10 November 2012

Solicitor General and A-G

'The Evolution of a Public Sentinel: Australia's Solicitor General' by Gabrielle Appleby in 63(3) Northern Ireland Legal Quarterly (2012) 397-467 comments that
 In the state and federal jurisdictions of Australia the historic 'law officer' role of chief legal adviser and advocate for the Crown is now performed by the second law officer, the Solicitor General. In Australia, the Attorney General now performs an almost exclusively political function as one of the ministers of the Crown. The Attorney is concerned with day-to-day political pressures and has little or no time, often not the expertise, and increasingly lacks the necessary independence and detachment to fulfil the traditional legal functions of the role. The progression in the first law officer’s role has been marked by the devolution of many of the traditional legal functions of the law officers to the Solicitor General. It is now the Solicitor General who provides the final constitutional and legal foundation for government action and legislative policy. In many respects, the Solicitor General has become the first law officer in all but name.
 Appleby concludes
The developments of the second-half of the twentieth century are a clear embodiment of the growing importance of the Solicitor General across the Australian jurisdictions. It is now the government’s highest-level legal officer in matters of constitutional and public law. Since its enshrinement in statute, the role has been a stable and important part of government. It complements (together with the DPP in relation to the criminal law) the position of the Attorney General, who has all but shed the title of first law officer. This is in recognition not simply of the reality that the Attorney General very rarely possesses the legal aptitude and experience required for these legal roles, but it operates to create distance between the exercise of the law officers’ legal services functions and the day-to-day politics and administration in which an Australian Attorney General is immersed.
The Australian Attorney General has been, almost since inception, at the core of government as a member of the Executive Council and later Cabinet, heading a large administrative department. This is in direct contrast with England, where ‘a conscious policy . . . to divorce the Attorney General from day-to-day political issues’ has been pursued. The Australian position, many argue, brings advantages. The Attorney General gains intimate awareness of the ‘battles and the arguments and the stresses and strains that eventually result in policy’, better equipping the officer to find (if possible) a lawful and proper way to achieve the policy objective. It has also been argued that the Attorney General in the Cabinet gives greater weight to the office’s authority among Cabinet colleagues, ensuring compliance and adherence to legal advice. The Australian system secures these benefits but, as this article has shown, acknowledges the increased danger of political and administrative pressures in this environment through the development of independent statutory officers to assist the Attorney General. The current paradigm of the Solicitor General has addressed this danger through a number of developments. Tensions between political allegiances and the independent discharge of the Solicitor General’s functions have been removed by the creation of an office outside of politics that has statutory guarantees of tenure, remuneration and pension.
Further, the focus on the legal nature of the position has meant the office’s independence is largely protected by the professional training and obligations of appointees. Finally, no longer is the office plagued with the politically charged prosecutorial discretion, this having been hived off to the statutorily independent office of the DPP.


'Reforming Surveillance Law: The Swiss Model' by Susan Freiwald and Sylvain Métille in Berkeley Technology Law Journal comments that
As implemented over the past twenty-six years, the Electronic Communications Privacy Act (ECPA), which regulates electronic surveillance by law enforcement agents, has become incomplete, confusing, and ineffective. In contrast, a new Swiss law (CrimPC) regulates law enforcement surveillance in a more comprehensive, uniform, and effective manner. This article compares the two approaches and argues that recent proposals to reform ECPA in a piecemeal fashion will not suffice. Instead, the Swiss CrimPC law presents a model for more fundamental reform of U.S. law.
This article is the first to analyze the Swiss law and demonstrate its advantages over the U.S. approach. The comparison sheds light on the inadequacy of U.S. surveillance law, including its recurrent failure to require substantial judicial review, notify targets of surveillance, and provide meaningful remedies to victims of unlawful practices. Notably, through judicial oversight, the Swiss significantly restrict several law enforcement surveillance practices that U.S. law leaves to the discretion of the police. The article explains the differences in approach as stemming from the greater influence of international human rights law in Switzerland and the Swiss people’s willingness to engage in a wholesale revision of their law.
In the United States, the courts and Congress have struggled to establish appropriate surveillance rules, as evidenced by recent controversial judgments in the Supreme and appellate courts and congressional hearings on ECPA reform. Citizens have grown increasingly concerned about law enforcement agents’ excessive use of new surveillance technologies to gather information about their private communications and daily activities. This article analyzes an alternative approach that, if adopted here, would significantly improve our electronic surveillance laws.
The authors conclude -
In the United States, traditional wiretapping (of wire, oral and electronic communications) and some video surveillance is subject to most of the restrictions imposed by CrimPC in Switzerland: notice, a remedy, subsidiarity and proportionality. The rest of what CrimPC treats as surveillance is subject to significantly less protection. Law enforcement agents in the United States may use undercover agents, collect stored communications contents and attributes, intercept communication attributes in real time, track location data, and use of other modern surveillance techniques subject either to no regulation at all or to the anemic protections afforded by ECPA and a few related statutes.
CrimPC, which brought unity and comprehensive treatment to Swiss surveillance law, dramatically contrasts with the laws that regulate surveillance in the United States, which are an incomplete, confusing, and ineffective set of rules. It seems clear that the substantive requirements in both the European Convention on Human Rights and the Swiss constitution have yielded the significantly stronger restrictions on law enforcement surveillance that Swiss law provides. The limited coverage of the Fourth Amendment, and the fact that it exerts no real influence until a court finds it to apply, shifts the default rule in the United States in favor of using new surveillance methods that the legislature has not yet regulated. The opposite rule applies in Switzerland, where techniques that CrimPC does not cover, either explicitly or by analogy, cannot be used. It would represent a significant and likely unattainable, shift in our jurisprudence to prohibit law enforcement agents from using new surveillance techniques until Congress explicitly authorizes those techniques. It should be possible, however, for Congress to design a set of surveillance rules that abandon arbitrary distinctions, provide sufficient procedural hurdles and oversight to constrain invasive practices, furnish meaningful remedies to deter abuse, and provide notice and transparency to ensure that the system works as designed. In drafting such an overhaul, American legislators should look to CrimPC for guidance.


'LGBT Issues and Adult Guardianship: A Comparative Perspective' by Nancy J. Knauer comments that
[US] Guardianship reform has largely overlooked issues related to sexual orientation and gender identity. Lesbian, gay, bisexual, and transgender (LGBT) individuals, however, present a distinct set of needs and concerns due to certain unique demographic characteristics, the evolving nature of LGBT civil rights, and the stubborn persistence of anti-LGBT bias and prejudice. This chapter explores these LGBT-specific concerns from a comparative perspective and identifies the various ways that seemingly neutral guardianship laws can work to silence LGBT identities and place LGBT families at risk. It concludes that guardianship systems should incorporate safeguards that expressly acknowledge the importance of sexual orientation and gender identity. Respect for a ward’s sexual orientation and gender identity is essential to the concepts of dignity and self-determination that have served as the guiding principles of guardianship reform. In the absence of appropriate safeguards, even guardianship reform driven by a “person-centered philosophy” will ultimately fall short and fail to protect the interests of LGBT individuals and LGBT families.


