Copy Me

I was asked today about the scope for establishing a version of Kopimi in Australia, and indeed whether there's any point apart from making geeks feel just a tad less unloved.

Kopimi (pron. copy me) - which I irreverently characterised as Piratbyrån at prayer - is in the news with reports that Sweden has recognised that informal organisation of information liberationists as a religion, centred on The Church of Kopimism. The Church reportedly claims that "kopyacting" - sharing information through copying - is akin to a religious service.

The BBC reports that Swedish government agency Kammarkollegiet "finally registered the Church of Kopimism as a religious organisation shortly before Christmas".

"We had to apply three times," said Gustav Nipe, chairman of the organisation.

The church, which holds CTRL+C and CTRL+V (shortcuts for copy and paste) as sacred symbols, does not directly promote illegal file sharing, focusing instead on the open distribution of knowledge to all.

It was founded by 19-year-old philosophy student and leader Isak Gerson. He hopes that file-sharing will now be given religious protection.

"For the Church of Kopimism, information is holy and copying is a sacrament. Information holds a value, in itself and in what it contains and the value multiplies through copying. Therefore copying is central for the organisation and its members," he said in a statement.

"Being recognised by the state of Sweden is a large step for all of Kopimi. Hopefully this is one step towards the day when we can live out our faith without fear of persecution," he added.

Would Australia recognise a local Kopimism as a religion and consequently grant special treatment (tax dispensations, a statutory defence for copyright infringements?) to clergy or ordinary members of that affinity group?

We could look to the High Court's decision in Church of New Faith v Commissioner of Pay-Roll Tax (1983) 154 CLR 120, where a majority held that the Church of New Faith (conventionally known as Scientology) was a religion.

In the decision - discussed in 'An Australian Definition of Religion' by Bruce Kaye in (1991) 14(2) UNSW Law Journal  332 [PDF] - the Court emphasised an individual's belief in the supernatural and the individual's conduct that was broadly attributable to that belief (ie the belief was 'lived' rather than being fashion statement). Conduct such as compliance with codes or other doctrine, the practice of worship, teaching and proselytising is 'religious' only if the motivation for engaging in that conduct is religious (as distinct from example for a purely financial benefit).

The decision followed more than a decade of controversy over the basis and activity of Scientology, with Hugh Urban in The Church of Scientology: A History of a New Religion (Princeton University Press, 2011) for example noting strong judicial criticism of Scientology in several liberal democratic states, a history of systemic illegality in the US, criticisms that it was a cynical and opportunistic scam perpetrated by L Ron Hubbard and associates, and claims that rebadging of Dianetics as a religious organisation was an effort to deal with claims that Hubbard was operating a cult or a very successful business.

The High Court heard an appeal from the Victorian Supreme Court's decision in Church of New Faith v Commissioner of Pay-Roll Tax (1983) 1 VR 97, in which the state court upheld a decision by the state's Commissioner of Pay-Roll Tax that Scientology was not a religion. The Victorian decisions were based on the claim that Scientology was a philosophy rather than a religion, with "the trappings of religion" (such as a quasi-clerical garb and symbol) having been acquired after the organisation's establishment in a deliberate effort to give the semblance of a religion and thereby gain favourable tax treatment or other benefits.

Mason Ag CJ and Brennan commented that

The question whether Scientology is a religion cannot be answered, for there seem to be important, perhaps critically important, tenets of Scientology which the parties left without full examination. The question which can be answered is whether the beliefs, practices and observances which were established by the affidavits and oral evidence as the set of beliefs, practices and observances accepted by Scientologists are properly to be described as a religion.

The High Court supported a broad definition of religion, although cautioning against a "too broad" meaning. Mason and Brennan stated that -

The mantle of immunity would soon be in tatters if it were wrapped around beliefs, practices and observances of every kind whenever a group of adherents chose to call them a religion ... A more objective criterion is required ... We therefore hold that, for the purposes of the law, the criteria for religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion.

Wilson and Deane JJ, with the majority, indicated that there was no single characteristic which could be used to identify an organisation as constituting a religion. The most that could be done was to formulate a range of indicia from past decisions -

• that the particular collection of ideas and/or practices involved belief in the supernatural, ie belief that reality extended beyond that which was capable of perception by the senses;
• that the ideas related to man's nature and place in the universe and his relations to things supernatural;
• that the ideas were accepted by adherents as requiring or encouraging them to observe particular practices having supernatural significance; and
• that, however loosely-knit and varying in beliefs and practices adherents might be, they constituted an identifiable group or identifiable groups.

Murphy J articulated a broader position, indicating that it was not the role of the courts to pass judgement on the validity of the beliefs of the adherents of a religion.

Mason and Brennan referred to Adelaide Company of Jehovah's Witnesses Inc. v The Commonwealth (1943) 67 CLR 116, commenting that -

An endeavour to define religion for legal purposes gives rise to peculiar difficulties, one of which was stated by Latham C.J. in Jehovah's Witnesses Inc. (1943) 67 CLR, at p 123

It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world..

The absence of a definition which is universally satisfying points to a more fundamental difficulty affecting the adoption of a definition for legal purposes. A definition cannot be adopted merely because it would satisfy the majority of the community or because it corresponds with a concept currently accepted by that majority. The development of the law towards complete religious liberty and religious equality to which Rich J. referred in Jehovah's Witnesses Inc. (1943) 67 CLR, at p 149 would be subverted and the guarantees in s. 116 of the Constitution would lose their character as a bastion of freedom if religion were so defined as to exclude from its ambit minority religions out of the main streams of religious thought. Though religious freedom and religious equality are beneficial to all true religions, minority religions - not well established and accepted - stand in need of especial protection ... It is more accurate to say that protection is required for the adherents of religions, not for the religions themselves. Protection is not accorded to safeguard the tenets of each religion; no such protection can be given by the law, and it would be contradictory of the law to protect at once the tenets of different religions which are incompatible with one another. Protection is accorded to preserve the dignity and freedom of each man so that he may adhere to any religion of his choosing or to none. The freedom of religion being equally conferred on all, the variety of religious beliefs which are within the area of legal immunity is not restricted.

