24 December 2010

Put another Renoir on the barbie

From 'From Barbie to Renoir: Intellectual Property and Culture' by Susy Frankel in (2010) 41 Victoria University of Wellington Law Review 1-15 -
Because of the pervasiveness of intellectual property in our culture, the right way to discuss the limits of intellectual property is to understand and try to articulate the relationship between intellectual property and culture. We know it is there but what does this relationship tell us? And how can we use the understanding of that relationship in a practical way?

One of the phenomena that we see is that there have been certain products and brands that have become boom industries. The question that I am interested in is not whether cultural and creative industries are goodies or baddies, whether Barbie has less or more artistic merit than Renoir, but whether if the law over protects these kinds of cultural products we do damage to culture itself. The law is too protective if it starts to be too constricting on the types of artistic, literary and musical works that can be made. The law is too restrictive if people will not create certain works because they are not sure if the law allows them to or not and they cannot easily find out the necessary information to determine if what they do is legal creativity or not.

The problem with the incentive and reward approach to intellectual property is that it loses sight of the public interest in the structure of the law as a whole. In essence the rights of individuals appear to have trumped the collective interests in intellectual property law. Those collective interests include its effect on culture. This includes what we might call expressive values and free speech, but it is not just those values at play. Society has a vested interest in supporting individual rights. The appropriate balance between collective interests and individual rights is not an easy balance to achieve. Finding that balance requires that we look at the fundamental reasons why we have private rights in intellectual property. Asking how much reward is necessary, and questions of that kind, ultimately do not reveal much more than some businesses do rather well out of intellectual property rights. Looking at the relationship between culture and intellectual property is a much better starting place because ultimately it can show more clearly where to draw the line.

The idea that there is a link between culture and intellectual property is not new. But exactly what the link is, and how it can be appropriately reflected in the law, is not selfevident. The starting clue, that I have used, is that cultural industries are protected by intellectual property rights. But it is not the status as a cultural industry that achieves this. It is the creation of cultural products. You receive copyright whether you are a big player or a small player.

When intellectual property rights interfere too much with the type of cultural product that emerges, particularly from small players, that is when a line can be drawn. But it is complete nonsense to suggest that the drawing of the line is for any reason other than to support one cultural interest over another. This dominance of one cultural interest over another is often the consequence of a focus only on economic interests. In as far as New Zealand can, we should draw our own lines about cultural values. Such an approach is also likely to be economically beneficial.


From Eliot Weinberger's 33(1) LRB (2011) review of George Bush's Decision Points (London: Virgin 2010), characterised as "the perfect Christmas gift for one's Republican uncle".
... in the mere two years since he left Washington, Bush is beginning to seem like a reasonable man compared to the Republicans who have now been elected to higher office. Unlike them, he was not a 'family values' Christian who liked to have prostitutes dress him in diapers; he did not have to pay a fine of $1.7 billion (yes, billion) for defrauding the government; he does not advocate burning the Quran; he does not believe that Obama is a Kenyan Muslim allied with terrorists who is building internment camps for dissidents; he does not believe that people of Hispanic origin should be randomly stopped and asked to prove their immigration status; he does not support a military invasion of Mexico or a constitutional amendment stating that the United States cannot be subject to Sharia law or an electric fence along the entire Canadian border or the death penalty for doctors who provide abortions; he does not believe that bicycle lanes in major cities are part of a plot by the United Nations to impose a single world government. The Palinites and Tea Partiers are getting the publicity, but the old-fashioned neocons still hold the power, and they may well run the ever patient Jeb Bush – practically the only Republican left with both dull conservative respectability and national name recognition – for president in 2012.

23 December 2010

Ame again

Opportunism, amnesia or an expression of the belief system that's characterised as 'cargo cult'. The ABC reports that around 100 people from Papua New Guinea have been intercepted by Customs in the Torres Strait during a quest - dubbed by the Australian government as a "prank" - supposedly to reclaim Australian citizenship removed when PNG gained independence in 1975.

Travellers in twelve dinghies included members of the Papua Australia Plaintiff United Affiliates (PAPUA) group, reported earlier this month as claiming that they were (or should be recognised as) Australian citizens -
We were born Australian citizens when Papua was part of Australia. Our claims to citizenship is that we never renounced it or made a declaration of loyalty to PNG
That claim is unpersuasive, given the High Court decision in Re Minister for Immigration and Multicultural Afairs; Ex parte Ame [2005] HCA 36; (2005) 222 CLR 439; 79 ALJR 1309; 218 ALR 483.

Amos Bode Ame was born in the territory of Papua prior to independence. Geography matters, as Ayelet Shachar notes in The Birthright Lottery: Citizenship and Global Inequality (Cambridge: Harvard University Press 2009).

