02 June 2012

Data Protection Agencies

Tthe European Data Protection Commissioners (130 delegates from 38 countries) in their Spring Conference last month issued a broad 'Resolution on the European data protection reform' regarding the data protection frameworks of the EU, the Council of Europe and the OECD.

The Commissioners welcomed the following key aims in "modernisation" of those frameworks -
- strengthening and clarification of the rights of individuals; 
- the emphasis put on accountability of data controllers and processors; 
- the reduction of some administrative burdens and the search for consistency; 
- the key role devoted to independent data protection authorities; 
- the move to develop a more comprehensive framework ensuring the application of the fundamental data protection principles across all areas; 
- the initiative of the Council of Europe to revise Convention 108, which has been leading the way since 1981, including the objective to assure consistency and compatibility with the legal framework of the EU and supporting firmly the intention to follow more closely the implementation of the Convention by States Parties; 
- the ongoing reflection process at the level of OECD on the evolving international privacy landscape. 
The Conference also analysed the proposed improvement of the European legal texts against the background of the international developments in the field of data processing and privacy, including in the transatlantic relations, in particular in light of the white paper of the U.S. Administration released on 23 February 2012 and the FTC Report published in March 2012. Taking into account the previously adopted resolutions1, the Conference studied in more detail the recent legislative package of the European Commission aimed at modernizing EU data protection rules.

The Commissioners indicated that -
The Conference welcomes that the proposals address the new challenges resulting from the pervasive collection and use of personal data in a connected and globalised world. The Data Protection Commissioners are especially pleased with: 
- the rules providing for more transparency and greater control over the data processing; 
- the codification of the principle of data minimization; 
- greater redress possibilities for data subjects; 
- the strengthening of rules concerning the rights to access and to object; 
- the inclusion of rights in order to address the challenges arising out of the online environment (a specific protection of children, the “right to be forgotten” and the new right to data portability); 
- the attempt to introduce simplified and consistent rules for data controllers; - the introduction of the principle of accountability; 
- the introduction of mechanisms and tools serving as incentives to demonstrate accountability such as data protection by design and by default, privacy impact assessments, the appointment of DPOs and data breach notification duties; 
- the introduction of a one-stop shop solution both for controllers by creating the concept of a lead authority cooperating with other concerned DPAs and also for individuals (subject to the latter being improved further); 
- the requirement of an active cooperation between DPAs and the strengthening of their independence and powers, including the introduction of administrative fines.
The  Commissioners, unsurprisingly, also stated that they are "convinced that the expertise and practical experience of DPAs can play an important role in the practical application of data protection rights also in the future". That includes -
1. the mandatory consultation of DPAs on legislative measures at EU as well as at national level; 
2. the development of guidelines and recommendations for the practical implementation, considering national and sectoral specificities; 
3. the possibility to carry out ex officio investigations and audits.
They warned that too many exemptions and derogations hinder the effective application of core data protection principles.
Exemptions provided for public authorities, law enforcement activities or the use of data for governmental purposes, including fiscal purposes, must comply with the core aspects of data protection law. Essential data protection rules should be applied in a consistent way and independent of the respective sector. The conference therefore notes that further improvements to the current proposals are needed, especially to bring the proposed Directive regarding the area of police and justice more in line with the core principles of the General Data Protection Regulation. Rules on the transfer of data between private parties and law enforcement bodies are, for instance, still missing. Having this in mind, the Data Protection Commissioners are prepared to contribute actively to the success of a modernised and effective data protection framework for Europe. The strengthening and simplification of data protection is more important than ever. 

