05 September 2009

Alger is to America what Homer was to the Greeks

Nathanael West cruelly claimed that "Horatio Alger is to America what Homer was to the Greeks". Alan Trachtenberg's "Horatio Alger's Ragged Dick' at 154-166 in Lincoln's Smile and Other Enigmas (New York: Hill & Wang 2007) questions 'kindergarten capitalist' interpretations of Ragged Dick, suggesting that
the didactic lessons taught by the Alger narrator have less to do with the sharp-dealing and tooth-and-claw practices of the Jim Fiskes and Daniel Drews in the actual business world of the late 1860s than with simple self-respect. For Alger bourgeois life means security, comfort, cultivation, companionship, responsibility - the reverse of cut-throat competitiveness.
Trachtenberg goes on to comment that
Judicious economy is key in Alger's imagined world. It represents his effort to securalize the mystery of money, to bring it under the rational control of human will. Savings "earn" interest (a mystery in itself that even knowledge of arithmetic cannot explain), which then becomes discretionary income Dick can spend doing good, thereby exchanging potential capital for the more valuable (exchangeable) good of self-approval - a step toward attainment of the highest good: respectability. Thus Alger transfigures capitalist investment from an economic into a moral act: Dick exchanges the unearned increment of his saving (interest) into a gift that then earns him an intangible but real increment of moral value, in turn marketable as "respectability".
The commodification of virtue and saleability of respectability - prayer meetings led by Enron's Ken Lay, for example - is highlighted in D. Michael Lindsay's Faith in the Halls of Power: How Evangelicals Joined the American Elite (New York: Oxford Uni Press 2007), a look at some of the people who prefer a more traditional reading of Alger or who rely on works such as God Is My CEO (nothing like a chief executive without pesky shareholders or regulators and naming The Big Guy as CEO avoids the hubris implicit in 'God Is My Co-Pilot'). The Horatio Alger Association of Distinguished Americans Inc (HAADA)
bears the name of the renowned author Horatio Alger, Jr., whose tales of overcoming adversity through unyielding perseverance and basic moral principles captivated the public in the late 19th century. The Association ... was established in 1947 to dispel the mounting belief among the nation's youth that the American Dream was no longer attainable. [It] is dedicated to the simple but powerful belief that hard work, honesty and determination can conquer all obstacles. Today, through its Members, the Association continues to educate our nation's young people about the economic and personal opportunities afforded them by the promise of the American free enterprise system.
Perhaps the mounting belief was attributable to loss of "precious bodily fluids" under the influence of arch-socialist FDR.

Trachtenberg touches on Alger's self-construction after an enforced departure from Brewster for what might now be characterised as child molestation, noted in The Lost Life of Horatio Alger, Jr. (Bloomington: Indiana Uni Press 1985) by Gary Scharnhorst & Jack Bales and The Fictional Republic: Horatio Alger and American Political Discourse (New York: Oxford Uni Press 1994) by Carol Nackenoff, commenting that
It is impossible to know whether Alger actually lived a double life, closeted as a secret homosexual. But there are hints that the male companionship he describes as a refuge from the streets - the cosy domestic arrangements between Dick and Fosdick, for example - may also have been an erotic relationship, or at least physically close enough so that the few instances of boys touching each other tenderly, or older men laying a light hand on the shoulder of boys, might arouse erotic wishes in readers prepared to entertain such fantasies. Nothing prurient appears in Ragged Dick but the vision of happiness in Dick's safe harbor with Fosdick, and the allure of good-looking youngsters for kindly older men - images that project Alger's critique of the same aggressive individualism he is supposed to have celebrated - may also imply a positive view of homoeroticism as an alternative way of life, a way of living by sympathy rather than by aggression.
Cue Edward Carpenter?

'Tomboys, Bad Boys, and Horatio Alger: When Fatherhood Became a Problem' by David Leverenz in 10(1) American Literary History (1998) 219-236 more pointedly asks
Why does nobody notice that this model of boyish honesty is lying all the time? Not only does Dick continuously fake upscale connections, but his linguistic bravado constitutes much of his appeal. As with Pen Lapham, people call it "droll." As with Pen Lapham, Dick's drolling enables his upward mobility by pleasing his listeners. Why? Perhaps Dick's extravagant name dropping admiringly yet mockingly mirrors his audience's uneasy negotiations between character and theatricality, sincerity and fraud.

Indigenous Rights in the Nordic states

'The New Developments Regarding the Saami Peoples of the North' by Malgosia Fitzmaurice in 16(1) International Journal on Minority and Group Rights (2009) 67-156 explores recent developments regarding the Saami peoples of Northern Europe. It focuses on the Draft Saami Convention and Norwegian legislation regarding self-determination.

Fitzmaurice notes that the 2005 Norwegian Finnmark Act grants indigenous peoples of the North far-reaching rights regarding rights to land and natural resources. (Some Saami would presumably argue that the state merely recognises rights.) The Act seeks to implement the 169 ILO Convention on Indigenous and Tribal Peoples in Independent Countries [C169], which revised the ILO 1957 Convention on Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (aka the Indigenous & Tribal Populations Convention).

Article 6 of C169 requires governments to establish means by which peoples (a term that "conveys recognition of the existence of organized societies with an identity of their own, rather than mere groupings sharing some racial or cultural characteristics") can freely participate at all levels of decision-making in elective and administrative bodies, to at least the same extent as other sectors of the population.

It also requires governments to consult "indigenous and tribal peoples", through adequate procedures and their representative institutions, whenever consideration is given to legislative or administrative measures that may affect them directly. Those consultations must be undertaken in good faith and in an appropriate form, with the aim of achieving an agreement or consent to proposed measures.

