the EU is Australia's second largest trading partner and largest two-way investment partner. The Government will be tireless in pursuing Australia's interests in this FTA, but we will only achieve the best outcome for Australia if we also consider the EU's interests.
Consistent with its approach toward other FTA partners, the EU has identified the protection of geographical indications (GIs) as one of its key objectives in the negotiations.
A GI is essentially a name used on a product that has a specific geographical origin, and possesses qualities or a reputation that are due to that origin. 'Champagne' is a well-known example of a GI. Once a GI is protected, the name may not be used except by producers who meet the rules protecting the GI.
In order to move to the essential market access stage of the negotiations, Australia is publishing the list of product names the EU wants Australia to protect as GIs.
The Government has made no commitment to protect EU GIs. The Government has, however, committed to engage with the EU on its GIs interests as part of the FTA negotiations. In doing so, the Australian Government has agreed to publish the EU list of GIs for public objection.
The Government will continue to consult closely with stakeholders on the issue of GIs. The public objections process is your opportunity to advise the Government formally of any concerns you may have regarding the protection of individual EU GI names.
Decisions on EU GIs that will be protected by Australia will be taken by the Government at a later point in the FTA negotiations. Any commitments on GIs in the FTA will depend on the overall outcomes the EU is prepared to offer Australia, including with regard to market access.
 Further, DFAT states
What GI names are the EU seeking to protect?
The EU has asked Australia to protect 236 spirit names and 172 agricultural and other foodstuff names as GIs in Australia. The names relate to a range of sectors including, dairy, meat, smallgoods, horticulture, confectionery, oils, beer and spirits.
Who should lodge an objection?
You should make an objection if you think protection of a specific EU GI name will adversely affect your interests (noting protection would enable EU GI producers to prevent use of the relevant name by others). You can make objections in relation to any EU GI name or part of a name, as well as any translation, transliteration or transcription of a name.
On what basis can you object to an EU GI name?
You should base your objections on at least one of the following grounds:

  • the name is used in Australia as the common name for the relevant good; 

  • the name is used in Australia as the name of a plant variety or an animal breed; 

  • the name is identical to, or likely to cause confusion with, a trade mark or GI that is registered or the subject of a pending application in Australia; 

  • the name is identical to, or likely to cause confusion with, an unregistered trade mark or GI that has acquired rights through use in Australia; or 

  • the name contains or consists of scandalous matter.

15 August 2019

Fake News and US election law

'Deep Fakes, Bots, and Siloed Justices: American Election Law in a Post-Truth World' by Richard Hasen in (2019) St. Louis University Law Journal comments
 About a decade or so ago, the major questions in the field of election law were familiar to scholars and centered on the Supreme Court, including the constitutionality of corporate spending limits in candidate campaigns, the constitutionality of the preclearance provision of the Voting Rights Act, and the constitutionality of strict state voter identification laws. While issues related to these cases continue to churn in the courts and remain of vital importance to American democracy, some of today’s most urgent election law questions seem fundamentally different and less Court-centric than those of the past, thanks to rapid technological change during a period of hyperpolarization that has called into question the ability of people to separate truth from falsity. 
These questions include: What can be done consistent with the First Amendment and without raising the risk of censorship to ensure that voters can make informed election decisions despite a flood of virally-spread false and misleading speech, audio, and images? How can the United States minimize foreign disinformation campaigns aimed at American elections and attempts to sow social discord via bot armies? How can voters obtain accurate information about who is trying to influence them via social media and other new forms of technology? How can we expect judges to evaluate contested voting rights claims when they, like others, may live in information cocoons in which the one-sided media they consume affects their factual priors? Will voters on the losing end of a close election trust vote totals and election results announced by election officials when voters are bombarded with conspiracy theories about the reliability of voting technology and when foreign adversaries target voting systems to undermine confidence? 
This Essay considers election law in the post-truth era, one in which it has become increasingly difficult for voters to separate true from false information relevant to election campaigns. Rapid technological change and the rise of social media have upended the traditional media’s business model and radically changed how people communicate, educate, and persuade. The decline of the traditional media as information intermediaries has transformed—and coarsened—social and political communication, making it easier for misinformation and vitriol to spread. The result? Political campaigns that increasingly take place under conditions of voter mistrust and groupthink, with the potential for foreign interference and domestic political manipulation via new and increasingly sophisticated technological tools. Such dramatic changes raise deep questions about the conditions of electoral legitimacy and threaten to shake the foundation of democratic governance. 
Part II of this Essay briefly describes what I mean by the “post-truth” era in politics. Part III examines the effects of the post-truth era on campaign law, arguing for a new law requiring social media to label as “altered” synthetic media, including so-called “deep fakes.” I defend such a law as necessary to support the government’s compelling interest in assuring voters have access to truthful political information. Part IV considers campaign finance law, arguing for campaign disclosure laws requiring those who use online and social media to influence voters, including those using bots and other new technology, to disclose their true identities and the sources and amounts of their spending. Part V considers the difficulty of using courts to adjudicate voting rights claims when there is fundamental disagreement about the basic facts related to issues such as voter fraud in our hyperpolarized, cocooned political environment. The Essay concludes with some thoughts on whether election law is up to the task of dealing with technological change and polarization which threaten some of the key suppositions of how democracy is intended to function, including as an aid to the peaceful transition of power.

