02 November 2017

DNA copyright

'DNA Copyright in the Administrative State' by Dan L. Burk in (2018) 51 UC Davis Law Review comments 
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.

31 October 2017

Drums, Trumpets, Fire Alarms and the DIN

'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.
The Senate Economics Committee's interim report on aluminium composite cladding as part of its Non-conforming building products study comments
Concerns about the National Construction Code 
The committee notes the concern from witnesses and submitters that the non-compliant use of cladding is widespread and that there have been extensive delays in developing and implementing policies to address non-compliance and non-conformity in the building industry. 
As highlighted in Chapter 2, the committee notes that the Building Minister's Forum (BMF) has now released the Assessment of the Effectiveness of Compliance and Enforcement Systems for the Building and Construction Industry across Australia review's terms of reference and its timeline. The committee looks forward to following this review and learning about its outcomes. 
The committee also welcomes the recent announcement that the National Construction Code (NCC) would be amended to reflect the Australian Building Codes Board's (ABCB) new comprehensive package of measures for fire safety in high rise buildings. The committee is hopeful that this amendment to the NCC, if delivered in a timely manner, will provide greater clarity and reduce the ambiguity around interpretation which has been identified by stakeholders. 
Of particular concern to the committee, and stakeholders, is the long time lag between government responses to the Lacrosse fire in 2014 and any meaningful resolution between governments, the BMF, and the Senior Officers' Group (SOG) on possible steps forward. Furthermore, the committee notes that more disastrous fires have occurred internationally, but Australia has yet to implement any major reforms or communicate any course of action publically. Considering the prevalence of polyethylene (PE) core Aluminium Composite Panels (ACPs) across Australia, the committee considers it paramount that all governments focus attention on this issue before the next disaster occurs. 
Mandatory third party certification, national register and product auditing 
Submitters and witnesses have raised concerns about the progress of the SOG Report's recommendations, which were due to be finalised in May 2017. The committee is concerned that progress appears to have stalled and there is no clearly identified timetable for implementation. The committee is of the view that the implementation plan should be released as soon as possible to assure stakeholders that progress is being made and again makes its point about the timeliness in response to these issues. 
Proposal to ban Aluminium Composite Panels with a Polyethylene core 
The committee understands that under the NCC in its current form, there are compliant uses for PE core ACPs in low-rise buildings, as well as pathways through performance-based solutions to allow the use of PE core ACPs in high-rise buildings. The committee also understands that the signage industry uses PE core ACPs. 
In light of the Grenfell Tower fire tragedy, the committee does not consider there to be any legitimate use of PE core ACPs on any building type. The committee believes that as there are safe non-flammable and fire retardant alternatives available there is no place for PE core ACPs in the Australian market. While Australian Border Force and suppliers of ACM are currently unable to determine whether an imported building product will be used in a compliant manner, the committee believes a ban on importation should be placed on all PE core ACPs. In addition, the sale and use of PE core ACPs should be banned domestically. 
Recommendation 1 
The committee recommends the Australian government implement a total ban on the importation, sale and use of Polyethylene core aluminium composite panels as a matter of urgency. 
Greater coordination and a national approach to reform 
The committee acknowledges that greater enforcement of existing regulations is needed. However, current building regulations appear inadequate and are too easily evaded, largely due to existing deemed-to-satisfy and performance-based pathways, which provide avenues to circumvent Australian Standards in the NCC. The committee supports the BMF's decision to establish an independent review to assess the broader compliance and enforcement problems within the building and construction systems across Australia. The committee is encouraged by the fact that the terms of reference include developing recommendations for a national best practice model for compliance and enforcement to strengthen the effective implementation of the NCC. The committee believes consideration should also be given to an expanded national role for the Commonwealth government across all elements of the building and construction industry, starting with the BMF. 
National licencing schemes 
The committee considers that a national licencing scheme for all trades and professionals involved in the building and construction industry including: building surveyors, building inspectors, builders and project managers, would improve compliance and provide greater consumer protection and public safety outcomes. A national licencing scheme, including requirements for continuing professional development would ensure that building practitioners have the necessary skills and knowledge to operate in the building industry's complex regulatory environment. 
Recommendation 2 
The committee recommends that the Commonwealth government work with state and territory governments to establish a national licensing scheme, with requirements for continued professional development for all building practitioners. 
Need for greater on-site supervision and oversight 
The committee supports the implementation of nationally consistent mandatory on-site inspections throughout the construction process. Whether this is done through the reinstatement of the role of Clerk of Works or some other process is eventually a decision for governments. Either way, it is evident from the evidence received that there needs to be a central oversight role independent from industry to provide assurance to the public that structures are built according to the agreed national standards. The committee also endorses the inclusion of mandatory inspections by fire safety engineers and fire authorities to ensure buildings are compliant and public safety is upheld. 
