07 July 2018

Predictive Surveillance

'Predictive Surveillance and the Threat to Fourth Amendment Jurisprudence' by Shaun B. Spencer in (2018) 14 I/S: A Journal of Law and Policy for the Information Society comments 
 This Article explores how the use of predictive surveillance to prevent terrorist and criminal activity may shape Fourth Amendment law. Predictive surveillance refers to a potential model of surveillance in which government collects data in bulk and then uses predictive analytics to detect patterns indicating terrorist or criminal activity. The existing model of surveillance regulation presumes that the government’s first step is to target a specific person. Therefore, the first analytical step in evaluating the constitutionality of a given surveillance practice is to determine whether the government had sufficient particularized suspicion about the target. Predictive surveillance, however, confounds the existing model because it requires collection of massive amounts of data with no particularized suspicion. Despite that disconnect, judges will face great pressure to twist existing doctrine rather than ban the data collection that the government claims is necessary to fight terrorism or crime. Assuming that courts will be predisposed to find predictive surveillance constitutional, this Article explores the various doctrinal approaches that courts could take to approve predictive surveillance and assesses the risk that each approach poses to Fourth Amendment doctrine. 
Part I introduces the concept of predictive analytics and describes predictive surveillance as a potential application of predictive analytics. Part II first identifies the technical and political challenges that the government will face if it tries to implement predictive surveillance and then discusses the reasons to believe that researchers and political actors will overcome these challenges. Part III describes why predictive surveillance threatens Fourth Amendment doctrine itself and offers a cautionary tale of how courts evaluating a prior mass surveillance program twisted the statutory language to authorize the program. Part IV discusses the different ways that courts could apply the Fourth Amendment’s third-party and public-exposure doctrines to predictive surveillance and then assesses how each approach could affect the development of those doctrines. Finally, Part V discusses the different ways that courts could apply the Fourth Amendment reasonableness standard to predictive surveillance and assesses how each approach could affect the reasonableness standard.

Cryptocurrencies

Funny money or smart contracts? 'Cryptocurrencies are (smart) contracts' by Simon Geiregat in (2018) Computer Law and Security Review comments
The functioning of cryptocurrencies like Bitcoin ultimately depends on participants’ agreements to selectively disclose or conceal information. Various arguments suggest that those agreements amount to a large multilateral contract to which all participants are parties. That multilateral agreement is automatically enforced through smart contract technology. Therefore, cryptocurrency “wallet holders” are simultaneously creditors and debtors of smart contract claims vis-à-vis their cryptocurrency community. 
Geiregat argues
Smart contracts are not unanimously defined. Many scholars, however, agree that the concept does not refer to contracts in the proper legal sense.  Instead, smart contracts can be described as (hardware and/or) software that initiates, controls and/or documents legally relevant acts, depending on predetermined and digitally proven events, and by means of which legally binding contracts may be concluded, depending on the circumstances. Hence, a smart contract, quite deceptively, is a technical means that can be used in the contractual sphere e.g. to execute contracts rather than simply being a legal concept. It is therefore more accurate to refer to it as smart contract technology. 
Smart contracts and blockchain 
Vending machines are an old-school example of an application of smart contract technology.  Hence, smart contracts do not necessarily make use of blockchain technology. When they do, however, trust is put in computer power and the public availability of certain information. As a result, blockchain-enhanced smart contracts are more efficient and trustworthy. Hence, although blockchain technology is not a requirement for smart contracts, its application is likely to lead to an increase in use of smart contract technologies. 
Cryptocurrency agreements use smart contract technology 
From a private-law perspective, cryptocurrency systems give rise to a multilateral agreement to which all wallet-holders (aka the community) are parties (supra). When two of those parties agree to transfer coins from one party to another, both only need to push some virtual buttons. When they do, ultimately the whole cryptocurrency community automatically undergoes the effects: software automatically verifies whether the transaction is legitimate and registers the transaction if that is so. Through the architecture of the system, each wallet-holder who wishes to continue using the system, must accept that (cryptocurrency) wealth has shifted from one participant to another. This holds true, even if not all legal conditions for validity of the contract are fulfilled. In other words, cryptocurrency participants use software that initiates, controls and documents legally relevant acts, depending on predetermined and digitally proven events. In sum, they use smart contract technology.
He concludes
Cryptocurrency community members (wallet-holders or participants) are all parties to one multilateral agreement. The use of smart contract technology is part of that agreement. These findings only relate to the legal position of a cryptocurrency participant vis-à-vis his or her fellow-participants [Fig. 1]. They do not permit conclusions to be drawn as to the nature of the agreement concluded between two users who exchange “cryptocoins” for goods, services, a sum of money or anything else [Fig. 2]. Nonetheless, as a “payment” in cryptocurrency coins essentially amounts to the creation of a claim on the cryptocurrency community, the smart contract classification may indirectly alter the classification of that two-party contract. For instance, trading goods for cryptocurrency coins amounts to a trade in goods for claims rather than for money, which implies such exchange can never qualify as a proper sales agreement. In other words, lawyers who use their “(smart) contract lenses” may see a clearer picture when analysing cryptocurrency transfers.