12 August 2019

Cheating and Australian non-university higher education providers

The valuable 'Contract cheating in Australian higher education: a comparison of non-university higher education providers and universities' by Tracey Bretag, Rowena Harper, Kiata Rundle, Philip M. Newton, Cath Ellis, Sonia Saddiqui and Karen van Haeringen in (2019) Assessment and Evaluation in Higher Education comments
This article reports on one aspect of a nationally funded research project on contract cheating in Australian higher education. The project explored students' and educators’ experiences of contract cheating, and the contextual factors that may influence it. This article reports the key findings from non-university higher education providers (NUHEPs). It compares survey responses from 961 students and 91 educators at four NUHEPs with previously reported findings from eight universities (14,086 students and 1,147 staff). NUHEP and university students report engaging in contract cheating in similar ways. However, while NUHEP educators spend more time teaching academic literacies and discussing contract cheating, NUHEP students are 12 times more likely than university students to report use of a professional academic writing service. Both NUHEP and university educators require systematic professional development regarding the relationship between the teaching and learning environment and students’ contract cheating behaviour. NUHEPs need to be cognisant of students’ vulnerability to commercial contract cheating services, and ensure they have access to timely academic and social support. 
The authors note
 In the Australian context, there are two main types of higher education provider: universities and non-universities. The latter group, referred to as non-university higher education providers (NUHEPs), offer a broad range of educational experiences for students, and their institutional sub-categories include technical and further education (TAFE), faith-based not-for-profit, other not-for-profit and for-profit (Tertiary Education Quality and Standards Agency [TEQSA] 2017a). NUHEPs currently outnumber universities by about three to one (127 versus 43) (TEQSA 2018b). At the time that this research was undertaken, there were 166 registered NUHEPs, with seven NUHEPs that had been registered in 2015 no longer being registered at the end of 2016, and seven new providers gaining registration in 2016 (TEQSA 2018c). Table 1 provides details of equivalent full-time student load (EFTSL) of domestic and international students in Australian higher education, according to the four main categories of universities, for-profit, not-for-profit and TAFE. 
As shown in Table 1, there has been a marked increase in international students enrolled in all categories of Australian higher education. Of the NUHEPs, the largest number of international students are enrolled in for-profit providers, and the largest percentage of growth was in not-for-profit NUHEPs. 
Despite their non-university status, many NUHEPs play a vital role in widening participation in university study through the provision of ‘pathways’ to higher education. These pathways provide opportunities for students who may not have achieved the necessary qualifications or had the appropriate academic preparation for direct entry to a bachelor program in a university. Of the 166 registered NUHEPs in 2016, fourteen were ‘pathway’ colleges linked to Australian universities. 
Evidence provided to the Kemp and Norton 2014. Review of the demand driven funding system (the Commonwealth Government policy which provided funding for domestic students admitted to bachelor degrees in Australian public universities, 2012–2017) demonstrated that:
higher education providers are actively working to identify and better support less adequately prepared students… the support offered by specialised sub-bachelor pathway colleges is effective. 
Furthermore, evidence provided by a number of NUHEPs to the Kemp and Norton review suggested that students who had entered a degree program via a NUHEP pathway course not only exceeded expectations based on their original level of academic preparation, but often achieved comparable outcomes with their direct-entry peers in terms of academic results and retention. Another advantage of NUHEP pathway courses is the opportunity for students who decide not to proceed to a bachelor degree to achieve an exit qualification such as a diploma. Kemp and Norton  concluded that two types of non-university providers (pathway colleges and TAFEs) ‘are well-designed for providing the right kind of educational support for students… entering the higher education system’ (2014, p. 54). This ‘educational support’ is particularly evident in the more personalised nature of pathway NUHEPs, including smaller classes, longer teaching periods, teaching focussed staff and an emphasis on pastoral care for vulnerable students. Most NUHEPs focus completely on teaching and they are specialised in comparison to universities (Norton 2016). In 2016, business-related courses were the most common in the NUHEP sector. 
Despite this positive assessment, the for-profit nature of many NUHEPs (as opposed to institutions that operate on government subsidised places) has at times positioned them to be in competition with universities, and the quality of some NUHEP programs has been questioned. Changes to government assistance for domestic NUHEP students in 2003 and the introduction of the student loan system VET FEE-HELP in 2009 led to a significant expansion of the sector, in terms of the number of providers. With this rapid expansion came concerns about fraudulent practices and abuses of VET FEE-HELP, which ultimately led to the demise of that loan system and the introduction of the much more tightly regulated VET Student Loans program in 2017. Nonetheless, there have been ongoing concerns about the challenges of maintaining academic standards in NUHEPs. Since 2012 NUHEPs have been assessed by TEQSA according to the same Higher Education Standards Framework (Threshold Standards) as universities, as part of TEQSA’s remit for ‘protecting and promoting the interests of higher education students and the reputation of the higher education sector’ (TEQSA 2017c). 