Australian supervision of the Territory meant that under the Australian Citizenship Act 1948 (Cth) Ame was an Australian citizen by birth. Some citizens are more equal than others. Under the Migration Act 1958 (Cth) [here] Ame required a permit to enter the Australian states and internal territories (eg the ACT and NT) or reside in those jurisdictions.

Independence for Papua New Guinea under the Papua New Guinea Independence Act 1975 (Cth), which provided that "On the expiration of the day preceding Independence Day, Australia ceases to have any sovereignty, sovereign rights or rights of administration in respect of or appertaining to the whole or any part of Papua New Guinea", was reflected in a Constitution for the new state, with people who had been born in PNG prior to nationhood - and who had two grandparents born in PNG - being granted citizenship of the new country. In conjunction with the grant those people lost their Australian citizenship through the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 under the 1975 PNG Independence Act. An exception was made for the fortunate few who had previously secured permanent residency in Australia.

Ame entered Australia 24 years after independence (ie in 1999) using a visa. He had not entered, or applied for any right to enter, any of the States or internal Territories before Independence Day and had never applied to become an Australian citizen by naturalization or by registration under the Citizenship Act.

He argued that he was an Australian citizen by birth and as a consequence had a right of permanent residence in Australia, which meant that he had never lost his Australian citizenship and could not be removed or detained under the Migration Act 1958 (Cth). He had not taken up the opportunity under s 65(5) of the Papua New Guinea Constitution for renouncing another nation's citizenship in order to become a naturalised PNG citizen.

Ame argued that as an Australian citizen he was not an 'alien', that his citizenship could not be withdrawn by regulation under the Papua New Guinea Independence Act 1975 (Cth) and that alternatively the Commonwealth could not withdraw his citizenship without his consent.

The High Court disagreed, rejecting the arguments. It held that there had been no constitutional obligation for residents of Papua or another external territory to enter mainland Australia as a right. Acceptance of Ame's assumptions about citizenship disregarded PNG independence and would for example mean that most Papuans would currently be Australian citizens (and citizens without the restrictions evident prior to Independence).

As importantly, the Court held that the regulations withdrawing citizenship as part of Independence were constitutionally valid. The PNG Independence Act provided that "The Governor-General may make regulations making provision for or in relation to matters arising out of or connected with the attainment of the independence of Papua New Guinea, including regulations making modifications or adaptations of any Act". The Court indicated that -
The power in s 122 pursuant to which parliament enacted legislation to deal with the acquisition of the external territory enabled it also to enact legislation to deal with the relinquishment of sovereign rights and rights of administration over that territory. The power pursuant to which parliament could enact legislation to treat the inhabitants of the territory as citizens enabled it also to treat the inhabitants of the new independent state as aliens.
In referring to Singh v Commonwealth of Australia [2004] HCA 43; (2004) 209 ALR 355, decided in the previous year, the Court noted rejection of the notion that the aliens power could not be used to unilaterally strip people of their Australian citizenship. Mr Ame's consent was not required. the Court was similarly (The High Court was unimpressed with his suggestion that he held Australian citizenship through a decision not to become a naturalised member of PNG, commenting that -
It is improbable in the extreme that it was the purpose of s 65 of the Papua New Guinea Constitution to exclude from citizenship of the new nation all indigenous Papuans living at Independence Day unless they took positive steps to renounce their Australian citizenship.
The Australian experience differs from that of New Zealand. Niue voted in 1974 for self-government "in free association" with NZ, with Niueans being automatically granted New Zealand citizenship. Given limited economic opportunities on Niue only 1,400 of around 50,000 ethnic Niueans currently live in the microstate; some 20,000 live in New Zealand and the Niuean economy is essentially funded by NZ (at a rate of around NZ$18,000 per each Niuean every year).

PNG is substantially larger than Niue and its legal relationship with Australia during the colonial/trusteeship period was different to that of Niue and NZ. Although both PNG and Niue are - or are becoming - failed states, adoption of the 'Niue Solution' is unlikely in Australia

Divulgation, Withdrawal and MR

CBC reports that the National Gallery of Canada is seeking legal advice over moral rights claim by Toronto artist AA Bronson in the 'Wojnarowicz' dispute involving the US National Portrait Gallery (NPG).