'A New Coat of Paint: Law and Order and the Refurbishment of Kable' by Gabrielle Appleby n John Williams in 40 Federal Law Review (2012) argues that
The Kable doctrine is, and has always been, a difficult legal principle to define. For over a decade, and despite much academic attention, it had little consequence for state power. Until recently, the High Court deftly avoided its application by employing a number of techniques. As the politics of law and order in the states have increased, state Parliaments have felt emboldened by these cases to test the outer limits of their legislative power. In such an environment, federal anti-terrorism measures, introduced as extraordinary responses necessary for the exceptional nature of terrorism, have crept into general state policing and expanded. It is in this arena that the Kable doctrine has emerged once again. The principle is now vital to understanding the very real limits of state power, particularly in the law and order arena. This article traces the Court's approach to the principle in three recent cases involving the states' antiorganised crime measures (International Finance Trust Co. v. New South Wales Crime Commission, South Australia v. Totani, and Wainohu v. New South Wales) before offering some conclusions about where the current jurisprudence leaves the states and their perpetual campaign to achieve law and order.
The authors conclude
The High Court, in International Finance Trust, Totani and Wainohu, has reinvigorated the Kable doctrine. This has manifested itself in three ways. First, with the exception of Heydon J, there is a discernible shift away from the trends of the Court in the initial post-Kable period, which saw a focus on narrow application of principle and construction of statutes to avoid its application altogether. Secondly, the Court seems to be embracing, once again, the necessity of protecting the judicial process. Finally, with the extension of Kable to the conferral of functions on individual judges, Wainohu has also demonstrated the majority will focus upon maintaining the institutional integrity of the Court against any intrusion, regardless of its form. The reinvigoration of Kable has left all the decisions of the post-Kable period intact; so the Court has had to navigate around its precedent (for example, those cases that focus upon the retention of discretion or the giving of reasons). We have argued that this has been done, at times, with little persuasiveness.
The cases have done little to settle the debates as to its basis or scope. Reasons for the doctrine's continued lack of clarity can be posited. First, the stricter, more rigid doctrine of separation of powers at the federal level is itself plagued with uncertainty; a fortiori the Kable principle with its lack of bright lines and tests revolving around the needs of 'institutional integrity', 'independence and impartiality', 'judicial process' and 'public confidence'. Despite the Court's attempts to redefine the basis for the doctrine, these issues around its scope have remained. This must be because the changing basis for the doctrine has led to little change in the focus of its scope. Secondly, the Kable doctrine is now a legal principle that protects the institutional integrity of the state courts from any number of incursions: from the bestowal of functions that undermine their integrity to measures that change their structure and constitution, changes in the process by which they exercise their curial functions, or, as in Wainohu, persona designata conferrals on individual judges. On one view, the protection of the Supreme Court's supervisory jurisdiction as a 'defining characteristic' may also fall within the scope of the principle. If it is to be used as such a large umbrella, it must be capable of adapting to any type of measure that can be concocted by the states that makes incursions into the institutional integrity of the Court.
What are the reasons behind the reinvigoration? There have certainly been significant changes to the composition of the High Court bench and the new appointees have largely moved away from the pragmatism that was often evident in Gleeson CJ's judgments and remains a core of Heydon J's jurisprudence. The state regimes have also changed. The cues from the Court in the post-Kable period undoubtedly encouraged the states to push at the limits of the Kable principle. While the state control order regimes were loosely modelled on the preventative detention and federal anti-terrorism control order schemes, in many respects the states took the measures further. There is definitely a sense in French CJ's Totani judgment that the States had stopped approaching the Kable principle with the 'prudence' that it deserves.
Where does this reinvigoration leave state law and order policies? In Wainohu, the High Court left the way open for the states to redesign the control order schemes within a more palatable framework. However, the approach has recreated a great deal of uncertainty — akin to that following the Kable decision itself. This uncertainty was particularly manifest in the application of the Kable principle in the most recent High Court decision in Momcilovic v The Queen. On one view, such ambiguity plays to the detriment of government and citizen alike, making legislating with constitutional certainty difficult.194 One the other hand, two advantages can be identified. The first is the move away from the uncertainty engendered by the Court's previous approach to statutory construction: the strained constructions that the High Court took of the criminal intelligence provisions in Gypsy Jokers and K-Generation led to anything but certainty. The second is that the demarcation of the Kable principle has been given a new coat of paint (albeit without any clear edges). Kable itself originally set these boundaries, and the subsequent state law and order schemes carefully worked within them. There is no doubt that while the Dangerous Prisoners (Sexual Offenders) Act remained unpalatable to some, it was distinctly more palatable because of the Kable decision. It does not look like the states will be abandoning control orders in the fight against organised crime anytime soon, and the High Court has not indicated the need to; but they may look distinctly more palatable after the Totani and Wainohu decisions.
A counter argument to this position is, of course, if pushed back too far by the Court, states may always choose to vest the power in the executive without any safeguards in the courts.195 This is not, however, constitutionally certain; at least one judge (Gummow J) has indicated that, where executive detention is involved, this raises potential constitutional difficulties. Further, as a matter of practice, this fear has simply not been realised, as the latest versions of the control order regimes in New South Wales, South Australia and Western Australia demonstrate. There is a strong policy drive to use the courts in these types of schemes. And provided the High Court leaves the ground open to the states, there seems to be no reason to believe it will not be occupied.


'The Bible as Law Book: Thomas Aquinas on the Juridical Uses of Scripture' by William S. Brewbaker in 12 Rutgers Journal of Law and Religion (2010) 76 argues that
Thomas Aquinas’s Treatise on Law is enjoying a resurgence of interest among legal scholars. It is excerpted in leading legal philosophy texts, assigned in jurisprudence courses and cited in law journal articles and legal monographs on a wide range of subjects. Although the Treatise consists of nineteen chapters (“questions”), the average student of legal philosophy is likely to have been exposed only to portions of the first eight and little, if any, of the last eleven.
The Treatise is not a short work, and most of the editorial decisions are both practically necessary and pedagogically understandable. Nevertheless, omitting the “rest” of the Treatise has had some unfortunate consequences. The omitted questions include the bulk of Thomas’s account of the relationship of theological revelation to human law, a subject of increasing importance in contemporary debates about religion and politics. The omissions also tend to reinforce the impression that Thomas’s natural law system can be hived off from his religious and cultural context. To be sure, Thomas does make the familiar natural law claim that there are moral truths that all human beings must know merely by virtue of being human. However, the deeper one goes into the Treatise, the clearer it becomes that Thomas’s treatment of natural law is part of a complex and theologically-informed understanding of nature, reason, revelation and the unfolding story of God’s action in the world.
This article expounds and analyzes the role of Scripture in Thomas’s account of legislation and judging, arguing that Thomas leaves only modest room for the Bible to influence human law directly. After explaining some key theological presuppositions that underpin Thomas’s account of law generally, the article shows how Thomas divides the laws found in Scripture into several overlapping categories, only one of which (the “moral law” found in the Old Testament) has any direct continuing relevance for the Thomistic jurist. Even here, Scripture serves mostly to confirm the moral truths that human beings (at least the “wise” ones) already know.
Nevertheless, it would be an overstatement to conclude that the Bible is completely irrelevant to the Thomistic jurist. The Scriptures bear witness to the grace of Christ, which, in Thomas’s account, is critical to the jurist’s proper exercise of his or her vocation. Moreover, the Thomistic jurist’s understanding of law is shaped by Scripture’s account of nature, the human person and ethics. While these theological starting points may not always make much difference in legal details, they do lead Thomas (and presumably his followers) to a vision of law that is famously at odds with many modern accounts.

Jury Blacklists

''Bad Juror' Lists and the Prosecutor's Duty to Disclose' by Ira Robbins in 22(1) Cornell Journal of Law and Public Policy (2012) 1-52 deals with blacklisting.

Robbins comments that
Prosecutors sometimes use what are known as “bad juror” lists to exclude particular citizens from jury service. Not only does this practice interfere with an open and fair jury-selection process, thus implicating a defendant’s right to be tried by a jury of his or her peers, but it also violates potential jurors’ rights to serve in this important capacity. But who is on these lists? And is a prosecutor required to disclose the lists to defense counsel? These questions have largely gone unnoticed by legal analysts.
This Article addresses the prosecutor’s duty to disclose bad-juror lists. It reviews the federal Freedom of Information Act, a variety of state open-records acts and their exemptions, the work-product doctrine, the fundamental-fairness doctrine, and the discriminatory use of peremptory challenges (particularly in death-penalty cases). The Article concludes by advancing recommendations for overcoming disclosure exemptions and preserving the integrity of jury selection in the face of the continued use of bad-juror lists.
The judicial system in the United States is adversarial. Particularly in criminal cases, when prosecutors, who already hold enormous power, are permitted to put their thumbs on the scale of justice during jury selection, the entire system suffers — the rights of potential jurors, the rights of the defendant, the reliability of the outcome of the proceedings, and the appearance of justice.
 Robbins concludes -
Prosecutors sometimes use “bad juror” lists to exclude particular citizens from jury service. Not only does this practice interfere with an open and fair jury-selection process, thus implicating a defendant’s right to be tried by a jury of his or her peers, but it also violates potential jurors’ rights to serve in this important capacity. But who is on these lists? And is a prosecutor required to disclose the lists themselves?
The ambiguity of states’ open-records laws, coupled with the judicial discretion regarding the level of injustice a defendant must establish to overcome the work-product doctrine, has led to inconsistency in the disclosure of prosecutors’ bad-juror lists. Although the legislative intent behind most state open-records acts follows that of the federal Freedom of Information Act in promoting government transparency, the discretion used by some states to enact numerous exemptions to disclosure and interpret those exemptions broadly contravenes this purpose and thus dilutes public access to information. Texas’s deviation from the narrow construction that other states — such as Georgia, Alabama, and Colorado — have given to exemptions clearly disfavors disclosure of information in prosecutorial matters and conflicts with this purpose of public openness. While this disparity can partially be explained by the selective interpretation of available precedent in Texas, the statute’s ambiguity lends itself to this manipulation. A better approach is for states to model their open-records acts on FOIA to maintain consistency and to preserve the public interest in the freedom of information.
Moreover, states are often too strict in their adherence to the workproduct doctrine to shield bad-juror lists from defense counsel. Courts have held that prosecutors’ jury dossiers should be disclosed to defense counsel when the defendant has made a sufficient showing of necessity or injustice. The magnitude of discretion invested with the trial judge, however, makes it difficult to find reversible error solely on the basis of the judge’s failure to accept a defendant’s fundamental-fairness argument to disclose the bad-juror list. In addition, courts have typically mandated disclosure of these records only when the police department compiled the records or when the prosecutor used the records to refresh his or her memory in relation to a Batson v. Kentucky hearing. Defendants deserve the same treatment when the prosecution compiles its own badjuror list and subsequently uses the list during the voir dire process. Further, courts should rule that there is a presumption in favor of public disclosure of prosecutors’ bad-juror lists when the prosecutor uses these lists to aid in exercising peremptory challenges during the voir dire process. It is fundamentally unfair for defense counsel to be denied access to this information where the defendant lacks the resources to obtain the same information. To disclose these lists to defense counsel would allow the defendant the same opportunity as the prosecutor to exercise peremptory challenges intelligently. Requiring disclosure of these lists to the defense would also enable the defendant to more appropriately assert Batson challenges when it appears that the prosecutor is striking jurors for unconstitutional reasons.
The judicial system in the United States is adversarial. Particularly in criminal cases, when prosecutors, who already hold enormous power,  are permitted to put their thumbs on the scale of justice during jury selection, the entire system suffers - the rights of potential jurors, the rights of the defendant, the integrity of the outcome of the proceedings, and the appearance of justice.