The HCA judgment should be considered in the context of UK and Australian judicial decisions rejecting claims for recognition as a religion or more broadly for charitable status. In essence, instances where an organisation is not considered to be a church (or corresponding religious entity) are typically where the organisation is not considered to be genuine. What's genuine? A belief system or practice cannot be legitimately characterised as a religion if it -

• is no more than a sham or a parody of a religion (bad luck for Jedi enthusiasts)
• is contrary to laws that do not discriminate against religion generally, against particular religions or against conduct of a kind that is characteristic only of religion;
• otherwise envisages or promotes conduct that is inconsistent with the prevailing public policy, such as being subversive of morality.

In Re Jones [1907] SALR 1990, concerned with the Incorporated Body of Freethinkers of Australia, there was no recognition because the organisation was held to lack a religious purpose. Its members did have beliefs, often strongly held and strongly expressed. Those beliefs included the tenet that "science provides for life and that materialism can be relied upon in all phases of society", with the Freethinkers organisation accordingly campaigning against religious belief systems and organisations. The court held that campaigning against another religion or religion per se cannot itself be a religion. In Bowman v Secular Society Ltd [1917] AC 406 a decade later the UK court was similarly unsympathetic, again holding that the Secular Society - whose objects included promotion of "the principle that human conduct should be based upon natural knowledge, and not upon super-natural belief, and that human welfare in this world is the proper end of all thought and action" - could not have a religious purpose because it worked against already established religions or against the idea of religion.

Lord Parker in Bowman famously stated that:

The abolition of religious tests, the disestablishment of the Church, the secularisation of education, the alteration of the law touching religion or marriage, or the observation of the Sabbath are purely political objects. Equity has always refused to recognise such objects as charitable.

It is unlikely that an Australian version of Kopimism - or an institutionalised group of Jedi, the Church of the Flying Spaghetti Monster (somewhat more benevolent that various Christian and Islamic sects) or fans of pizza & red wine - would gain recognition as a charity or as a religion.

In practice Sweden's recognition of Kopimism means little more than the organisation's name is protected (ie can't be appropriated by another entity, such the Church of the New Faith), the organisation appears in a national register of religious entities (statisticians rejoice!) and is eligible to apply for financial support from the government. It won't necessarily gain that support if it does apply. Registration does not necessarily provide adherents - and the spokespeople for Kopimism are at best vague about requirements for adherence - with a strong defence regarding copyright infringements.

Authorship

I have been rereading the judgment in Penguin Books USA Inc, Foundation for 'A Course in Miracles' Inc and Foundation for Inner Peace Inc v New Christian Church of Full Endeavor Ltd and Endeavor Academy 55 USPQ2d 1680, 1691 (S.D.N.Y. 2000), following up a student query about Cummins v Bond (1927) 1 Ch. 167 and other cases where the 'authorship' of a work was unsuccessfully attributed to a phantasm or divinity.

In the UK case the court considered a medium's claim to rights in the 'Chronicles' of Cleophas, 'automatic writing' supposedly - via a spirit known as The Messenger - from author Cleophas, who had been a contemporary of Christ and was able to offer 'insider' accounts of events depicted in the Bible. Ms Geraldine Cummins (1890-1969), the medium, sought to stop unauthorised publication of that text, which was subsequently promoted with the words

In this chronicle, the Christian will find confirmation of his most cherished beliefs, while the claim of psychic science to the possibility of obtaining exact knowledge by supernormal means is vindicated to the full.

The non-believer, on the other hand, might simply have fallen asleep after encountering page after page of prose such as -

Now the inn was set in a barren place, no great journey from Jerusalem. Truly the face of that region seemed as the countenance of some old bald head which is scored and wrinkled, scourged by the furies of life and time. Only in spring did any green things show themselves, and that but sparsely. Soon the grasses drooped and died. With summer these rocky valleys and clifted hills were stripped of plant and flower, and the eyes of men were greeted only with the bare and pitiless stones that burned the feet with the coming of the noonday sun.

Mary might well have pined and drooped when compelled to five in the midst of such harshness; and at times her spirit yearned for the vine clad slopes of Galilee, for the rich blossom of that land, for the peace of the deep blue waters of the lake. Yet she was content because her dream grew and increased in loveliness.

In the season of harvest the innkeeper made great preparation and caused his housewife and handmaid to scour the house; for he deemed that many pilgrims would soon pass by that way, journeying to Jerusalem for the Feast of the Tabernacles.

It was a year when the hearts and minds of many Jews were turned towards the Holy City of Zion. So the belief of the innkeeper was fulfilled. Travelers passed by that way in great numbers; and Mary and the housewife served them, labouring early and late. Among them were certain Jews who had come from a far land that lay beyond the Euphrates.

They smiled upon Mary and desired that she should serve them. They were not as other pilgrims, but wore costly robes. So their host sought to do the strangers honour, and the maid bore meat and wine in haste, setting them before each grey beard.

And as they ate their fill they spoke with one another, saying: "Peradventure, we shall see Herod, the king, at Jerusalem, and he may lighten the darkness of our ignorance."

Whereupon the innkeeper inquired of them as to their purpose in this pilgrimage, and as to the knowledge they sought to acquire from a ruler who was not held in any great esteem by the faithful.

One white bearded sage said: "We have learned that the hour of the birth of the Messiah is at hand. We have seen the star that heraldeth His coming and we would find Him out and pay Him homage."

"And where shall he be found?" asked the innkeeper.

"The prophet hath declared that Bethlehem is chosen as His birthplace. 'Thou, Bethlehem, art not the least among the cities of Judaea.' So it hath been written. 'Wherefore, we would seek Him there."

"Nay, not in Bethlehem," spoke another bearded stranger. "Masters, ye are wise men. Wherefore should the King of Israel thus be born in a small city, without the knowledge of the people?"

The Chancery judge - Eve J - unsurprisingly found that he lacked jurisdiction in "the sphere in which the spirit moves" and was not prepared to hold that "authorship and copyright rest with some one already domiciled on the other side of the inevitable river. That is a matter I must leave for solution by others more competent to decide than me". Bad news if you are a spirit seeking copyright protection!