Recreational Genomics

'Watch out for spit parties: privacy questions about recreational genomics' by Bruce Baer Arnold in (2018) 15(5) Privacy Law Bulletin 7 comments
on privacy aspects of recreational genomics, an emerging industry in which consumers gift or sell genomic data to find an association with ancestors or identify supposed susceptibility to genetic disorders. Salient privacy concerns include gifting of data that encompasses biological relatives and the use by law enforcement agencies of large-scale private sector genomic databases. 
The article reflects past work by Associate Professor Wendy Bonython and the author, for example 'Privacy, personhood, and property in the age of genomics' (2015) 4(3) Laws 377, 'Sharing the book of life: privacy, the new genomics and health sector managers' in (2015) 12(4) Privacy Law Bulletin 103, 'Australian reforms enabling disclosure of genetic information to genetic relatives by health practitioners' in (2014) 21(4) Journal of Law and Medicine 810, and 'Direct to consumer genetic testing and the libertarian right to test' in (2017) Journal of Medical Ethics.

It notes -
May 2018 saw practitioner and media coverage of the Australian Health Department’s belated announcement regarding arrangements for people to opt out of aspects of the national My Health Record (MyHR) medical data scheme. Outside of the tabloids, there was less coverage of an incident in the US involving what has been variously dubbed recreational genomics or direct-to-consumer genetic testing. In that incident, law enforcement personnel accessed a large-scale private sector genomic database in order to target the identity of a serial killer. This article offers an introduction to recreational genomics and highlights privacy issues for Australian legal practitioners and consumers. ... 
The article concludes
From a privacy perspective, the salience of recreational genomics lies in biological relationships. There is some commonality between biological relatives; your genetic profile for example has much of the same genomic data as that of your biological parents, siblings and offspring. You might accordingly be identified with varying degrees of precision using data that relates to those relatives. That identification might allow inferences about your appearance or your susceptibility to particular disorders, irrespective of whether those disorders have become manifest and irrespective of whether you wish to privately acknowledge or publicly disclose them. 
Research over the past decade has accordingly highlighted a range of questions for legal practitioners, ethicists and policymakers. One question is the accuracy of the testing, with for example claims that the quality of processing in some Eastern European facilities is egregiously low and that some services verge on being fraudulent. There has not been significant action by consumer protection agencies at the national level or by disgruntled customers, perhaps because there wasn’t major reliance on the tests or because consumers were unaware that consumer law offered a meaningful remedy. 
It is important to recognise that dominant service providers offer different tests and may well provide a specific consumer with somewhat different results. Regulators have expressed concern about what might be considered to be diagnostic services outside a conventional regulatory framework that encompass registration and supervision of health service providers alongside certification of clinicians and adherence to formal research codes. There is no global Genomic Data Right, unsurprising for example given the late establishment in the finance/utilities sector of the Consumer Data Right announced in Australia in May 2018. There is disagreement about genetic discrimination frameworks. Calls for a global Genomic Privacy Convention (akin to the European General Data Protection Regulation discussed in recent issues of this Bulletin) have gained little traction and are often opposed as contrary to the achievement of social goods through advancement of health research. 
A convention is of interest because the Australian Constitution is silent about privacy and makes no mention of the genome. The Commonwealth under its external affairs, posts and customs heads of power has scope to shape consumption of recreational genomic services. Its emphasis for the moment appears to be investment in genomics research (notably the $500 million Australian Genomics Health Futures Mission announced in May this year, similar to larger initiatives in the UK and the US) and public education campaigns. The effectiveness of education is uncertain, given the respect we owe to life science researchers and the willingness of leading geneticists to share their genomic samples. 