09 November 2012


'YouTubers as satirists: Humour and remix in online video' [PDF] by Patrícia Dias da Silva and José Luís Garcia in 4(1) eJournal of eDemocracy and Open Government (2012) 89-114 discusses
the role humour plays in politics, particularly in a media environment overflowing with user-generated video. We start with a genealogy of political satire, from classical to Internet times, followed by a general description of “the Hitler meme,” a series of videos on YouTube featuring footage from the film Der Untergang and nonsensical subtitles. Amid video-games, celebrities, and the Internet itself, politicians and politics are the target of twenty-first century caricatures. By analysing these videos we hope to elucidate how the manipulation of images is embedded in everyday practices and may be of political consequence, namely by deflating politicians' constructed media image. The realm of image, at the centre of the Internet's technological culture, is connected with decisive aspects of today's social structure of knowledge and play. It is timely to understand which part of “playing” is in fact an expressive practice with political significance. .... In online remix, popular culture allows creative production beyond consumption, entailing a process of selection, transformation and redistribution. These online everyday practices hence gain a political dimension, whose importance as grassroots participation is directly tied to their interference in the mediascape.
As citizens seem to drift apart from forms of political participation once predominant making many fear the failure of democracy, other forms – referred to as non-conventional – appear to have been gaining visibility and relevance. Pippa Norris (2007) acknowledges a rise of alternative organizational forms of activism related to the growth of cause-oriented politics, as opposed to citizen-oriented politics, linked to elections and parties. The process of globalization as well as privatization, marketization and deregulation have reinforced “the need for alternative repertoires for political expression and mobilization” (Norris, 2007, p. 641). Looking at approaches that rethink the public sphere as a theoretical construct and as a reality, one may find a positive perspective on the segmentation of the public sphere – of which the Internet is strongly blamed – regarding it as a strength and not a sign of demise. Nancy Fraser's (1990) conceptualisation of “counterpublics,” in which distinct publics instil the democratic debate with vitality as opposed to a monolithic and exclusivist public sphere, offers a theoretical framework which provides heuristic possibilities to the study of online citizen participation.
In YouTube, amateur videos constitute “a new form of vernacular speech – speech through the production of original and appropriated images and words” (Strangelove, 2010, p. 156). Talking online means to manipulate images, meme-making and sharing these video creations. “Citizenship is, in part, a question of learning by doing” (Dahlgren, 2006, p. 273), including the experiences in seemingly non-political contexts, and talking is a significant practice in the political experience of citizens, beyond political discussion carried out in formal settings. Exposing dominant political discourse through critical comment is one of the political activities of online amateurs, and humour plays a part in leading that process to the next step: playfulness contributes to mobilisation and to grabbing the attention of the media (Flichy, 2010, pp. 58–9). Developing what Edwards and Tryon (2009) call “critical digital intertextuality,” YouTubers do not restrict their actions to decoding or opposing content that is presented to them; rather, they enhance their media literacy by contesting the transparency of such texts.
Remixing or appropriation, characteristic of culture jamming and other forms of intervention in media culture, is the focus of our analysis. A key element of situationism, subversion was considered “an all-embracing re-entry into play” (Vaneigem, 1974, p. 150). The realm of image is perhaps at the centre of the Internet's technological culture and is connected with decisive aspects of today's social structure of knowledge and play. It is timely to understand which part of “playing” is in fact an expressive practice with political significance.
In this article, a brief genealogy of political satire, from classical to Internet times, is followed by a general description of the Downfall meme, a series of videos on YouTube featuring footage from the film Der Untergang and altered subtitles. Amid video-games, celebrities, and the Internet itself, politicians and politics are also the target of such twenty-first century caricatures. The analysis of these videos enabled us to identify the relation between politics and the media as a strong subject of parody and to understand how the character of Hitler was chosen to deflate politicians' constructed media image. This is but one example of how the manipulation of images is now embedded in everyday practices and may be of political consequence.
 The authors conclude that
Humour is part of humanity's History, and satire in particular seems to thrive when it is demanded as a form of expression by both society and individuals. In the twenty-first century, this need seems to be present, as newspapers, television, films and the Internet display more and more instances of pictorial satire. One can hardly deny “satiric media texts have become a part of (and a preoccupation of) mainstream political coverage,” but has this made “satirists legitimate players in serious political dialogue” as Amber Day (2011, p. 1) claims?
A closer examination of the sample of Untergang remixes here discussed shows us YouTubers employ remixing and humour as methods of exposing the weaknesses of politicians and the political system, following the long-standing tradition of satirists, countering messages created in the context of institutional political communication. Remixing implies that not only the strategies of political actors are exposed, but also the inner workings of the media and the relation between the two. Through image manipulation, politicians and media actors are turned into their own discrediting representatives, participating in their own mockery. Humour therefore plays a role in twenty-first century political discussion, rather than merely diverting the attention of citizens from such matters. In this sense, satirical remixing may be regarded as a new form of participation, especially as cause-oriented political action, and contribute to the formation of counterpublics, bringing new vitality to democratic debate. Yes, these videos can hardly be compared to the work of masters of literature like Swift or Orwell, whose social critique remains thought-provoking to the day. However, websites like YouTube allow vernacular instances of satire to be registered and easily accessible beyond their iteration – both in geographical and temporal terms. They may not be as enduring or remarkable, but they are part of what is to talk online, including talking politics.
Regarding online satirical remixes' value in the promotion of online political discussion, we note that emotions weigh in political engagement. They may play an important role in both grabbing the attention of viewers and thus contribute to raising awareness on specific issues, and galvanising them to take part in political discussion. Moreover, satirical remixing appeals not only to the emotional side of citizens, but also to the intellect. By breaking down official messages, satirical remixing becomes a lesson in media literacy and rhetoric: it exposes how political images – in the broad sense of the word – are produced, are arranged and can be manipulated. Moreover, the intertextual character of both satire and remix imposes high demands on video watchers, as to fully understand the references that are invoked.
Notwithstanding its role in denouncing the flaws in the media, politicians, political institutions and political systems or triggering political discussion, there are limitations to satirical remix as a tactic for affecting the balance of power. Hess (2009) notes in this regard the production of two illusions: firstly, a perception that there is freedom of speech on this medium, while inducing a belief that this form of participation replaces forms of political expression such as petitioning or protests; secondly, a feeling of satisfaction for being able to speak one's mind through online video, even if there is no audience. For Hess, YouTube may allow the dissemination of messages, but is not successful in creating an organized community. Participation in political debate may be restricted to finger-pointing instead of looking for consensus building or offering proposals of the citizens' own making. Political satirical remix's contribution to discussion is hence grounded on a negative stance, in which an agreement may be reached on what is undesirable, but it seldom offers alternatives and may even heighten divergence.
Highly derisive or nonsensical videos perform above all a safety-valve function, and have reduced transformative consequences. Their focus of attention is only held until a new target of mockery comes along, making parody seem trivial and a generator of white noise. Satirical remixes that appeal to knowledge of affairs, or even contribute to extending it, aim for a more permanent impact that causes change in some way, even if only in terms of awareness. Like culture jamming in general, in order to be subversive political remixes must have a goal beyond the appropriation of images, which itself constricts criticism: images may be able to carry over some of the dominant meanings embedded in them. The circulation of satirical remixes enables them be reframed and co-opted and, on YouTube, they can turn from critique to generating profit, sometimes even for the benefit of the object of commentary. Uploading to YouTube leaves remixers and all participants in the resulting online discussion subject to the company's policies, with the lack of control this implies.
At a time of revival of Read/Write creativity (Lessig, 2008), inherently intertextual, a product of juxtaposition and bricolage, satire seems to have found fertile ground to flourish. Faced with a world of politics detached from their own world – “politics as usual” – parody became a rhetorical practice at the disposal of citizens to express their views, and engage in dialogue with others. Offering an alternative language for discussing political issues, the parodic satires are in stark contrast with the “politically correct” forms of debates previously privileged. Uploaded to a worldwide repository, the videos are accessible to (almost) anyone with an Internet connection. These images hence become part of communication, not in the sense of broadcasting, or even narrowcasting, but of the creation of an imagetic commons, allowing them to be reused, remixed, reinterpreted. Even so, co-opting and astroturfing – false grassroots movements – are also taking place, and slacktivism is only the pushing of a button away, as Morozov (2011) cautions. The answer to the long standing question of the role humour plays in politics continues open, and as this article is being written, the horizon of citizen empowerment remains cloudy. Nevertheless, if in Juvenal's time it may have been difficult not to write satire, in today's world, it is also hard not to sing, paint, film or remix it.