Article 7 states that the peoples have the right to decide their own development priorities and to exercise control over their own economic, social and cultural development. Those peoples should participate in formulation, implementation and evaluation of regional and national plans and programmes that directly affect them and "plans of overall economic development for the areas inhabited by indigenous and tribal communities have to be designed with a view, among other things, to improve their living conditions, employment opportunities, and educational attainments". Governments are required, whenever appropriate, to
carry out, in cooperation with the indigenous or tribal peoples concerned, studies in order to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The cooperation of indigenous and tribal peoples must be sought also in the design, execution and evaluation of health and education services, including vocational training schemes.
C169 has been adopted by a handful of nations (eg Mexico, the Netherlands and Norway) and appears unlikely to gain major traction in the near future. It has been seen by some critics as too weeak and damned by others as too strong, with Lisa Strehlein for example criticising it as founded on a "liberal democratic model" antithetical to recognition of inherent rights. Strehlen's spirited 'The Price of Compromise: Should Australia Ratify ILO Convention 169' at 63-86 Majah: indigenous peoples and the law (Annandale: Federation Press 1996) edited by Greta Bird, Gary Martin & Jennifer Nielson argued that Australia should reject the Convention as "fundamentally flawed", embodying "a new language of assimilation" and unacceptable because "in deference to the claims of nation states" the C169 rejects the inherent rights of indigenous peoples to self-determination.

The Norwegian Act goes beyond the Australian High Court's very limited recognition of rights following abandonment of the terra nullius doctrine in Mabo.

The Act also grants the Saami the right to be consulted on matters which impact on their livelihood. On the basis of the legislation the Norwegian Government transferred about 95% (about 46,000 km2) of the area in the Finnmark county in Norway to the inhabitants of Finnmark.

That area is managed by the Finnmark Estate agency. The Estate is managed by a six-member board of directors: three are appointed by the Sámediggi - Sami Parliament - of Norway (a counterpart of the Sami Parliament in Sweden, which among other things has absorbed the Central Administration for the Reindeer Industry) and three by the Finnmark County Council. The Sámediggi was established in 1989 and as of 2001 had an electoral register of around 10,000 Sami. It is broadly analogous to the former ATSIC in Australia. It reflects the obligation in the revised Norwegian Constitution for the state to create conditions to ensure that the Sami people can preserve and develop their language, culture and social life. The Sámediggi's remit covers everything that, in the national legislature's opinion, affects the Sami people in particular. Observers have characterised it as having no clear constitutional position: "not under the control of the Government, but neither is it an independent body".

As part of the Finnmark Estate scheme a Special Commission and Tribunal will be set up to recognize existing rights of use and ownership in the Finnmark area.

Fitzmaurice considers the Saami right to self-determination in relation to the Act, noting that the legislation is
ethnically neutral ie the legal position of an individual is not dependent on him or her being Sami, Norwegian, Kven, or a member of another population group.
She suggests that
The 2005 Saami Draft Convention constitutes the most innovative approach to indigenous peoples beyond the statist paradigm. It treats the Saami peoples in Finland, Norway and Sweden as one people and grants them very far reaching rights to land and natural resources.

04 September 2009

Another Copyright Collecting Society?

Jennifer Wilson (Twitterer, AIMIA executive and former Head of Innovation at ninemsn) has authored The Digital Deadlock: How clearance and copyright issues are keeping Australian content offline, a white paper under the auspices of the AFTRS Centre for Screen Business and the Screenrights copyright collecting society.

The 23pp paper identifies several options in response to "problems faced by screen content producers in getting to grips with the digital world as a place to distribute product, generate audience and find new revenue sources". Wilson offers the conventional wisdom that "our ways of thinking about copyright have failed to keep pace with this new digital landscape, and that they are a hindrance rather than a help" to producers, the creative industries (industries that are apparently different to producers) and "more importantly to consumers (and, by extension, to the public good)". 

What is wrong? Wilson's answer is that
In essence, the task of clearing rights is so onerous and so expensive that it acts as a heavy deterrent to producers. Most people involved in screen content are in the business because they love it, but they still need to be able to see a return on their investment. While it might seem that digitising our content for posterity is costless, simple and straightforward, it really is none of those things. Many screen content producers, production houses and broadcasters admit that they have old film footage that is being left to deteriorate. When asked why they don't make it available in a digital format, they all give the same response: The issues involved in clearing those rights are so problematic that the investment of time and money is simply not worthwhile.
The answer seems to be a new collecting society, abeit one wrapped in a fashionable peer to peer blanket.

The options outlined by the white paper fall into three groups.

The first group, for a 'media levy' (echoes of the 1980s Blank Tape Levy, despatched in Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480; [1993] HCA 10) and overseas digital media levies, encompasses -
+ a levy on all recordable media or devices - to be paid into a fund to be distributed to rights holders under a collection society arrangement 

+ a levy at the ISP level based on packet sniffing the data and charged by the ISP, with revenue paid to an independent copyright collecting society for distribution to rights holders
The second group, for an "industry-based collection society", is -
+ the "Industry" should voluntarily create a collection society "(similar to, APRA and AMCOS)" which would collect fees "(from all collection means)" and distribute the monies proportionally to rights holders.

+ the "music industry should be encouraged to enter into a collective scheme for the granting of rights", a suggestion that I suspect reflects the history of disagreement between the film and music industries (or between film and music industry executives and associated service providers)

+ if such a scheme is "not voluntarily established it should be legislated" and a collecting society "similar to Screenrights created to manage collection and distribution
The IP atheists in the Productivity Commission and Treasury will presumably howl with delight at that suggestion and then ask whether it would be simpler to let Screenrights (or one of the larger collecting societies) handle the task.