His judgment stated

The issue in this action is reduced to the simple question who, if any one, is the owner of the copyright in this work. Prima facie it is the author, and so far as this world is concerned there can be no doubt who is the author here, for it has been abundantly proved that the plaintiff is the writer of every word to be found in this bundle of original script. But the plaintiff and her witness and the defendant are all of opinion — and I do not doubt that the opinion is an honest one — that the true originator of all that is to be found in these documents is some being no longer inhabiting this world, and who has been out of it for a length of time sufficient to justify the hope that he has no reasons for wishing to return to it. 

 

According to the case put forward by those entertaining the opinion I have referred to the individual in question is particularly desirous of assisting in further discoveries relating to the ancient Abbey of Glastonbury, and he chooses the Brompton Road as the locality in which, and the plaintiff as the medium through whom, his views as to further works to be undertaken on the site of the Abbey shall be communicated to the persons engaged in the work of excavation. He is sufficiently considerate not to do so in language so antiquated as not to be understood by the excavators and others engaged in the interesting operations, but in order not to appear of too modern an epoch he selects a medium capable of translating his messages into language appropriate to a period some sixteen or seventeen centuries after his death. I am not impugning the honesty of persons who believe, and of the parties to this action who say that they believe, that this long departed being is the true source from which the  contents of these documents emanate; but I think I have stated enough with regard to the antiquity of the source and the language in which the communications are written to indicate that they could not have reached us in this form without the active co-operation of some agent competent to translate them from the language in which they were communicated to her into something more intelligible to persons of the present day. The plaintiff claims to be this agent and to possess, and the defendant admits that she does possess, some qualification enabling her, when in a more or less unconscious condition, to reproduce in language understandable by those who have the time and inclination to read it, information supplied to her from the source referred to in language with which the plaintiff has no acquaintance when fully awake. From this it would almost seem as though the individual who has been dead and buried for some 1900 odd years and the plaintiff ought to be regarded as the joint authors and owners of the copyright, but inasmuch as I do not feel myself competent to make any declaration in his favour, and recognizing as I do that I have no jurisdiction extending to the sphere in which he moves, I think I ought to confine myself when inquiring who is the author to individuals who were alive when the work first came into existence and to conditions which the legislature in 1911 may reasonably be presumed to have contemplated. So doing it would seem to be clear that the authorship rests with this lady, to whose gift of extremely rapid writing coupled with a peculiar ability to reproduce in archaic English matter communicated to her in some unknown tongue we owe the production of these documents. But the defendant disputes the plaintiff's right to be considered the sole author, alleging that he was an element and a necessary element in the production, and claiming, if the authorship is to be confined to persons resident in this world, that he is entitled to the rights incident to authorship jointly with the plaintiff. 

 

In the course of the trial, after reading the correspondence, and hearing the evidence of Miss Gibbes, I expressed an unfavourable opinion of the defendant's conduct in certain respects. For one thing he had at a very early stage of his acquaintance with that lady commenced to borrow money from her, and when at a later date he was called upon to repay the sums so borrowed he set up a wholly insupportable story that the moneys had been paid to him as a gift; and for another, when he was submitting a complicated agreement for the approval of the two ladies and inducing them to believe that he desired them to take legal advice thereon, he was at the same time urging a mutual friend to obtain their approval and execution of the same without taking any such advice. Since I expressed that unfavourable opinion I have seen and heard the defendant in the box, and although his conduct in the matters I have referred to cannot but be regarded as involving grave errors of judgment, I do not think he was actuated by the sordid motives which his conduct was certainly calculated to suggest. He is an individual upon whose memory little reliance can be placed — he is of an imaginative temperament and regards the alleged supernatural incidents connected with this work with a reverence that is almost fanatical, and he has, I think, in more than one incident shown that he is occasionally subject to hallucinations. His claim to be considered a joint author is suggestive of an hallucination, for it is based upon the assertion that by his presence at the seances where the writing took place he in some way transmitted from his brain to the unconscious brain of the medium the classical and historical references which are to be found in these documents. He frankly admits that he does not appreciate how it was done, or to what extent he did it; but he has evidently brought himself to believe that he did contribute materially to the composition of the work and that his contribution was made by means of some silent transfer from his brain to that of the unconscious medium of phrases and allusions with which he was familiar but of which she knew nothing. But inasmuch as the medium is credited with a power to translate language of which she knew nothing into archaic English, of which she was almost equally ignorant, and at a phenomenal pace, it does not appear necessary to fall back on the defendant's presence in order to explain the classical and historical references which he maintains must have emanated from his brain. They may well have originated in the brain of the medium herself. In these circumstances I am quite unable to hold that the defendant has made out any case entitling him to be treated as a joint author. I think he is labouring under a complete delusion in thinking that he in any way contributed to the production of these documents. 

 

Alternatively failing to establish any claim on his own behalf he submits that there is no copyright in the work at all, that it has come from a far off locality which I cannot specify, and that the plaintiff is the mere conduit pipe by which it has been conveyed to this world. I do not think that is a fair appreciation of the plaintiff's activities, they obviously involved a great deal more than mere repetition; but, apart altogether from these considerations, the conclusion which the defendant invites me to come to in this submission involves the expression of an opinion I am not prepared to make, that the authorship and copyright rest with some one already domiciled on the other side of the inevitable river. That is a matter I must leave for solution by others more competent to decide it than I am. I can only look upon the matter as a terrestrial one, of the earth earthy, and I propose to deal with it on that footing. In my opinion the plaintiff has made out her case, and the copyright rests with her.

Sweet J in the 'Miracles' judgment comments that -

The centerpiece of this litigation is a lengthy written work entitled "A Course in Miracles" (the "Course"). The Course, currently published by Penguin in a single volume over a thousand pages in length, is divided into three sections: the text ("Text"), a workbook for students ("Workbook"), and a manual for teachers ("Manual"). The Course can loosely be categorized as belonging to that genre of "New Age" spiritual texts which seem to pop out of the post-industrial cultures of the northern hemisphere like the quarks which particle physicists tell us materialize spontaneously in the fabric of space-time. Nevertheless, despite its New Age trappings, the Course is explicitly grounded in Christian theology.

Its somewhat bewildered, bewildering, yet not terribly novel message appears to be that the world humans perceive with their senses is merely an illusion projected by our minds outside of ourselves, and that the true world is "God," who is love, which is "all there is." This is an admittedly subjective summation, but perhaps more informative than the cryptic summation provided in the Course itself: "Nothing real can be threatened. Nothing unreal exists. Herein lies the peace of God."