Heartache and headache

'Jurisprudence for Foxes' (Oxford Legal Studies Research Paper No. 22/ 2012) by Leslie Green -
contests Brian Simpson's claim that HLA Hart's book, The Concept of Law, is that of a 'hedgehog,' that is, a monistic thinker. It is not. Hart's work is pluralist both in its explanatory concepts and in its evaluative background. Some conjectures are offered as to why Simpson so misunderstood Hart, and as to why analytic legal philosophy is misunderstood, or distrusted, more generally.
Simpson argued that -
Hart’s general analysis of the structure of a legal system was not based on a prolonged study of complex legal arrangements, with a dawning awareness that beneath complexity there could be discerned simplicity ... Instead the simplicity he discerned existed in the very nature of things; given the fact, if that is what you call it, that the USA has a legal system, it follows that its legal system conforms to Hart’s simple model. This plainly identifies Hart as a hedgehog.
Green comments 
This is not just a classificatory comment; it is a criticism. Simpson distrusts simplicity, especially simplicity that ignores the contingent, local variability in law to which the historian or comparativist is sensitive. Perhaps he does not wholly reject the possibility that after ‘prolonged’ empirical inquiry we may be able to say some true and important things about law in general, but he thinks the odds are against it. And the notion that analytical jurisprudence might turn up anything of that sort he treats as utterly fanciful. ...
Some people find analytic jurisprudence impossibly boring. If Simpson was among their numbers he was hardly to blame; we all have limited sensibilities. Reflecting on his own life, David Hume wrote, ‘My studious disposition, my sobriety, and my industry, gave my family a notion that the law was a proper profession for me; but I found an insurmountable aversion to everything but the pursuit of philosophy and general learning….’ No doubt others have the opposite reaction. They are misguided only if they think this reflects badly on the subject that puts them off. Hume would never have drawn that inference: he knew that his ‘insurmountable aversion’ to the study of law was not a feature of the law but of his own outlook and dispositions.
When I began studying jurisprudence in Oxford the worst we could say of a theoretical claim was that it was ‘confused’ or ‘false’. (A few preferred ‘pernicious’, but they were mostly the sort who held confused or false views.) Nowadays, a popular epithet of condemnation is ‘irrelevant’ or ‘boring’, especially among the practically-minded for whom a really interesting question is one a client might pay you to answer. Simpson reports, ‘In my own long experience as a teacher and to some modest extent a practitioner of law I have never once been asked the question “What is law?”(RCL, 80) Not only did no one ever ask him, he never felt moved to ask himself. ‘Why anyone should worry about this is beyond me…’ (RCL, 81) In all, the central questions of jurisprudence strike him as utterly boring. But as the old linguistic philosophers might have put it, ‘boring’ is not a simple predicate but a relational term, here tantamount to ‘I am bored by this,’ or maybe, ‘I don’t know how to get interested in this’—to which an acceptable reply might be, 'I’m so sorry.’
The important theses of Hart’s book are abstract and general, quite unlike the concrete and parochial facts that Simpson found fascinating and about which he wrote so well, especially in his stories of famous common-­law cases. All the same, Hart’s theses were manifestly not the expression of any kind of sweeping monism. Just the opposite: both his explanatory apparatus and his normative outlook are pluralistic. There are hedgehogs and foxes in every subject, in philosophy as much as in history. I find it sad to think that an aversion to philosophy may have made Simpson unable to recognize in Hart a fellow fox. If so, it may have made Simpson intellectually more lonely than he had to be. But then neither foxes nor hedgehogs are very social animals to begin with.
There's more analytical bite - as distinct from the prickle of hedgehog quills - in Mark Burton's 1997 'The Song Remains the Same: The Search for Interpretive Constraint and Rhetoric of Legal Theory in Hart and Hutchinson', 20(2) UNSW Law Journal, 407.


'Death in Our Life' (Oxford Legal Studies Research Paper No. 25/2012) by Joseph Raz comprises the text of the Annual Lecture of the Society for Applied Philosophy delivered in Oxford last month.

Raz notes that
I kept the talk style of the paper. It examines a central aspect of the relations between duration and quality of life by considering the moral right to voluntary euthanasia, and some aspects of the moral case for a legal right to euthanasia. Would widespread acceptance of a right to voluntary euthanasia lead to widespread changes in attitude to life and death? Many of its advocates deny that seeing it as a narrow right enabling people to avoid ending their life in great pain or total dependence, or a vegetative state. I argue that the right cannot cogently be conceived as a narrow right, confined to very limited circumstances. It is based on the value of having the normative power to choose time and manner of one’s death. Its recognition will be accompanied by far reaching changes in culture and attitude, and these changes will enrich people’s life by enabling them to integrate their death as part of their lives.
He concludes with the comment that -
In contexts other than euthanasia it is common to laud people who committed suicide for the good of others, or for the public good: the person who threw himself on a grenade to absorb the impact of its explosion and save the people hiding alongside him, or indeed the other soldiers in the trench, was one of the heroic, semi-mythical, figures of my youth, and people setting out on suicidal military missions were also admired in many cultures. Similarly, it is acknowledged that there is a limit to the amount of public resources that it is appropriate to spend on any single individual. This view is incorporated most explicitly in the practice, far from perfect as it is, of NICE but deserves a more general and explicit incorporation into public practices.
Now it seems to me that if public bodies are right in limiting the resources to be spent on keeping me alive I should acknowledge that their decision is right, and in appropriate circumstances I should apply the similar standards in deciding for myself how much others should sacrifice in order to keep me alive. It is important, in considering these matters, to remember that most people’s lives are enmeshed with the life of others, and that it is important that decisions of life and death should be, if possible, shared. But that does not diminish the importance of the other-regarding considerations I am discussing, and some of them, by their nature, making a shared decision difficult.
I am saying this in full awareness of the fact that it is a view that does not find much support in public opinion at the moment. This recognition is double edged. On the one hand it points to the fact that the legalisation of euthanasia, if achieved, will be implemented in conditions where the public is not fully in agreement with its true moral justification, and that may be a severe problem in the way the legalised right is administered, and practised. It is the sort of factor that makes one inclined to wonder whether the time for legalisation has arrived? Maybe the underhand, inconsistent and informal practices in various hospitals are the best we can have right now? Yet on the other hand, it makes one wonder whether we do not need a decisive step, like a limited legalisation of euthanasia, with strong protections against abuse, at the present time in order to refocus the debate in ways that would lead to a more radical reorientation of our attitudes to death, and to a saner willingness to integrate our dying as an event in our lives.