Education is significant because unconsidered sharing of genomic data is not caring but is not actionable. Put simply, there is no restriction on a relative gifting or selling a sample — a skin scraping, blood or saliva — from their own body to a genomic service provider. It is their property, not yours, even though it might offer a view of you, potentially a view contrary to your values about disclosure. It can be converted into data that is an asset of a corporation and over which neither the consumer nor you have much control outside the typically expansive terms and conditions used by the service provider to limit corporate liability and assert corporate rights. 
Such unilateral sharing without your authorisation and indeed without your knowledge, given that there is no requirement to alert you that a biological relative has participated in a recreational genomic program, is potentially significant because recreational genomic services are currently based overseas. Australian consumers are perforce reliant on an understanding of contractual provisions regarding the sale/gifting of samples (inef- fective if your client was not the individual providing that sample), trust that the service will meet contractual obligations and remain in a position to meet obligations (are all bets off if the service is liquidated or its trove of data is acquired?), and hope that overseas regulators such as the US Food and Drug Administration or Federal Trade Commission have both the power and interest in policing inadequate practice. The increasing body of knowledge about the feasibility of re-identification of what was claimed to be adequately anonymised health data should pose cautions, as should controversy over initiatives such as the UK care.data program. 
Locally it’s unclear whether the Office of the Australian Information Commissioner has the technical skills and the willingness to look beyond traditional stakeholders, in essence its regulatory capture by medical research- ers that is sufficient to offset indifference on the part of the Therapeutic Goods Administration and the impera- tives that drive the National Health and Medical Research Council. 
There is value in the emergence of an Australian direct-to-consumer genomic service sector, one that is globally competitive on the basis that it both embodies technical best practice (in contrast for example to past services in the former Soviet bloc) and recognises concerns regarding genomic privacy. There is no simple solution that will effectively address tensions regarding access to bulk/individual data, meaningful consent by those people who sell/gift samples, and respect for the dignity in terms of autonomy of those people who will be tacitly mapped through the action of their relatives. It is difficult for example to conceptualise a right to genomic obscurity outside action by governments to require both de-identification of genomic data about yourself and family members and enforcement of stronger standards to significantly inhibit data breach. 
A starting point for engagement by leading law firms with such questions and shaping of practice frameworks for the coming biotech century is a recognition that genomic data is special: the book of life is more valuable and less tractable than the book of telephone numbers or the electronic folders of bank account details that were apparently misplaced by the Commonwealth Bank two years ago.

06 July 2018

Loot Boxes

The Australian Senate has referred 'loot boxes' to the Environment and Communications References Committee for inquiry and report by 17 September 2018.

The referral states
  •  The extent to which gaming micro-transactions for chance-based items, sometimes referred to as 'loot boxes', may be harmful, with particular reference to:  
    • whether the purchase of chance-based items, combined with the ability to monetise these items on third-party platforms, constitutes a form of gambling; and 
    • the adequacy of the current consumer protection and regulatory framework for in-game micro transactions for chance-based items, including international comparisons, age requirements and disclosure of odds.