The Course originated in 1965 with Dr Helen Schucman, an associate professor of medical psychology at Columbia University's College of Physicians & Surgeons, who after experiencing "some tension at work", started taking dictation from The Voice (subsequently identified as that of Jesus Christ). The Voice had told her: "This is a course in miracles. Please take notes." She obliged, and eventually over 2 million copies of the book were sold.

The judgment continues -

At some point during the summer of 1975, after it became apparent that an interest for the Course was developing, Schucman heard from the Voice that copyright registration should be sought for the Course, ostensibly in order to preserve the form of the Course against the possibility of incomplete or corrupted editions. Schucman asked that the registration be in the name of the nonprofit organization, the Foundation for Para-Sensory Investigation.

A submission to the court included the statement that -

When A Course in Miracles was originally published in June of 1976, we made a firm commitment to seek out and listen to the Voice of the Holy Spirit before making any decisions related to the Course. None of us was prepared, however, for one particular instruction from Jesus to Helen Schucman, scribe of the Course. He wanted A Course in Miracles copyrighted and, she stated emphatically, he was quite adamant about this. ... the idea of a copyright struck all of us as somewhat out of character when applied to a spiritual teaching such as A Course in Miracles. Nevertheless, even though we could not envision a need for the Course to be copyrighted, we of course listened to Jesus and proceeded to contact the [U.S.] Copyright Office. ...

We were informed that a copyright could not be granted to a non-physical author such as Jesus, nor to "Anonymous." On the other hand, Helen's name could not appear on the Course's copyright page because Jesus had cautioned her against publicly associating her name with it, lest people confuse her role with his and the Holy Spirit's. Therefore, our guidance was that the copyright registration should be filed with the author listed as "Anonymous," followed by Helen's name in parentheses, while the copyright itself was officially assigned by Helen to the Foundation for Inner Peace.

From there it was down hill all the way, with disputes about unauthorised copying the dictation from on high.

The Court indicated that -

even if Schucman had not made herself available to receive this revelation, and even if the original material did not reflect her personal tastes, it is undisputed that the dictated material was subsequently edited: personal references were removed, punctuation was added, chapter and section headings were created, and other work was done to shape the material into the final form it took in the published Course. Even if all of these editorial changes and additions were "approved of" by Jesus, it is undisputed that many of them were initiated by Schucman [and associates] i.e., many changes were not simply dictated, but were initially the impulse of Schucman and those others, with Schucman then "checking" to see if the changes would pass muster with Jesus, a process quite similar to that used by the Contact Commission. Significantly, the initial creative spark for these changes came from Schucman and the others, not from Jesus, and, as in Urantia, materially contributed to the structure of the Course. These editorial changes thus satisfy the "minimal degree of creativity," Feist, 499 U.S. at 346, required by copyright law.

Defendants, in their memoranda of law, play down the editorial contributions of Schucman, stating that she was only a scribe taking dictation. This is not borne out by the evidence, however, even when viewed in the light most favorable to Defendants. Schucman's interaction with the Voice was similar to the Contact Commission's interaction with the divine beings in Urantia: although in each instance the non-human author had the final say, the humans had at least some input into, and effect on, the form and content.

The case is discussed in 'Gutenberg's Legacy: Copyright, Censorship, and Religious Pluralism' by Thomas Cotter in (2003) 91(2) California Law Review.

Filkin

Reading the 56 page Filkin Report [PDF] - aka the UK govt report on The Ethical Issues Arising From The Relationship Between the Police and Media: Advice to the Commissioner of Police of the Metropolis and his Management Board in conjunction with the Leveson Inquiry (‘Culture, Practices and Ethics of the Press’) about improper access by UK journalists to personal information.

The report was produced by Elizabeth Filkin, a former Parliamentary Standards official. She states that -

In July 2011 there were perceptions that phone hacking at the News of the World was more widespread than had previously been identified, and that the Metropolitan Police Service (MPS) may not have investigated these concerns thoroughly. The then Commissioner of the MPS and an Assistant Commissioner resigned. In July 2011 the then Commissioner Sir Paul Stephenson asked me to review the relationships between the MPS and the media. ...

There was speculation that cosy relationships involving excessive hospitality, between some senior police officers and News of the World journalists, undermined the willingness of the police to pursue possible criminal offences beyond the two convictions in 2007.

Her terms of reference were -

To advise the Commissioner of Police of the Metropolis and his Management Board as follows:

• Generally as to ethical issues arising from the relationship between police and media;
• The proper purpose of the relationship between senior officers/staff and more junior officers/staff and media executives and reporters at all levels;
• Steps that should, or might, be taken to improve public confidence in police/media relations;
• Whether there are practicable steps that should be taken to improve transparency of police/press relationships;
• What, if any, hospitality is it acceptable for police officers/staff to receive or provide from/to the media;
• What evidence in relation to these issues should be led by the MPS to the Public Inquiry announced by the Prime Minister on 13 July 2011?

Filkin comments that -

I have reviewed the current constraints for the MPS in providing information to the media: The Children and Young Persons Act 1969, the Magistrates Court Act 1980, the Contempt of Court Act 1981, the Police and Criminal Evidence Act 1984, the Data Protection Act 1998, the Official Secrets Act 1989, the Misconduct in a Public Office Guidance, the Police (Conduct) Regulations 2008, the Bribery Act 2010, the Police Staff Discipline Procedures, and the numerous MPS internal policies and standard operating procedures. It is clear that these are not always adhered to.

The resultant "key messages" are -

1. It is critical for policing legitimacy that the MPS are as open and transparent as they can be and the media plays an important part in this. On occasions the MPS has not been open enough in providing the right information to the public.
2. The media is vitally important in holding the MPS to account on behalf of the public.
3. The media is essential in informing the public about the work of the police service and its role in the justice system.
4. It is impossible for an organisation to control every contact with the media. Any proposed solution will rely on police officers and police staff ‘living’ a set of core principles and making judgements about their application.
5. In the past it has not been sufficiently clear to police officers and staff what principles should underpin contact with the media. This has resulted in practices which have been damaging.
6. Where relationships with the media appear partial or selective, this creates a serious problem which is damaging to public confidence and to the MPS.
7. Police officers and staff are the best ambassadors for the organisation in providing information to the public. They are part of the public they serve.
8. The problems that I have been told about and the changes that I suggest are to do with broad organisational issues including leadership and management throughout the MPS. A narrow view focused only on the specific task of handling the media will not be productive.