Of particular concern to TEQSA – and to many higher education regulators internationally – is the issue of contract cheating. National regulators in a range of contexts have provided advice to both educators and institutions on how to address this threat to academic integrity. Media scandals regularly expose contract cheating among university students, yet similar scandals have not emerged from NUHEPs, perhaps because of the relatively smaller numbers of students enrolled in NUHEPs versus universities (see Table 1). Our recent research demonstrated that a student’s language other than English (LOTE) status makes them especially vulnerable to contract cheating (Bretag et al. 2018b). Given the growing number of international students at NUHEPs, most of whom are LOTE, it might be anticipated that contract cheating would be an issue in that context. However, despite the size and importance of NUHEPs to the Australian higher education sector and their often critical relationship with universities, no parallel research on contract cheating in NUHEPs has been conducted. This may be because of the diversity and fluctuating nature of the sector and that teaching (rather than research) is their primary function. It is therefore timely to investigate the issue of contract cheating in the context of NUHEPs.
The authors' literature review notes
Although the term ‘contract cheating’ was first coined over a decade ago, the topic has gained significant attention in recent years due to the rise and visibility of commercial academic essay writing services. A range of definitions of contract cheating have been posited in the literature. Drawing on the original definition by Clarke and Lancaster considered the term contract cheating to be cheating whereby students order an assignment of a given standard to be delivered in a given period at a fixed price. However, Walker and Townley suggest that contract cheating refers to a cluster of practices relating to the outsourcing of students’ assessment to third parties, whether or not these entities are commercial providers. According to Ellis, Zucker and Randall ‘Contract cheating occurs when a student procures a third party (who knows about and benefits from the transaction) to produce academic work (that is usually, but not always assessable work) that the student then submits to an educational institution as if it were their own’ (2018, p. 1). Lancaster and Clarke have refined their definition, stating that contract cheating occurs ‘where a student is requesting an original bespoke piece of work to be created for them’ states that contract cheating is ‘where students recruit a third party to undertake their assignments’, and Harper et al maintain that ‘contract cheating occurs when a student submits work that has been completed for them by a third party, irrespective of the third party’s relationship with the student, and whether they are paid or unpaid’ (p. 1). For the purpose of this study, we use the Harper et al definition, on the basis that the issue at stake is whether students have engaged with and fulfilled the learning objectives of an assignment, not whether the provider of such an assignment receives a benefit, financial or otherwise. 
In response to a number of scandals across the globe about the perceived rise of contract cheating , there has been an increase in research and scholarship on the topic in recent years. Researchers have sought to determine the prevalence of contract cheating, with general agreement that a relatively small percentage of students engage in the practice. Bretag et al reported that 5.8% of university students engage in one or more of the five cheating behaviours investigated, but a relatively high proportion of students engage in ‘sharing’ behaviours – 15% reported buying, selling or trading notes, and 27% reported providing a completed assignment to others. Curtis and Clare’s analysis of previous studies indicated that 3.5% of students outsource their work to third parties, in comparison to research in specific cultural contexts (and based on a range of research methodologies), where the behaviour has been reported to occur at higher rates. For example, Foltýnek and Králíková found that 7% of the Czech students in their survey reported contract cheating, Eret and Ok stated that 18.9% of the Turkish students in their study had paid someone else to do their assignment, and Abukari (2016) reported that 45.8% of the students in their Ghana research had paid another person to complete an assignment for them. 
Other researchers have used experiments in authentic teaching situations to explore the challenges of detecting contract cheating, concluding that it is often possible to detect, particularly when educators are alert to the possibility that it is occurring. Practitioners have provided advice about how to detect contract cheating, or described teaching settings where intervention have reduced contract cheating and a range of practical resources have been available through the Contract Cheating and Assessment Design Project (www.cheatingandassessment.edu.au). Harper et al. explored the role of the educator, as well as the impact of the broader institutional setting, in minimising, identifying and responding to contract cheating. In response to commonly held views about the importance of ‘authentic’ assessment to prevent contract cheating, some researchers have investigated the relationship between assessment design and contract cheating, determining that while assessment design is important for learning, it cannot in itself prevent students from outsourcing their work to third parties. 
Bretag et al used multivariate analysis to uncover the key determinants which influence contract cheating behaviour among university students, reporting that LOTE status, the perception that there are ‘lots of opportunities to cheat’ and dissatisfaction with the teaching and learning environment, are the underlying issues which need to be addressed. More recent research has sought to understand why students choose not to engage in this type of cheating. Moving beyond the individual student or educational institution, researchers have begun to investigate the underlying business model of commercial academic writing companies, and the marketing strategies used to promote these services. There has also has been some exploration of the potential role of legislation to stop commercial academic writing services from providing assignments to students. 
In this context of global concern about contract cheating in higher education, it important to understand the extent of contract cheating at NUHEPs and to compare this to existing data about contract cheating at Australian universities. The four NUHEPs involved in this research approached the project team to specifically request participation by their institutions. To our knowledge, the issue of contract cheating at NUHEPs has not been previously studied. This article therefore seeks to address the following research questions:
  • How prevalent is contract cheating in Australian NUHEPs? 
  • Is there a relationship between cheating behaviours and sharing behaviours at NUHEPs? 
  • What are the teaching and learning factors associated with contract cheating and other forms of outsourcing at NUHEP? 
  • How do the answers to 1–3 compare with responses by university staff and students?