Bronson has asked the NPG to return his Felix, June 5, 1994 photograph from the NPG Hide/Seek: Difference and Desire in American Portraiture exhibition. Hide/Seek has attracted criticism from religious fundamentalists on the basis that difference (eg gay people) should not be recognised. The NPG has attracted criticism over removal of an extract of David Wojnarowicz's A Fire in My Belly video piece. That extract features an 11-second sequence in which ants crawl over a bloodied cross - somewhat distressing, I suspect, for most viewers than the anguish evident in crucifixions depicted by artists such as Grunewald, El Greco and Velasquez but opportune for expressions of outrage by small, extreme advocacy groups. (Let's not think about the lip-smacking gore in several Mel Gibson movies) Objectors have condemned the piece as "anti-Christian"; the NPG has explained removal on the basis that the video was "distracting from the overall exhibition". In a statement proclaiming that 'Smithsonian Stands Firmly Behind "Hide/Seek" Exhibition' [PDF] the institution advises that -
The museum and the Smithsonian stand firmly behind the scholarly merit and historical and artistic importance of the exhibition.

Acknowledging that some visitors may prefer not to encounter some of the subject matter in the exhibit, the museum installed signs at both entrances, reading "This exhibition contains mature themes."
Parental guidance signs in exhibitions featuring Mannerist and Baroque grand guignol - The Flaying of Marsyas, The Martydom of St Sebabastian, lurid S&M involving St Agatha or sundry other martyrs - might be advisable.

In answering "Why did the Smithsonian make the decision to remove the A Fire in My Belly video by David Wojnarowicz from the exhibition?" the NPG indicated that -
Many people who contacted the Smithsonian and some members of Congress were upset about segments of the four-minute video (optionally accessed by visitors on a small touch screen in the exhibition) because it depicted a crucifix on the ground with ants walking on it. They interpreted the video imagery as anti-Christian.

This imagery was part of a surrealistic video collage filmed in Mexico expressing the suffering, marginalization and physical decay of those who were afflicted with AIDS. In the video, Wojnarowicz used religious imagery placing his work firmly in the tradition of art that uses such imagery to universalize human suffering.

Smithsonian officials and museum leaders are sensitive to public perceptions of the Institution's exhibitions. In this case, they believed that the attention to this particular video imagery and the way in which it was being interpreted by many overshadowed the importance and understanding of the entire exhibition. Thus the decision was made to remove the video from the exhibition.
Bronson's work - for me far more haunting than the Wojnarowicz video - is on loan to the NPG from the Ottawa-based National Gallery of Canada (NGC). He has reportedly sent an email to NGC director Marc Mayer claiming that his "moral rights under Canadian and American copyright law" are being violated because the NPG is refusing to return the photo.
I am instructing the National Gallery of Canada to remove my work Felix, June 5, 1994 from the Hide/Seek exhibition at the National Portrait Gallery in Washington, D.C., immediately, and until such time as the David Wojnarowicz video is restored in full
Mayer has responded that
Now that we have been contacted by your lawyer on this complicated legal matter, you will understand that as representatives of the public interest, the responsible thing for us to do is to seek our own legal advise [sic]
The NPG has said it will not meet Bronson's request to remove his work from the exhibition. That refusal is consistent with US jurisprudence under the Visual Artists Rights Act (VARA) and with the Moral Rights provisions in Australian copyright law. As Maree Sainsbury comments in her definitive Moral rights and their application in Australia (Leichhardt: Federation Press 2003), the droit de retrait et de repentir has limited practical application.

Magic Plastic and bolts of joy

The Australian Competition & Consumer Commission, in an admirable expression of skepticism, has questioned promotion by vendors of Power Balance - the magical performance aid for athletes and wannabees.

Power Balance? According to its US site it is -
Performance Technology designed to work with your body’s natural energy field. Founded by athletes, Power Balance is a favorite among elite athletes for whom balance, strength and flexibility are important.

How Does the Hologram Work?

Power Balance is based on the idea of optimizing the body’s natural energy flow, similar to concepts behind many Eastern philosophies. The hologram in Power Balance is designed to resonate with and respond to the natural energy field of the body.
Judging by the illustrations Power Balance comprises a plastic wristband with an implanted hologram. It's endorsed by numerous leading athletes.

History suggests that leading athletes will endorse a range of things, including lucky rabbit feet (albeit not so lucky to the rabbits who provided the feet), holy medals, blessed scrolls and other parapsychological bling.

The promoters state that -
Created by athletes dedicated to holistic care, Power Balance is a Performance Technology that is a favorite among elite athletes and individuals that strive to perform at the top of their game, no matter what it is. We're helping people excel with a revolutionary technology that's changing the way people live, work and play.

We started out with a single mission - bring out the best in people by bringing science and nature together. What we've been able to accomplish is extraordinary. Our customers are our biggest fans. Just listen to what some of them have to say.

Power Balance is committed to bringing our wearable performance technology to everyone so each individual can maximize their potential and live life to its fullest. We are dedicated to compassionate business practices, a firm belief in our products, and helping people every day.
A skeptic might query the terms "revolutionary", "science" and "nature".