Protection of Freedoms Act

Britain's Protection of Freedoms Act became law on 1 May 2012, picking up amendments announced by the Cameron-Clegg Government in its first hundred days (and dissected in my seminar paper for ANZSOG two years ago).

The Act
  • provides greater independence for the Information Commissioner;
  • creates a new Disclosure and Barring Service and restricts the scope of the 'vetting and barring' scheme for protecting vulnerable groups and makes changes to the system of criminal records checks
  • introduces a code of practice for CCTV and ANPR, overseen by a new Surveillance Camera Commissioner;
  • extends the scope of the Freedom of Information Act and requires datasets to be available in a re-usable format;
  • brings in a new framework for police retention of fingerprints and DNA data;
  • requires schools to get parents' consent before processing children's biometric information.
In summary the statute comprises seven parts  -
Chapter 1 of Part 1 makes provision in respect of the retention and destruction of fingerprints, footwear impressions and DNA samples and profiles taken in the course of a criminal investigation. In particular, it replaces the existing framework, set out in Part 5 of the Police and Criminal Evidence Act 1984, whereby fingerprints and DNA profiles  from a person arrested for, charged with or convicted of a recordable offence may be retained indefinitely. Under the new scheme provided for in this Chapter, the fingerprints and DNA profiles taken from persons arrested for or charged with a minor offence will be destroyed following either a decision not to charge or following acquittal. In the case of persons charged with, but not convicted of, a serious offence, fingerprints and DNA profiles may be retained for three years, with a single two-year extension available on application by a chief officer of police to a District Judge (Magistrates’ Courts). The police will also be able to seek permission from the new independent Commissioner for the Retention and Use of Biometric Material to retain material for the same period (three plus two years) in cases where a person has been arrested for a qualifying offence but not charged. In addition, provision is made for the retention of fingerprints and DNA profiles in the case of persons convicted of an offence or given a fixed penalty notice and for extended retention on national security grounds.
Chapter 2 of Part 1 imposes a requirement on schools and further education colleges to obtain the consent of parents of children under 18 years of age attending the school or college, before the school or college can process a child’s biometric information.
Chapter 1 of Part 2 makes provision for the further regulation of Closed Circuit Television, Automatic Number Plate Recognition and other surveillance camera technology operated by the police and local authorities. The provisions will require the Secretary of State to publish a code of practice in respect of the development and use of surveillance camera systems and provide for the appointment of a Surveillance Camera Commissioner to monitor the operation of the code.
Chapter 2 of Part 2 amends the Regulation of Investigatory Powers Act 2000 so as to require local authorities to obtain judicial approval for the use of any one of the three covert investigatory techniques available to them under the Act, ie the acquisition and disclosure of communications data, and the use of directed surveillance and covert human intelligence sources.
Chapter 1 of Part 3 makes provision in respect of powers to enter land or other premises. The provisions enable a Minister of the Crown (or the Welsh Ministers), by order, to repeal unnecessary powers of entry, to add safeguards in respect of the exercise of such powers, or to replace such powers with new powers subject to additional safeguards. Each Cabinet Minister is placed under a duty to review existing powers of entry with a view to considering whether to exercise any of the aforementioned order-making powers. Provision is also made for the exercise of powers of entry to be subject to the provisions of a code of practice.
Chapter 2 of Part 3 makes provision in respect of parking enforcement. It makes it a criminal offence to immobilise a vehicle, move a vehicle or restrict the movement of a vehicle without lawful authority. Further provision is made to extend the power to make regulations for the police and others to remove vehicles that are illegally, dangerously or obstructively parked. Provision is also made so that the keeper (or in some circumstances the hirer) of a vehicle can be held liable for unpaid parking charges where the identity of the driver is not known.
Part 4 makes provision in respect of counter-terrorism powers. Sections 57 and 58 reduce the maximum period of pre-charge detention for terrorist suspects from 28 to 14 days whilst introducing a power for the Secretary of State to increase the limit to 28 days for a period of three months in circumstances where Parliament is dissolved or in the period before the first Queen’s Speech of the new Parliament. Sections 59 to 63 relate to stop and search powers. They confer a power on a constable to search a vehicle if he or she reasonably suspects that a vehicle is being used for the purposes of terrorism; replace the powers to stop and search persons and vehicles without reasonable suspicion in sections 44 to 47 of the Terrorism Act 2000  with a power that is exercisable in more restricted circumstances; and similarly restrict the operation of the power to search persons and vehicles for munitions and transmitters without reasonable suspicion in Schedule 3 to the Justice and Security (Northern Ireland) Act 2007.
Chapter 1 of Part 5 amends the Safeguarding of Vulnerable Groups Act 2006  which provides the framework for the vetting and barring scheme operated by the Independent Safeguarding Authority in England and Wales. The amendments, in particular, repeal the provisions of the 2006 Act that provide for the monitoring by the Secretary of State of persons engaging in regulated activity. The Chapter also provides for broadly similar changes to the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007, ie the framework for the Northern Ireland vetting and barring scheme.
Chapter 2 of Part 5 amends Part 5 of the Police Act 1997 which sets out the framework for the operation of the Criminal Records Bureau (and the disclosure of criminal convictions and other relevant information in certificates issued by that Bureau - the counterpart of Australia''s CrimTrac - to support the assessment of a person’s suitability for employment and other roles.
Chapter 3 of Part 5 establishes a new organisation, to be known as the Disclosure & Barring Service, which will replace and combine the functions of the Bureau and ISA.
Chapter 4 of Part 5 provides for a person to apply to the Secretary of State for a conviction or caution for an offence under section 12 or 13 of the Sexual Offences Act 1956, and certain associated offences, involving consensual gay sex with another person aged 16 or over, to become a disregarded conviction or caution. It provides for such disregarded convictions and cautions to be deleted from the Police National Computer and other police records so that they no longer show up on criminal record checks.
Part 6 amends the Freedom of Information Act 2000  and the Data Protection Act 1998. It amends the FOIA to make provision for re-use of datasets by public authorities subject to that Act. It amends the definition of a publicly owned company for the purposes of the FOIA to include companies owned by two or more public authorities. Thirdly, Part 6 extends to Northern Ireland amendments made to the FOIA by the Constitutional Reform & Governance Act 2010. Finally, it amends the FOIA and DPA regarding the appointment and tenure of the office of the Information Commissioner and to change the role of the Secretary of State in relation to the exercise of certain functions by the Information Commissioner.
Part 7 makes two principal changes to existing criminal offences on human trafficking. First, it expands the existing trafficking offences, currently set out in sections 57 to 59 of the Sexual Offences Act 2003 and in section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, which make it an offence to traffick a person into, within, or out of the United Kingdom for the purposes of exploitation. Part 7 will, in addition, make it an offence for a UK national to traffick a person for sexual exploitation or for the purpose of labour or other exploitation regardless of where in the world the trafficking occurs or is intended to occur; and regardless of where the facilitation or arrangement of the trafficking takes place. Secondly, Part 7 amends the 2004 Act so that it is an offence where the trafficking of a person for the purpose of labour or other exploitation takes place wholly within the United Kingdom.
Part 7 introduces into the Protection from Harassment Act 1997 two new offences of stalking (a summary only offence) and stalking involving fear of violence or serious alarm or distress (an either way offence). It also introduces a power of entry in relation to the summary only offence of stalking that would confer on the police a power, subject to the authorisation of a magistrate, to enter and search premises if there are reasonable grounds for believing that there is material on the premises which is likely to be of substantial value to the investigation of the offence.
Part 7 also contains two repeals of enactments. It repeals section 43 of the Criminal Justice Act 2003, which makes provision for certain fraud trials to be conducted without a jury, and removes the restrictions on the times when a marriage or civil partnership can take place. This Part also contains consequential amendments and repeals, makes provision for transitional arrangements, determines the extent of the provisions in the Act and provides for commencement.