10 August 2019

Traditional Knowledge, Peru and FTAs

'Trend on the protection of traditional knowledge associated with genetic resources within intellectual property chapters of Free Trade Agreements: the Peruvian experience' by Diego Francoise Ortega Sanabria in (2019) 14(9) Journal of Intellectual Property Law and Practice 728–738 comments
During negotiations of Free Trade Agreements, the bargaining power of developed countries has pushed developing countries to yield to higher standards of intellectual property protection in exchange of commercial benefits. However, there is evidence that developing countries can also seek and ensure the adoption of measures aimed at safeguarding their legitimate interests as a result of these negotiations. An example is Peru, which has sought to ensure the inclusion of provisions to require patent applicants to disclose the origin of the genetic resources and the associated traditional knowledge when they are used in the development of an invention, as well as the presentation of the evidence as to the prior informed consent from their legitimate owners and the corresponding equitable benefit-sharing. This article seeks to analyze whether the terms finally adopted have had a real impact on the protection of the Peruvian traditional knowledge associated with genetic resources.
 The author states
Towards the second half of the 1990s, the Andean Community of Nations (CAN), then integrated by Bolivia, Colombia, Ecuador, Peru and Venezuela, adopted a set of rules specifically designed to safeguard the correct access to their genetic resources (GRs) and the traditional knowledge of their indigenous, Afro-American and local communities (TKs), done within the framework of integration under which that regional block regulates its policies. These rules included some sections that link the aforementioned resources and knowledge to the common intellectual property regime, aiming to avoid their misappropriation through the non-consented acquisition of exclusivity rights. 
Thus, in 1996, Decision 391 was issued, establishing a common regime on access to GRs that conditions the legality of any right (including intellectual property rights) to the fulfilment of the access provisions that were set forth in such a legal instrument. Later, in 2000, Decision 486 was adopted, setting up a new common regime on industrial property, which establishes that whenever a patent application or a granted patent covers an invention developed through the use of GRs or/and TKs, its granting or validity, respectively, will depend on the filing of evidence on the prior informed consent of their legitimate holders.3 It should be noted that Decision 486 is recognized as the first regional instrument that includes binding obligations regarding the disclosure of origin and demonstration of legal access to GRs and TKs in patent applications. 
In order to complement the referred regional norms, the Peruvian government has undertaken a series of local actions meant to strengthen and make operational the regional regulations mentioned above. Thus, in 2002, Law No 27811 was enacted (Regime for the Protection of TKs of Indigenous Peoples related to Biological Resources), establishing a sui generis regulation. In particular, this law provides for special registration mechanisms for TKs, as well as for the protection against the disclosure, acquisition or non-consensual use of this knowledge. Additionally, this local law establishes enforcement proceedings before the Peruvian Patent Office (INDECOPI). Furthermore, it was regulated that whoever applies for a patent related to a product or a process obtained from confidential TKs, has the obligation to present a copy of the licensing agreement with the respective Indigenous Peoples as a requisite to the granting of the exclusivity right. 