The Therapeutic Products Advertising Complaints Resolution Panel indicated earlier this year that -
In relation to the advertised product, it stated that "you can restore balance & harmonic equilibrium… with a new ‘switch’", "Power Balance, after years of research and development, has produced a system to safely restore and optimise the electro-magnetic balance within the human body… IMMEDIATELY", "Power Balance's Mylar Holographic Disk (the same substance used to keep static electricity from damaging electrical components) has been imbedded with an electrical frequency that restores your body's electrical balance, promoting a free exchange of positive and negative ions and align your body's energy pathways", "the high density Disk acts much like a switch, resonating within your system and turning on your energy field while it clears the pathways so the electro-chemical exchange functions like the well-tuned generator it was meant to be", "RESULTS ARE ALMOST IMMEDIATE ... & TRULY PHENOMENAL", "unlike many other ionic electro-magnetic devices, the Power Balance Holographic Disks begin to work almost instantly, restoring optimal electro-magnetic balance and promoting free flowing energy pathways ... NO PROMISES, JUST RESULTS", and "the benefits are clear: faster synaptic response (brain function), enhanced muscle response (in both fast and slow twitch tissues), increased stamina (better oxygen uptake and recovery), more flexibility (faster recovery), and vastly improved gravitational balance."

The other advertisements were less extensive but made similar representations in relation to such benefits as "faster synaptic response (brain function)", "enhanced muscle response (in both fast and slow twitch tissues)", "increased stamina (better oxygen uptake and recovery)", "improved flexibility (faster recovery)", and "vastly improved gravitational balance."
The Panel requested the vendors to -
to withdraw any representations that the advertised product can restore balance and equilibrium, has effects on the "electro-magnetic balance within the human body", restores the body’s "electrical balance", has effects on ion exchange within the body, causes faster synaptic response, affects brain function, causes enhanced muscle response, increases stamina, improves oxygen uptake, improves recovery, improves flexibility, or improves "gravitational balance", together with any other representations that the advertised product is for therapeutic use.
The ACCC has now stated that -
Misleading advertising claims about the alleged benefits of Power Balance wristbands and pendants have been withdrawn by the manufacturer after Australian Competition and Consumer Commission intervention.

As a result consumers will be offered a refund if they feel they have been misled and Power Balance has agreed not to supply any more products that are misleadingly labelled.

Power Balance Australia Pty Ltd claimed the wristbands improve balance, strength and flexibility and worked positively with the body's natural energy field. It also marketed its products with the slogan "Performance Technology". The ACCC raised concerns that these claims were likely to mislead consumers into believing that Power Balance products have benefits that they do not have.

"Suppliers of these types of products must ensure that they are not claiming supposed benefits when there is no supportive scientific evidence," ACCC chairman Graeme Samuel said today.

"Consumers should be wary of other similar products on the market that make unsubstantiated claims, when they may be no more beneficial than a rubber band," Mr Samuel said.

Power Balance has admitted that there is no credible scientific basis for the claims and therefore no reasonable grounds for making representations about the benefits of the product. Power Balance has acknowledged that its conduct may have contravened the misleading and deceptive conduct section of the Trade Practices Act 1974.
One reader rather naughtily asked what's the difference between an athlete-endorsed rubber-band-with-hologram, a St Christopher medal or kabbalistic red string. Can we expect the ACCC to take action against vendors of coloured twine?

The answer is no. Religious bric a brac is fine (decorate yourself with string if you believe that keeps away the evil spirits, entities that are not recognised in Australian law): its authority is a matter of religious faith, rather than a claim of scientific authority, albeit many people confuse the two.

The ACCC media release commented that "When a product is heavily promoted, sold at major sporting stores, and worn by celebrities, consumers tend to give a certain legitimacy to the product and the representations being made". It goes on to indicate that -
To address the ACCC's concerns Power Balance has provided the ACCC with court-enforceable undertakings that it will:
* only make claims about its products if they are supported by a written report from an independent testing body that meets certain standards
* publish corrective advertising to prevent consumers from being misled in the future
* amend the Australian website to remove any misleading representations
* change the packaging to remove any misleading representations
* offer a refund to any consumers that feel they have been misled, and
* remove the words "performance technology" from the band itself.
The media release concides with announcement in the US that the chapel of Our Lady of Good Help has become what the NY Times describes as "one of only about a dozen sites worldwide, and the first in the United States, where apparitions of the Virgin Mary have been officially validated by the Roman Catholic Church".

The holiness of that site reflects the 1859 claim by Belgian immigrant Adele Brise that she had been visited three times by Mary, who -
hovered between two trees in a bright light, clothed in dazzling white with a yellow sash around her waist and a crown of stars above her flowing blond locks
That visitation came a year after the Virgin appeared in Lourdes, France, to other devotees.