01 June 2012


'International Patent Control and Transfer of Knowledge: The United States and Japan before World War II' [PDF] by Shigehiro Nishimura in 9 Business & Economic History Online (2011) seeks to
 clarify the role and effect of the international patent control carried out by the General Electric Company in the interwar period on knowledge transfer between the United States and Japan, and to examine the effects of this process on Japan’s innovative behavior. In previous studies on GE’s international patent control, I showed that in order to transfer technological knowledge safely, GE made its Japanese affiliated companies set up a patent department and transferred functional capabilities of patent control to them. After the organization of an international patent control system, GE transferred a good deal of technological knowledge continuously and utilized it in Japan until the outbreak of the Pacific War. In the interwar era, GE obtained about 12,000 patents that were applied for and registered in the United States. In Japan, GE applied for and registered about 3,000 patents in the name of affiliated companies. Therefore, GE transferred about one-fourth of its U.S. patented inventions to Japan, and made patent portfolios in both countries. In this essay, I will compare GE’s U.S. and Japanese patent portfolios and analyze how they were linked.
Nishimura concludes -
What kind of technological knowledge [was] transferred over the Pacific Ocean, and to what degree? What kind of knowledge transfer has an effect on the long-term innovative behavior of Japanese companies, and to what extent?
In the interwar era, GE obtained about 12,000 patents that were applied for and registered in the United States. In Japan, GE applied for and registered about 3,000 patents in the name of affiliated companies. Therefore, GE transferred about one-fourth of its U.S.-patented inventions to Japan, and the company constructed patent portfolios in both countries.
Knowledge flow during the interwar period was made possible by a scheme in which GE contracted with its affiliated companies—namely, Tokyo Electric, Shibaura Engineering Works, and Toshiba in Japan—to control foreign patents in each territory for each other. Global networks of such a scheme fostered and secured international knowledge transfer, and this is seen in the case of Japan as well. Tokyo Electric and Shibaura received large amounts of technological knowledge covered by patents; further, knowledge transferred to Japan stimulated inventive activities in Japanese companies along with organizational capabilities for patent control. The result of technology interaction with affiliated companies appeared in the growth of patent applications. Accumulated R&D capabilities in Japanese companies served as one of the foundations of revival and high-rate economic growth after World War II. 
During the interwar period, under the international patent control scheme, GE received the benefit of knowledge flow to Japan. GE applied for patents invented by Japanese engineers, which were limited to those applied for during the period 1922 to 1941, and numbered ninety-seven. Among those patents, twelve were classified under USC 313 “Electric lamp and discharge device.” This class included a famous invention, an inside-frosted bulb, which was invented by Kitsuzo Fuwa. At almost the same time, Marvin Pipkin introduced the same invention in the United States. Besides this class, seven patents each were classified under USC 361 “Electricity: electrical systems and devices” and USC 501 “Compositions: ceramic.” The number of patents classified under USC 501 is comparatively very low; however, this class contains inventions by U.S. engineers. Therefore, GE’s patents were complemented by knowledge created by Japanese affiliated companies in some fields.
One can also point out the simultaneity of inventions in different countries. During the interwar period, GE and its Japanese affiliated companies put their development resources into similar fields. Electric lamps and discharge devices and radio vacuum tubes were “hot” fields, as were electrical equipment and apparatus meant for more voltage. While some fields found favor with single companies, in other fields the companies devoted their energies to the same specific technology at the same time. This phenomenon was probably caused and mutually affected by international knowledge transfer instituted by patent control contracts.
The same issue features 'The German Connection: Merck and the Flow of Knowledge from Germany to the United States, 1880-1930' [PDF] by Jeffrey L. Sturchio and Louis Galambos. The authors  comment that -
The pharmaceutical industry in Germany was very advanced in the second half of the nineteenth century, and it took advantage of this situation to export to the large, growing market in the United States. E. Merck of Darmstadt developed a distribution branch in America that eventually evolved into the large U.S. pharmaceutical firm Merck & Co., Inc. The authors chart the business and tech- nical knowledge that flowed from Darmstadt to the United States and analyze the impact of World War I on those relationships. They suggest that E. Merck’s strategy and culture as well as its technical/scientific knowledge helped build a foundation for Merck & Co., Inc.’s development as a leading American research- oriented company in the 1930s. 