Fake Health Qualifications

A former Navy officer has pleaded guilty in the Brisbane District Court to two charges  of fraud, after posing as a paramedic for more than five years. He initially faced 133 charges regarding administration of a restricted drugs, three charges regarding unlawful possession of controlled drugs and two charges of obtaining restricted drugs.

Calvin Jordan Wahlberg is reported as  having collected over $550,000 in wages on the basis that he was a qualified paramedic.  He was initially hired for a role for which he was qualified. He subsequently  worked in a position for which he lacked (but invented paperwork indicating that he had) the required qualifications.

His legal representative reportedly stated that Wahlberg would not have secured the job without the qualification: he accordingly falsified his certification (at least some of which was found during a search of his residence).

During the period he served as a supervisor for correctly qualified medical staff and administered over 130 influenza shots (restricted drugs). In 2009 Wahlberg had faked certificates about qualifications and thus authority.  That fraud was uncovered in 2015. Wahlberg appears to have unsuccessfully sought to apply as a member of the Australian and New Zealand College of Paramedics when inconsistencies were identified.

His counsel argued that  Wahlberg was not a 'deranged fantasist' and was unlikely to offend again.
It’s someone who left school, went into the Navy and had to leave in circumstances that were not his choosing, made stupid mistakes still as quite a young person and was working in a field having made false statements and continued on.
Meanwhile The Age reports  that Raffaele di Paolo, having masqueraded as a doctor and fertility specialist for over 10 years, has been belatedly prosecuted and convicted in the County Court, with a prison sentence of nine and a half years. On indictment he pleased not guilty to all charges, claiming he never performed medical procedures or inserted ultrasound probes into women and that he advertised himself as a homeopath rather than a registered doctor.

In his bio for a 2014 'bioregulatory medicine' conference under the auspices of the Australian Society for BioRegulatory Medicine (ASBRM) - a scientific society aimed at promoting and sharing education in the areas of Homotoxicology, Homoeopathy and Naturopathy' and formerly the Australian Association of Homotoxicology (AAOH) - Di Paolo was described as a fertility specialist.
"Raffaele Di Paolo MD, Ph.D [with] experience in achieving better than normal implantation rates for IVF using an integrated approach with Bioregulatory medicines. ... Italian-born Dr Di Paolo completed his undergrad studies in Australia. Post grad studies in philosophy and social sciences at La Sorbonne (Paris) embraced his passion for homeopathy. He returned to Australia in 2000 where he now applies bioregulatory medicine to non-obstructive infertility.
The conviction reflected 51 offences between 2004 and 2014, with charges including obtaining property by deception, sexual penetration by fraud and common assault. Di Paolo had no tertiary qualification but claimed to be a qualified IVF specialist who was 'disillusioned' with the IVF sector and  had worked at Monash IVF or Melbourne IVF. the Court heard that he took blood samples from women, carried out internal ultrasounds and purported inseminations. He injected people with unknown homeopathic substances that he claimed had been imported from Germany.

Stuart J rejected the defence's argument that di Paolo's culpability was reduced by mental illness (including a personality disorder and 'reactive depression'  experienced since 2015) -
You acted with deliberation and thought. You did it without regard for the effects on these women and men.
Di Paolo apparently acquired forged qualifications in the 1990s purporting that he was qualified as a medical practitioner, an obstetrician and a gynaecologist. That documentation was used during an investigation of corruption in Italy's medical system. He was found guilty in a Rome court of passing himself off as a practitioner and fined. He returned to Australia, where he used forged documents purporting he was qualified in Italy. He also claimed a science degree from Monash University.