FEAM and EASAC on DTC Genetic Testing

From the June 2012 Direct to consumer genetic testing for health-related purposes in the European Union: The view from EASAC and FEAM study [PDF] by the Federation of European Academies of Medicine and European Academies Science Council.
[P]rivate companies now offer genetic testing ‘predictive’ services through the internet directly to consumers (direct-to-consumer genetic testing, DTC GT). 
Companies have claimed various putative advantages for their services in allowing increased personal choice and control. However, there are concerns about the accuracy and usefulness of such tests and their interpretation for providing health-related information, in the absence of individualised medical supervision and genetic counselling. DTC GT may create unrealistic expectations because of overstated claims, may induce confusion and anxiety, may harm privacy, and there may be implications for the established health services if inducing unnecessary follow-up assessment.
These issues were examined in a project … which aimed to review the scientific evidence already available, to assess the regulatory developments underway and to ascertain the principles that should underpin the options for action by public policy-makers. In developing our recommendations in this report, we have attempted to avoid the over-regulation that impedes innovation while not wishing to relinquish strategy- setting to the private sector. Our conclusions are directed primarily to policy-makers at the EU level but we recognise that Member States may also wish to implement their own initiatives as part of the wider management of the opportunities and challenges for health services and consistent with their established national priorities for regulation.
We note first that there is controversy about whether using a nucleic-acid-based test is fundamentally different to using other types of biomarker as the predictor of risk, and whether concerns expressed about genetic testing are primarily related to the use of nucleic acids as the analyte or to the more general use of predictive risk information. In our view, efforts to devise recommendations relating specifically to genetic testing should be regarded as part of longer-term efforts to address all medical testing.
The scientific literature on potential benefits and harms of DTC GT is still rather limited and, because it is drawn from consumers who can be regarded as ‘early adopters’, it may not be entirely relevant to the broader population. Our first conclusion relates to the imperative to collect more evidence for the impact of testing on health outcomes and to share good practice in understanding, handling and communicating information about risk.
Varying views have been expressed by scientists, professional societies and others about what and how to regulate with regard to DTC GT. Procedural options encompass national legislation, adoption of international guidelines and standards, accreditation of tests, laboratories and companies, and voluntary codes of practice based on greater transparency of information provision. In the EU, the regulatory environment for novel tests is governed by Directive 98/79/EC on In Vitro Diagnostic Medical Devices, which is currently being revised. Several Member States have more stringent legislation on DTC GT services.
The report asks "What are the particular concerns about the scope of DTC GT?"
Based on our Working Group discussion, it seems to EASAC–FEAM that all kinds of genetic testing require an appropriate and relevant level of professional advice. 
On the whole, DTC GT has little clinical value at present and, on occasion, has potential to be harmful. We would not wish to encourage EU citizens to use DTC GT at present. We suggest especial caution about DTC GT in several specific respects, as follows.
1) Individuals should not seek DTC GT services if they have symptoms or are at known increased risk.
2) Testing for monogenic, high-penetrance, serious disorders should be presently excluded from the services offered by DTC GT companies.
3) Prenatal screening and carrier testing in children should also be excluded.
4) Nutrigenomic testing should be discouraged because of its association with the sale of nutrient products of little or no proven value.
5) Pharmacogenetic testing for prediction of drug response requires further discussion, but should not be offered unless necessary safeguards are in place.
6) Testing of samples from minors and third parties should not be permitted.
It then proposes 'Principles for the management of DTC GT' -
Taking into account the particular exclusions and cautions listed above and acknowledging that the boundaries between categories of test may be imprecise, the broader governance of DTC GT should create the strategic coherence that tackles the concerns expressed about the validity and completeness of information supplied before testing, consent, test data management, and access to advice and counselling. 
Key points to note in developing the general principles for governance include the following. 
• Susceptibility testing for complex disorders should be regulated on the basis that claims about the link between genetic marker and disease are scientifically valid. 
• Test quality assurance must cover not only laboratory analytical quality but also the professional interpretation of results and the provision of counselling that is appropriate to the disease risk and burden. 
• Information supplied by the DTC GT company should be controlled by the enforcement of advertising standards (truth in labelling), and must emphasise who is advised not to use DTC GT services. 
• Implications for the established health services and others need to be assessed, for example in terms of the potential waste of scarce resources in unnecessary follow-up to test results. 
• Companies should include proper, additional, consent-seeking (specifying the handling of samples and information) when desiring to use data for research.
These principles have consequences: for EU policy-makers, for informed consideration of the regulatory alternatives; for the research community in developing an accessible evidence base; and for health professionals in translating research into practice. There will need to be flexibility to enable future innovation, and among the major implications are the following. 
• Directive 98/79/EC. The scope of the Directive on In Vitro Diagnostic Medical Devices should be clarified to ensure that it covers all genetic information that is used to make medical claims. The European Commission will need to explore the options for introducing independent review of the claims made for a test, based on some form of risk stratification but independent of the nature of the analyte. The evidence base for all information provided must be accessible and verifiable. 
Other EU legislation. The wider implications for the reform of the other Directives on Medical Devices (for example, if a clinical efficacy requirement were to be introduced) and the Data Protection Directive (ascertaining its scope to cover genetic information accessed by a consumer within the EU) need to be addressed. 
Professional and technical competences. Whatever can be achieved by reform of the In Vitro Diagnostic Medical Devices Directive to require demonstration of scientific validity of claims will need to be accompanied by appropriate mechanisms for ensuring professional and clinical good governance according to standard procedures. 
Industry code of practice. While awaiting public policy development, it would be highly desirable for DTC GT companies to work together to develop and implement industry-wide quality standards, including those relating to the labelling of advertising claims and additional consent-taking for research purposes. 
Public databases of information. There is great potential value for an international registry of information on the availability, validity and usefulness of genetic tests so that physicians and consumers can judge for themselves whether to avail themselves of a particular test or service. The European Commission with its international partners should consider what is needed to collect and validate the evidence on gene- disease associations – establishing the relative roles of research funders, academia and industry – particularly in generating data on lower-penetrance genes. 
Professional education. It is vital for Europe to do better in educating medical and other health professionals about genetics, for example to improve the confidence of primary care physicians to interpret and explain risk and benefit based on genetic information. 
Public engagement. It is also critically important to address common public misconceptions about what genetic tests can offer in terms of medically relevant information so as to inform and empower the consumer to decide for themselves when faced with offers of DTC GT. 
Whole-genome sequencing. Very soon, it will be easier and cheaper to sequence an entire genome than to genotype a series of known mutations. Such sequencing and analysis currently represents a very small proportion of the DTC genomics market but it can be expected to grow rapidly. The challenges of consenting, communicating and acting on data will be accentuated by whole-genome sequencing, which has considerable potential to reveal incidental information that was not anticipated or requested by the consumer. Regulatory authorities and other policy-makers need to prepare for the translation of the technology from the research setting to routine testing. 
Global implications. EU reform of Medical Devices legislation must be well integrated with global harmonisation efforts and this requires further work to develop shared understanding of diagnostic/ predictive test clinical performance. The situation is complicated by differences in the relevance of genetic information for different populations. There are major implications for a global DTC GT industry such that there must be a global priority to build global databases containing the clinical information on DNA variants of specific genes.
In conclusion, although some of these issues are controversial, there are opportunities to improve the regulatory and innovation framework for genetic testing in the EU, which is a collective responsibility for the European Commission, European Parliament and Council of Ministers. However, legislative reform will take time and can only be successful if there is also action to improve clinical governance and professional and public education, to facilitate translation of the available evidence base into practice and to support research to collect new evidence and to ensure the widespread availability of accurate information. Action in the short term will be particularly valuable if it helps to build international standards and validated repositories of test information, and clarifies options for mandating good practice by, and accreditation of, DTC GT companies.

Identity Valuation

How much are you worth, or rather, how much do some entities think you are worth? A report by Boston Consulting for global media group Liberty International offers a perspective on 'identity valuation'.

The report announces that
In an increasingly digital society, personal data has become a new form of currency. The biggest challenge for political and business leaders is to establish the trust that enables that currency to keep flowing. 
Quite … and let's not talk about a respect for individuals that goes beyond conceptualisation of people as targets for digital stripmining or commodities for sale by the likes of the nice folk at Liberty.