In recent years Americans have become accustomed to thinking of knowledge transfer largely in terms of a one-way flow from the United States to the less developed nations in Africa, Asia, Latin America, and the Middle East. Some substantial part of the transfer takes place through U.S. research universities, which have through the twentieth century remained open and indeed welcoming to foreign students; since the 9/11 terrorist attacks, problems in obtaining visas have increased, but the transfer continues nevertheless. Although the knowledge transferred has been broad, the working definition of the knowledge has been narrow and has stressed technology and the closely related sciences. In the following study of two pharmaceutical companies between the 1880s and the 1930s, we take a different tack: we study the flow of knowledge from Germany to the United States; and we define this flow in very broad terms that include technology and the related sciences but also bring in a variety of other business practices and values. 
Though we glance from time to time at some of the other pharmaceutical firms with German origins, we will concentrate on E. Merck of Darmstadt, Germany, and its distribution center, the organization that evolved into Merck & Co., Inc. E. Merck had experienced a significant series of changes in its evolution from a pharmacy (the Angel Pharmacy) that had been in the Merck family since 1668. In 1827, the pharmacy began increased production of various alkaloids, including morphine. By the 1840s, the expanded laboratory had given way to factory production, and by 1855, the firm was employing around fifty factory hands and office clerks and was already using steam power. Expansion of production within Germany was followed by new efforts to export the firm’s products to other countries in Europe and North America. 
In our examination of this process of expansion and transfer of knowledge, we have three general questions that we want to answer: What, other than technical knowledge, did the relationship export to the United States? What happened when World War I severed the relation- ships between Germany and the United States? How did the developments prior to the 1930s relate to the pharmaceutical industry’s role in the Therapeutic Revolution that took place in Europe and America in the 1930s and beyond?
Sturchio and Galambos conclude -
We find especially interesting the transfer of business knowledge, a particular business strategy, and a powerful business culture from Germany to the United States when E. Merck began investing in the large, growing American market. Certainly, scientific and technological informa- tion was transferred, as were important products for medicinal and research use in America. But over the decades in which E. Merck was shipping products, intermittently perforce, to America, the science and technology shifted dramatically. So too did the comparative balance of knowledge and scientific institutional frameworks of the two nations. By the 1930s, the United States was rapidly catching up with the more advanced German medicinal sciences, in part of course because so many American scientists and physicians had received part of their training in Germany. But what persisted long after the United States had reached the level of scientific/technological development of Germany was the E. Merck pharmaceutical model of firm strategy and culture. This suggests that scholars need to look beyond science-based technology when they evaluate the process of knowledge transfer within and between organizations, and within and between societies. Capabilities are based on more than technology and science. They are based as well on organizational patterns of behavior, leadership, and deeply planted value systems. 
As we saw in the Merck history, a war that the businesses had not anticipated temporarily separated the German manufacturer, E. Merck, from its American distribution and manufacturing branch, Merck & Co. If E. Merck had anticipated the war, the firm would not have invested in the United States and certainly not in France. As a result of World War I, the flow of technical information, capital, and skilled labor coming from Germany to the United States was abruptly cut off. Thanks in part to George Merck’s early decision to become an American citizen—a lucky break for the company—he was able to keep control of his firm during and after the war. Part of the responsibility for that outcome can also be credited to the conservative business strategy that George had brought with him from Germany and his early experience in E. Merck. Being in and staying in a relatively conservative position on debt helped George Merck and his son guide the business through the war and postwar experiences. While some transfers of knowledge were probably recreated in the 1920s, the aftermath of the war was an increasingly independent American firm, Merck & Co., Inc. 
That firm became one of the leaders in the American industry in the 1930s and 1940s, as the United States began to experience first-hand the Therapeutic Revolution. When George W. Merck, the new president, expanded the firm and internalized the R&D functions, he was successfully following the E. Merck model. When he continued to stress the quality of the firm’s products and the science-based nature of its laboratories and pilot plant, he was expressing values that had in the previous generation been imported from Darmstadt. So too when he reached out to establish close relations with the institutions developing the medicinal sciences and pharmacology in America. It is in that sense that we conclude that German business practices, culture, and history helped lay the foundation for America’s climb to leadership in world pharmaceuticals after World War II and for Merck & Co, Inc.’s achievements in those decades as an innovative and profitable corporation.