The Times reports that -
On Dec. 8, after a two-year investigation by theologians who found no evidence of fraud or heresy and a long history of shrine-related conversions, cures and other signs of divine intervention, Bishop David L. Ricken of Green Bay declared "with moral certainty" that Ms. Brise did indeed have encounters "of a supernatural character" that are "worthy of belief".
The text of the Bishop's declaration is available [PDF].

The Times seems just a tad cynical, reporting that -
Catholic leaders described the decree in Wisconsin as a bolt of joy at a trying time for the Catholic church, which is troubled by revelations of sex abuse.

"This is a gift to the believers", said the Rev. Johann Roten, director of the International Marian Research Institute at the University of Dayton.

"It would be devious to say that this was somehow pulled out of the attic to exorcise the problems of the church today", Father Roten said in a telephone interview. "But hopefully this will have a beneficial impact on the people, showing them that there are ways of living with faith that are very pure."

The Diocese of Green Bay is under fire from lawyers in an abuse-related lawsuit, who charge that it has obstructed justice by destroying potentially incriminating files on former priests.


From Lewis Lapham's 12 December post 'Sweet Celebrity' -
Let’s consider for a moment the fates of two men who took unique paths in military life and whose careers were once intertwined: General David Petraeus, now our Afghan War commander, and his former subordinate General Stanley McChrystal, our former Afghan War commander before he became the first general since Douglas MacArthur to be axed by a president -- in his case, for a Rolling Stone version of “loose lips sink ships” (or administrations). Petraeus, the most political U.S. general in memory, dusted off the failed counterinsurgency doctrine of the Vietnam era, made it bright and shiny again, built fabulous relationships in Congress and in militarized Washington think tanks, and then rode it all to the heights in Iraq and at U.S. Central Command. Now, in Afghanistan, without the slightest compunction, he's left his beloved counterinsurgency doctrine in a ditch as conditions on the ground worsen. Instead, he’s called in the firepower and the propaganda, both in double measure. (Oh, and in case you hadn't heard, we’ve finally achieved glorious victory in the godforsaken village of Marjah in southern Afghanistan where a senior Marine general recently announced that the battle against the Taliban there is “essentially over.” Huzzah!)

Thanks to such a string of dazzling “successes,” Petraeus has scaled the heights of American celebrity. Just the other day, he reached Mount-McKinley-esque elevations (with Everest still ahead) when ABC’s Barbara Walters declared him not just an “American hero” (though that, too), but the Most Fascinating Person of 2010! He topped a list which included Justin Bieber, Sarah Palin, and future British princess Kate Middleton, possibly because he has so much more bling than they do.

21 December 2010

Fake valour

The ABC reports that 84 year old Arthur 'Rex' Crane - former federal president of the Ex-Prisoners of War Association of Australia, supposedly a war hero, in reality guilty of identity offences - has been sentenced to four years in jail (suspended after six months) and to repay $413,000 in benefits.

Crane attracted media attention and community esteem as a veteran who had been tortured by the Japanese in 1942 (eg having one of his hands nailed to a tree and his head smashed by a soldier wielding a baseball bat). Alas, he was not on active service at that time and in fact was safely at school in South Australia.

Crane was exposed last year, as noted in this blog, and went on to plead guilty to defrauding the Commonwealth and obtaining a financial benefit by deception. He had falsely claimed $689,491 in war service pensions.

Military historian Lynette Silver is reported as commenting that the Veterans' Affairs Department, elsewhere characterised as one of the more torpid parts of the Commonwealth bureaucracy, should be investigated: "I was astounded that not enough research was done. For the military side, we had him stitched up within one month. It seems extraordinary that this really got past the authorities, and it makes you wonder exactly what was going on at the time."

Last year she commented that -
That story has been concocted very, very cleverly. He has chosen the most obscure background for himself, which a normal person could not trace, and which most people would not question.
Veterans' Affairs Minister Warren Snowdon stated [PDF] that the department works hard to ensure veterans receive their lawful entitlements -
The Australian Government takes very seriously the recognition and respect of those who have served our country and has no tolerance for those who fraudulently claim that recognition.

All allegations of fraud are investigated thoroughly.

The department has a dedicated compliance section that investigates all suspected cases of fraudulent activity.

Other ongoing measures that act as a deterrent are proof-of-identity checks and departmentally initiated reviews.

Format Rights

Still catching up on the semester's reading ...

In Robin George Le Strange Meakin v BBC, Paul Smith, Celador Productions, Martin Scott [2010] EWHC 2065(Ch) the English High Court (Chancery Division) has held that copyright could exist in a TV game show format.

In this instance summary judgment was granted to the defendants, with the Court finding that on the facts there was no derivation of the defendants' work from the claimant's and that the defendants had not taken a substantial part.