Likewise, with the purpose of strengthening a defensive protection scheme, in 2004 the Peruvian government created the National Commission for the Protection of Access to Peruvian Biological Diversity and Collective Knowledge of Indigenous Peoples, known as the National Commission Against Biopiracy, whose functions are aimed to prevent acts of misappropriation on a global scale, by monitoring patent applications filed all over the world, related to inventions based on GRs and/or TKs from Peru, for the purpose of taking further steps to object the patentability of those inventions. 
Notwithstanding the above, the Peruvian government recognizes that, in order to prevent acts of misappropriation of GRs and/or TKs, these solutions must be also adopted by other countries, reason why the Peruvian national policies are also addressed to develop a binding international legal framework. In this sense, taking into account the relevance of having an international set of strategic actions to the effect of defending its interests, Peru manages an agenda in the diplomatic forum, which comprises i) the development of negotiations in the forum held by the World Trade Organization (WTO) as a result of the Doha Ministerial Declaration of November 2001, which instructed the Council on the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) to examine, inter alia, the relationship between TRIPS and the Convention on Biological Diversity (CBD); and ii) negotiations undertaken to subscribe bilateral and multilateral free trade agreements (FTAs), incorporating GRs and TKs aspects into the corresponding intellectual property chapters. 
In this regard, it is worth mentioning that, within the WTO forum, Peru and countries such as Brazil and India have sought to amend of the TRIPS Agreement, with the objective of inserting a mandatory formal requirement within the patent chapter, in relation to inventions dealing with the use of GRs and/or TKs. In fact, it has been proposed to amend Art. 29 of the TRIPS Agreement, so as to include a provision whereby Members shall require patent applicants to disclose the origin of GRs and the associated TKs when the subject of the application is derived or developed from these resources, as well as the presentation of the evidence of prior informed consent and the equitable benefit-sharing resulting from its commercial exploitation. This proposal provides for the adoption of national legal mechanisms to reject or invalidate a patent whenever these conditions are not met. 
However, certain developed economies are very reluctant to adopt these measures. Thus, countries such as USA, Japan, Korea and Australia have expressed their opposition, while others, such as those belonging to the European Union promote the search of alternative solutions to tackle the problem of misappropriation. As a corollary, to date these negotiations have not reached any concrete result. In this context, it seems that the signing of bilateral and multilateral trade agreements remains the only path to achieve the objectives that are not being achieved in the WTO forum, due to the better fluency that negotiations carried out by fewer parties involve. As a matter of fact, for almost ten years Peru has been subscribing agreements with several countries, which include provisions on GRs and TKs. Taking this into account, it is important to assess whether the bilateral forum, in which Peru has deployed significant efforts, has produced effective results. 
In order to carry out the present analysis, first it will be identified what was the corresponding position of the developed countries with which Peru has signed trade agreements and what terms have been finally adopted, to then determine if the Peruvian government has achieved concrete results. For this purpose, the analysis will be focused on the agreements signed with the USA, which turns out to be the most reticent country in terms of linking the protection of GRs and TKs with the intellectual property system. The agreements with the European Union and the States of the European Free Trade Association will also be part of this analysis, taking into account that, as seen above, these economies promote some alternative approaches.