31 May 2012


Counting the Cost: The Impact of Young Men’s Mental Health on the Australian Economy, a report [PDF] by the Inspire Foundation and Ernst & Young -
analyses the resultant cost and impact on the Australian economy, highlighting the threat to productivity from poor mental health among young men.
The authors comment that -
In presenting this new evidence, this report provides a call-to-action, demonstrating the importance of a community-wide response to raising awareness, prevention and treatment of young men’s mental illness. 
Our research identifies costs and impacts to the Australian economy and productivity which are borne across a range of sectors and institutions. The findings of our research and modelling reveal the broader costs to individuals and employers: 
• The Federal Government bears 31% of this cost via direct health costs, disability welfare payments, unemployment benefits and the direct costs of imprisonment 
• Australia loses over 9 million working days per annum to young men with mental illness. On average they have an additional 9.5 days out of role per year 
• Young men with mental illness have much lower rates of educational attainment compared to their peers, further limiting their skills development and long term reduced earning potential by $559 million per year Government incurs significant costs associated with the provision of mental health services:  
• In 2008, the overall cost of spending on mental health care was $5.32 billion, with the Australian government spending $1.92 billion and the states and territories spending $3.22 billion 
• In addition to the costs associated directly with specialist mental health care, the government also bears a broad range of costs required to support people with mental illness - including income support, housing services, domiciliary care and employment and training opportunities 
• The 2010 National Health Report estimated that with government costs alone, for every dollar spent on specialised mental health care, an extra $2.30 is spent on other services to support people with mental illness – equating to $4.4 billion (2008 prices) 
• Mental illness in young men aged 12-25 costs the Australian economy $3.27 billion per annum or $387,000 per hour across a year in lost productivity
It offers several recommendations -
The reality is that the costs of young men’s poor mental health are already being felt throughout Australia’s economy. In uncovering these costs, this report provides new insights that can be used to guide further reforms and investment decisions. Failure to act presents a serious threat to Australia’s future productivity and to the individual prosperity of young men affected with poor mental health. Coordinated activity from all sectors – business, government, and communities – holds the promise of considerable economic and individual benefits. The findings of this study point to both the productivity opportunities and risks associated with the mental health of young men. 
Recommendation 1: Efforts should be made by all sectors of the community to support the engagement of young men to achieve higher levels of education. 
• 1.1 Improve secondary, tertiary and vocational educators’ levels of understanding of mental health, including the identification of disorders and awareness of support and referral services available. This should include professional development and tools for teachers and other educators 
• 1.2 Increase awareness and access for young men to educational alternatives such as apprenticeships 
• 1.3 Strengthen cross sector partnerships between employers and education providers to create stronger pathways from school to work for young men with mental illness. This should include focus on key transition points such as moving from school to further studies or employment 
Recommendation 2: Efforts should be made by all sectors of the community to support young men with mental illness to engage in more productive employment. 
• Improve employers’ level of understanding of mental health, including the identification of disorders and awareness of support and referral services available 
• Initiate new partnership models between government, mental health service providers, NGOs, employers and business groups to create strategies that proactively support employees’ good mental health and ongoing engagement in the workforce 
• Identify new partnership models between employers, business groups, government and NGOs to drive a whole of community response. This includes creating new collaborative funding and service delivery models 
Recommendation 3: Efforts should be made by all sectors of the community to evaluate the effectiveness of current policy responses and investments in mental health. 
• 3.1 Undertake further targeted research to evaluate the efficacy of existing mental health programs and interventions with a particular emphasis on prevention and early intervention  
• 3.2 Undertake return on investment analysis to inform future investment in young men’s mental health with a particular emphasis on prevention and early intervention 
• 3.3 Enhance reporting of government funded initiatives targeted at supporting young men with mental illness to achieve full benefits of investment. Key objectives of these enhancements are to drive greater accountability of public spend and to provide better transparency and access to program performance and evaluation


