15 September 2012

Constructions and creatures

The SMH (along with papers in NZ, such as the Christchurch Press) is claiming that Gerald Shirtcliff, the former construction manager of the Canterbury Television building in Christchurch - which killed 115 people when it collapsed last year - had stolen the identity of a professional engineer and faked an engineering degree.

It's a less benign fraud, if the claims are proven, than that of Stephen Wilce or the fake Mgqumeni Khumalo, supposedly resurrected after having been kept in a South African cave by zombies for two years. (Who would have thought that zombies were so hospitable?).

In evidence last month to the Royal Commission into Building Failure Caused by the Canterbury Earthquakes Shirtcliff claimed to be a "graduate engineer" who had been a supervisor on construction projects in South Africa.

The SMH states that
An investigation by Fairfax Media shows that in 1970 Mr Shirtcliff stole the identity of an English engineer called William Anthony Fisher, with whom he worked in South Africa in 1968 and 1969. 
Mr Shirtcliff has lived in Australia as William Fisher for more than 25 years. [After leaving] South Africa in late 1969 to settle in Sydney, he took on Mr Fisher's identity, including his birthplace, birthdate and his bachelor of engineering degree from the University of Sheffield. 
Mr Shirtcliff used the real Will Fisher's bachelor's degree to gain entry to a masters program at the University of NSW in 1971 and, in 1972, to become a member of the Australian Institute of Engineers. He was awarded a master of engineering science in highway engineering in April 1974. 
He later worked as an engineer for a Sydney firm, then called MacDonald, Wagner and Priddle (to become Connell Wagner and then Aurecon), before returning to New Zealand in the mid-80s to work under his Shirtcliff name. 
In NZ he purported to be a "registered" engineer and at one time a "chartered" engineer. 
Mr Shirtcliff used his new identity on company documents and to try to avoid extradition to NZ on fraud allegations. He spent a week in a Brisbane jail in 2003 before conceding he was Gerald Shirtcliff. 
Shirtcliff is reported as maintaining that he had an engineering degree from Sheffield University, denied misleading the Royal Commission and indicated that he changed his name by deed poll in Australia 40 years ago after "a family rift".

The SMH states that
He denied any of the wrongdoing suggested by Fairfax and threatened to sue if it published the allegations. 
In 2009 Mr Shirtcliff was employed as a contractor by the global engineering consultancy WorleyParsons in Brisbane. Information that Fairfax gave WorleyParsons prompted the firm to launch an immediate investigation, which led to the ''termination of his [Shirtcliff's] relationship with the company'' last month. The firm was reviewing all his work. Almost immediately after leaving WorleyParsons, Mr Shirtcliff joined Sedgman, another international engineering firm in Brisbane, as an independent contractor. On learning about the allegations, Sedgman began inquiries and stopped his contract. 
Engineers Australia, which oversees the registration of engineers, has begun an investigation, as has the University of NSW. A spokeswoman for the university said that if the allegations proved that a degree had been obtained by using false documents, the degree would be cancelled. 
Meanwhile 'Biosurveillance, human rights, and the zombie plague' by Jeremy Youde in (2012) 24(1) Global Change, Peace and Security comments
The International Health Regulations (2005) gave the World Health Organization a central role in collecting biosurveillance data and explicitly recognized the importance of human rights for the first time. Human rights and biosurveillance have a complicated relationship with one another though. Surveillance systems are necessary in order to arrest the spread of infectious disease outbreaks, but these same surveillance systems can be used in discriminatory ways. Is some sort of resolution or detente possible? This article investigates the role of the World Health Organization in implementing these potentially competing imperatives contained within the International Health Regulations (2005). To understand this relationship, it examines how the World Health Organization would implement the International Health Regulations in case of an international zombie outbreak.
 Youde argues
The International Health Regulations (2005) gave the World Health Organization a central role in collecting biosurveillance data and explicitly recognized the importance of human rights for the first time. Human rights and biosurveillance have a complicated relationship with one another though. Surveillance systems are necessary in order to arrest the spread of infectious disease outbreaks, but these same surveillance systems can be used in discriminatory ways. Is some sort of resolution or detente possible? This article investigates the role of the World Health Organization in implementing these potentially competing imperatives contained within the International Health Regulations (2005). To understand this relationship, it examines how the World Health Organization would implement the International Health Regulations in case of an international zombie outbreak.
When an infectious disease outbreak occurs, the international community has a moral and international legal obligation to track its spread and use the data collected for the benefit of the general population. Under the terms of the International Health Regulations (IHR) (2005), the World Health Organization is legally empowered to collect and disseminate biosurveillance data, and WHO's 194 member states are legally obligated to provide this data as one of their core public health functions and use it in a way that respects and promotes human rights. Human rights and biosurveillance have a complicated relationship with one another. On the one hand, surveillance systems are necessary in order to arrest the spread of infectious disease outbreaks so as to better protect the health of all communities. On the other hand, though, these same surveillance systems can be used in discriminatory ways, impose heavy burdens, and abrogate freedom of movement and speech. Is some sort of resolution or detente possible?
In this article, I investigate how the International Health Regulations (2005) empower the World Health Organization to operationalize biosurveillance in a manner that promotes and respects human rights as a transnational good that can benefit humanity as a whole. While this represents a significant step forward for the international community and better integrates biosurveillance and human rights, there remain some ambiguities and underdeveloped protections that deserve greater attention from the World Health Organization.
The real test of any relationship between biosurveillance and human rights, though, comes when it is pushed to its limits. Perhaps no transnational infectious disease outbreak could challenge the international community more than a zombie outbreak. The recent explosion of interest in zombies in popular culture (and academia) ‘provides a window into the subliminal or unstated fears of citizens, and zombies are no different’.1 How well would the relationship between biosurveillance and human rights hold in the face of an outbreak of the undead?
To make this argument, I begin by examining the meaning of biosurveillance. This leads into a discussion of zombies and how representations of zombies in popular culture mirror infectious disease outbreaks. I then move on to explore how this idea has played out in the International Health Regulations. This treaty, the leading health-related treaty in the international community, has witnessed dramatic evolutions in its conceptualization of biosurveillance and the role of human rights. Finally, I examine how the interplay between respecting human rights and drawing on the resources and skills of non-state actors can encourage compliance with the International Health Regulations and safeguarding individual rights. The International Health Regulations’ approach to human rights is not perfect, but its current form is a significant improvement over the past.