The third group comprises an "independently-managed" and "industry supported P2P network". Operation of the network would feature "a low fee for subscribers to access all content, with "the body" also acting as collecting society for rights holders.

One response is that in the classic 'Collectivisation of Copyright Exploitation: Competition Issues' by Jill McKeogh & Stephen Teece in 17(1) UNSW Law Journal (1994) 259-284. The authors concluded that
here is clearly a potential for anti-competitive effects arising from the activities of copyright collecting societies. It is also clear, however, that they are necessary to allow copyright owners a realistic method of enjoying the benefits of their copyright. If the plethora of statutorily created copyrights are to have some kind of meaningful value as proprietary rights, they must be enforceable, and the practicalities of this require some kind of collectivisation. The general approach taken to such problems has been to recognise their existence and to restrain blatant abuses of competition law, while continuing to permit the existence and operation of collecting societies which inevitably wield considerable market power ... the public also benefits if copyright is available as an enforceable and valuable property right, as creativity will thereby be encouraged. This view may be somewhat naive; in the Australian context it must be noted that the rights to very many, if not most, of the works exploited by copyright collecting societies belong to a few large, often foreign-dominated or multi-national corporations; their interests do not coincide with those of the Australian public.
We might be circumspect about privileging one industry (or group of interests) over another; indeed question whether some rights clearance problems are self-inflicted (and avoided by investment in new creativity rather than reuse of existing content, the approach advocated by one artist who says "create your own cute rodent rather than appropriating Mickey").

Bad Ink

As a fan of Written on the Body: The Tattoo in European and American History (Princeton: Princeton Uni Press 2000) edited by Jane Caplan and Bad Boys & Tough Tattoos: a social history of the tattoo with gangs, sailors, and street-corner punks, 1950-1965 (Binghampton: Haworth 1990) by Samuel Steward I was interested to see the Nicholas Weston Trade Mark Blog's report on that firm's annual survey of bad ink, ie people decorating their bodies with trade marks rather than the usual hearts, anchors, names of one-time partners or signifiers that they are members of the Crips, Yakuza, Mongrel Mob or other nasties.
Of those receiving a tattoo, only around 2–5% receive a brand tattoo, and predominantly in the 18 – 25 age group. ... Tattooists [reported] that brand tattoos were obtained on impulse in some cases and as a carefully considered choice in others.
The Blog drily notes that
Opinion among tattooists was divided on whether the choice of brand-tattoo reflected its culturally iconic status or the recipient's faith in the brand. One tattooist opined that "it is a humour thing." One tattooee received payment to have toilet rolls of a certain brand inked onto his backside but otherwise the overwhelming majority were not paid to become human billboards. All of those surveyed denied that any recipients of a brand tattoo were visibly drunk or affected by drugs at the time.
In responding to the question "So What" Weston indicates that
Most well known brands and logos are registered trade marks. Use of a registered trade mark as a tattoo is generally not "use as a trade mark” by using the sign in the course of trade for the purposes of s 120 of the Trade Marks Act 1995 (Cth).
'Ads by Google' (ah, the joys, the joys of predictive marketing) has helpfully displayed an ad for an online ink service "7000 free tattoos for every body ... design your dream tattoo online" - presumably useful for clip art kids of various ages or those whose affiliations are a bit outside having a brand of toilet paper inked on their btm or bit of colour on the membrum virile. (I'm not going to take up one site's offer of "Genital Tribal Tattoos With Mermaids" ... and not just because the mermaids are so not me or because I'm persuaded by Christian Klesse's critique 'Modern Primitivism': Non-Mainstream Body Modification and Racialized Representation' in 5(2) Body & Society (1999) 15-38.

Klesse argues that the philosophy underpinning the non-mainstream body modification practices of 'Modern Primitives'
seeks inspiration in the body modification techniques and bodily rituals of so-called 'primitive societies'. Establishing their prioritization of body, sexuality, community and spirituality as analytical links, the author shows that these self-perceived radical opponents of Western modernity nonetheless remain captured in its foundational discursive assumptions. The author argues that the movement's enthusiastic turn towards 'primitivism' represents a particular identity strategy within the late modern condition. Drawing on colonial discourse analysis, the author argues that the primitivist discourse originated as an ideology within colonialism and has informed the construction of the Western self-image. Modern Primitives' notion of 'primitivism' is seen as a postcolonial legacy of this tradition of 'othering', which inevitably reproduces stereotypes of racialized people.
Another perspective is offered by Christine Braunberger's article 'Sutures of Ink: National (Dis)Identification and the Seaman's Tattoo' in 31 Genders (2000)
Seamen (merchant and military) acted as the primary hosts for the tattoo's immigration from East to West. Concurrently, they altered the symbolic valence of tattoos in America from carnival freak show exoticism to an ambivalent marginal signifier of militarism and national fantasy. In tracing these shifts, I will argue that the tattoo's meaning was fluid across and within the various groups who utilized the form and thus erased stable readings while marking unstable possibilities. I will therefore contend that for the military itself, the tattoo functioned to simultaneously transgress and maintain militaristic interpellation. For the seamen, the tattoo fetishistically marked a desire to perform a phallic masculinity and the anxiety of what such a performance might mean. As an object which is not an object and hence always and never really "there," the tattoo destabilized the military's heterosexuality, functioning to both access an experiential homosexual eroticism and refuse acknowledgment of that access by symbolically representing a stable heterosexual "manhood." For the American public, the tattoo spoke of exoticism and eroticism that was "troubling," but could be subsumed under the banner of a positive national symbolic. The tattoo functioned as a fetish object for national anxiety which affects, and is affected by, the individual military body's various relational positions, but especially by those Others outside the borders.