'The Legitimacy of Plain Packaging Under International Intellectual Property Law: Why There is No Right to Use a Trademark Under Either the Paris Convention or the Trips Agreement', a cogent paper  by Mark Davison,  notes that
The Australian government has passed legislation for ‘plain packaging’ of tobacco products. The legislation will prohibit the use of logos, graphics and colour schemes on tobacco products. It will dictate the manner in which word trademarks are used and the colour of the packaging will be a drab brown. This chapter considers the arguments that there is a right to use trademarks under the Paris Convention or the TRIPS Agreement. In doing so, it also engages in a detailed analysis of Article 20 of TRIPS. It explains why no right of use exists under either Paris or TRIPS and the very limited role that Article 20 of TRIPS has in the context of the debate surrounding the legislation.
Davison concludes that -
1. There is no express or implied right to use a trademark under the Paris Convention or the TRIPS Agreement.

2. Defining such a right is effectively impossible. So too would be the definition of the exceptions to such a right.

3. The absence of a right of use under TRIPS Article 20 has implications for the meaning of 'encumbered by special requirements' within Article 20. A partial or total prohibition on use would not come within Article 20.

4. Such an interpretation of Article 20 is not only consistent with the wording of Article 20 but is also consistent with and supports the entire trademark regime under the Paris Convention and the TRIPS Agreement. It also validates those civil law systems that do not protect unregistered trademarks.

5. Only 'the use of a trademark in the course of trade' is relevant to Article 20 for the purposes of assessing the legality of an encumbrance by special requirements. The major encumbrance by special requirements on tobacco trademarks imposed by the legislation is outside the course of trade. The encumbrance by special requirements in the course of trade is limited to some special requirements for word trademarks.

6. The only issues that plain packaging of cigarettes raises under the TRIPS Agreement are therefore the limited encumbrances imposed on word trademarks in the course of trade and their justification for the purposes of Article 20 pursuant to Article 8 or on other grounds.
The work is available as a chapter in Public Health and Plain Packaging of Cigarettes: Legal Issues (Edward Elgar, 2012) edited by Mitchell, Voon & Liberman.

30 May 2012


'The Misrecognised as the Least Advantaged Citizens in Plural Democracies' by Mark Blythe in 5(2) Canadian Political Science Review (2011) comments that
John Rawls’s “Justice as Fairness” is the most systematic attempt in recent decades to provide a liberal grounding for justice in plural democratic societies. Rawls argued that social and economic inequalities are justifiable only if they are to the advantage of society’s least-advantaged members. Rawls argued that the least-advantaged position in society was occupied by the citizen with the lowest expectation for primary social goods (all-purpose means like income and opportunity). This paper argues that the least-advantaged citizens, in part, are those whose identities are misrecognised. Misrecognition of identity can cause harm; it can restrict the agency and opportunity of the misrecognised. Minority identity groups (whose identities are often misrecognised) do not do as well as others citizens in social, economic and political terms. This paper argues that the misrecognition of identity constitutes unreasonable democratic practice because it can harm members of minority identity groups.