Deathmarks and ADR

The Commonwealth Attorney-General's Department has released a set of documents regarding the Philip Morris Asia challenge to the Tobacco Plain Packaging Act 2011 (Cth) that received Royal Assent and became law in Australia on 1 December 2011. As noted in previous posts in this blog, the Act restricts use of tobacco company trade marks in retail packaging of tobacco products but does not extinguish the trade marks ... in essence the Marlboro Man and other signifiers can still ride, just not very freely.

Philip Morris Asia is challenging the Australian regime, which the Government has justified on public health grounds and as consistent with international health obligations under the WHO Framework Convention on Tobacco Control. The challenge is based on what Philip Morris argues is a breach of the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments. That bilateral agreement features scope for dispute resolution by an international tribunal, with arbitration being conducted under the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules 2010.

Just before Christmas the Government provided its Response to Philip Morris Asia’s Notice of Arbitration. The Government states that -

As the proceedings brought by Phillip Morris Asia concern the Government’s right to take regulatory measures to protect public health, it is important that the public have access to information relating to the proceedings. The Government is committed to achieving transparency in these proceedings.

The A-G's website accordingly features a copy of the Australia - Hong Kong Bilateral Investment Treaty [PDF], the Philip Morris Asia Limited Notice of Claim [PDF] and November 2011 Notice of Arbitration [PDF], and the Australian Response to the Notice of Arbitration [PDF].

The latter states that -

PM Asia is incorporated in Hong Kong and asserts that the plain packaging measure impacts on investments that PM Asia owns or controls in Australia, namely its shares in Philip Morris Australia Limited (“PM Australia”), the shares that are held by PM Australia in Philip Morris Limited (“PML”), and the intellectual property and goodwill of PML. PM Asia acquired its shareholding in PM Australia (and hence a purported indirect interest in the shares and assets of PML) only on 23 February 2011.

This recent acquisition was made by PM Asia against the backdrop of:

a) the Australian Government’s long-standing regulation and control of the manufacture and sale of tobacco in Australia, and its ratification of the World Health Organization (“WHO”) Framework Convention on Tobacco Control (“FCTC”);

b) the Australian Government’s establishment of a National Preventative Health Taskforce (“Taskforce”) in April 2008 to consider how to reduce harm from tobacco usage, which led to the Taskforce considering the impacts of packaging on tobacco usage, engaging in a consultation exercise in which PML participated and, ultimately, recommending in June 2009 that the Australian Government mandate the sale of cigarettes in plain packaging and increase the required size of graphic health warnings;

c) the Australian Government’s announcement, on 29 April 2010, of its decision to implement plain packaging and to mandate updated and larger graphic health warnings for all tobacco products; and

d) continuing objections or public complaints on the part of PM Australia, PML and also Philip Morris International Inc. (the ultimate holding company for the Philip Morris group) – in the course of the remainder of 2010 and early 2011 – to the effect that the plain packaging legislation would breach Australia’s international trade and treaty obligations.

Thus, PM Asia acquired its shares in PM Australia on 23 February 2011, both in full knowledge that the decision had been announced by the Australian Government to introduce plain packaging, and also in circumstances where various other members of the Philip Morris group had repeatedly made clear their objections to the plain packaging legislation, whereas such objections had not been accepted by the Australian Government.

It continues -

Against this backdrop, PM Asia’s claims under the BIT inevitably fail, both as to jurisdiction and the merits:

a) Article 10 of the BIT does not confer jurisdiction on an arbitral tribunal to determine pre-existing disputes that have been re-packaged as BIT claims many months after the relevant governmental measure has been announced.

b) The plain packaging legislation cannot be regarded as a breach of any of the substantive protections under the BIT. PM Asia made a decision to acquire shares in PM Australia in full knowledge that the decision had been announced by the Australian Government to introduce plain packaging. An investor cannot make out a claim for breach of (say) the fair and equitable treatment standard or of expropriation in circumstances where (i) a host State has announced that it is going to take certain regulatory measures in protection of public health, (ii) the prospective investor – fully advised of the relevant facts – then acquires some form of an interest in the object of the regulatory measures, and (iii) the host State then acts in the way it has said it is going to act.

The Government offers a number of preliminary observations before contesting specific claims by Philip Morris. Those observations are -

First, the Australian Government is implementing plain packaging to protect the public health of Australia’s population from an addictive and dangerous substance that causes widespread death and disease in Australia (and around the world). The protection of public health is an objective of fundamental importance to all Governments, and the WHO and the FCTC Secretariat have indicated their strong support for plain packaging as an effective public health measure.

Secondly, the Australian Government’s plain packaging initiatives are based on a broad range of studies and reports, and supported by leading Australian and international public health experts. The evidence demonstrates that use of logos, symbols, designs, colours and other forms of advertising on tobacco packaging increases attractiveness to consumers, can mislead consumers into thinking some tobacco products are safer than others, and also decreases the prominence and effectiveness of health warnings. Tobacco advertising can be particularly effective on young people, the age group most likely to become addicted to smoking.

Thirdly, in so far as PM Asia contends that plain packaging measures will lead to a decline in cigarette prices (and hence increased consumption) and to an increase of market participation in illicit tobacco products (cf Notice of Arbitration, para. 6.3), those contentions are not accepted. Further, even if correct, the Australian Government has power to implement a range of measures, including further increases to the rate of excise, to ensure that cigarette prices do not fall to a level which would lead to an increase in consumption. In addition, the Australian Government will continue to vigorously enforce its laws against illicit trade in tobacco.

Fourthly, plain packaging is not an alternative to other tobacco control measures but is an integral part of the comprehensive suite of measures adopted by Australia to respond to the public health problems caused by tobacco. These measures ... are based on the comprehensive tobacco control strategy recommended by the Taskforce in 2009. The implementation of this wide-ranging set of measures will be critical to achieving significant reductions in smoking rates in Australia.