Addressing the need for greater accountability 
The committee agrees that responsibility for building compliance is currently weighted too heavily at the end of the supply chain. Consequently, measures need to be put in place to ensure greater accountability across the supply chain. The committee considers that the Queensland bill will go some way to ensuring accountability is spread more evenly across the supply chain from designers, manufacturers, importers, suppliers and installers and supports the bill's intent. The committee also encourages other jurisdictions to examine the bill and consider developing similar approaches as a starting point to addressing this serious issue. 
Recommendation 3 
The committee recommends that the Building Minister's Forum give further consideration to introducing nationally consistent measures to increase accountability for participants across the supply chain. 
Availability of Australian Standards 
The committee is dismayed that building practitioners are expected to pay unreasonable sums of money to access Australian Standards which are required to ensure they comply with the NCC. In the committee's view, making Australian Standards freely available would have a significant impact on building compliance. More importantly it will reduce the overall cost of compliance and insurance and most significantly, it will reduce the cost and impact on future state and territory emergency, fire and medical services. 
The committee understands that Standards Australia International (SAI) Global's contract with Standards Australia is coming up for renewal. The committee believes the Commonwealth government should give serious consideration to engaging with Standards Australia to explore possible options to providing free access to Australian Standards, including reinstating online access to the Standards through Australian libraries. 
Recommendation 4 
The committee strongly recommends that the Commonwealth government consider making all Australian Standards and codes freely available. 
Role of the Federal Safety Commissioner 
The committee considers that the Federal Safety Commissioner (FSC) has an important role in ensuring compliance with the NCC of Commonwealth funded construction work. The committee is concerned that the FSC does not appear to be adequately resourced to carry out its newly legislated function to audit compliance with NCC performance requirements in relation to building materials. Mr Edwards advised the committee that his office does not have the resources or the expertise to conduct audits 
In addition, the committee believes that loss of accreditation to conduct Commonwealth funded work is not a strong enough penalty for non-compliance with the NCC. The committee is of the view that a stronger penalties regime should be imposed. 
Recommendation 5 
The committee recommends the Commonwealth government consider imposing a penalties regime for non-compliance with the National Construction Code such as revocation of accreditation or a ban from tendering for Commonwealth funded construction work and substantial financial penalties. 
Recommendation 6 
The committee recommends the Commonwealth government ensure the Federal Safety Commissioner is adequately resourced to ensure the office is able to carry out its duties in line with the new audit function and projected work flow. 
Illegal phoenix activity in the building and construction industry 
The committee is concerned that it has been nearly two years since its report on insolvency in the construction industry was tabled and the Productivity Commission's report was released and considers that a Director Identification Numbers (DIN) initiative should be considered as a matter of urgency. A DIN initiative would go some way to preventing directors engaging in illegal phoenix activity. The committee also considers that the potential for a DIN initiative to assist credit reporting agencies in identifying individuals who engage in illegal phoenix activity is worth further investigation. The committee is encouraged by the government's willingness to give further consideration to DIN's, it is concerned by the lack of a clear timeframe for consideration. 
Recommendation 7 
The committee welcomes the Commonwealth government's decision to give further consideration to Director Identification Numbers and recommends that it expedites this process in order to prevent directors from engaging in illegal phoenix activity. 
Increasing protections for end users 
The committee believes there needs to be a greater awareness and protection for consumers in the residential strata sector. The committee considers there is an urgent need to provide a statutory duty of care to cover the discovery of non-compliant or non-conforming building products for the increasing number of the Australian public who purchase residential apartments. 
Recommendation 8 
The committee recommends that state and territory governments work together to develop a nationally consistent statutory duty of care protection for end users in the residential strata sector. 
Next steps for the committee 
The committee anticipates that significant changes will arise from the reforms that the Commonwealth, state and territory governments will undertake as a result of this serious issue. The committee intends to keep a close eye on how these reforms are developed and the eventual timeliness of their implementation as this continues to be a significant shortcoming across all governments. 
The committee urges, as a matter of the upmost importance, to work effectively together and to get the job done expeditiously. The committee will also continue to monitor the progress of the BMF, its review, and also its ongoing work on the issues of non-conforming and non-complaint building products. The committee will present an interim report on the illegal importation of asbestos on 31 October 2017 and its final report for the broader inquiry by 30 April 2018.

30 October 2017

Communication Markets

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. 
The draft report goes on to state -
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.