UWA v Gray

The Full Court in University of Western Australia v Gray [2009] FCAFC 116 has dismissed UWA's appeal against the Federal Court trial judge's findings that the University did not own the intellectual property in work by Gray while employed by that institution as a professor.

Bruce Gray, the respondent, was a full time employee of UWA as its Professor of Surgery from 1985 until 1997, when he went part time ("a fractional thirty percent appointment) focussing on clinical work at the Royal Perth Hospital. He was Head of UWA's Department of Surgery from October 1988 to December 1989. He resigned from UWA effective November 1999. As a full time employee the terms of his appointment required him to teach, conduct examinations, direct and supervise the work in his field. He was also required to undertake research, to organize research and generally to stimulate research among the staff and students.

UWA claimed that by reason of his employment Gray had obligations to UWA regarding inventions (the production and use of microparticles or "microspheres" for the targeted treatment of cancerous tumours in humans, particularly in the liver) that were said to have been made wholly or in part by Dr Gray. As a consequence it claimed proprietary rights in respect of those inventions and of associated patent applications and patents. Gray indicated that research leading to his initial (1988) patent had been undertaken prior to employment by UWA.

The primary Judge (now French CJ of the High Court) dismissed UWA's claim in its entirety. In that instance the Court found that the University's case depended on the proposition that an implied term of Gray's contract of employment gave UWA ownership of intellectual property developed in the course of Gray's employment.

The Court rejected that proposition, concluding that - in the absence of express agreement to the contrary - rights regarding inventions made by academic staff in the course of research (whether or not made with the use of UWA resources) ordinarily belong to the academic staff as the inventors under the Patents Act 1990 (Cth). The position would be different if staff had a contractual duty to produce inventions but "put simply, the duty to research did not signify a duty to invent".

The University's intellectual property Regulations asserted ownership by UWA of all IP developed by its staff (apart from most copyright). The Court held that such provisions of the IP Regulations as purported to vest intellectual property rights in UWA or to interfere with the intellectual property generated by its academic staff were beyond the University's regulation-making power and that the Regulations did not come into effect until the invention period.

The Full Court held that in relation to Gray's employment as a professor of surgery
- there was no "duty to invent" and the conditions required for the implication of a term at law were not satisfied;

- in absence of implication of terms in law, there was no independent fiduciary obligation of a kind and scope that made Gray as an employee accountable to UWA for the inventions, applications for patents, or patents;

- on the evidence, UWA university had abandoned its patent committee mechanism (a feature of the contract betwen Gray and the University) and the term incorporating the patent regulations did not avail university
The Full Court's decision is a reminder that the default position for patents differs from that of copyright created by employees, something that may surprise people who assume that all inventions created by employees areautomatically be owned by the employer. The decision highlights the need for research organisations to articulate coherent intellectual property policies and give effect to those policies through employment terms and administrative procedures. One implication is that universities and other research institutions will move to remind staff of existing policies, assert a particular interpretation of policies and procedures, and respond to greater activism by staff in contract negotiations.

Another implication is that the decision will raise questions among current/former employees, university commercialisation units and business partners about the ownership of intellectual property created in the past. UWA v Gray has already prompted one high-tech business to seek reassurance from its public sector partner. The case isn't revolutionary but does present a 'wake up call' for institutions that haven't bothered to get their paperwork in order or that have assumed paperwork obviates any need to follow-through with actions.

PBR in Australia

An article by Jay Sanderson in (2008) 32(3) Melbourne University Law Review 980-1006 on 'Are Plant Breeder's Rights Outdated? A Descriptive and Empirical Assessment of Plant Breeder's Rights in Australia, 1987–2007' - ostensibly available on SSRN - considers PBR and the Plant Breeder's Rights Act 1994 (Cth).

Sanderson explores
the notion that plant breeder’s rights are out-of-date and unnecessary. To do so, this article adopts both descriptive and empirical approaches to examining a number of issues including: the nature of, and investment in, Australian plant breeding; biopiracy and enforcement; legal disputes and processes; and the use of the Australian plant breeder’s rights system. This review shows that the Australian plant breeder’s rights scheme is well used, has been progressively amended and extended, and is just one element in a suite of measures geared to stimulate plant-related innovation. As a consequence, future research needs to take into account the heterogeneous character of plant breeding and complementary government initiatives, identify the many reasons why the plant breeder’s rights scheme is seen as viable (or why not) and consider the interrelationships between these elements.
SSRN is misbehaving today, so the link points to Sanderson's 'Essential Derivation, Law and the Limits of Science' from (2006) 24(1) Law in Context 34-53, concerned with the concept of 'essential derivation', ie
where the breeder of one variety – the 'initial variety' – claims that another breeder has developed a second variety – the 'putative essentially derived variety' – that is virtually the same as the initial variety. Clarity is necessary to ensure the effectiveness of essential derivation as a legal concept and, more broadly, to enable the plant breeders’ rights scheme to remain relevant.
Sanderson comments that
In examining the concept of essential derivation, this article first looks at the general trends in plant breeding techniques. It then considers the concept of ‘essential derivation’ in light of the breeder’s exemption, the low threshold of distinctiveness and the limited infringement provisions in plant breeders’ rights schemes. This is followed by a discussion of the scientific (quantitative) approach to determining whether a variety is essentially derived and outlines the limits of such an approach. The article argues that the judiciary and legislature have imported notions of quality into the assessment of essential derivation. This has a number of advantages, including the ability to meet the needs of developments in plant breeding techniques and providing plant breeders with greater certainty in relation to whether new varieties are essentially derived.

03 September 2009

Consent in Aust telco services

A 33pp report [PDF] from the Australian Communications Consumers Network (ACCAN) highlights flaws in obtaining consent in the Australian communications industry.