Di Paolo continued to practice despite coming to the attention of authorities in 2011. He was investigated by the state Health Services Commissioner (HSC)  between 2011 and 2013. The Australian Health Practitioner Regulation Agency (AHPRA) started investigating in 2014. In March 2015 the Medical Board of Australia and AHPRA announced that legal action was being
taken against a man they allege is pretending to be a registered medical practitioner. The Board and AHPRA have filed charges in the Magistrates’ Court at Melbourne, alleging that Mr Raffaele Di Paolo (and/or his company, Artemedica) was ‘holding himself out’ as an obstetrician and /or gynaecologist, with expertise in IVF. 
After receiving a complaint, the Board and AHPRA are taking action against Mr Di Paolo to protect the public

05 July 2018

National Data Commissioner

The Department of Prime Minister and Cabinet has released a consultation paper on New Australian Government Data Sharing and Release Legislation.

The paper states
The Australian Government recognises that the data it holds is a strategic national resource that holds considerable value for growing the economy, improving service delivery and transforming policy outcomes for all Australians. Greater use and sharing of public data facilitates increased economic activity and improves productivity. Without improving data accessibility within government, the opportunity for enhanced productivity, increased competition, improved service delivery and research outcomes will be missed. The Australian Government holds a large range of data about the environment, individuals and businesses, all with different attributes and different levels of sensitivity. When this data is used and combined, it provides government with new insights into important and complex policy questions and allows for improved service delivery. 
Existing data sharing arrangements across the public service are complex and hinder the use of data. Barriers to greater sharing of data within government include:
• a dense web of legislative requirements which lack consistency 
• a culture of risk aversion, leading to overly cautious legislative interpretation and approval process complexity, and 
• lack of a whole-of-government approach.
New data sharing and release arrangements will benefit Australians by streamlining the way public data is shared and released within government and with trusted users. New arrangements will provide efficient, scalable and risk based trusted data access to datasets that have substantial and community-wide benefits for research, innovation and policy. The new arrangements will increase the authorised sharing and release of data and improve data safeguards to ensure risks are managed consistently and appropriately. This paper outlines key concepts and principles which may guide development of the new data sharing and release arrangements. While the paper includes scenarios involving more sensitive data in an effort to demonstrate how new arrangements could work, data about individuals and businesses is only one part of the data system. The concepts and principles in the paper cover all data held by the Australian Government and the proposed data sharing and release arrangements will provide a consistent and scalable framework applicable to data of all attributes and sensitivities.
Your views are sought on the issues outlined in this paper. The Public Data Policy Statement seeks to ensure the value of public data is maximised
In late 2015, the Prime Minister released the Australian Government Public Data Policy Statement. This statement provides a mandate for Australian Government entities to optimise the use and reuse of public data to drive innovation across the economy. This includes mandating the release of data as open by default when it is safe to do so. Since this Statement was released there has been a dramatic increase in the number of datasets publicly available. Data.gov.au now hosts over 29,000 data records. The Productivity Commission’s Data Availability and Use Inquiry recommended national reforms
In early 2016, Treasurer Scott Morrison asked the Productivity Commission to undertake an inquiry into the benefits and costs of options for increasing the availability and improving the use of public and private sector data by individuals and organisations.
The Commission was required to: • look at the benefits and costs of making public and private datasets more available • examine options for collection, sharing and release of data • identify ways consumers can use and benefit from access to data, particularly data about themselves, and • consider how to preserve individual privacy and control over data use. ...
The PC identified a “lack of trust by both data custodians and users in existing data access processes and protections and numerous hurdles to sharing and releasing data are choking the use and value of Australia's data”, and recommended “the creation of a data sharing and release structure that indicates to all data custodians a strong and clear cultural shift towards better data use that can be dialled up for the sharing or release of higher-risk datasets”. 
On 8 May 2017 the Australian Government tabled the Productivity Commission’s Data Availability and Use Inquiry (PC Inquiry). The Inquiry made 41 recommendations aimed at overcoming barriers and issues with Australia's current data system to move from one based on risk avoidance, to one based on value, choice, transparency and confidence. The PC Inquiry recommendations balance the need for greater data access and use arrangements with proactive management of risks.
The Australian Government has committed to reforming data governance
On 1 May 2018, the Australian Government released its response to the PC Inquiry. The Government committed to reforming data governance within government to better realise the benefits of increased data use, while maintaining trust and confidence in the system.
To prepare its response, the Department of the Prime Minister and Cabinet consulted with: • 78 peak industry bodies and businesses • 15 community, consumer and civil society representatives • 16 research sector bodies • 43 Commonwealth public sector bodies, and • 9 state and territory public sector bodies.