School CCTV

I've recently pointed to the Queensland Information Commissioner's criticism of closed circuit television management in that state, echoing criticisms in Western Australia. It is thus interesting to see a 24 page report by Big Brother Watch in the UK on British use of cctv in schools.

The Class of 1984: The extent of CCTV in secondary schools and academies report [PDF], based on requests by Big Brother Watch to individual institutions, claims that there are at least 51,600 cctv cameras controlled by 428 local authorities. It comments that the Home Office’s proposed system of regulation for cctv cameras is "not fit for purpose", particularly because the new position of Surveillance Camera Commissioner has no enforcement or inspection powers.

Big Brother Watch offers three key recommendations in the report -
  • The Home Office code of practice for cctv cameras should apply to all publicly funded bodies 
  • The Surveillance Camera Commissioner must have the power to enforce the Code of Practice and penalties for breaching the code must be available 
  • The Government should commission an independent review of cctv use in schools to explore the evidential basis upon which cameras have been installed. This should include ensuring any school using cctv has appropriate policies in place so teachers and parents are fully aware of why surveillance is being used, when footage can be viewed and by who. 
The proposals for a regulator with no enforcement or inspection power and a code of practice that is limited to cameras directly controlled by local authorities is simply not fit for purpose. If the Surveillance Camera Commissioner cannot intervene to force the removal of a camera in a school toilet, nor even demand access to inspect the camera, then we question the point of the commissioner’s role being created at all.
Key findings in the report are -
  • total number of cameras used by 2,107 schools -- 47,806 
  • number of cameras inside 2,107 school buildings -- 26,887 
  • number of pupils in the schools that responded to the FOI request -- 1,809,814
  • number of cameras in changing rooms and bathrooms in 206 schools -- 825
  • the average number of cameras inside schools to pupils based on 47,806 cameras and 1,809,814 pupils -- 1:38
  • average number of cameras in 1,537 Secondary schools -- 24 
  • average number of cameras in 570 Academies --30 
  • % of schools with CCTV cameras -- 90% 
  • % of schools that responded but refused our request for information -- 9% 
  • number of Local Authorities with double the average (27) number of CCTV cameras in England -- 24 
  • number of schools with a ratio of 1 camera to 15 pupils or higher in England -- 54 T
  • the estimated number of CCTV cameras in Secondary schools and Academies in England, Scotland and Wales 106,710
The report states that
During the 1990s the Home Office spent 78% of its crime prevention budget on installing CCTV, and clearly schools have been investing significant resources in their own surveillance equipment. We are aware of no research in the UK that has evaluated the use of CCTV cameras in schools. ... 
Given the lack of research or data on this issue, we find it remarkable that so many cameras have been installed in the absence of any empirical data, or analysis of their benefits. 
Whether or not many of these cameras are surveillance for surveillance’s sake, if schools are not able to identify why they are installing cameras and then monitor if they are effective in achieving that aim it is impossible to justify such widespread surveillance.