TRIPS, FTAs and access to medicines

'The access to medicine puzzle: scaling back the negative effects of the Jordan–US Free Trade Agreement' by Laila Barqawi in (2019) 14(9) Journal of Intellectual Property Law and Practice 678–686 comments
 Jordan is the first Arab country to have agreed to sign a Free Trade Agreement (FTA) with the USA. The Jordan–US agreement (JUSFTA) contains Trade Related Aspects of Intellectual Property Rights (TRIPs)-plus clauses which affect Jordan’s access to medicine by raising the price of drugs, delaying generic entry of medication into the market and therefore limiting access to medicines. Commentators have noted several concerns about FTAs, including their lack of flexibilities, such as compulsory licensing, and of exceptions for fair or non-commercial use. 
This article examines recommendations by the Jordanian Food and Drug Administration (JFDA) and explains the workability of these recommendations, using examples from countries which have signed FTAs with the USA and have successfully curtailed the negative effects of FTAs. The article also recommends further options which the Jordanian government can utilize to limit the negative impacts of TRIPs-plus clauses within their national laws. These options do not contravene JUSFTA and TRIPs and can increase access to medicines.
Barqawi states
 Jordanian officials have started to recognize the negative impact of data exclusivity as can be seen through the Jordan’s food and drug administration’s (JFDA) submissions to the UN High Level Panel below. We explore their workability in an attempt to scale back the negative effects of TRIPS-plus and data exclusivity. 
Data exclusivity operates as a ‘wholly distinct form of intellectual property rights and could not be overcome by a compulsory license.’ Furthermore, TRIPS protects only ‘undisclosed data’ to prevent ‘unfair commercial use’; it does not confer either exclusive rights or an automatic period of marketing monopoly. TRIPS does not define what constitutes ‘commercial use’. There have been arguments for data exclusivity in that it incentivizes innovation in the field of pharmaceutical drugs and assists pharmaceutical companies in recouping the costs of clinical trials and clinical trial data transparency. These arguments have been refuted on the basis that a few years of patent protection is adequate to recover the cost of clinical trials as US companies, for example, have made an excess of USD 1 billion on 55 ‘blockbuster’ drugs in 2013. 
As part of Jordan’s WTO’s accession package, Jordan agreed to block registration and marketing approval of generic medicine for five years, ‘even when no patents exist’. This has been implemented through the Trade Secrets and Unfair Competition Draft Law, which had been referred to Parliament in November 19998 and is now Article 8 of Jordan’s Law No 15 of 2000 on Unfair Competition and Trade Secrets (UCTS).  This is clearly TRIPS-plus in nature. 
Moreover, restrictions by JUSFTA also require three further years for data exclusivity for new uses, which clearly is an excessive form of protection for an existing TRIPS-plus condition. The effect of this restricted use of data exclusivity is evidenced by the 103 registered medicines which were launched since 2001 and had no patent protection in Jordan; of these, at least 79 per cent had no competition from a generic equivalent as a consequence of data exclusivity. This suggests that data exclusivity limits competition. Beyond implications for competition, there are financial effects as well. For example, an analysis funded by the Medicines Transparency Alliance estimated that the delayed market entry of generics resulting from TRIPS-plus requirements in JUSFTA cost consumers in Jordan’s retail market US$ 18 million in 2004. 
The Jordanian government should implement the recommendations in this article with backing from the USA, because the USA is the main financer to Jordan’s economy. Furthermore, defying the USA means that countries such as India, which challenge the USA on IP, feature regularly on the USA’s ‘Priority Watch List’ in its 301 Reports. For example, the USTR’s 2018 Special 301 Report clearly states that India has ‘Longstanding IP challenges facing US businesses in India’.
 She concludes
 There is policy space that the Jordanian government could utilize to limit the effects of TRIPS-plus. Jordan’s data exclusivity clauses are the most harmful to Jordan’s access to medicine. However, this article offers practical solutions to scale back Jordan’s data exclusivity restraints, following the example of other countries that have signed similar terms with the USA. This article builds on the recommendations of the JFDA by advocating further measures for the Jordanian government to increase its access to medicine. Jordan could restrict definitions such as NCE, patentability criteria and bar second use patenting, a decision that would prevent ‘evergreening’ of existing patents, supporting wide access to medicines. Jordan’s laws could also allow for policy space to be interpreted within its national laws as per Peru’s Amended Article 4 in its Legislative Decree. The Jordanian government could put a cap on the drug prices in comparison with other similar economies. Consequently, Jordan could attempt to overhaul its national legislation to streamline its IP. The Jordanian government should, ideally, have its decisions backed by the USA to maintain its relationship with the USA and not feature in the USTR’s 301 Report’s Watch List.