Better use of public sector data can help us improve government services for Australians and ensure our programs and policies are informed by evidence. Greater access to public sector data with a consistent approach to managing risk can improve research solutions to current and emerging social, environmental and economic issues. 
To unlock these benefits, the Australian Government committed to:
• Establishing a National Data Commissioner to implement and oversee a simpler, more efficient data sharing and release framework. 
• Introducing legislation to improve the sharing, use and reuse of public sector data while maintaining the strong security and privacy protections the community expects. 
• Introducing a Consumer Data Right (CDR) to allow consumers to share their transaction, usage and product data with service competitors and comparison services.
Based on the wide consultation underpinning the PC Inquiry recommendations, these reforms will increase data access and use within government and with trusted users outside government, while improving data privacy and security with strengthened and consistent safeguards.
This paper explores issues related to the implementation of data governance reforms, including the National Data Commissioner and the Data Sharing and Release legislation. The Consumer Data Right is being developed concurrently and being led by the Treasurer – see https://treasury.gov.au/consumer-data-right/. 
A new Data Sharing and Release Bill
This paper outlines the key principles proposed to guide the development of legislation to realise the value of public sector data and modernise the Australian Government data system. These principles build on the investment and commitments to date by the Australian Government (including those outlined in the Australian Government Public Data Policy Statement and previously published by the Australian Information Commissioner (OAIC) on open public sector information) to realise the immense value of public sector data to improve government services and policies.
The purpose of the DSandR Bill will be to streamline the process for sharing public sector data and improve data safeguards across the public service. The Bill will aim to increase authorised sharing and release of the range of data held by the Australian Government while improving data safeguards and risk management tools to create a more transparent environment for data sharing.
This paper focuses and seeks views on the development and design of a new Data Sharing and Release Bill (the DSandR Bill). The issues outlined in this paper and the proposed arrangements are based on the extensive consultation of the PC Inquiry and engagement with stakeholders. This paper is the first step in designing and drafting new legislation. The paper does not represent official government policy but instead outlines an approach for consideration. 
The DSandR Bill will be principles-based 
The DSandR Bill will be based on key principles designed to move the paradigm from one which restricts access to data to one which authorises sharing and release when appropriate data safeguards are in place. The DSandR Bill will aim to promote better sharing of public sector data whilst ensuring appropriate safeguards to build trust in use of public data and maintain the integrity of the data system. These principles recognise the different types of data held by government and the many benefits of increased data sharing for citizens. 
Greater sharing of the data the public sector holds can lead to: • more efficient and effective government services for citizens • better informed government programs and policies • greater transparency around government activities and spending • economic growth from innovative data use, and • cross-sectoral research solutions to current and emerging social, environmental and economic issues. 
The Bill will apply to Commonwealth entities and Commonwealth companies and include most data collected by these entities, with appropriate exceptions (see Section 3). It will provide a legislative approach to share, access and release data that is otherwise prohibited, when appropriate conditions and safeguards are met.
The DS&R Bill will introduce new data sharing and release arrangements
For data sharing and use to be authorised under the Bill, a purpose test and data safeguards need to be met (see Section 4). The Bill will authorise data sharing and release for particular purposes only, which could include:
  •  informing government policy making 
  • supporting the efficient delivery of government services or government operations 
  • assisting in the implementation and assessment of government policy, and 
  • research and development with clear and direct public benefits.
The DSandR Bill will apply appropriate and consistent safeguards to data sharing and release for these purposes. Through the internationally recognised Five-Safes disclosure risk management framework, safeguards can be dialled up or down as appropriate depending on the sensitivity of the data and whether privacy needs to be maintained (see Section 4). Consistent risk management will help prevent data misuse or unintentional disclosure and ensure data privacy and security are maintained. The DSandR Bill will create accredited bodies within the data system, each with different roles, skills and expertise: data custodians, Accredited Data Authorities and trusted users (see Section 5). The DSandR Bill will build in accountability for these actors within the system, to ensure all take responsibility for the way data is managed and shared.
The National Data Commissioner will oversee the data system and provide guidance on the new arrangements
The DSandR Bill will outline the National Data Commissioner’s (NDC) role in implementing and overseeing a simpler, more efficient data sharing and release framework (see Section 6) including accrediting parts of the data system. The NDC’s role is to monitor and enforce the provisions of the DSandR Bill (and associated legislative instruments). The NDC will work closely with other entities, including the Office of the Australian Information Commissioner (OAIC), and be advised by a new National Data Advisory Council (NDAC). We want to hear your views This paper outlines an approach to the DSandR Bill which aims to balance sharing data held by government with appropriate risk management. The principles underpinning the DSandR Bill are relevant across all aspects of the possible approach outlined above.