Retention Acrobatics

It's difficult to know what to make of the official acrobatics regarding current telecommunication data retention proposals. The Cybercrime Legislation Amendment Act 2012 (Cth) has received assent. The mass media are reporting criticisms by the Law Council of Australia and other entities, including the Ag  Privacy Commissioner of Victoria and this blog's author, of broader proposals for mandatory retention of all traffic data. The Attorney-General is confusing and perhaps simply confused.

Having apparently walked away, in her recent Security in Government speech from apparent disavowal of mandatory retention, she now appears - like Captain Renault in Casablanca - to be shocked, shocked and staggered.

In a letter to The Age she expresses surprise and disappointment that she could be misunderstood, commenting that she hasn't made up her mind. Presumably we are to infer that she hasn't experienced bureaucratic capture, that she's a victim of shabby reporting, making policy on the basis of rolling polls or that her speechwriters and media advisers need to brush up their communications skills.
The Age seems determined to paint me as the cheer squad and number one advocate for all of these reforms. I am not. .... 
The Age has jumped the gun in assuming I’ve made up my mind on these reforms, when I have been absolutely clear that I have not. 
The Attorney-General, regrettably, has not been "absolutely clear". The proposals put forward by the Government are vague, so vague that they involve an inappropriate level of trust. That trust is unlikely to be forthcoming from the legal community, business and civil society advocates when the Attorney-General is busy swooping from trapeze to trapeze and officials are reported as providing comments that are at best quite disingenuous.

Short Circuit

Under the heading 'Introducing the Federal Circuit Court of Australia' the national Attorney-General Nicola Roxon has announced a restructuring of the Federal Magistrates Court.
What we know as the Federal Magistrates Court will soon become the Federal Circuit Court of Australia, and the title of Federal Magistrate will be renamed Judge to better reflect their important role in Australia's judicial system. 
the change today as part of the Government's ongoing court reform agenda to provide greater certainty around the responsibilities and role of each of the federal courts. "The Federal Circuit Court of Australia better reflects the Court's modern role in the federal judicial system and its accessibility for all court users," Ms Roxon said. 
"The new name for the Court also highlights the important service it provides to rural and regional communities through its program of regular court circuits. "From Bundaberg to Burnie, Alice Springs to Albury, the Court undertook work in 33 regional locations last year. This amounts to 145 weeks of hearing matters in regional Australia. 
"The title of Judge better reflects the role and responsibilities of a federal judicial officer, which is significantly different from that of a state or territory Magistrate." 
"I am confident that the name of the Federal Circuit Court of Australia and the title of Judge will better recognise the character and importance of the work undertaken by the Court and enable it to approach the future with confidence. ... 
Selection of the new name follows consultation with the Federal Magistrates Court and the federal courts. The Government intends to bring forward legislation to make the changes in the current parliamentary sittings.

CoE Convention

The Cybercrime Legislation Amendment Act 2012 (Cth) has received assent.

The Act facilitates Australia's accession to the Council of Europe (CoE) Convention on Cybercrime - noted here - by amending the Telecommunications Act 1997 (Cth), the Telecommunications (Interception & Access) Act 1979 (Cth), the Mutual Assistance in Criminal Matters Act 1987 (Cth) and the Criminal Code Act 1995 (Cth).