Robin Meakin claimed that game formats he had developed (eg 'Cash Call Millions Live') had been used by the defendants to develop and produce a series of programs ('Come and have a go if you think you are smart enough') that infringed his copyright and were based on confidential information that he had disclosed. He sought damages of up to £20 million.

Unauthorised exploitation of 'pitches' seems to be a perennial complaint, judging by interviews with independent program developers quoted in Georgiana Born's Uncertain Vision: Birt, Dyke and the Reinvention of the BBC (Secker and Warburg 2004). They have featured in cases such as Green v Broadcasting Corporation of New Zealand [1989] RPC 700. Works on rights in program formats include'Format Rights: Opportunity Knocks' by Smith in 3 Entertainment Law Review (1991) 63, S Lane 'Format Rights in Television Shows: Law and Legislative Process' by Shelly Lane in 13(1) Statute Law Review (1992) 24, 'A Case for the Federal Protection of Television Formats: Testing the Limit of 'Expression'' by Frank Fine in 17 Pacific Law Journal (1985) 49 and 'Free to Air? Legal Protection for TV Program Formats' (John M. Olin Law and Economics Working Paper No. 513, 2010) by Neta-li Gottlieb.

Meakin communicated his proposal to Celador in November 2002 and to the BBC in September 2003. His game show format involved contestants at home using phones (alongside studio contestants) to win prizes on a live TV quiz though cumulative scores. Perhaps not the most original of concepts, albeit I'm unqualified to assess on the basis that Ii avoid game shows the way that vampires avoid holy water and bright sunlight. Inconveniently, competitor CHG communicated a similar proposal to the BBC in May 2002, the same month that the Beeb broadcast Test the Nation - a quiz program which featured participation via studio contestants and contestants at home via SMS and the net.

In considering the claims Arnold J (no relation) indicated that the Court was prepared to assume that there may be literary and dramatic copyright in the works in question, at least for the purpose of a summary judgment application.

In finding for the defendants the Court unsurprisingly held that Meakin had to show a real prospect of success regarding reproduction of a substantial part and derivation, concluding that Meakin's evidence of derivation concerned alleged similarities: "common features that are really in the nature of very general abstract similarities" that were evident in earlier works and were insufficient to give rise to an inference of copying. They were "no more than general ideas of a fairly high level or abstraction and, moreover, commonplace ideas in the field of television game show formats". The Court referred somewhat tartly to Meakin's claims embodying "a series of conspiracy theories" and that there was no realistic prospect of him successfully establishing that a substantial part of the expression of his proposals had been taken.

For a non-specialist much of the fun lies in the corporate names: Cat and Mouse Ltd ("a specialist IT supplier"), Chatterbox Partnership, Zeal Television, Talent Television ...

20 December 2010

No bells on the bunny

Last year this blog reported the Federal Court decision in Chocolaterie Guylian N.V. v Registrar of Trade Marks [2009] FCA 891, where Sundberg J upheld refusal trade mark registration of Guylian's seahorse-shaped chocolate. One cute chocolate looks much like another and thus does not gain a shape mark.

IPKat now reports that the General Court of the European Union in cases T-336/08, T-337/08, T-346/08, T-395/08 Chocoladefabriken Lindt & Spruengli v OHIM and T-13/09 Storck v OHIM has ruled that chocolate rabbits, reindeer, mice and small bells - like Guylian's chocolate sea creatures - lack distinctiveness and thus fail to meet requirements for shape protection under the Community trade mark regime (ie EU-wide trade mark protection).

Lindt had sought to trade mark the shape of a plain chocolate lapin. It had also sought to trade mark chocolate reindeer and rabbits wrapped in gold foil with a red ribbon around their little chocolate necks. It wanted protection for the ribbon and attached bell. Storck had sought a Community trade mark for the shape of a chocolate mouse.

According to the Court the shapes are devoid of any distinctive character: rabbits, reindeer and mice are typical shapes in which chocolate and chocolate goods are presented at Christmas and Easter. Presumably the same would be said of marzipan pigs and jelly snakes. Ribbons and bells are also insufficiently distinctive.

There's a short book - or at least a conference paper - to be written on trade marking confectionary.

Embraceable you

The Australian Communications & Media Authority (ACMA), the national telecommunications regulator, has reported that "Australians are embracing the digital economy, with big increases in the volume of data downloaded, time spent online and activities undertaken online".

That is the same message we've seen for a decade, but the latest data is interesting once yawns are stifled regarding yet another rendition of "most Australians today have access to the internet at multiple locations" and that "Australians are using the internet more intensively, going online more often for a much wider range of reasons".