04 July 2018

Australian Copyright Exceptions

'Calculating the consequences of narrow Australian copyright exceptions: Measurable, hidden and incalculable costs to creators' by Patricia Aufderheide, Kylie Pappalardo, Nicolas Suzor and JessicaStevens in (2018) Poetics comments
The kind and extent of exceptions and limitations to copyright monopolies are a major focus of copyright reform discussion worldwide. The debate is often portrayed as pitting the interests of creators against users. Australian copyright law features narrow and limited exceptions. Australian creators benefit from copyright monopolies; but do they suffer any costs for lack of flexible exceptions? A national survey of creators showed that they experience significant costs in time and money in making work; avoid or abandon projects because of copyright problems; and avoid developing ideas for projects that involve use of third-party copyrighted materials. These costs have previously been uncalculated and not included in national policy debate. The results provide information not only for the Australian context but for policy discussion internationally. 
 The authors state
This study analyzes how Australian creators negotiate a highly restrictive copyright regime, in which they cannot use copyrighted material without licensing it in many situations where international colleagues, particularly those in fair use jurisdictions, can. 
The question is relevant to international scholars concerned with the relation of creative practice generally to the regulatory contexts that variously stimulate and inhibit it. This concern has been raised with rising frequency since the passage of U.S. copyright legislation in 1976, which vastly extended and expanded copyright monopoly, while also codifying 135-year-old judge-made law in fair use. From the early 1990s, U.S. international treaty negotiations routinely have included clauses that harmonize national practice on the monopoly side, without harmonizing it on the exceptions side (Burrell and Weatherall, 2008; Drahos and Braithwaite, 2003). 
With this broad and international expansion of copyright monopoly, legal and communication studies scholars have postulated a cost to cultural circulation, to creative expression, and innovation. Some have described this as an encroachment on a metaphorical cultural commons (Benkler, 2006; Bollier, 2001; Boyle, 2008; Cunningham, 2015; Greenleaf and Bond, 2013; McLeod, 2007). Others have described copyright law as unbalanced, or as tight, or strong (Aufderheide and Jaszi, 2011; Fisher, 2004; Fitzgerald, 2008; Flew, Suzor, and  Liu, 2013; Flew, 2015; Geiger, 2017; Giblin and Weatherall, 2016; Patterson and Lindberg, 1991). Recent empirical research with creative communities in the U.S. has documented costs of copyright confusion or uncertainty around employing fair use, among documentary filmmakers, media literacy teachers, librarians, musicians and visual arts professionals among others (Aufderheide & Jaszi, 2004; Aufderheide, Hobbs, & Jaszi, 2007; Franzen et al., 2010). It has also documented expansion and innovation in creative practice with fair use knowledge and with institutional acceptance of fair use claims (Aufderheide and Jaszi, 2011; Aufderheide and Sinnreich, 2015; Sinnreich and Aufderheide, 2015). Interviews conducted with a small pool of creators who recycle copyrighted material into new work in Australia has also demonstrated that confusion over exceptions and limited exceptions have creative costs (Pappalardo, Aufderheide, Stewart, and Suzor, 2017). Other empirical research, including experimental research, demonstrates an uncertain and contingent relationship between copyright incentives and actual production, thus challenging the notion that copyright is inevitably a driver of creative production (Sprigman, 2017). As well, scholars have charted creative expression that moves beyond or outside copyright law, in areas as diverse as tattoos, vidding, fan fiction and cooking (Coppa, 2011; Darling and Perzanowski, 2017; Suzor, 2014; Tushnet, 2010). 