Specifically the amendments change
  • the Telecommunications Act 1997 and Telecommunications (Interception and Access) Act 1979 to require carriers and carriage service providers to preserve stored communications when requested by certain domestic agencies or when requested by the Australian Federal Police on behalf of certain foreign countries. That requirement is more restricted than the comprehensive mandatory data retention regime proposed by Attorney-General Nicola Roxon on an on-again off-again basis
  • the Mutual Assistance in Criminal Matters Act 1987 and Telecommunications (Interception & Access) Act 1979 to ensure that a foreign country can secure access to stored computer data, including preserved data, and allow a stored communication warrant to be obtained for foreign law enforcement purposes
  • the Mutual Assistance in Criminal Matters Act 1987, the Telecommunications Act 1997 and the Telecommunications (Interception and Access) Act 1979 to enable existing telecommunications data to be provided to a foreign law enforcement agency on a police to police basis, and enable the collection of prospective telecommunications data for foreign law enforcement purposes in certain circumstances
  • the Telecommunications Act 1997 to provide that carriers and carriage service providers can recover costs incurred when assisting foreign law enforcement agencies
  • the Criminal Code Act 1995 to provide that computer offences are consistent with the Convention
  • the Telecommunications (Interception & Access) Act 1979 to create confidentiality requirements in relation to authorisations to disclose telecommunications data; and expand offence provisions.

Forms and Norms

'The Right to Be Fat' by Yofi Tirosh in Yale Journal of Health Policy, Law, and Ethics (forthcoming) comments -
Policy discussions on the increasing weight of Americans, portrayed as a problem of monumental and grim outlook, preoccupy public health experts, scientists, economists, and the popular media. In the legal field, however, discussions have tended to focus on whether weight should be a protected category under antidiscrimination law and on cost-benefit models for creating incentives to lose weight. This Article takes a novel approach to thinking about weight in the legal context. First, it maps the diverse ways in which the law is recruited to “the war against obesity,” thus providing an unprecedented account of what it means to be a fat legal subject under current U.S. law. Second, maintaining that the antidiscrimination framework provides a necessary albeit insufficient context for fully capturing the meaning of being fat, it formulates the question of legal regulation of body size as a question of liberty, which is unpacked in terms of autonomy and human dignity. Drawing on the critique of mind-body dualism, and on the philosophical tradition of phenomenology, this Article offers a new framework for understanding the experience of being a fat subject of the law; one that goes beyond the medical conceptualization of body size and addresses the nuanced ways in which body size and shape and ways of eating and moving the body have intimate meanings for legal subjects. Addressing practical dilemmas such as the legitimacy of charging fat passengers for two airplane tickets or whether weight-based employment discrimination should be prohibited, it concludes that if American constitutional law is to remain coherent in its protection of liberty, autonomy, and dignity, it must recognize a right to be of any body size, including the right to be fat. 
Another perspective on conformity is provided in '(No) State Interests in Regulating Gender: How Suppression of Gender Nonconformity Violates Freedom of Speech' by Jeffrey Kosbie in XIX William & Mary Journal of Women and the Law (2012).

Kosbie argues that -
 Despite limited growth in legal protections for transgender people, dress and appearance are largely treated as unprotected matters of personal preference. In response, lawyers and scholars argue that dress and appearance are intimately connected to the expression of identity. Nonetheless, courts have generally deferred to the government’s proffered justifications for these laws.  
This article refocuses on the government’s alleged interests in regulating gender nonconformity. Using a First Amendment analysis, the article reveals how seemingly neutral government interests are used to single out conduct because it expresses messages of gender nonconformity. This approach avoids impossible questions about the subjective intent of the individual to express their identity. 
Drawing on social constructionist theories of gender, this article establishes that dress, appearance, and other behavior communicate the social meaning of gender, and should be understood as communicative under the First Amendment. When the state singles out conduct because it expresses gender nonconformity, the state’s interests are related to the suppression of a message. This violates freedom of speech under the governing O’Brien doctrine. Testing the theory against actual cases involving government employment, child custody, and restroom access, the article recognizes legitimate government interests in privacy, safety, and efficient workplace environments. However, the article argues that under present doctrine on freedom of speech, the government may not suppress gender nonconformity as the means of achieving these ends.


