For nearly three decades, academics have toyed with the question of copyright protection for recombinant DNA sequences. Recent interest in synthetic biology has prompted a resurgence of such dubious speculation. But current advocates of DNA copyright have gone further than academic conjecture, attempting to register nucleotide sequences with the United States Copyright Office. Not surprisingly, the Register of Copyrights refused the application, setting the stage for a possible appeal to federal court. This scenario raises the general administrative law question as to the degree of deference a court should give to a registration decision of the Copyright Office. The issue is surprisingly complex, and precedents are sparse. In this paper I take up the question of administrative deference as it applies to synthetic biology and other technologies that could be the subjects of questionable copyright registration.
02 November 2017
'DNA Copyright in the Administrative State' by Dan L. Burk in (2018) 51 UC Davis Law Review comments
31 October 2017
'War Manifestos' by Oona A. Hathaway, William Holste, Scott J. Shapiro, Jacqueline Van De Velde and Lisa Lachowicz in (2018) 85 University of Chicago Law Review (Forthcoming) is characterised as
the first to examine “war manifestos,” documents that set out the legal reasons sovereigns provided for going to war from the late-fifteenth through the mid-twentieth centuries. We have assembled the world’s largest collection of war manifestos — over 350 — in languages as diverse as Classical Chinese, German, French, Latin, Serbo-Croatian and Dutch. Prior Anglophone scholarship has almost entirely missed war manifestos. This gap in the literature has produced a correspondingly large gap in our understanding of the role of war during the period in which manifestos were commonly used. Examining these previously ignored manifestos reveals that states exercised the right to wage war in ways that would be inconceivable today. In short, the right to intervene militarily could be asserted in any situation where a legal right had been violated and all peaceful channels had been explored and exhausted. The Article begins by describing war manifestos. It then explores their history and evolution over the course of five centuries, explains the purposes they served for sovereigns, shows the many “just causes” they cited for war, and, finally, considers the lessons they hold for modern legal dilemmas. The discovery of war manifestos as a set of legal documents offers lawyers and legal scholars something rare: a new window into the international legal universe of the past. That is not only valuable in itself, but it also casts entirely new light on several long-standing legal debates.
30 October 2017
The !80 page ACCC draft Communications Sector Market Study report features the following Key points
- The Australian communications sector has been undergoing a period of significant change that is affecting how supply chains function and the nature and extent of competition in retail and wholesale markets. This change includes both structural reform, as a result of policy initiatives, at the centre of which is the rollout of the NBN, and the rapid pace of technological advance and product innovation that is occurring globally.
- We consider that the economic regulatory framework for the communications sector has proven to be capable of accommodating major changes to the sector and has allowed for appropriate responses during the transition to the NBN. We do not find that there is currently a need for significant changes to this regulatory regime.
- Notwithstanding considerable concentration in both fixed and mobile retail markets there is evidence of competition between the major service providers of broadband and voice services. Smaller providers and new entrants have the potential to provide additional competitive tension by constraining the larger providers.
- The rollout of the NBN is a major investment in communications infrastructure and is having a significant impact on the Australian communications sector. The changes within the supply chain and consequential impacts on consumers and retail service providers have inevitably been a key focus of the market study.
- The NBN rollout is now well advanced with three million premises activated and NBN Co progressing at a rapid pace to meet a commitment to complete its build by 2020.
- However, a number of competition and consumer issues related to the NBN transition have emerged and require immediate measures to resolve on the part of both retail service providers and NBN Co, some of which are already underway.
- We are undertaking measures to promote improved consumer and competition outcomes directed at ensuring availability of reliable and useful information to support consumer choice. These measures include: o broadband speed claims guidance for service providers o introduction of the broadband perfo rmance monitoring and reporting program o enforcement of the Australian Consumer Law (ACL) to address serious or systemic failures in advertising
- Other processes also underway to identify and address issues arising in the delivery of services over the NBN i nclude NBN Co’s consultations with its customers on its pricing construct and the Australian Communications and Media Authority’s (ACMA) review of consumer experience on the NBN.