Fifthly, PM Asia claims at various junctures in its Notice of Arbitration that plain packaging eliminates branding. PML will however retain the ability to place brand names, including any variant, on tobacco packaging. Plain packaging does not prevent product differentiation or identification of a product’s place of origin on its packaging (cf. Notice of Arbitration, para. 1.4).

What the plain packaging measure in fact restricts is the ability of tobacco companies to advertise their products by packaging them with attractive branding and other designs. This is the real substance of PM Asia’s concern. By preventing such advertising on retail tobacco packaging, as one of the principal remaining means for PML and other tobacco companies to advertise tobacco, the Australian Government intends that plain packaging will contribute to efforts to reduce smoking rates in Australia.

In contesting the tobacco giant's claim of expropriation the Government states that -

The Australian Government rejects PM Asia’s claim that it has breached the obligation under Article 6 not to deprive investors of their investments or subject investors to measures having effect equivalent to such deprivation.

PM Asia has not in fact been deprived of the purported investments it made on 23 February 2011; nor has PM Asia been subjected to measures having equivalent effect.

Further, plain packaging measures are non-discriminatory regulatory actions of general application designed and adopted by the Australian Government to achieve the most fundamental public welfare objective – the protection of public health. Such measures do not amount to expropriation, are not equivalent to expropriation, and do not give rise to a duty of compensation.

After arguing that there has been no discriminatory action, the Government requests the arbitral tribunal -

a) to declare that it has no jurisdiction over PM Asia’s claims, or that they are inadmissible;
b) alternatively, to dismiss PM Asia’s claims in their entirety; and
c) to order that PM Asia bear the costs of the arbitration, including Australia’s costs of legal representation and assistance, pursuant to Article 42 of the UNCITRAL Arbitration Rules.

In essence, it is arguable that PM Asia - knowing that restrictions on packaging were in the pipeline - acquired the Australian interests in order to take action under the BIT and with an awareness that the value of interests would be eroded by the restrictions. The tribunal might be unimpressed by PM Asia's claim for compensation regarding assets with a value that was presumably going to be reduced by “billions of Australian dollars”. Article 6 of the BIT specifies that compensation reflects “the real value of the investment immediately before the deprivation or before the impending deprivation became public knowledge whichever is the earlier”. Given that PM Asia acquired the interests after the impending deprivation became public knowledge (and arguably with the intention to thwart the restrictions) it would appear to have no interest at the relevant time.

Consequences?

A reader has kindly pointed me to 'Sydney women turn to US dads for sperm donation' by Rosie Squires in the [Sydney] Sunday Telegraph, highlighting consequences - intended or otherwise - of post-2009 restrictions on anonymity for sperm donors.

Squires claims that -

Sydney women are importing sperm from the US because Australian men are too scared to donate.

Local donations to IVF clinics have all but stopped since it became easier for children to track down their biological fathers.

IVF Australia head Professor Michael Chapman told The Sunday Telegraph that donor shortages had become critical, falling from 100 to 10 at his clinic in the past four years.

"Last year we only had two or three donors on our books," Professor Chapman said. "Today around Australia there are about 50 donors, but the demand is still substantially higher than that."

As a result, IVF Australia started importing sperm from the US two months ago.

Professor Chapman said donor imports were "not ideal" but would help reduce waiting times for insemination.

In January last year a law came into effect stating that all sperm donors must agree to provide identifying information so that the child would be able to contact them once they reached 18.

Fertility specialist Professor Peter Illingworth said the change in the law was directly linked to the drop-off in sperm donors.

"There is no doubt that when the law was first introduced, it affected the number of men willing to donate sperm. It is a big undertaking. Being a donor is very serious and the fact is, not many men are willing to do it," he said.

Illingworth's clinic has reportedly 'been careful in its choice of an offshore sperm bank' -

"We have for a long time been looking for a way to improve sperm donor numbers in Australia.

"We have now found an agency in the US whose donors have given consent to provide identity to the child after they turn 18," he said.

Professor Illingworth said sperm donors would also stick to strict NSW regulations stipulating that each donor could only supply four families with sperm.

Professor Chapman said Australian clinics needed more local donors because importing sperm was "not ideal".

"There is still that issue that, despite their undertakings, an overseas donor perhaps is less likely to be tracked in the future," he said.

The article claims that in the 12 months to September 2011 some 194 babies were born in NSW through sperm donations, consistent with figures in the Senate committee report highlighted last year.

In April 2010 the Telegraph claimed that -

A critical shortage of donor sperm has forced the state's largest IVF clinic to launch an online advertising campaign targeting male generosity.

Tougher restrictions on imported sperm has shrunk already scarce supplies while new legislation, which gives children the right to know the identity of their donor father, has seen a big decline in donor numbers.

Fertility experts said there were less than 10 registered sperm donors left in NSW, forcing many of the state's 24 IVF clinics to close the books on couples keen to conceive by donor insemination.

In NSW the Assisted Reproductive Technology Act 2007 (NSW) and the Assisted Reproductive Technology Regulation 2009, in effect from 1 January 2010, establish a central ART donor register.

The Register features information about gamete donors and children born as a result of ART treatment using donated gametes (sperm and ova), with individuals conceived using donated gametes (once they turn 18), their legal parents and donors being able to access certain information.

The Register contains -

• the donor’s full name
• the donor’s residential address
• the donor’s date and place of birth
• the donor’s ethnicity and physical characteristics
• any medical history or genetic test results of the donor or the donor's family that are relevant to the future health of -

• a person undergoing ART treatment involving the use of the donated gamete
• any offspring born as a result of that treatment
• any descendents of any such offspring

• the name of each ART provider that has previously obtained a donated gamete from the donor and the date on which the gamete was obtained
• the sex and year of birth of any offspring of the donor.

The Register also includes the following information about a child born as a result of ART treatment using donated gametes -

• the donor conceived child’s full name, sex and date of birth
• the name of the woman who gave birth to the child
• the full name and date and place of birth of the donor of the gamete.

Not all of that data is currently publicly available. Adults who were donor conceived after the legislation came into effect (ie who reach adulthood after 2017) will have mandatory access to -

• the donor's full name
• the donor's residential address
• the donor's date and place of birth
• the donor's ethnicity and physical characteristics
• any medical history or genetic test results (prior to donation) of the donor or the donor's family that are relevant to the future health of -

• a person undergoing ART treatment involving use of the donated gamete, or
• any offspring born as a result of that treatment, or
• any descendent of any such offspring

• the name of the ART provider that provided the above information, and
• the sex and year of birth of each other offspring of the donor.