'Attention Peter Jensen: homosexuality doesn't kill, but homophobia can' by Camille Carroll in The Conversation comments
Some people are ignorant. There are no cases, however, of ignorance being listed as the cause of death on someone’s death certificate.  On the ABC’s Q&A program on Monday night, Archbishop Jensen agreed with disingenuous comments made by the Australian Christian Lobby’s Jim Wallace that the “lifestyle” of homosexuals kills them at a faster rate than smoking kills people who smoke. The comments were made during a debate on whether or not gay people should be afforded equal citizenship rights to marry. 
Wallace and Jensen never quite articulate what they mean by the phrase “homosexual lifestyle” although apparently they know it when they see it. When the former ACT Education Minister opened an anti-homophobia art display, Wallace characterised it as “promoting” such a lifestyle, simply because Andrew Barr is an openly gay man. By this measure, all gay and lesbian people are promoters of a homosexual lifestyle simply for living. But circular logic is not informed debate. 
 Carroll goes on to note that
Although people are multifaceted, Jensen only defines gay people in relation to their sexuality – refusing to see who they are by focusing on who they sleep with. He does not do this for heterosexuals. Would you ever think it reasonable to equate heterosexuality, with a so-called lifestyle akin to death? Imagine waking up every day and enduring this sort of bigoted drivel simply because you’re straight. It would weigh you down and combined with other forms of homophobia might contribute to reduced life expectancy. 
Despite the ignorance and insensitivity displayed by Jensen and Wallace, being gay won’t kill you. Like ignorance, “gay” has never been listed as a cause of death.
In a comment I've noted that marriage is a key aspect of citizenship and a human right. The imposition of a civil disability on the basis of ethnicity or religious affiliation would be unacceptable. Why then are we denying marriage to people on the basis of same sex affinity.

Marriage is held out by Wallace and Jensen as producing happiness, health, fidelity and other pertsonal/social goods. The rationale for denying those goods to people with a same-sex affinity is unclear. Wallace and Jensen appear to incorrectly construe 'gay' as 'promiscuous'. If marriage does indeed embody fidelity and self-discipline - and the statistics about the behaviour of married straight Australians raise questions about the Jensen vision -  there is no reason to deny gay people from that happy state.

Condemnation of same-sex affinity by people such as Jensen and the current Pope is at odds with the very substantial number of gay clergy. There is no single 'homosexual lifestyle'; the Archbishop's diocese is founded on a 'homosexual lifestyle' of faith and exemplary service by out and closeted gay men and women. Jensen should look within before denying personhood to the people whom he encounters in his office, at convocation, in schools and in churches.

We do not deny the joys, sorrows, rewards and responsibilities of marriage  to people who practice the 'wowser lifestyle', 'methodist lifestyle', 'bigot lifestyle', 'hatespeech lifestyle', 'Anglican bells & smells lifestyle' or 'Anglican weaned on a lemon lifestyle'. We do not deny marriage to those with the divorced lifestyle. There is no reason to deny marriage to gay people

14 September 2012


In Magee v Delaney [2012] VSC 407 the Supreme Court of Victoria has found that the freedom of expression in the Victorian Charter did not cover all graffiti.

The judgment concerned the appeal under under s 272(1) of the Criminal Procedure Act 2009 (Vic) against the decision in Delaney v Magee (Unreported, Magistrates’ Court of Victoria, Magistrate Mealy, 14 February 2011).

Kyrou J rejected the argument by a man who painted over an advertisement in a Melbourne bus shelter that the painting (regarded as damage to property) was protected by a claimed right to freedom of expression under s 15 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

The Court found that the right to freedom of expression could not protect all forms of expression, nor did it constitute a lawful excuse where the public had a right to be protected against damage to property.

Magee apparently did not advance an argument based on the implied freedom of political communication. Kyrou J commented on "the fact that the basic premises upon which the appeal was brought were fundamentally flawed", stating that -
Put simply, it would have been readily apparent, had careful consideration been given to the wording of the Victorian Charter, that the appeal should not have been brought because it had no realistic prospects of success. 
A recurring theme in the submissions made on behalf of Mr Magee at the hearing of the appeal was that his conduct did not involve either serious or permanent damage to property or any interference with public order. It was said that the magistrate should have concluded that the right to freedom of expression under s 15(2) of the Victorian Charter was engaged, that s 15(3) did not apply, and that, accordingly, Mr Magee had a ‘lawful excuse’ for the purposes of s 197(1) and 199(a)(i) of the Crimes Act 1958. However, the Court held that, whether ss 197(1) and 199(a)(i) constitute restrictions on the right to freedom of expression that were reasonably necessary to respect the rights of others or for the protection of public order, depended on the nature and scope of those provisions rather than on their impact on Mr Magee. 
In so far as the appeal was brought to test the provisions of the Victorian Charter, the facts of the present case meant that it was a poor choice for that purpose. The submissions that were made in support of the proposition that those facts engaged the right to freedom of expression, so as to provide a lawful excuse for the purposes of s 197(1) and 199(a)(i) of the Crimes Act, were devoid of merit and lacked proper perspective.