28 May 2012

Wills and Indigenous People

The concise 'Making Wills for Aboriginal People in NSW' by Prue Vines in 49(8) Law Society Journal of NSW (2011) argues that
Aboriginal people in NSW have even more need to make wills than non-Aboriginal people. A burgeoning middle class continues to have traditional family and customary law obligations, while taking on mainstream property and obligations. The standard intestacy regime is inappropriate including because it uses an inappropriate idea of family and the high rate of burial disputes involving Aboriginal people means the role of executor is even more important than usual. A will can also be used to protect certain aspects of customary law. The article considers the issues arising in drafting the most culturally appropriate and effective wills.
Vines notes that
Aboriginal people, even those who live in cities and live urban lives, often continue to have customary law obligations which may need to be protected. Intestacy cannot deal adequately with all customary law obligations, possibly even where Part 4 of the Succession Act 2006 (NSW) is used. Many of these will be obligations arising out of kinship, which we have already discussed. But there may be other customary law obligations which might be protected by wills, in particular secret knowledge which should be passed on. Normally this should happen inter vivos, but if it does not happen in life, a will might be drafted to operate as a vehicle in equity which will both protect and keep secret the knowledge itself. This might be done by using equitable doctrines including confidentiality and secret and half‐secret trusts. The question of whether such knowledge can be regarded as property may be answered by the argument that equity retains flexibility so that it can accommodate a wider view of property than pertains at common law. 
Aboriginal artwork is often a significant issue for wills to deal with, and the issue may go further than it would for a non‐Aboriginal person’s artwork. For example, a person may have done an artwork which is based on ritual knowledge. The artwork itself may be copyright and therefore be an item of property which the common law recognises and which can be passed on to other people. That raises no great difficulty, except that the fact that it is based on ritual knowledge may mean that it is important to place conditions on the gift in the will. There may be some question of how the artist was supposed to use this knowledge. If the ritual knowledge is something which the artist is supposed to pass on then a will may be helpful. The ritual knowledge itself cannot be passed on as copyright because copyright protects the expression of an idea rather than the idea itself. It may be possible to do this by means of a secret or half‐secret trust or by using some aspect of confidentiality to pass it on by will. Thus, carefully drafted wills can operate to ensure that customary law obligations spelt out in the will (or even as half‐secret trusts to ensure confidentiality) will be recognised and given legal force by the common law.


I spent last night reading Richard Hil's Whackademia: An Insider’s Account of The Troubled University (Sydney: Newsouth 2012), a somewhat depressing complement to critiques such as The Australian academic profession in transition: Addressing the challenge of reconceptualising academic work and regenerating the academic workforce (Melbourne: Centre for the Study of Higher Education 2011) by Bexley, James & Arkoudis; ‘The ERA and Journal Ranking: The Consequences of Australia’s fraught encounter with ‘quality’’ by Cooper & Poletti in 53(1) Australian Universities Review (2011) and Margaret Thornton’s Privatising the Public University: The Case of Law (Routledge 2012). More hope is offered  by the marvellous Prue Vines in 'Working Towards the Resilient Lawyer: Early Law School Strategies' (UNSW Law Research Paper No. 2011-30).

She comments that
We know that law students suffer disproportionate levels of depression compared with other students. This paper draws on research which suggests some possible reasons why and approaches to the development of resilience within the academic environment. It is argued that the resilient lawyer (one whose mind is well-furnished beyond the black letter law and whose understanding of self and ethical and other life problems has been developed ) is a reasonable goal for law schools to keep in mind. In planning for the first year experience it is useful to keep this in mind and begin to bed down some of the skills and attitudes which are most likely to enhance the development of the resilient lawyer.
Vines goes on to argue that
Many legal academics are concerned at the swing towards thinking about the mental health of students. There are many reasons why they are right to be concerned. We are not counsellors; we are not specialists in mental health, and we should not see ourselves in those roles. However, we are concerned with our students’ minds. And we waste all our time when a bright student sinks and falls, taking with them all they’ve learned. As people who teach law to people who may or may not be lawyers our interest is in helping to shape people who benefit society through their understanding of the rule of law in the broadest sense, as well as the details of legal argument etc. The Council of Australian Law Deans has suggested that the mental health of law students might become one of the standards or goals of Law Schools: One must be cautious not to over-reach, but a possible articulation of the relevant sentiment might take the form of Standard 1.3.4: 
"The law school’s objectives include demonstrating a high regard for the mental wellbeing of its students and to improving their awareness of the stresses associated with legal education and practice and the means to manage them." 
... It is relatively easy to present students with realistic ethical dilemmas, building from plagiarism treated as an ethical problem up to significant professional ethical dilemmas such as your boss requiring you to do something repugnant where you have to weigh up your need to have a job against your ethical standards. Giving realistic scenarios for role plays allows students to practice what they might come up against. Discussing them in class helps students to develop a ‘grammar’ for discussing such dilemmas. This can be done not only in Legal Ethics courses, but also in torts or contracts or property courses. 
The literature suggests that people who choose law for themselves (rather than because their parents told them to do it or they got the marks) do so because their personality type is more likely to be a ‘helper’ type. These are the students who want to fight for justice; they are also the ones who are most discomfited by ethical dilemmas. I suggest to you that these are the ones we really want to be practising as lawyers. The importance of building their sense of authentic self with a grammar for discussing ethical issues is vital for them. For the others, that ethical sense may need to be awakened in some way, although young people are very often extremely idealistic. When we can harness that idealism to a practical ethical understanding we have the best chance of developing the kind of lawyers I believe our society needs. If the aim is resilience, though, it is important that the students do not get the Hollywood version of ethics ‐ the pie in the sky, it will all come right in the end and we’ll live happily ever after version. The reality is that ethical problems can bite deep, and they can take away one’s livelihood.