- The outcomes of these various initiatives, and extent to which issues of concern persist, will be an important factor in determining the need for further regulatory responses in the short term.
- 5G deployment could create significant opportunities for industry and consumers. It has the potential to accelerate the extent of fixed to mobile and fixed wireless substitution thereby disrupt ing existing business models. The degree of future substitution will in part depend on the performance of NBN services, both in terms of price and service quality.
- We have not identified any immediate competition concerns in relation to new and emerging communications services such as over the top content services, cloud services and the Internet of Things (IoT). We propose to address any future competition concerns that may arise in relation to these services through use of our competition law powers in the first instance.
- Our assessment makes draft findings on a range of issues, including some of immediate concern. We have examined the issues of concern in detail to develop our proposed actions and recommendations, including the urgency with which they should be addressed.
State of competition in the supply of voice and broadband services Voice and broadband services are the essential communications services on which individuals and businesses rely. The retail provision of these services displays considerable concentration, with the four largest providers accounting for 96 per cent of services to residential premises. Telstra’s fixed line dominance has not been significantly eroded so far in the transition to the NBN despite some losses in regional areas where its dominance has been greatest. Competition for mobile services is concentrated in the hands of the three mobile network operators that account for 91 per cent of mobile services. Notwithstanding the high level of market concentration there is evidence of competition between the vertically integrated major service providers in the markets for voice and broadband services, over both fixed and mobile access technologies. This is particularly evident in the price competition between suppliers of both fixed and mobile services. However, while non-price competition extends across multiple product dimensions for mobile services with significant product differentiation, the same is less true for fixed services. To date there is less differentiation in the fixed services on offer and competition in the fixed segment of the market has not focused on quality of service dimensions, such as broadband speed. While there are signs of retail price competition occurring, we have heard from many service providers, both in submissions to the market study and at the stakeholder forum held in July 2017, that the NBN wholesale pricing construct and level is constraining their ability to provision greater capacity given consumers’ current willing ness to pay. NBN Co has expressed another view, stating that it has undertaken research that indicates consumers have a greater willingness to p ay and that service providers should be doing more to promote the adoption of higher speed services. These issues may affect efficient use of NBN infrastructure and NBN Co’s ability to recover its investment costs. In this regard, we note that an objective of the policy decision to build the NBN is to support retail competition. While we are observing some product differentiation and market segmentation in the retail plans currently in the market, there is scope for this to further develop. We anticipate that competition in the supply of fixed line and mobile voice and broadband services will increase following the entry of Vodafone into the provision of fixed line services and TPG into the provision of its own mobile network. This will result in four major carriers providing both fixed and mobile services.
Transitioning consumers to the NBN
The challenges faced by NBN Co include provision of services over the NBN that meet consumer expectations and deliver an efficient use of the infrastructure being deployed as well as completion of the build. A significant number of consumers are reporting unsatisfactory experience with the NBN both during and after migration from the legacy networks. Two principal concerns arise in this regard. The first concern relates to connection and activation problems at the time of migration and fault rectification after connection, including missed appointments and lack of reliable information and unsatisfactory complaint resolution processes. The primary concern is that current NBN service levels do not represent an appropriate basis to support a positive end-user experience, and there is insufficient recourse to compensation where service levels are not met. Compounding these problems is ineffective communication and coordination in the supply chain resulting in consumer misunderstanding and confusion. The second issue is the speed of services supplied over the NBN which is not always meeting consumer expectations. There are a number of aspects to this issue, the most significant of which are the choice of speed tier made by a consumer when migrating to the NBN and the provisioning of connectivity virtual circuit (CVC) capacity by service providers to deliver the speed and user experience appropriate to that speed choice dur ng the busy hours. In addition, the capability of the fibre-to-the-node (FTTN) technology to deliver certain higher speed services can be limited. These migration and experiential issues have gained significant attention, both within the industry and more broadly in the media, and in our view stem from failures in retail and wholesale markets that could largely be overcome through more accurate information, improved information flows and better coordination along the supply chain and to consumers. In this regard, we consider the issue of consumer dissatisfaction with the speed of their NBN service can be addressed directly through the provision of improved retail plan information on speeds that supports consumers in making their purchase decisions, and through retailers ensuring their retail NBN services typically operate in the manner advertised. We are introducing measures we consider have good prospects of bringing widespread improvements in the near term, via retailers implementing our 2017 broadband speed claims guidance, our introduction of a broadband performance monitoring and reporting program, and enforcement of the ACL to address serious or systemic failures in advertising practices. We consider that this strategy can bring benefits without the potential risks associated with more intrusive measures, such as mandating minimum standards, which could curtail the offering of less expensive but slower plans over the NBN even where these plans would be sufficient to meet the requirements of many consumers.