Key messages from the 122 page The Value Of Our Digital Identity [PDF] - redolent of dot com promo from last decade - are
• “Digital identity“ is the sum of all digitally available information about an individual. It is becoming increasingly complete and traceable, driven by the exponential growth of available data and the big data capabilities to process it. 
• How digital identity develops is an important concern for consumers and companies alike. Individuals are worried about losing both their privacy and control over their personal data. Companies, on the other hand, fear that mis-steps – be it through their own, or third-party applications – could compromise their position as trusted provider. 
• Global trends including the social media boom (a quarter of the world‘s population will be members of online social networks by 2015) and the burgeoning “Internet of things“ (some 75 million machine-to-machine connections will be added in Europe by 2015) result not only in increased information volume, but also completely new types of data. 
• From a macroeconomic perspective, it becomes clear that digital data is already a growth driver in an otherwise flagging economy. While traditional industries shrank by up to 3.6% from 2008 through 2011 in Europe, data-intensive sectors – where the use of digital identity is a key component of business – thrived with annual growth rates between 15% (e-commerce) and up to 100% (Web 2.0 communities). 
• All told, the value created through digital iden- tity can be massive – at a 22% annual growth rate, applying personal data can deliver a €330 billion annual economic benefit for organisations in Europe by 2020. 
• Individuals will benefit to an even greater degree, as the consumer value will be more than twice as large: €670 billion by 2020. The combined total digital identity value could amount to roughly 8% of the EU-27 GDP. 
• However, two-thirds of potential value generation – €440 billion in 2020 – is at risk if stake-holders fail to establish a trusted flow of data. 
• Digital identity is relevant not just to Web 2.0 companies, but to the economy as a whole. The public sector and health care industry stand to profit most from personal data applications and are expected to realise 40% of the total organisational benefit. 
• While the retail and Internet sectors already extensively use personal data, other sectors like traditional production and the aforementioned public services are in the infancy of digital identity value generation. 
• Consumer concern has grown along with the increased use of personal data. 88% of people who are online consider at least one industry a threat to their privacy. Yet consumer research conducted for this study shows that stated concerns by individuals do not necessarily result in behavioural change. 
• Most consumers have little idea what happens to their data. Only 30% have a relatively comprehensive understanding of which sectors are collecting and using their information. Individuals with higher-than-average awareness of data uses require 26% more benefit in return for sharing their data. 
• Few individuals are in control of their digital identity. Just 10% of respondents had ever done six or more out of eight common privacy-protecting activities (e.g., private browsing, disab- ling cookies, opt-in/out). However, consumers who are able to manage and protect their privacy are up to 52% more willing to share information than those who aren‘t – presumably because they can adapt their data sharing to their individual preferences. 
• Trust differs per sector: Consumers are on average 30% more willing to share data with e-commerce companies, cable operators and automobile manufacturers than with Web 2.0 communities. [Punchline … Liberty will get you the data]
• The “right to be forgotten“ has a small but consistently positive impact on the willingness to share, increasing it by 10% to 18%. 
• The preferred form of consent strongly depends on the type of data: Opt-out is considered adequate for less sensitive data by 69% of re-spondents, while opt-in is required for highly sensitive data by more than 80%. The issue of consent highlights a key dilemma: Control is important to consumers (82%), but so is convenience (63%). 
• Overall, given proper privacy controls and sufficient benefits, most consumers are willing to share their personal data with public- and private-sector organisations. They want to spend their new currency on deals that they like. 
• To unlock value, organisations need to make the benefits of digital identity applications very clear to consumers. Further, they need to embrace the new digital identity paradigm of responsibility, transparency and user control. 
• Privacy is increasingly becoming an area of competition for organisations, which can differentiate themselves by providing the right privacy controls and privacy-by-default product design. Indeed, such a scenario may well play out in the desktop and mobile Web browsing market. 
• Policy makers and regulators need to ensure adequate privacy safeguards and maintain a flexible approach that will encourage new applications and allow consumers to make their own informed choices on the extent to which they wish to generate value from their digital identity. 
• Political intervention must account for shifting levels of acceptance regarding digital identity applications and the developments in the global marketplace. Failure to do so may hamper innovation as well as the competitiveness of domestic industries. Finding the right balance can spur local investment in digital identity applications and also attract industries to European markets that provide a safe haven for personal data.

08 November 2012

ACIP Collaborations Report

The Advisory Council on Intellectual Property (ACIP) has released its 61 page report [PDF] on Collaborations between the Public and Private Sectors: the Role of Intellectual Property. The report examines the role of IP in collaborations, on the basis that "IP rights define who owns an intellectual asset. This helps private industry raise money and commercialise public research".

ACIP considered the views of publicly funded research organisations including universities, medical institutes, and other interested parties. The inquiry collected information about collaboration models between industry and Australian publicly-funded research organisations (PFROs), and about experiences with such collaborations. The inquiry was conducted in cooperation with the national Department of Industry, Innovation, Science, Research and Tertiary Education (DIISRTE).

The Parliamentary Secretary for Industry and Innovation, Mark Dreyfus, echoed the traditional lament about commercialisation of research, commenting that
 Australia has world class public research, but we need greater collaboration with the private sector to transfer this knowledge into new technologies, products and services that benefit society. 
Greater collaboration can benefit business and assist them to become more competitive by tapping into the reservoir of knowledge that publicly funded research organisations and universities offer.
ACIP considered seven issues -
  • 1. Motivating PFROs to collaborate 
  • 2. Aligning interests and expectations from collaborations 
  • 3. Helping SMEs to engage with PFROs 
  • 4. Increasing project management and skills in PFROs 
  • 5. Provisions in government contracts and grants 
  • 6. Knowledge and IP management in PFROs
  • 7. De‐risking early stage IP
ACIP offers six recommendations -
  • R1: Develop mechanisms to increase the motivation of PFROs, especially universities and medical research institutes (at an institutional level) and PFRO researchers (at an individual level), to engage in collaborations with industry. Considerations should include: establishing an evaluation framework that complements ERA (the Excellence in Research for Australia) and measures the impact of PFRO research, including metrics for collaborations with industry; increasing reward mechanisms for PFROs that are directly linked to PFRO– industry collaboration performance; and increasing the weight given to industry collaboration and engagement activities in appointment and promotion criteria for individual researchers. 
  • R2: Encourage the development and promotion of educational resources to assist PFROs, industry and researchers to form and conduct collaborations. Resources should be easily identifiable and accessible to all stakeholders, particularly PFROs and SMEs, and be supported by relevant training. Considerations should include assessing available resources, tools and programs and how they may be best promoted and deployed. Particular focus should be on modules that can assist with: aligning interests with expectations expediting the negotiation of collaboration agreements understanding the commercial/legal provisions in collaboration agreements; a set of starting principles/questions to help partners focus, communicate and develop a good understanding of the objectives of their collaboration; term sheet-like smart forms setting out all issues that need to be included in negotiations and possible options to deal with them; a module focusing on background IP (contributed to a collaboration) and project IP (arising in collaborations), including the proper identification and management of both  a module on valuation models of early stage technologies and IP providing PFROs with access to expert patent analytics services, related business intelligence tools and training. 
  • R3: Improve the ability of SMEs and PFROs to form and conduct collaborations with one another. Considerations include programs that increase the awareness of SMEs as to what PFROs have to offer and assistance aimed at encouraging industry to engage with PFROs. These may include innovation vouchers, staff exchange programs and strengthening the Enterprise Connect Researcher in Business program. 
  • R4: In order to improve their collaborations with industry, PFROs need to increase their project management skills and capability. Consideration should be given to PFROs allocating additional resources to support project management, and developing and maintaining appropriate skills including through staff exchanges with industry. 
  • R5: Request that the Coordination Committee on Innovation (CCI) promote and encourage the use of flexible terms and conditions in Australian Government grants and research contracts, including those specifically related to background and project IP licences, warranties, indemnities and moral rights. Considerations should include collating and communicating information about existing initiatives and previous work undertaken in relation to such terms and conditions and the circumstances in which their flexible application is appropriate; increasing awareness among Commonwealth and PFRO legal and procurement practitioners of the flexibility available in the terms and conditions of Australian Government grants and research contracts (including those specifically related to background and project IP licences, warranties, indemnities and moral rights); establishing a process for government agencies to report on the extent that such flexibility is being applied. 
  • R6: Ensure that the National Principles for Intellectual Property Management for Publicly Funded Research (currently being reviewed by CCI)  cover all publicly funded research conducted by PFROs; encourage PFROs to introduce continual improvement to, and implementation of, internal policies and procedures for IP management. Consideration should be given to including reference to implementing continuous improvement processes in the Commonwealth’s mission-based compacts with universities.
The report states that -
IP cannot be looked at in isolation. Other considerations are also important. From an industry perspective, these include awareness of opportunities to collaborate, availability and expertise of PFRO personnel and access to facilities and other infrastructure. From a PFRO perspective, major considerations include the availability of funding and resources, and the types of interactions formed with industry. 
Respondents often confused IP with other issues involved in collaborations. They were using IP as a catch-all term to describe problems associated with many of the commercial issues that arise in transactions and negotiations. Where the issues raised did relate to IP, they involved the underlying negotiation position and lack of knowledge about IP.