There is no requirement on donors to keep their information current.

Some people of course were donor-conceived prior to the legislation. Mandatory access to the Register does not operate retrospectively. For donors whose donated sperm, eggs or embryos were used prior to 1 January 2010 access to some/all information will be dependent on them -

• voluntarily adding their details to the Register and
• consenting to having their information released.

Against Digital Transcendentalism

As a corrective to some of the more fatuous writing about 'revolution by twitter' and cyberliberation 'Recording Everything: Digital Storage as an Enabler of Authoritarian Governments' (Brookings Institution Paper 2011) by John Villasenor argues [PDF] that -

Within the next few years an important threshold will be crossed: For the first time ever, it will become technologically and financially feasible for authoritarian governments to record nearly everything that is said or done within their borders – every phone conversation, electronic message, social media interaction, the movements of nearly every person and vehicle, and video from every street corner. Governments with a history of using all of the tools at their disposal to track and monitor their citizens will undoubtedly make full use of this capability once it becomes available.

The Arab Spring of 2011, which saw regimes toppled by protesters organized via Twitter and Facebook, was heralded in much of the world as signifying a new era in which information technology alters the balance of power in favor of the repressed. However, within the world’s many remaining authoritarian regimes it was undoubtedly viewed very differently. For those governments, the Arab Spring likely underscored the perils of failing to exercise sufficient control of digital communications and highlighted the need to redouble their efforts to increase the monitoring of their citizenry.

Technology trends are making such monitoring easier to perform. While the domestic surveillance programs of countries including Syria, Iran, China, Burma, and Libya under Gadhafi have been extensively reported, the evolving role of digital storage in facilitating truly pervasive surveillance is less widely recognized. Plummeting digital storage costs will soon make it possible for authoritarian regimes to not only monitor known dissidents, but to also store the complete set of digital data associated with everyone within their borders. These enormous databases of captured information will create what amounts to a surveillance time machine, enabling state security services to retroactively eavesdrop on people in the months and years before they were designated as surveillance targets. This will fundamentally change the dynamics of dissent, insurgency and revolution.

The coming era of ubiquitous surveillance in authoritarian countries has important consequences for American foreign policy as well, impacting issues as diverse as human rights, trade, nuclear nonproliferation, export control, and intellectual property security.

Villasenor comments that -

In 2008, social scientist Mohammed Ibrahrine published a paper titled “Mobile Communication and Sociopolitical Change in the Arab World” that highlighted the important role of mobile phones in “empowering and mobilizing marginalized groups” and “increasing the range of alternative actions available to individuals, opposition forces, and civil society groups.” It was an early observation of the now widely recognized power of mobile communications to organize dissent.

However, some aspects of the ability of information technology to shift the balance of power away from repressive regimes and in favor of their opponents are temporary. When, as has been the case, the flood of electronic information is too voluminous for authoritarian governments to capture, store, and effectively analyze in its entirety, the information advantage can indeed lie with regime opponents. It is an advantage that has recently been exploited to varying degrees of success in Tunisia, Iran, Syria, Egypt, Libya, and elsewhere.

But the ability to record everything will tilt the playing field back in favor of repressive governments by laying the foundation for a plethora of new approaches to targeting dissent. When all of the telephone calls in an entire country can be captured and provided to voice recognition software programmed to extract key phrases, and when video footage from public spaces can be correlated in real time to the conversations, text messages, and social media traffic associated with the people occupying those spaces, the arsenal of responses available to a regime facing dissent will expand. Some changes will be immediate and tactical. Instead of implementing broad social media or Internet shutdowns in response to unrest,44 governments in possession of complete communications databases will be able to conduct more selective censorship or alteration of message traffic during periods of instability. This will provide a greater capability to shape or quell dissent.

Pervasive monitoring will provide what amounts to a time machine allowing authoritarian governments to perform retrospective surveillance. For example, if an anti-regime demonstrator previously unknown to security services is arrested, it will be possible to go back in time to scrutinize the demonstrator’s phone conversations, automobile travels, and the people he or she met in the months and even years leading up to the arrest.

There are also longer-term consequences that include a thinning in the ranks of regime opponents. By definition, organized dissent requires that dissenters have the ability to exchange information. Prominent opponents of repressive governments have learned to expect tracking of their movements and interception of their phone calls and other forms of electronic communications. But when technology enables an entire country’s worth of communications to be intercepted, the circle of people whom dissidents will be able to recruit to their ranks will narrow.

In addition, knowledge that communications are archived will reduce the willingness of dissidents to speak frankly even over encrypted communications. Time will often favor an authoritarian government able to store intercepted data that is initially too securely encrypted to decode. Due to some combination of advances in code-breaking, computing capabilities or intentional or unintentional compromise of decryption keys, many encrypted messages will become decodable by state security services. Awareness of the likelihood that all messages – including those that are encrypted – will eventually be read by security services will chill dissent.

He concludes that -

Declining storage costs will soon make it practical for authoritarian governments to create permanent digital archives of the data gathered from pervasive surveillance systems. In countries where there is no meaningful public debate on privacy, there is no reason to expect governments not to fully exploit the ability to build databases containing every phone conversation, location data for almost every person and vehicle, and video from every public space in an entire country.

This will greatly expand the ability of repressive regimes to perform surveillance of opponents and to anticipate and react to unrest. In addition, the awareness among the populace of pervasive surveillance will reduce the willingness of people to engage in dissent.

The coming era of ubiquitous surveillance in authoritarian countries has important implications for American foreign policy. Strategies for engaging with these countries will benefit from specific consideration of the presence, growth and increasing impact of these enormous digital databases. This will impact human rights, trade, export control, intellectual property security, and the operation of multinational businesses with in-country facilities, subsidiaries, or subcontractors.

Finally, the use by authoritarian governments of systems that record everything in the complete absence of privacy considerations will lead to a long list of other unforeseen and generally negative consequences. Unfortunately, the residents of those countries, as well as the rest of us, will soon start to find out just what those consequences are.