The NBN supply chain
We acknowledge that the above measures will not resolve all of the poor outcomes that are being delivered by retail NBN markets, and also that there are significant concerns expressed by retailers regarding their upstream supply arrangements that are potentially contributing to these outcomes. A potentially significant factor contributing to these outcomes is that current average revenues per user for NBN services may not be sufficient to meet NBN Co’s long term cost recovery requirements. One factor is that we are not seeing the degree of risk sharing and alignment of incentives we would expect in a well-functioning wholesale market. These issues are the subject of processes with the potential to improve outcomes for consumers. NBN Co is currently consulting with its customers on potential modifications of or alternatives to the current pricing model. In addition, in August 2017 the Government convened an industry roundtable to secure joint action to better support co nsumers during the NBN migration. We welcome an industry led approach to improving the NBN experience of consumers and an outcome on NBN pricing that meets the objectives of NBN Co and service providers. We consider an industry resolution can be preferable to a regulatory outcome as it is likely to be more responsive to the immediate concerns of NBN wholesale customers and should be afforded reasonable time to reach that resolution. Therefore, we are watching developments and; if needed, however, we will consider exercising our regulatory powers where this would support these market outcomes being realised sooner. In the meantime, to provide additional flexibility to the parties in negotiating pricing outcomes, we have deferred our decision on the Special Access Undertaking (SAU) variation that NBN Co has submitted. NBN Co’s proposed SAU variation incorporates FTTN, fibre to the basement (FTTB) and hybrid fibre coaxial (HFC) access technologies into the SAU, to reflect the current NBN model. If approved, the SAU variation would extend the current SAU pricing arrangements to these access technologies. Further, the ACMA is undertaking inquiries and research to provide a better understanding of the nature, extent and causes of the concerns regarding consumer experience before, during and after the migration of consumers to services provided over the NBN. We propose to examine NBN service standards and their impact on consumer experience. In particular, we will examine incentives in place along the supply chain and whether they are sufficient to support appropriate consumer outcomes.