Bridgeman, Corbis and Creativity

'Photographic Reproductions, Copyright and the Slavish Copy' by Terry Kogan in (2012) 35(4) Columbia Journal of Law & the Arts 445-502 poses questions about the famous decision in Bridgeman Art Library, Ltd. v. Corel Corp., 25 F. Supp. 2d 421 (S.D.N.Y. 1998).

Kogan comments that -
Museum photographers are among the most maligned of all professional artists by copyright law. The honeymooner’s amateur photograph of Niagara Falls taken with a point-and-shoot camera is entitled to copyright protection, while the carefully crafted photographic reproduction of a painting taken by a well-trained and seasoned photographer is deemed an unoriginal slavish copy, the legal equivalent of a photocopy. In the realm of photography, perfection breeds contempt. The more accurate the art reproduction in capturing colors, the play of light off of the textured paint, the depth of shadow on the surface, etc., the less likely that a work will be deemed deserving of copyright protection. One author has even accused museum photographers who assert a copyright in photographic reproductions of public domain paintings of "copyfraud".
This Article argues that denying copyright protection to the museum photographer’s images is a profound mistake, one that reflects the law’s perpetual struggle with identifying exactly what makes a photograph original. Copyright law has not been alone in this struggle. From the moment the technology was developed in the 1830s, artists and cultural critics have questioned whether photography should be considered a creative art form or a mere technological achievement. Two features of photography have fueled this debate. First, the product of the technology - the photograph - has been the source of much confusion. Given that every photograph is a mirror-like image of whatever happens to be sitting in front of the camera, what room is there for a photographer’s artistic input? Second, the technological process of making a photograph raises doubts about its creative potential. How can an image that results automatically from a “mechanical contrivance[]” - the mere clicking of a camera’s shutter release - embody any creative input?
The photograph was accepted into the pantheon of copyrightable works in the mid-Nineteenth Century, but the cultural controversy surrounding photography is imprinted in the very legal test used today to determine originality. The Supreme Court set forth two criteria of originality in Feist Publications, Inc. v. Rural Telephone Service Co.: “[T]he work [must have been] independently created by the author (as opposed to copied from other works), and . . . it [must] possess[] at least some minimal degree of creativity.” Applied to photography, the first criterion asks whether the product of the technology—the photograph—originated with the photographer or was copied from an existing work. Legal skeptics have long argued that, given the close resemblance between a photograph and its subject matter, such images are unoriginal copies devoid of independent creation. The second criterion requires that, in the process of creating a photograph, the photographer must infuse the work with a minimal degree of personality. Again, legal skeptics argue that a photograph results from the simple interaction between light and the mechanics of the camera, relegating the photographer to the role of mere technician incapable of infusing his own personality into the image.
Despite the skeptics, copyright law now embraces virtually any photograph as embodying the requisite creativity to be deemed original. “Currently, there is almost no lower bound on copyrightability of photographs .... [O]nly a (successful) photographic attempt to reproduce an existing two-dimensional work will be considered to add so little originality to the world as to be uncopyrightable.” This “lower bound” was ostensibly reached in Bridgeman Art Library, Ltd. v. Corel Corp., which held that a photographic reproduction of a public domain painting is a “slavish copy,” undeserving of copyright protection. Though the facts of Bridgeman concerned public domain paintings, the case’s reasoning was broad enough to relegate all photographic reproductions of paintings to mere slavish copies. Many courts and commentators have endorsed Bridgeman’s conclusion.
This Article challenges that conclusion and argues that most photographic reproductions of artwork fully satisfy Feist’s criteria of originality. To explain why courts and commentators have reached the opposite conclusion, I turn to recent scholarship in art and visual theory that explores certain ingrained cultural habits ordinary viewers bring with them when looking at photographic reproductions of artwork. Most importantly, a viewer tends to look through such an image, as though it were transparent, and see only the depicted painting. The viewer erases from his mind the fact that he is actually looking at a photograph with unique photographic attributes - erasing even the existence of the photographer responsible for that image, including the range of artistic judgments and choices that went into producing the photographic reproduction. The only artistic choices of which the ordinary viewer is consciously aware are those of the painter of the depicted artwork. Judges, juries and legal commentators are not exempt from these cultural habits, and this wreaks havoc when Feist’s criteria of originality are applied to photographic reproductions.
In light of these insights, I argue that Bridgeman’s widely accepted conclusion that photographic reproductions of paintings are slavish copies is flatly mistaken. A photograph of a museum painting in an art history textbook is no more a slavish copy of that painting than a photograph of a tree in a botany textbook is a slavish copy of the tree. Moreover, the professional museum photographer’s judgments and choices - choosing a camera and adjusting its settings; choosing the film; arranging the lighting; developing and printing the photograph, etc. - fully satisfy Feist’s requirement of a "minimal degree of creativity".
Part I of this Article explores copyright law’s originality requirement and its application to photography. Part II turns to Bridgeman and examines the court’s conclusion that a photographic reproduction of a painting is a slavish copy. To set the stage for my critique of Bridgeman, Part III invites the reader to participate in a simple thought experiment involving five photographs taken in a museum. The experiment is designed to raise doubts about whether a photographic reproduction of artwork is different in any meaningful respect from other photographs in terms of creativity. The Article then turns to art and visual theory to provide a theoretical foundation for the remainder of the Article.
Part IV examines the concept of a “slavish copy” and its application in Bridgeman. The term is often bandied about in cases and commentary, but virtually no one has attempted to explicate precisely what slavish copying actually means. Case law is reviewed to extract a definition of slavish copying, and show that most photographic reproductions of artwork fail to satisfy this definition. The Section concludes that most photographic reproductions of paintings are fully deserving of copyright protection.
Having rejected the view of a photographic reproduction as an imitation or duplicate, this Article proposes a more fruitful way to think about that image: as a map of the depicted painting. In the same way an aerial photograph of Manhattan maps each location of the island onto the image, so a photographic reproduction maps each point of the depicted painting. But neither the aerial photo nor the photographic reproduction is an imitation or duplicate, much less a slavish copy.
Finally, Part V addresses policy concerns. Refusing to grant copyright protection to photographic reproductions of paintings denies the museum photographer economic incentives that the law extends to other artists. Given the importance of such images to educators, artists and the public’s appreciation of artworks, I argue that the wisdom of denying that incentive to photographers whose very profession is to create high quality art reproductions is highly questionable and extremely unfair.
'Corbis & Copyright?: Is Bill Gates Trying to Corner the Market on Public Domain Art?' by Tanya Cooper in (2011) 16  Intellectual Property Law Bulletin 1-43 comments that
Art has the power to stir our emotions, evoke a physical response, and transport us to a different world. It can inspire and transform us. For all of those precious qualities, the public relies upon knowing that once the artist’s exclusive rights to the artwork elapse, the “art must ultimately belong to us all.” The notion that artwork eventually belongs to the public is paramount because art, like books and music, represents a collective experience that helps define what it means to be human. Thus, once the artist has enjoyed her exclusive rights to that art, it should belong to no one individual, but to everyone. This article argues that Corbis’s copyright claim in its digitized reproductions of public domain art is suspect and concludes by discussing the ramifications for the public domain when Corbis asserts copyright protection for its public domain digital copies. Given the power and influence that Bill Gates and his company Corbis have on the market for public domain art, it behooves the public to be aware of this issue.


'The Appointment of Ministers from Outside of Parliament' by Alysia Blackham & George Williams in 40(2) Federal Law Review (2012) 253-285 notes that
Members of the executive in Australia and other Westminster nations are traditionally appointed only from the ranks of parliamentarians, ostensibly to protect the principle of responsible government. However, there is a growing international trend in nations such as the United Kingdom for the appointment of ministers from outside of Parliament. This article examines the extent to which Australia's constitutional system can accommodate unelected members of a Commonwealth, State or Territory executive. This question is analysed from the perspective of the principle of responsible government and the text of Australia's various constitutional documents. The article also reviews existing practice in comparative jurisdictions and Australian law and practice in order to determine the form that such appointments might take.
The authors conclude -
External ministerial appointments have the potential to bring desirable specialist expertise into Australian governments and to help forge stronger linkages between government and sectors such as business. As governmental responsibilities continue to increase in diversity and complexity, external Ministers with specific expertise are likely to become more attractive, as demonstrated by the appointment of Bob Carr from outside Parliament as Australia's Minister for Foreign Affairs.
While Australian governments have only limited experience in appointing external Ministers, this may be attributable to the absence of any urgent need for reform and legal and political uncertainty surrounding such appointments. In relation to the legal questions, it is clear that ministerial appointments from outside Parliament are constitutionally possible in the States and Territories, at most requiring legislative amendment to effect the necessary changes. Even at the federal level, despite the provisions of s 64, it is possible to appoint external Ministers via a Senate casual vacancy, as occurred with Carr's appointment.
While there are few insuperable constitutional limitations to the appointment of external Ministers, it is essential that such appointments are made in a strategic and principled manner. Comparative experience in the UK, Scotland and Canada demonstrates that external ministerial appointments can be politically and practically challenging and are not always well received by the electorate. Further, external Ministers can pose significant challenges to long held conventions of responsible government. Drawing on these comparative experiences, we propose a model of external ministerial appointments that builds upon existing appointment and termination processes for Ministers and includes specific accountability measures to ensure the responsibility of external Ministers to Parliament and compliance with ministerial codes of conduct. We also propose that the number of external Ministers be capped to ensure that they do not compromise Australia's representative system of government.
This model would allow external ministerial appointments within a framework of responsible government. It reflects a recognition that understandings of responsible government must evolve to fit contemporary circumstances. As governments internationally continue to experiment with new ways of improving governance, so too can Australia play a role in these debates through trialling new models and processes for the appointment of Ministers from outside of Parliament.