ACCAN's chief executive commented that
Our research has found that inconsistent and unsatisfactory consent requirements are scattered throughout a mix of telecommunication laws and industry codes of conduct. In many key cases consent requirements are absent entirely. The collection of informed consent from consumers is a key requirement in the communications sector. Consent is essential for contract formation, subscription services and the use of customer information
The report noted that
information provided to consumers regarding communications products – such as mobile phone and Internet subscriptions – ranged from zero information right through to 57 pages of detailed legal jargon ... few consent requirements that exist in laws and codes are inconsistent and do not include coverage of key issues such as the capacity of the individual to provide consent (such as young people or people with an intellectual disability).

Another concern is that there is no requirement to record consent in the communications sector, and this has led to a lot of problems for consumers involved in disputes. Caseworkers interviewed in this project reported numerous cases where the consumer denies all knowledge of a service that appears on their bill
The report also considers questions regarding obtaining informed consent from specific consumer categories, including indigenous consumers, people with disabilities and young people. The young and indigenous consumers faced significant challenges in dealing with the communications industry, reflected in over-representation in consent complaints statistics.

In Brief

Divewrsions while I'm reading The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton: Princeton Uni Press 2009) by Margot Canaday ...

+ the UFOs of 1909 (aka the Scareship Panic) - here and here

+ let's be kind to that nice Mr Hitler (Pat Buchanan in barking moonbat mode yet again) - here

+ Lobachevsky meets Barbie ("plagiarise, plagiarise, that's why God gave you eyes"?) - here

+ Geoffrey Nunberg questions hype about Google Books - here
Start with publication dates. To take Google's word for it, 1899 was a literary annus mirabilis, which saw the publication of Raymond Chandler's Killer in the Rain, The Portable Dorothy Parker, André Malraux's La Condition Humaine, Stephen King's Christine, The Complete Shorter Fiction of Virginia Woolf, Raymond Williams's Culture and Society 1780-1950, and Robert Shelton's biography of Bob Dylan, to name just a few. And while there may be particular reasons why 1899 comes up so often, such misdatings are spread out across the centuries. A book on Peter F. Drucker is dated 1905, four years before the management consultant was even born; a book of Virginia Woolf's letters is dated 1900, when she would have been 8 years old. Tom Wolfe's Bonfire of the Vanities is dated 1888, and an edition of Henry James's What Maisie Knew is dated 1848.
+ Vladimir Nabokov and Lionel Trilling discuss Lolita ("readymade souls in plastic bags" "shocking, I think it's shocking") in a studio decorated by Liberace - here

+ 'Open Secrets' by Michael Madison, a paper in the forthcoming The Law and Theory of Trade Secrecy: A Handbook of Contemporary Research (Cheltenham: Elgar 2010) edited by Rochelle Dreyfuss & Katherine Strandburg
the law of trade secrets is often conceptualized in bilateral terms, as creating and enforcing rights between trade secret owners, on the one hand, and misappropriators on the other hand. This paper, a chapter in a forthcoming collection on the law of trade secrets, argues that trade secrets and the law that guards them can serve structural and insitutional roles as well. Somewhat surprisingly, given the law’s focus on secrecy, among the institutional products of trade secrets law are commons, or managed openness: environments designed to facilitate the structured sharing of information. The paper illustrates with examples drawn from existing literature on cuisine, magic, and Internet search
+ It's art, not obscenity ("nude plinth man sparks complaint") - BBC here notes complaint by an ex-detective after a man stood naked on a Trafalgar Square plinth as part of the ongoing 'One and Other art' installation
A police spokesman said it was not a crime to appear naked in public. ... Mr Holwell, 24, from Loughborough in Leicestershire, said he confirmed with event producer Artichoke that he would be permitted to undress while on the plinth. Afterwards he said: "I was chatting to my mates about it; they see me as a bit of an exhibitionist, this seemed the natural way to go." Mr Holwell, who works in a double-glazing factory [which is presumably quite different to a law faculty], added: "It's the human form, everyone's the same, it's not like I'm showing off something that no one else has got." But Mr Williams-Thomas, a former Surrey Police detective constable, said his three children, aged between eight and 13 years old, were "very shocked and embarrassed" by Mr Holwell's nudity. ... "I fully expected that the surrounding police or organisers would stop this man. To my total surprise they stood by and did nothing."
An Artichoke spokesperson commented that "We have been working with the Metropolitan Police for several months and they agree that there is nothing illegal in nudity, provided no obscenity is committed, which is why they did not intervene in this case".

02 September 2009

Gang identity

Timaru in New Zealand has announced that it will ban gang insignia if the Wanganui 'gang patch law' is upheld in court.

Earlier this year the New Zealand Parliament passed the Wanganui District Council (Prohibition of Gang Insignia) Act 2009 [here], in effect from 9 May 2009, to "prohibit the display of gang insignia in specified places in the district".

The Act empowers the Wanganui District Council - consistent with the Local Government Act 2002 (NZ) - to make bylaws designating "specified places or gangs" if those bylaws are
reasonably necessary in order to prevent or reduce the likelihood of intimidation or harassment of members of the public in a specified place or to avoid or reduce the potential for confrontation by or between gangs.
S 12(3) of the Act provides that "without limitation, and to avoid doubt", a judge may apply s 128 of the Evidence Act 2006 (NZ) in "deciding whether a sign, symbol, or representation is gang insignia" for the purposes of the statute, an echo of the Ugandan regime and US dress codes noted recently in this blog.

The Act authorises a constable to search a vehicle to locate a person referred to under that statute, search the vehicle to locate gang insignia (which may be seized and destroyed), require any person in or on the vehicle to state his or her name, address, and date of birth, and require the vehicle to remain stopped for as long as is reasonably necessary to exercise the powers. Potential conflict with the NZ Bill of Rights Act 1990 (NZ) was highlighted in the 2008 report [PDF] by the Parliament's Law and Order Committee.