ACMA indicates that as at June 2010 approximately 77% of the population 14 years and over had internet access at home. 66% had a broadband connection. Nearly 2.4 million people accessed the internet via their handheld mobiles during June 2010, up from 1.6 million during June 2009. ACMA's Communications Report 2009-10 [PDF] indicated that the total number of mobile services in operation (voice and data services) increased by 7% during 2009–10 to reach 25.99 million services at June 2010. Growth in mobile services was fuelled by an increase in the numbers of mobile wireless broadband services (datacard/dongle connected to a computer), up by 71% over the period to reach 3.46 million at June 2010.

28% of people 14 years and over were estimated to be 'heavy' internet users (ie online more than 15 hours a week) in June 2010, up from 14% during June 2005. A further 27% were considered medium users (between 7 and 15 hours a week) and 23% light users (up to 7 hours a week).

An estimated 155,503 terabytes of data were downloaded in Australia during the June quarter of 2010, compared to 99,249 terabytes during the June quarter of 2009. Online social networking supposedly continues to be a "major driving force in the increasing intensity of online participation, with 8.7 million Australians accessing mainstream social networking sites such as Facebook and YouTube from home during June 2010 alone, spending in total more than 41.5 million hours on these sites. 6 million people accessed "mainstream online news sites" from home during June 2010.

19 December 2010


The NSW Ombudsman has released a 38 page report on Improving probity standards for funded organisations [PDF].

The Ombudsman states that -
Each year an estimated 3,000 organisations receive almost $2 billion in funds and subsidies to deliver a range of community-based services on behalf of the NSW government. The government's reliance on non-government organisations to deliver services on its behalf will undoubtedly continue to increase in the future. With increases in funding and responsibilities comes the need for greater accountability. Non-government organisations must be transparent and accountable not only for the public funds that they receive but for the services that they provide to many of the most vulnerable in our community. The community reasonably expects that organisations which receive public funds will have adequate safeguards in place in relation to their screening of prospective employees, management committee members and other volunteers.

This report considers the adequacy of probity checking standards that government agencies have put in place for non-government organisations that they fund in the health and human services sectors. In particular, the report focuses on the inconsistency of requirements relating to probity checking of prospective employees, board members and others involved in the planning or delivery of funded services to vulnerable people. Our work in reviewing the delivery of community services and oversighting employment related child abuse allegations has revealed cases where funded agencies have failed to undertake basic checks of prospective employees who have histories of violence, fraud and substance abuse. Failing to identify and properly address serious probity issues has the potential to not only damage the credibility of organisations but also lead to unidentified and unmanaged risks for agencies and the vulnerable individuals they care for and assist. It is essential that effective and consistent probity checking be introduced in these agencies.

Our review has identified that there are significant inconsistencies in the probity checking requirements imposed by funding agencies across the health and human services sectors. Our findings have been informed by our review of specific cases and extensive discussions with government and non-government agencies in this area. It is clear that there is strong support for a more consistent, efficient and rigorous probity checking system to be adopted. This report makes a range of recommendations designed to assist in meeting this challenge.
The report continues -
we asked participating agencies to provide advice on the systems that health and human sector agencies currently use to assess the probity of prospective employees, board members and other volunteers involved in the planning and delivery of government-funded services in NSW. Their responses highlighted significant variations in the measures currently used to identify and address potential probity problems. A critical factor is the differing standards that each government agency appears to expect of the services that they fund. This is reflected in the guidance that they provide which can vary greatly from one government agency to the next. Even within an individual agency, the approach used by differing programs can vary. Occasionally the differences reflect differing levels of risk. However, in many cases, there is no clear rationale for the disparities and inconsistencies.

One of the few forms of probity checking applied with any degree of consistency are the checks imposed by legislative schemes, such as the working with children check for individuals seeking certain forms of child-related employment and the criminal record checks carried out by the Registrar of the Aboriginal Land Rights Act 1983 with respect to individuals seeking positions as a board members, chief executive officers or employees of Local Aboriginal Land Councils. Although these checks are consistently carried out, their effectiveness could be improved. As noted below, NSW’s working with children check is currently the subject of a statutory review.

Some legislative probity checking requirements are also linked to funding conditions, such as the criminal record checks required by certain programs funded by the Federal Government. For example, screening is required by the Commonwealth’s Aged Care Act 1997. Similarly, NGOs in the health sector, which receive Commonwealth funding support, generally require pre-employment criminal record checks. The NSW Ageing, Disability & Home Care agency requires non-government aged care providers to conduct criminal record checks of their employees and some volunteers.

The participants at our roundtable forum and other stakeholders agreed that probity checking is, or at least should be, incorporated into funded organisations’ selection and recruiting practices. This involves processes to identify the best person for a particular job, or the suitability of a volunteer for a particular role in certain circumstances. In addition to those circumstances requiring working with children checks and criminal record checks, the process can also include previous employment checks (including checks for information about any formal employment proceedings or disciplinary issues), and other types of probity or reference checks.