Two perspectives on intellectual property ...

'When Tigers Bare Teeth: A Qualitative Study of University Patent Enforcement' by Jacob Rooksby in 46 Akron Law Review (2013) comments that
University participation as plaintiffs in patent infringement litigation is an understudied phenomenon within a postsecondary terrain increasingly influenced by academic capitalist approaches to intellectual property protection and dissemination. This article presents findings from an exploratory, qualitative study of senior-level technology transfer professionals at five public universities with recent experience asserting university-owned patents in patent infringement lawsuits. Findings reveal a complex set of considerations that influence university decisions about patent enforcement, including infringer identity, concerns for litigation finance, and the licensing typology of the asserted patent. Additionally, findings suggest a complicated and close relationship between mission and money in university pursuits of patent infringers
After noting an interviewee's comment that
A patent without enforcement is a piece of paper with Dave Kappos’s signature on it. That’s all it is, you know. It’s a very expensive piece of paper. I can get Dave Kappos’s signature for a lot less than $30,000. ... If you’re not willing to enforce it, that’s all you’ve got
Rooksby concludes -
The study described in this article was driven by an interest in building understanding of university patent enforcement from the perspective of key decision-makers at universities recently involved as plaintiffs in patent infringement lawsuits. Points of inquiry included probing participants for the main factors or constraints their universities consider in determining whether to enforce their patents through infringement litigation, as well as gaining insight into institutional balancing of revenue generation and allegiance to university research mission through the pursuit of patent infringement litigation. 
Findings suggest that some universities view participation as plaintiffs in patent infringement litigation as condoned or even mandated by their research and commercialization missions, despite what some critics view as the activity’s incompatibility with the notion of a university’s public-serving mission. On a practical level, revenue generation is often a principal motivator for universities that choose to enforce their patents through infringement litigation, even though industry literature only indirectly references litigation’s revenue-generating potential. In this regard, when it comes to enforcing patents, universities’ research goals and revenue-generating goals seem deeply if not inextricably intertwined. The high cost of legal fees, as well as concern for being viewed as overly litigious (troll-like), may provide disincentives for some universities contemplating pursuit of patent infringers. While contingency fee arrangements with outside law firms can help universities counter the high cost of enforcing their patents in court, reputational risks related to these arrangements may deter their use. Additionally, the identity of would-be defendants may cause some institutions to abandon pursuit of their infringement claims out of concern for retribution to the university, particularly with respect to sponsored research funding. 
The nature of the infringed patent (i.e., whether it is exclusively licensed, non-exclusively licensed, or unlicensed) can impact decision- making as well. Concern for the responsibility and costs of litigating non- exclusively licensed patents may lead some institutions to favor an exclusive licensing strategy for their patents, on the belief that doing so will save them money and may even spare their involvement as a plaintiff in any infringement action. Although many universities may be hesitant to litigate unlicensed patents, shrewd companies have devised a way for them to turn unlicensed patents into putatively licensed ones, thereby contravening the Bayh-Dole Act’s purposes and masking the character of what some may view as speculative enforcement activity. 
Several participants noted that universities as a group tend to avoid discussion of patent infringement litigation as an aspect of technology transfer. As Simon described it, “It’s one of those things we don’t like to talk about. We like to talk about patents and licensing. But we don’t like to talk a lot about [litigation].” Examining university patent enforcement may be uncomfortable for some universities and policymakers, but overlooking the phenomenon only undermines comprehension of the net effects of university involvement in technology transfer. 
While quantitative data are growing, the study described here is the first dedicated qualitative attempt to build understanding of the nuanced factors that impact university decisions concerning patent enforcement. Its findings should encourage decision-makers at universities heavily engaged in patenting and technology transfer (as well as those just beginning to build capacity in these areas) to critically examine institutional goals and dispositions to use patent infringement litigation to protect and enhance university research missions in the public interest. In short, universities must confront a difficult but inescapable question: When it comes to enforcing our patents, will our university be a tiger with teeth?
'Intellectual Property Norms in the Tattoo Industry' by Aaron Perzanowski reports
the results of the first qualitative study of the norms surrounding creative production, ownership, and copying in the multi-billion dollar U.S. tattoo industry. Despite the availability of copyright protection, the tattoo industry has largely ignored formal law in resolving disputes over copying and use of original works. Instead, it relies on a complex set of social norms enforced through informal mechanisms. Those norms are a product of both cultural and economic factors that offer broader lessons for intellectual property law and policy.