Key intermediate inputs
Smaller service providers have the potential to add to the competitiveness of communications markets by constraining the behaviour of the larger providers and in creasing competitive tension. However smaller providers frequently rely on wholesale inputs, either of resale services (as in the case of mobile virtual network operators (MVNOs) ) or of intermediate inputs such as transmission between NBN points of interco nnection (POIs) and their own point of presence (POP), as well as internet interconnection services to reach the customers and the content hosted by the larger providers. In addition, some smaller service providers do not have the scale to make direct connection to NBN services at all 121 POIs and rely on wholesale services that aggregate this direct connection with other wholesale services. The market study has looked at whether these wholesale markets upstream of retail markets are operating competitively to supply key intermediate inputs that meet the needs of smaller service providers, including to build scale. An area where we have identified some concerns is the NBN wholesale aggregation market where potential limitations with the NBN wholesale aggregation services being supplied may be impeding the ability of smaller service providers from entering markets or offering differentiated products over the NBN. We consider that the development of this wholesale market to date is not as advanced as might be expected given that the NBN rollout commenced over five years ago and passed its mid-point earlier this year. Complexity in retailing on the NBN during the network build and the effect this has on the business case for investing in the supply of wholesale aggregation services may be contributing to the slow development of the wholesale market. The market study has considered options to promote the wholesale aggregation market while it is still developing. These options include potential action by NBN Co to provide transitional products or pricing measures during the rollout period to facilitate the entry of smaller or niche service providers. We have also identified concer ns in the internet interconnection market where Telstra, Optus and TPG appear to hold some market power in relation to access to their networks. We intend to continue to assess whether access to these services is available at prices and terms that support competition in the range of downstream markets they support.
Network competition and convergence
The above issues need to be considered in the wider context in which the NBN is being rolled out. Relevantly, this context encompasses the increasing substitutability between and convergence in the use of alternative last mile access networks. Substitution of fixed line services for mobile services has been occurring for a number of years and is likely to continue in response to the recent increase in the data inclusions offered in mobile network operators’ plans as the capacity of their networks increases. The substitutability between mobile and fixed line has the potential to be boosted when deployment of 5G begins in two to three years. The extent to which th is potential is realised will depend on relative costs of utilising the NBN compared to bypassing the NBN with fixed and mobile wireless alternatives, which is significantly influenced by NBN Co’s pricing. The NBN already faces some competition from non-NBN fixed line networks, particularly in large occupancy buildings and new estates. These networks are typically in low cost to supply areas and have consequently affected the NBN financing model which relies on a cross subsidy from services provided in low cost areas to meet the costs of providing NBN services in high cost regional and remote areas of Australia. The Government is intending to impose a charge on these networks under its Regional Broadband Scheme (RBS) to help fund the NBN’s non-commercial fixed wireless and satellite services. We do not consider this charge should be extended to other substitute networks in the future; indeed, we have a preference that all non-commercial services be funded directly from the budget. In the medium term, given the social objectives it is required to fulfil by supplying services to uneconomic parts of Australia, and depending on future developments, the Government could consider whether NBN Co should continue to be obliged to recover its full cost of investment through its prices via options that may provide it with greater flexibility regarding its cost recovery objectives. These could include direct budget funding arrangements for non-commercial services, debt relief measures or an asset revaluation. The latter step is consistent with that usually taken by private sector enterprises if and when business plans are not met.
Emerging services and issues
Beyond the large number of issues relating to the provision of voice and broadband services, the market study has considered the growth and development of services delivered over or using the internet, including IoT, and changes in supply chain structures and related services such as the use of content delivery networks and data centres. We have also considered the emergence of cloud based services which are transforming the way services traditionally provided locally to the user are consumed. We consider that these markets are highly dynamic and seem to be operating competitively. These areas are diverse, subject to rapid innovation and change and, for the main part, do not give rise to immediate concerns regarding the competitive functioning of their associated markets. However, there are instances where incumbents in the communications sector may be able to exercise market power or where market power concerns could emerge due to strong network effects to the detriment of competition in these markets. Our intention is to keep abreast of developments in these markets to ensure that rigorous competition is sustained and take appropriate competition enforcement action if necessary.
Policy implications and priorities
Finally, the draft report sets out our views in relation to policy implications and priorities. We consider that the current communications regulatory and competition arrangements that we administer have remained fit for purpose notwithstanding the evolution of the communications market to date and appear to be well suited to deal with the immediate and longer term issues we have identified in the market study. The policy priorities largely relate to reviews that are currently being conducted or have recently been completed. These policy issues have interdependencies with competition in and the efficient operation of communications markets and include: spectrum management; data availability and use; the proposed RBS; and the Government’s Mobile Black Spots Program.