From Dyson Heydon's judgment in RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest [2012] HCA 47 -
The first allegation was that Forrest J "failed and refused to afford the affected children an opportunity to have separate and independent representation". The form in which this allegation was made underwent variations at different stages of the proceedings before this Court. There was the ambitious contention already recorded that an independent legal practitioner should have been appointed to represent the children. The allegation later metamorphosed through a series of increasingly less extreme positions. However, in all its forms, the allegation must be rejected. So far as the initial proceedings before Forrest J are concerned, his Honour did not refuse to afford the children an opportunity to have separate and independent representation: he was not asked to afford it. What Forrest J did was set in place a regime by which an expert who was an officer of the Court ascertained the affected children's views. The maternal aunt described this as "fatuous". It was not fatuous. It was, with respect, an entirely sensible course. In oral argument in this Court, the maternal aunt submitted that Forrest J should have allowed the children to be represented by a "litigation guardian". The precise meaning of this expression was not elucidated, though on 16 May 2012 application was made for the appointment of a case guardian. As the maternal aunt acknowledged, Forrest J was not asked to appoint a case guardian in the initial proceedings. The furthest of the fall-back positions advocated was that Forrest J should have "informed" the children "of the right and opportunity to apply to be represented by a litigation guardian." The maternal aunt did not demonstrate why, in the circumstances of this case, Forrest J should have done this. So far as later proceedings in which the appointment of a case guardian was requested and refused are concerned, there was no reason why Forrest J should have acceded to that application in view of the careful conclusions his Honour had reached in the initial proceedings. The second allegation was that Forrest J "failed and refused to take into account the interests of the affected children". This allegation must be rejected. His Honour did take account of their interests, but decided, in a manner about which no complaint is made, that their age and immaturity made it inappropriate to take into account their views. 
The third allegation was that Forrest J "otherwise acted contrary to the rules and principles of natural justice with respect to the affected children". This allegation too must be rejected. Forrest J accorded the affected children a measure of natural justice which was appropriate to the circumstances. 
For those reasons I agree with the orders made on 7 August 2012. 
Notices were issued under s 78B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") foreshadowing a challenge to the constitutional validity of s 68L(3) of the Act. That challenge caused the Solicitors-General of the Commonwealth, South Australia and Western Australia to intervene. It also caused the matter to be set down for two days. The Solicitors-General filed very detailed written submissions on the constitutional challenge. They attended the oral hearing fully prepared to present oral argument about it. But at the start of the hearing the challenge was abandoned. The challenge was hastily made. It was lightly dropped. Thus the 78B notices caused the valuable time of busy people to be wasted. They caused costs to be thrown away. Half a day turned out to be sufficient for oral argument. No intervener applied for a costs order. But nothing in ss 78A or 78B of the Judiciary Act prevents an intervener from seeking a costs order in the circumstances of this case. That is to be borne in mind by those minded to issue s 78B notices.


'Changes in the discourse of online hate blogs: The effect of Barack Obama’s election in 2008' by Shlomi Sela, Tsvi Kufli & Gustavo Mesch in 17(11) First Monday (2012) considers
the narrative strategies that the blogs of hate groups adopted before and after a central political event, namely, the 2008 election of President Obama in the U.S. Using data from a large number of hate blogs (N=600), and sentiment analysis and data mining, we tested two alternative hypotheses derived from social identification theory. We found that there were major differences between the content of these blogs before the election and immediately after the 2008 election, with the latter evincing an increase in the advocacy of violence and hostility. We also determined that faced with this new change, the hate groups adopted a social competition strategy rather than a creativity strategy to manage their identity. Our findings imply that since the election of Barack Obama as President, the worldview of online hate groups has become more violent.
The authors comment that
The purpose of this study was to examine the narrative strategies used by hate groups that are active in the blogosphere. For this study, we collected data on racial attitudes expressed in a large number of blogs at two points in time: before the 2008 election and immediately after the election. Using the innovative techniques of sentiment analysis, we determined the distribution of words used to express positive and negative emotions and behaviors about racial and ethnic relations as expressed in the blogs of hate groups. Our study design allowed us to investigate changes in these expressions over time. Our first aim was to investigate whether the emotions expressed in the blogosphere changed as a result of the election of an African American President. According to the exemplars exposure hypothesis, exposure of an in–group to the positive image of a member of the stigmatized out–group may lead the former to develop a more positive view of the latter (Bodenhausen and Macrae, 1998; Welch and Sigelman, 2011). Our study showed no support for this argument. Indeed, immediately after the election, we found a moderate increase in the frequency of words appearing in the hate blogs denoting negative emotions and even negative behaviors. After the election, the content included concepts associated with and advocating violence and negative behavior.
After observing this change in negative emotions, we relied on social identification theory to determine whether in the face of the change in society that the election results implied, the blogs adopted a social competition strategy or a social creativity strategy to manage their identity. We showed that the characteristics of the textual context of hate blogs after the election were similar to the description of the social competition strategy that appears in the literature (Douglas, et al., 2005; Haslam, 2001; Tajfel and Turner, 1979). While we found evidence for both social competition and social creativity (evident in the examples we presented), the appearance of the concepts that called for hostility and advocated violence after the election is clear evidence of the preference for the social competition strategy. Scholars theorize that in–groups who have suffered a social change may adopt this strategy, which leads to the exacerbation of the relationship between in–groups and out–groups.
xxx It is important to note that our findings differ slightly from those of a previous study that investigated the competition strategy among 43 white supremacist Web sites and found minimal levels of the advocacy of violence (Douglas, et al., 2005). The difference between our results and those in that study might result from differences in sample size and the dimension of time. Douglas and colleagues studied only a few Web sites, while we included text from a large sample of bloggers. In addition, our study examined blogs at different points in time, so we were able to trace changes over time. In fact, the issue of time seems to be particularly relevant, given that the post–election expressions are significantly different from the political atmosphere before the election.
Our study has several limitations. First, it covers only the blogosphere. However, hate groups use other platforms as well such as Web sites, and textual and multimedia social network sites. Given that the detection of hate groups and the analysis of the user generated content in other platforms require different tools, it is difficult to generalize our findings to other platforms. Nevertheless, we suspect that such techniques might lead to even stronger support for our results.
Another limitation of this study relates to the fact that we relied on commercial tools (IBM–SPSS Text Mining and Data Mining technology). One of the common limitations of commercial technology lies in the fact that their algorithms are proprietary, making it difficult to understand how the machine obtained certain results, particularly when comparing the machine’s results with human judgment. Nevertheless, in practice, our study presents an innovative framework and methodology for the domain of behavioral studies. The main contribution of this research is the ability to detect the type of identity management strategy that hate groups adopt based on the textual content of their blogs. In the future, we look forward to comparative studies on other Web–based content sources. It should be interesting to see if we can apply our system to other online sources besides blogs.


The Customs Amendment (Smuggled Tobacco) Act 2012 (Cth) has received assent. It amends the Customs Act 1901 (Cth) to create criminal offences for the smuggling of tobacco products and for the conveyance and possession of smuggled tobacco products.

The amendment complements restrictions on tobacco trade marks under the new Australian plain paper packaging regime.