Not the messiah, just a naughty boy

I've been reading The Secret Life of Julian Assange (aged 16) instead of No Ordinary Deal: Unmaking the Trans-Pacific Partnership Free Trade Agreement (Sydney: Allen & Unwin 2011), a worthy collection - edited by Jane Kelsey and with chapters by Jock Given, John Quiggin, Tom Faunce and Patricia Ranald - regarding the FTA.

I jest about Assange, of course, but can't help thinking that his musings from 2006 - revealed via the Internet Archive - are very Secret Life of Adrian Mole, with added crypto and arrogance.

What's one to make of -
Sat 24 Jun 2006: Canberra

Canberra, Australia; the physical realisation of Rand corporation propaganda films about the beneficial effects of the neutron bomb. From the air it's a Walter Burley-Griffin concentric bomb target. From the ground, well, the bomb has landed --- everywhere there's the faceless facades of government. If there is an average Canberrian, milling about the grand emptiness, it is the Doric column. Canberra is encircled by them, weaving about like the Styx, bordering nowhere and Hades, and like the corporate firewall, keeping the dead in and the living out.

After my state sponsored stay at ANU, I ended up at a backpackers filled with some of the 900 Christians from the Australian University Christian Convergence. Most were young women and I turned, somewhat disgracefully, into a sort of Chesterton's Hardy, the village atheist, brooding and blaspheming over the village idiot, while they, for their part, tried to convert me with the rise and fall their bosoms.

One of the devout was the lovely daughter of a New Castle minister. At some point in my unintended wooing of her, she looked up, fluttered her eyelids and said "Oh, you know so much! I hardly know anything!". "That is why you believe in God", I explained. This conversational brutality took her breath away and she swooned.
Assange channelling Barbara Cartland is not pretty. He continued that -
I was exactly what she secretly longed for; a man willing to openly disagree with her father. All along she had needed a man to devote herself to. All along she had failed to find a man worthy of being called a man, failed to find a man who would not bow to gods, so she had chosen a god unworthy of being called a god, but who would not bow to a man.
Thu 29 Jun 2006: Krill to the baleen of the feminine

I've always found women caught in a thunderstorm appealing. Perhaps it is a male universal, for without advertising this proclivity a lovely girl I knew, but not well, on discovering within herself lascivious thoughts about me and noticing raindrops outside her windows, stood for a moment fully clothed in her shower before letting the wind and rain buffet her body as she made her tremulous approach to my door and of course I could not turn her away.

But then, just when one might suspect that men are krill to the baleen of female romantic manipulation, I found myself loving a girl who was a coffee addict. I would make a watery paste of finely ground coffee and surreptitiously smear this around my neck and shoulders before seducing her so she would associate my body with her dopaminergic cravings. But every association relates two objects both ways. She started drinking more and more coffee. Sometimes I looked at her cups of liquid arabicia with envious eyes for if there were four cups then somehow, I was one of them, or a quarter of everyone one of them ...
All in all I'd prefer his musings on John Rawls.

Other dicta from St Julian of the Wiki include -
Mon 26 Feb 2007: Average shy intellectuals

X is an "average shy intellectual" and in that is a sounding for characters of his type. This type is often of a noble heart, wilted by fear of conflict with authority. The power of their intellect and noble instincts may lead them to a courageous position, where they see the need to take up arms, but their instinctive fear of authority then motivates them to find rationalizations to avoid conflict.
I'm reminded of a passage in a 23 October NY Times profile by John Burns & Ravi Somaiya -
In an online exchange with one volunteer, a transcript of which was obtained by The Times, [Assange] warned that WikiLeaks would disintegrate without him. "We've been in a Unity or Death situation for a few months now", he said.

When Herbert Snorrason, a 25-year-old political activist in Iceland, questioned Mr. Assange’s judgment over a number of issues in an online exchange last month, Mr. Assange was uncompromising. "I don’t like your tone", he said, according to a transcript. "If it continues, you’re out."

Mr. Assange cast himself as indispensable. "I am the heart and soul of this organization, its founder, philosopher, spokesperson, original coder, organizer, financier, and all the rest", he said. "If you have a problem with me", he told Mr. Snorrason, using an expletive, he should quit.

In an interview about the exchange, Mr. Snorrason’s conclusion was stark. "He is not in his right mind", he said. In London, Mr. Assange was dismissive of all those who have criticized him. "These are not consequential people", he said.
Nothing like dismissing the inconsequential, among whom is presumably found Jaron Lanier - whose critique of Wikileaks strikes me as persuasive.