The first bylaw was duly passed by the Council on 1 September and came into effect at midnight, giving the NZ police the power to fine patch-wearers NZ$2,000 and take possession of the insignia. The first arrest under the bylaw has taken place.

Timaru Mayor Janie Annear reportedly told Radio New Zealand her city did not have a gang problem (and was presumably quite safe for people in search of hobbits) but would be "pro-active" and emulate Wanganui.

The Wanganui council was dismissive of a submission from the Hells Angels, which claimed that those Harley fans are not a gang and should instead be excluded from the bylaw because they are a club. A Wanganui Council representative commented that the NZ Parliament and police had determined the Hells Angels were a gang, going on to explain that "Our bylaw simply demarcates the boundaries where gang patches, gang colours and gang insignia will be banned".

The Law & Order Committee report stated that
It is important that the definition of gang insignia be kept broad to allow for possible rebranding of gangs. However, we consider that this amendment would provide a useful limitation on the insignia that could be captured by the prohibition. We considered recommending amending the bill so that tattoos would not be captured by this legislation. However, a majority of us (New Zealand Labour and New Zealand First) are concerned that this might cause an increase in the use of tattoos by gang members to intimidate the public. We do not consider that every tattoo should be covered by this legislation; it should capture only those that denote membership of, affiliation with, or support for a gang.
Chester Borrows MP, in the first reading speech for the Act, acknowledged concerns about tattoos but claimed that
Gang members have raped, murdered, beaten, and stolen in gang regalia with no hesitation, and they have shown no remorse. When gang members express regret for offending, it is always because they were apprehended or because of the effect the offending has had on their own families. There is never regret about the impact on the victims. They regret time in jail and wasted opportunities, but never the damage they have done to others. In fact, the opposite is true. It is their behaviour — giving the television camera the fingers, sneering, swearing, and barking — and their offending that has instilled reasonable fear in the minds of average Kiwis, and to deny that these fears are reasonable shows a lack of acknowledgment of the legitimacy of those fears. Time and time again we seek to encourage communities to take responsibility for offending by their community members.

... This bill came about part-way through an 18-month campaign of gang violence involving stabbings, beatings, drive-by shootings, and attacks in the streets and suburbs and the CBD of Wanganui. People were intimidated by the sight of gang members who were patched and in close proximity. To minimise this quite reasonable response to 18 months of violence, which culminated in the death of an innocent 2-year-old, and to try to segregate responsibility or sectionalise the right to intervene, is not a helpful stance in dealing with what is a generic gang problem.

Soigne, Fastidious Philosopher Kings

In today's Legal Systems seminar we're discussing judicial activism, with a bit of help from the Hon Dyson Heydon's famous Quadrant speech ("soigne, fastidious, civilised, cultured and cultivated patricians of the progressive judiciary, our philosopher kings and enlightened despots"), the equally spirited 'Heydon Seek: Looking for Law in All the Wrong Places' by Allan Hutchinson in 29(1) Monash University Law Review (2003) 85-103, John Gava's 'Unconvincing and perplexing: Hutchinson and Stapleton on judging' in University of Queensland Law Journal (2007), 'A Blast from the Past: The Resurgence of Legal Formalism' by Frank Carriganin 27(1) Melbourne University Law Review (2003) 163-186, 'Cattanach v Melchior: Principle, Policy & Judicial Activism' by David Hamer in 1(2) University of New England Law Journal (2004) 225-238 and 'The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable' by Jane Stapleton in 24 Australian Bar Review (2003) 135-150.

Heydon sniffed in relation to Australian Capital Television v Commonwealth (1992) 177 CLR 106 that
the soigné, fastidious, civilised, cultured and cultivated patricians of the progressive judiciary – our new philosopher-kings and enlightened despots – are in truth applying the values which they hold, and which they think the poor simpletons of the vile multitude – the great beast, as Alexander Hamilton called it – ought to hold even though they do not. The trouble is that persons adhering to different values or different perceptions of need or different aspirations tend to be at risk of being ruthlessly waved out of all decent society as enemies of the people.

In short, radical legal change is best effected by professional politicians who have a lifetime’s experience of assessing the popular will, who have been seasoned by much robust public debate and private haggling, who have all the resources of the executive and the legislature to assist, who can deal with mischiefs on a general and planned basis prospectively, not a sporadic and fortuitous basis retrospectively, and who can ensure that any changes made are consistent with overall public policy and public institutions.

Professional politicians may not be an ideal class, but they are better fitted than the courts to make radical legal changes. It is curious that the Mason court, whose members individually have tended to stress that the Constitution was made by the people of Australia, and who collectively implied into the Constitution a provision requiring freedom of political communication on the basis that the Constitution provided for representative democracy, whereby parliamentary legislators are chosen directly by the people, tended to treat itself as another legislature even though it was not chosen by the people.
It is difficult not to endorse Richard Ackland's comment regarding Cattanach v Melchior (2003) 215 CLR 1 that
Regardless of the job application speech, large quantities of judicial reasoning frequently involve coating personal values in what law is to hand to lend support. To suggest that is not activism or adventurism is really too much of a con to swallow. The principle to bear in mind when weighing the value of the commentary is that whenever a court's reasoning does not confirm to a conservative perception of values, then it is denounced as 'judicial activism'. Conversely, for a liberal minded person, a decision that favours conservative values invariably is said to be infected with 'excessive legalism'. They are entirely unhelpful labels deployed to enhance or rebuke judges according to the acceptability or otherwise of the values they bring to their task.