Algorithmic Bias

'The Missteps of the FIRST STEP Act: Algorithmic Bias in Criminal Justice Reform' by Raghav Kohli in (2019) 1 Journal of the Oxford Centre for Socio-Legal Studies comments
Contrary to his tough-on-crime rhetoric, Donald Trump in December 2018 signed the FIRST STEP Act (the ‘Act‘) into law, a criminal justice reform legislation aimed at reducing recidivism and reforming prison and sentencing laws. With a 87-12 vote in the Senate and a 358-36 vote in the House, a bitterly divided Congress approved the Act in a rare display of bipartisanship earlier that month. Apart from triggering an awakening within Congress about the dire need to decarcerate, the Act unified an unusual coterie of proponents, including tycoons such as the Koch Brothers, and celebrities such as Kim Kardashian. Whilst hailed as historic and sweeping in some quarters, the Act only affects the federal system, which houses a small fraction of the United States prison population. Out of approximately 2.1 million people imprisoned, only 180,413 are federal inmates. Nonetheless, the Act aims to introduce several reforms. It mandates the Department of Justice to establish a ‘risk and needs assessment system’ to classify the recidivism risk of prisoners, and to incentivise participation in productive activities. For instance, it allows prisoners to earn ‘time credits’ through their participation and apply them towards early release to pre-release custody. Other proposed changes include retrospective modification of ‘good time credit’ computation, reduced sentences for drug-related offences, and a ban on shackling of pregnant women. 
However, inmates do not benefit equally from these reforms. The risk and needs assessment system employs algorithms to classify each prisoner as having a minimum, low, medium, or high risk for recidivism. The Act only permits prisoners falling within the minimum and low risk brackets to apply for time credits towards pre-release custody. 
This article seeks to critically examine the impact of such algorithmic decision-making in the criminal justice system. Analysing different instances of algorithmic bias and the recent Wisconsin Supreme Court decision of State v. Loomis, it argues that opaque algorithmic decisions violate due process safeguards. In conclusion, the increasing use of such algorithms in the criminal justice system, including the FIRST STEP Act, is found to be undesirable, unless tempered with solutions which meaningfully improve their accuracy and transparency.

09 August 2019

Saying Sorry

'Should Public Figures Apologize? Preliminary Evidence and Speculations' by Cass R. Sunstein comments
In the modern era, the statements and actions of public figures are scrutinized with great care, and it often emerges that they have said or done things that many people consider objectionable, hurtful, offensive, or despicable. A persistent question is whether public figures should apologize for those statements or actions. Suppose that an apology has a purely strategic motivation: helping a politician to be elected or reelected, helping an executive to keep his job, helping a nominee to be confirmed by the U.S. Senate. Empirical work presented here suggests that an apology might well turn out to be futile or even counterproductive. One reason is Bayesian; an apology produces updating that can be unfavorable to the apologizer (by, for example, resolving doubts about whether the apologizer actually said or did the objectionable thing, and about whether what the apologizer did was actually objectionable). Another reason is behavioral; an apology triggers the public’s attention, makes the public figure’s wrongdoing more salient, and can help define him or her. But many open questions remain about the reasons why apologies by public figures fail, and about the circumstances in which they might turn out to be effective.