'The WHO Framework Convention on Tobacco Control as an International Standard under the TBT Agreement?' by Lukasz Gruszczynski in 9(5) Transnational Dispute Management (2012) i argues that
there are good grounds for considering the Guidelines to the Framework Convention on Tobacco Control (‘FCTC’) relevant international standards under the Agreement on Technical Barriers to Trade (‘TBT Agreement’). The structure of the article is as follows: (1) Part I provides an overview of the relevant sections of the TBT Agreement and its ambiguities with respect to defining an international standard; (2) Part II sets out the aims, purpose and governance structure of the FCTC; (3) In light of the overviews of the TBT Agreement and the FCTC, Part III then considers whether the FCTC and its Guidelines are likely to satisfy criteria developed by relevant World Trade Organization (‘WTO’) jurisprudence regarding what constitutes an international standard under the TBT Agreement; and, finally (4) Part IV draws out the significance of having the FCTC/Guidelines recognised as an international standard under the TBT Agreement. 
Gruszczynski comments that
The legality of national tobacco control measures is increasingly being tested in different international fora. A local subsidiary of Phillip Morris recently initiated an arbitration under a bilateral investment treaty (‘BIT’) against Australia, seeking compensation for unlawful expropriation resulting from the introduction of a new law on plain packaging. A similar complaint was lodged against Uruguay under the Swiss-Uruguay BIT concerning the size of mandatory pictorial warnings on cigarette packages. The WTO has also become an important arena wherein international tobacco companies indirectly challenge various municipal health measures. At the beginning of 2012, the WTO dispute settlement bodies were required to decide a dispute relating to a United States ban on the production, sale and importation of flavoured cigarettes (including clove cigarettes). More recently, a number of WTO Members initiated a formal dispute settlement proceeding against Australia in further response to its plain packaging law. Other disputes relating to the contents of cigarettes lie ahead.
The TBT Agreement is probably the most important piece of WTO law when it comes to the assessment of any national tobacco control measures  Although it acknowledges that a broad regulatory discretion is enjoyed by WTO Members, it also establishes certain parameters for national technical regulations, having regard to their effect on international trade. As part of this overall framework, the TBT Agreement encourages the international harmonisation of technical standards by offering certain legal advantages to those measures which comply with international standards. Insofar as concerns tobacco control measures, the major potential source of such standards is the FCTC and its Guidelines. This is also the main focus of this article, which is aimed at enquiring into whether the FCTC and its Guidelines can be regarded as relevant international standards under the TBT Agreement.
The first section of this article gives a short overview of relevant provisions of the TBT Agreement. The second section moves on to the FCTC and explains its basic disciplines. The third section connects both instruments by examining the FCTC and its Guidelines in the light of the criteria proposed by the Appellate Body in one of its recent reports. The aim of this part is to determine whether the FCTC (and/or accompanying Guidelines) could qualify as relevant international standards under the TBT Agreement. The last section briefly outlines the practical consequences of qualifying the FCTC and its guidelines as international standards for current and future WTO disputes.
The same issue of TDM features 'Plain Packaging on its Way to Europe: Competence Issues and Compatibility with European Fundamental Rights' by Peter K. Henning &  Leonid Shmatenko, considering the legal obstacles likely to be faced by proposed reforms to the European Union’s (‘EU’) Tobacco Directive in EU law.
The structure of the article is as follows: (1) Part 1 examines whether the EU Commission and Parliament have the legal competence to introduce plain packaging laws; (2) In Part 2, the authors discuss the likely compatibility of plain packaging laws with primary EU law, particularly the Charter of Fundamental Rights of the European Union and Article 34 of the Treaty on the Functioning of the European Union. The authors conclude that the plain packaging measures would require a balancing between the rights of manufacturers to display their trademarks on the one hand and the perceived public health benefits of plain packaging on the other hand. In order to pass the EU law hurdles, the plain packaging measures are likely to need to satisfy a three-step test of adequacy, requiring the suitability, necessity and proportionality of each measure.

07 November 2012

Privacy Self-Management

'Privacy Self-Management and the Consent Paradox' by Daniel J. Solove in 126 Harvard Law Review (2013) argues that
The current regulatory approach for protecting privacy involves what I refer to as the “privacy self-management model” -- the law provides people with a set of rights to enable them to decide for themselves about how to weigh the costs and benefits of the collection, use, or disclosure of their information. People’s consent legitimizes nearly any form of collection, use, and disclosure of personal data.
Although the privacy self-management model is certainly a laudable and necessary component of any regulatory regime, I contend in this essay that it is being asked to do work beyond its capabilities. Privacy self-management does not provide meaningful control. Empirical and social science research has undermined key assumptions about how people make decisions regarding their data, assumptions that underpin and legitimize the privacy self-management model.
Moreover, even if individuals were well-informed and rational, they still cannot appropriately self-manage their privacy due to a series of problems. For example, the problem of scale involves the fact that there are too many companies collecting and using data for a person to be able to manage privacy with every one. The problem of aggregation involves the fact that privacy harms often consist of an aggregation of disparate pieces of data, and there is no way for people to assess whether revealing any piece of information will sometime later on, when combined with other data, reveal something sensitive or cause harm. The essay also discusses a number of other problems.
In order to advance, privacy law and policy must confront a complex and confounding paradox with consent. Consent to collection, use, and disclosure of personal data is often not meaningful, and the most apparent solution – paternalistic measures – even more directly denies people the freedom to make consensual choices about their data. No matter which direction the law takes, consent will be limited, and a way out of this dilemma remains elusive.
Solove concludes that -
In order for privacy regulation to make headway, the law needs a better and more coherent approach to consent with regards to privacy. Currently, the law has not sufficiently grappled with the social science literature that has been teaching us about the complexities and challenges involved in human decisionmaking. The law’s current view of consent is inconsistent, and the law treats consent as a simple binary (i.e. it either exists or it does not). Consent is far more nuanced, and privacy law needs a new approach that better accounts for the nuance without getting too complex to be workable.
Any way forward will require the law to make difficult substantive decisions. Privacy self-governance attempts to remain neutral about the merits of particular forms of data collection, use, or disclosure and looks merely to whether or not there is consent. Under the privacy self-governance model, most forms of data collection, use, or disclosure are acceptable if consensual. To move forward, this kind of neutrality cannot be sustained.
The law should codify basic privacy norms. Such codification need not be overly paternalistic – it can be in a form like the Uniform Commercial Code, where certain default rules can be waived. The norms of the UCC have become well-entrenched and oft-followed. Deviations from these norms are quite salient Privacy law has thus far said far too little about the appropriate forms of collection, use, and disclosure of data. I am not suggesting a paternalistic regime where the law rigidly prohibits; only on the outer boundaries should the law do so. But the law must weigh in more strongly about substance.
In essence, what many people want when it comes to privacy is for their data to be collected, used, and disclosed in ways that benefit them or that benefit society without harming them individually. If people have an objection to certain uses of data, they want a right to say no. But many people do not want to micromanage their privacy. They want to know that someone is looking out for their privacy and that they will be protected from harmful uses.
With the food we eat and the cars we drive, we trust that there will be a general level of safety. Much choice remains, but we do not have to fear that whenever we drive a car or drink milk, it will be unsafe. We trust that certain basic features will be available and that these products will fall within certain reasonable parameters of safety. We do not have to become experts on cars or milk. Establishing more substantive rules about data collection, use, and disclosure will help. These rules can consist of hard boundaries that block practices that are particularly troublesome as well as softer default rules that can be bargained around to establish a basic set of norms. Indeed, default rules can be crafted with various levels of easiness to bargain around.
Of course, moving away from neutrality must avoid too much paternalism. When the law overrides people’s ability to consent, it typically does so because the harm of what they might consent to clearly outweighs the benefit. With privacy, the costs and benefits are often complicated to weigh. As Lior Strahilevitz notes in this volume, various restrictions on the collection, use, and disclosure of personal data lead to benefits for some people and detriments to others. Privacy has distributive effects, and this fact makes it more complicated to determine which choice is the right one to make. Moreover, as Omer Tene and Jules Polonetsky note and demonstrate with examples, the collection, use, and disclosure of personal data – even without consent – can lead to great benefits for individuals and society.
In many cases, benefits might not be apparent immediately at the time the data is collected. New ideas for combining data, new discoveries in data aggregation and analysis, and new techniques and technologies of data analysis might change the benefits side of the equation. They might also change the costs side as well. Rules that require renewed consent for new uses of data might be too cost-prohibitive and serve as a de-facto bar on these uses. Such an outcome might not be socially desirable, and it might not be the outcome preferred by most people whose data is involved. On the other hand, blanket consent that allows for a virtually unlimited array of new uses of data can be just as undesirable, as data can potentially be used in harmful ways people might not be able to anticipate or understand.
Moreover, measuring the costs of certain forms of collection, use, and disclosure of personal data is extremely difficult because privacy harms are so elusive to define. Ultimately, because of the dynamism of this area, assessing costs and benefits requires a fair degree of speculation about the future. Individuals are likely not able to make such decisions very well in advance, but neither is the law.
Such decisions would be better made at the time of particular uses of data. What is needed is for the law to weigh in and provide guidance about the types of new uses at the time they are proposed. Perhaps some ought to be restricted outright; some ought to be limited; some ought to require new consent; some ought to be permitted but with a right to revoke consent; and some ought to be permitted without new consent. Perhaps an agency should review proposals for new uses as they arise. The self-management model cannot be abandoned, and nor can more paternalistic measures. There is no silver bullet, and so the most apparent solution at hand appears to be continuing to engage in an elaborate dance between self-management and paternalism.