01 September 2009

Jeremy Bentham, Nonsense-Slayer

A reader has questioned this blog's snark regarding claims that Foucault was one of the "most important social theorists and philosophers" of last century, presumably along with luminaries such as Mao, Stalin and Hitler ... albeit that their importance is measured in tonnes of newsprint and dead children.

Anointment of vectors of the French Disease isn't new, as I was reminded in reading - what in my opinion is a delirious - 14 October 2004 New York Times obituary by Mark Taylor of Jacques Derrida.

Derrida was, we are told, one of the
three most important philosophers of the 20th century. No thinker in the last 100 years had a greater impact than he did on people in more fields and different disciplines. Philosophers, theologians, literary and art critics, psychologists, historians, writers, artists, legal scholars and even architects have found in his writings resources for insights that have led to an extraordinary revival of the arts and humanities during the past four decades.
Taylor comments that
To people addicted to sound bites and overnight polls, Mr. Derrida's works seem hopelessly obscure. It is undeniable that they cannot be easily summarized or reduced to one-liners. The obscurity of his writing, however, does not conceal a code that can be cracked, but reflects the density and complexity characteristic of all great works of philosophy, literature and art. Like good French wine, his works age well. The more one lingers with them, the more they reveal about our world and ourselves.
Mark Lilla, in The Reckless Mind: Intellectuals in Politics (New York: New York Review Books 2001) offered a more mordant assessment, dissing Derrida as "a specimen of normalien cleverness", "more performance artist than logician", a proponent of a justice that stands "outside and beyond the law" and is accessible only through revelation ("an experience of the impossible") rather than principles ("propriety, intentionality, will, liberty, conscience, self-counciousness, the subject, the self, the person, and community") that should be forsworn by pious deconstructionists as embodiments of the "trap of language".

What cannot be articulated cannot be deconstructed, it seems, with Lilla quoting Derrida's immensely helpful announcement that
If there is deconstruction of all determining presumption of a present justice, it operates from an infinite "idea of justice", infinitely irreducible. It is irreducible because due to the Other - due to the Other before any contract, because this idea has arrived, the arrival of the Other as a singularity always Other. Invincible to all skepticism ... this "idea of justice" appears indestructible ... One can recognise, and even accuse it of madness. And perhaps another sort of mysticism. Deconstruction is mad about this sort of justice, mad with the desire for justice.
Epigones such as Lyotard are even more grotesque. It's time, time my friends, time to resuscitate Jeremy Bentham (not quite as cute as Buffy the Virilio Slayer (PDF) but oh useful as a model for grappling with substantive questions about law and justice rather than disappearing into deconstructive black holes.

Bentham might have respected the paper by Basak Cali & Alice Wyss on Why Do Democracies Comply with Human Rights Judgments? A Comparative Analysis of the UK, Ireland and Germany. It deploys "rich qualitative data based on elite interviews carried out in Germany, the UK and Ireland" in discussing whether being a democratic state matters in fulfilling international commitments. Cali & Wyss note that democracies have objective institutional properties that have different prominence in different contexts. They claim that the perceptions states have of their own democracy play an important role in determining the motivations for compliance with human rights commitments.

31 August 2009

Email Disclaimers

A post by Gillian Black of the University of Edinburgh School of Law on 'Email Disclaimers and Contract Formation' considers the statement by Lord Hodge in Baillie Estates Ltd v Du Pont (UK) Ltd [2009] CSOH 9 [here].

In his judgement Lord Hodge noted that
For completeness, I record that Du Pont did not advance the argument set out in their defences that their emails contained a standard disclaimer that the email did not constitute a contractual offer or acceptance unless it was designated that an e-contract was intended. Such an argument would have been inconsistent with Mr Cormack's approach and would have been met by the response that it was the attached proposal rather than the email which was the offer document.
Black comments that
Wording along similar lines will often be found on email disclaimers, despite the fact that many senders will be unaware of it, and many recipients will fail to read it. Nonetheless, since the parties are entitled to determine the moment of contract formation, by demonstrating when they objectively intended to conclude a contract, it is arguable that the use of an email disclaimer on these terms should be effective in preventing a contract from being concluded.

... courts may not be prepared to accept email disclaimer wording unless it explicitly covers the facts at issue. Reliance on general wording that the contents of the email are not contractually binding may be insufficient where draft contracts or proposal documents are appended as attachments, and the contract is arguably concluded on those terms.

SRLs, Special Leave and Space Pixies

Reading the NSW Bar Association 2001 Guidelines for Barristers on Dealing With Self-Represented Litigants [PDF], aka SRLs.

SRLs - the people whom one acquaintance characterises as more dangerous than SLRs (and just as noisy) - are reported to account for over 35% of the people appearing in the Family Court and 18% in Federal Court matters (31% of migration cases in that court) along with a substantial number of people in state/territory courts in civil and criminal cases (discussed in for example the Australian Institute of Judicial Administration's 2004 Forum on Self Represented Litigants report [PDF]). As of 2002/3 some 42% of special leave applications filed in the High Court came from SRLs (with 99% of those applications being refused). The High Court subsequently declined to accept SRL special leave applications, discussed in Special Leave to Appeal (Brisbane: Supreme Court of Queensland Library 2007) by David O'Brien.

Self-representation in Australian federal courts is recognised in the Judiciary Act 1903 (Cth) s 27 and in a range of court rules, such as r7.1 of the Uniform Civil Procedure Rules 2005 (NSW). The AIJI Forum report noted that
the view that self-representation is a problem is not a universal one.

Indeed, some tribunals and some jurisdictions within courts (e.g. small claims) operate on a basis which assumes certain advantages to self-representation and discourage (or bar) legal representations. 'Doing away with lawyers' is said to encourage quicker and more cost-effective solutions in these jurisdictions and to ensure that all parties operate on a 'level playing field'.