Dark Clouds

'Government Cloud Computing and the Policies of Data Sovereignty' by Kristina Irion argues that -

Government cloud services are a new development at the intersection of electronic government and cloud computing which holds the promise of rendering government service delivery more effective and efficient. Cloud services are virtual, dynamic and potentially stateless which has triggered governments’ concern about data sovereignty. This paper explores data sovereignty in relation to government cloud services and how national strategies and international policy evolve. It concludes that for countries data sovereignty presents a legal risk which can not be adequately addressed with technology or through contractual arrangements alone. Governments therefore adopt strategies to retain exclusive jurisdiction over government information.

She concludes -

If cloud computing is the next paradigm in computing than governments can not miss this trend and continue to migrate public digital assets to cloud services. Governments find themselves in the dilemma to ensure sovereignty over data residing in the cloud which is virtual, dynamic and potentially stateless. Data sovereignty is an ideal conception of information ownership which compensates for the progressing virtualization of information where digital data is stored and processed remotely. For governments this means:

Government’s control over all virtual public assets, which are not in the public domain, irrespective whether they are stored on own or third parties’ facilities and premises, and which are governed under an effective information assurance framework, including, where appropriate, strategies to retain exclusive jurisdiction over government information.

Countries treat this issue as a legal risk which can not be adequately addressed with technology or through contractual arrangements alone. Hence, in applying their national risk management strategy the countries surveyed (US, UK, Australia, and Canada) restrict cloud solutions for sensitive government information (medium- and high-risk) to their territory which contradicts the cloud technology’s global philosophy.

The call for international policy to remedy the complexity of divergent, and at times conflicting, regulations of different countries pertaining to cloud computing can help to establish a viable commercial environment. International standard-setting may, however, not go far enough to provide a solution to governments’ data sovereignty concerns over transborder flows of government data. From a risk-management point of view the territoriality paradigm which favors national cloud services would preempt any international agreement build on mutual trust.

Besides, the concept of data sovereignty offers a proposition how to strengthen the link between the data owner and the all types of data not limited to the protection of personal information. Cloud computing presents a scenario to argue that it is not enough to update and harmonize existing regulation but to take information ownership rights to a new level.

Discrimination law

The NSW Court of Appeal in Sydney Local Health Network v QY and QZ [2011] NSWCA 412 has found that the partner and friend of a man who died with HIV were not discriminated against under the Anti-Discrimination Act 1977 (NSW) because of the way his autopsy was carried out. Mr B died in 2007, apparently by his own hand, with the coroner under the Coroners Act 1980 (NSW) ordering an autopsy by the Department of Forensic Medicine regarding a 'suspicious death'.

In QY & QZ v Sydney South West Area Health Service (EOD) [2010] NSWADTAP 48 they argued that they experienced discrimination on the basis that forensic pathologists at the Glebe morgue had not provided a service to them (reconstructing Mr B's body) that the morgue would have provided had he not suffered the disability of HIV. They were therefore forced to tell some of Mr B's family of his illness. Mr B is dead and presumably beyond caring about his privacy or the distress of his relatives.

NSW does not reconstruct the dissected cadavers of people known to have HIV. That reconstriction is a matter of the morgue's occupational health & safety rules:

Hepatitis C or HIV positive bodies are not to be reconstructed after autopsy. All family members are informed and asked to view the body before autopsy. After completion of the autopsy, the body is double bagged, the outer bag yellow and to be clearly labelled with 'not reconstructed', then placed in the body storage area.

In the initial finding Mr QZ and Ms QY (the partner and friend) were held to be capable of suffering discrimination as a relative or associate with a disability or associates of people with a protected sexual orientation. the Court of Appeal disagreed, ruling that the B was not a "person" at the time of the alleged discrimination and that they were not "relatives or associates". Young JA

A person is only an associate so long as the relationship continues.

It may be that there is a certain illogicality in confining [the law] to association with living persons. However, the pattern of growth of the Act is that the legislature by degrees amends the act to deal with more and more situations and, as at 2007, it had only progressed this far.

Campbell JA commented -

I have reached the same conclusion as his Honour concerning the fate of the appeal, but on narrower grounds. I am not persuaded that it is only a living person who can be a "person" within the meaning of the Anti-Discrimination Act 1977. However an "associate" of a person within the meaning of the Act must be a person who is living at the time that the discrimination in question is alleged to have occurred. That is a sufficient reason why there has been no contravention of the Act in the present case. ...

There is no reason readily apparent from a reading of the Act why discrimination on the basis of a characteristic of someone who was once a relative or associate, but is no longer a relative or associate at the time of the differential conduct, is not also prohibited. However, that consequence flows from the language of the Act. It may be that Parliament took the view that certain circumstances were unlikely, or occurred too infrequently to warrant legislating against. These circumstances might include:

(1) discrimination on the basis of a characteristic that a deceased associate had;

(2) discrimination on the basis of a characteristic that any other person who was once an associate but is no longer an associate had; and

(3) discrimination on the basis of a characteristic that a former spouse or relation by affinity had.

However it cannot be said that there is any basis in the text of the Act for concluding that that was so.

Protecting living persons against discrimination is not the sole object of the Act. As well, the terms of the Act shows that it has an objective of affecting societal standards by discouraging discrimination and promoting equality. One way in which it does this is by attaching sanctions to discriminatory conduct on the basis of a particular characteristic. This creates an incentive not to engage in such behaviour, which has a tendency to protect all persons with the particular characteristic (whether now alive or not) from future discriminatory behaviour.

The court examined if HIV/AIDS met the definition of disability. It also considered whether the morgue could be said to have provided a "service' to Mr B's friends in terms of the Act. Young JA referred to Jackson, The Law of Cadavers (Prentice Hall Inc, New York, 1936) which quotes Foley v Phelps 37 NYS 471, 474 (1896)-

The right is to possession of the corpse in the same condition it was in when death supervened. It is the right to what remains when breath leaves the body, and not merely to such a hacked, hewed, and mutilated corpse as some stranger ... may choose to turn over to an afflicted relative.

The Court referred to s 52A of the Coroners Act in ruling that a doctor performing the autopsy was not liable for the consequences.

QZ and QY were ordered to pay the costs of the health service representing the morgue.