13 September 2012

Unknown Unknowns

From Steve Aftergood's (FAS) excellent blog -
A new annual report on government secrecy discusses the quantitative and qualitative obscurity of [US] government secrecy policy which makes secrecy hard to evaluate and to control. The report was published by OpenTheGovernment.org, a coalition of some 80 organizations concerned with government transparency. 
"Measuring what it is we actually know about the openness of the American government is not a straightforward endeavor," the report says. "Information available to the public provides inconsistent and partial indicators about whether our government is becoming more, or less, open. In some areas, the information needed to know what the Executive Branch is doing and to hold it accountable to the public is not available at all." 
Even where quantitative data are available, as in the case of the number of classification decisions published annually by the Information Security Oversight Office, their qualitative significance is unclear, the report said. 
"Having information about the quantity of secrets kept by the federal government tells us nothing about their quality." 
The OpenTheGovernment.org report assembled the quantitative indicators of government secrecy and disclosure that could be obtained, and also discussed several categories that should be available but are not. 
"Good information is essential for the public to know what interests are influencing government policies, and more," said Patrice McDermott, executive director of OpenTheGovernment.org. "Partial and mis-information, however, erodes accountability and prevents the public from having an informed debate about critical national issues."

10 September 2012

Riparine Personhood

The New Zealand Herald reports that the Whanganui River will
become an legal entity and have a legal voice under a preliminary agreement signed between Whanganui River iwi and the Crown tonight. This is the first time a river has been given a legal identity. 
A spokesman for the Minister of Treaty Negotiations said Whanganui River will be recognised as a person when it comes to the law - "in the same way a company is, which will give it rights and interests". The agreement was signed on behalf of Whanganui iwi by Brendan Puketapu of the Whanganui River Maori Trust, which represents a group of iwi along the river, and the Crown in Parliament this evening.  
Under the agreement the river is given legal status under the name Te Awa Tupua - two guardians, one from the Crown and one from a Whanganui River iwi, will be given the role of protecting the river. An agreement between the Crown and local iwi on what the values will be in protecting the river are yet to be decided. ... 
Minister for Treaty for Waitangi Negotiations Christopher Finlayson said the signing was an historic event. "Whanganui River iwi have sought to protect the river and have their interests acknowledged by the Crown through the legal system since 1873. They pursued this objective in one of New Zealand's longest running court cases. 
"Today's agreement which recognises the status of the river as Te Awa Tupua (an integrated, living whole) and the inextricable relationship of iwi with the river is a major step towards the resolution of the historical grievances of Whanganui iwi and is important nationally." 
"The agreement does not signify the end of the settlement, but it is a significant step towards settlement. Matters of detail and additional redress will be to be negotiated between the parties," said Mr Finlayson. 
"Whanganui Iwi also recognise the value others place on the river and wanted to ensure that all stakeholders and the river community as a whole are actively engaged in developing the long-term future of the river and ensuring its wellbeing," said Mr Finlayson.
The media release regarding the agreement indicates that it includes -
  • Recognition of the status of the Whanganui River (including its tributaries) as Te Awa Tupua, an integrated, living whole from the mountains to sea; 
  • Recognition of Te Awa Tupua as a legal entity, reflecting the view of the River as a living whole and enabling the River to have legal standing and an independent voice; 
  • Vesting of the Crown-owned parts of the river-bed in the name of Te Awa Tupua; Appointment of two persons (one by the Crown and the other by the River iwi) to a guardianship role – Te Pou Tupua - to act on behalf of Te Awa Tupua and protect its status and health and wellbeing; 
  • Development of a set of Te Awa Tupua values, recognising the intrinsic characteristics of the river and providing guidance to decision-makers; and 
  • Development of a Whole of River Strategy by collaboration between iwi, central and local government, commercial and recreational users and other community groups. The strategy will identify issues for the river, consider ways of addressing them, and recommend actions. The goal of the strategy will be to ensure the long-term environmental, social, cultural and economic health and wellbeing of the river.
For an academic perspective on personhood for NZ rivers see the dissertation [PDF] by James Douglas Kahotea Morris on Affording New Zealand rivers legal personality: a new vehicle for achieving Maori aspirations in co-management?