Even in jurisdictions where legal representation is permitted, there may be good reasons to encourage unrepresented parties to appear. For example, Justice Stuart Morris, President of the Victorian Civil and Administrative Tribunal, noted VCAT’s Planning and Environment List has a strong emphasis on reducing legalism and encouraging participation from community groups and objectors. In Queensland the Self-represented Litigants Service (SRLS) was launched in December 2007 as part of the accessCourts initiative at the Supreme and District Courts in Brisbane.
In discussing access to justice the Hon Justice Pierre Slicer of the Tasmanian Supreme Court stated in 2004 that
There has always been tension between theory and practice in the stated objective that all are equal before the law. It is a basic tenet of our democratic system that all have access to the Courts and each person the right to present his or her case. Reasons which include economics, socio-economic background, impairment, and the like have always rendered it difficult for a tribunal to determine the causes of parties equally able to present and argue their cause. A further tension arises from an expectation that since all causes are important to the participant that there ought to be one first-class standard. As in all disciplines, such is impossible.
Slicer went on compare judicial officers to patient "pit ponies" and to highlight questions about vexatious or querulous SRLs, indicating that
In some cases any assistance proffered or advice given to advance the cause of a litigant in person will be unwelcome and unsuccessful. ... the historic psycho-medical classification of "paranoid litigant" or "querulous" person, shows an equivalence between the modern and sociological response of "entitlement to legal rights" and the historic Marxists and/or Dickensian critique of the complexity and inequality of the legal system. Modern response through "alternative dispute resolution" and recognition of "complaint and victim" might resolve many difficulties, but transfers the remainder to a system "ill-equipped" to deal with the residue. The conjunction of "economic rationalism" by the right and "release to the community" by the left, suited both sides of the ideological divide, but left an institution of the state, bereft of political power, with the residual of the outcome.
He concluded that SRLs traverse the fault lines in the justice system.
Some are well meaning who have become enmeshed in the pickets of the law; some are naïve or ill-suited to take an appropriate part in the determination and application of the law; and some consciously patrol the fault lines seeking "justice", fulfilment of an obsession, vehicles for expression of anger, or simply to meet an inner need. An obsessed litigant with intelligence, but not resources, is well suited to inhabit the fractures or "fault lines". They are able to use the tension between the right of access and the obligation of a court to administer justice and conduct cases efficiently and expeditiously. Self-represented litigants are independent of, and not governed by, the duties to a court by a legal practitioner upon which the court system is dependent.
SLRs pose challenges of management and it
remains the duty of judicial officers, as best they are able, to resolve them. However, in approaching the problem, we should remember that we are neither social workers nor responsible for the general problems of our society. There is often a deep desire to help the "underdog" or to make up for disadvantage. We ought recognise within ourselves that our powers and resources to redress wider problems is limited and we ought not travel with a cross or albatross because of our inability to so resolve.
Shaw J of the NSW Supreme Court had noted [PDF] during the preceding year that
One area of current controversy concerns the unrepresented defendant in sexual assault cases. The question of principle is whether an unrepresented accused person should be entitled to cross-examine a complainant in cases involving allegations of rape or other sexual assault. In a report published in June 2003, the New South Wales Law Reform Commission recommended that an unrepresented accused should be prohibited from personally cross-examining a complainant in a sexual offence proceeding, and that a legal practitioner should cross-examine the complainant in such proceedings where the accused is unrepresented. It was further recommended that the accused must be advised, at the earliest possible time after arrest and no later than the commencement of proceedings, that legal representation is necessary in sexual offence proceedings if he or she wishes the complainant to be cross-examined. The accused, it was recommended, should be advised to make arrangements for representation and given the opportunity to do so.
The issues underlying that recommendation have been reflected in statutory changes in the ACT, NSW and other Australian jurisdictions.

30 August 2009

Patently Obvious?

Reading a feisty post ('Falsehoods, Distortions and Outright Lies in the Gene Patenting Debate') at Patent Docs in conjunction with Jane Hope's Biobazaar: The Open Source Revolution and Biotechnology (Cambridge: Harvard Uni Press 2009), David Koepsell's Who Owns You? The Corporate Gold Rush to Patent Your Genes (London: Wiley-Blackwell 2009), Luigi Palombi's Gene Cartels: Biotech Patents in the Age of Free Trade (Cheltenham: Elgar 2009) and The Patent Crisis and How the Courts Can Solve It (Chicago: Uni of Chicago Press 2009) by Dan Burk & Mark Lemley.

All in all, more entertaining than Ian Hacking's self-consciously 'clever' The Social Construction of What? (Cambridge: Harvard Uni Press 1999), a deconstruction of 'social constructionism' that for me is less persuasive than his Historical Ontology (Cambridge: Harvard Uni Press 2002), or Foucault's Law (London: Routledge 2009) by Ben Golder & Peter Fitzpatrick.

The latter is promoted as offering "a revelatory argument about one of the most important social theorists and philosophers of the twentieth century", in a pantheon that presumably includes figures such as Edward Said - oops, stay away from Robert Irwin's impudent For Lust of Knowing: The Orientalists and their Enemies (London: Allen Lane 2006) - Herbert Marcuse and Marshall McLuhan.

Putting aside skepticism about Foucault's lasting significance, I wonder whether the undiscovered Foucault, like the 'secret Hobbes' revealed by Carl Schmitt, is a function of the commentator's ingenuity and enthusiasm (and in the case of Foucault the sheer messiness of the author's writing over a number of years, untroubled by notions of consistency or coherence). Time for a hermeticist reading of Talcott Parsons?