Copyright policy is thus directly implicated as a governmental and institutional policy affecting freedom of expression (Sunder, 2000; Tushnet, 2011). How it is administered, debated and changed is inevitably a battle not only between economic stakeholders but also about who can speak and create. The current Australian debate is a political conflict in which creator agency has been invoked by publishers and licensing interests, which have also assisted in directing positions for creator organizations. However, creator practices in using current Australian exceptions to make new work, employing licensed copyrighted materials in making new work, and in shaping projects around the exigencies of accessing copyrighted material have not been documented or presented to policymakers. 
The question of how creators in particular cope with this regime is of urgent and practical significance in the Australian context, where a 20-year-long debate over reform of the outdated and inflexible law has recently been renewed. As recent research has shown, Australian copyright debates have typically opposed the benefits of flexible exceptions for technology (e.g. online search, protections for hosts of user-generated content, non-consumptive uses for artificial intelligence) and for consumers, educators and libraries against the interests of creators in protecting their copyright monopolies (Aufderheide & Davis, 2017). Some researchers have explored how copyright works within the creative process in specific areas, e.g. (Bowrey & Handler, 2014). But until this study, there has been no systematic, detailed inquiry into how Australian cultural creators experience exceptions in this regime during the creative process itself. 
Australian copyright law is ‘TRIPS+’ (Frankel, 2008) following the implementation of the Australia – United States Free Trade Agreement in 2004. Copyright in original works lasts for 70 years after the death of the Author; there are extensive criminal offences for commercial and commercial-scale infringement; and there are criminal and civil prohibitions on circumvention of Digital Rights Management technologies. Australia has a moral rights regime, introduced in 2000 (Adeney, 2006), and a (limited) performers’ rights regime, introduced in 2005 (Weatherall, 2005). The moral rights regime confers on individual authors and performers three non-economic rights: a right of attribution, a right against false attribution, and a right of integrity, being the right not to have a work or performance subject to derogatory treatment (Copyright Act 1968 (Cth), Part IX). Derogatory treatment is defined as treatment resulting in a material distortion of, mutilation of, or material alteration of the work/performance that is prejudicial to the author or performer’s honor or reputation (ss. 195AI – 195ALB). The rights of attribution and integrity are subject to a reasonableness requirement, such that there is no infringement if the person’s conduct was reasonable in all of the circumstances (Copyright Act 1968 (Cth), Part IX, Div. 6). Thus, moral rights generally are congruent with a decision to employ third-party unlicensed material, if credit is given and use is not derogatory.
Australian copyright exceptions fall into six general categories. The fair dealing exceptions permit uses of copyright material for the purposes of news reporting, criticism and review, research and study, parody and satire, for disability access, and for professional legal advice (Copyright Act 1968 (Cth), ss. 40–43; 103 A – 104; 113E). These are supplemented by a narrow set of personal use exceptions (e.g. time-shifting in limited circumstances), specific exceptions for computer programs, a ‘flexible dealing’ exception for libraries, educational institutions, and the disabled, and a set of statutory licences for educational copying, re-transmission of broadcasts, and the recording of musical works (Copyright Act 1968 (Cth), Part III, Div. 3–7; Part IV, ss. 104 A – 112 A; Part A; Pa rt )
Unlike many European and Commonwealth countries, Australia has no right of quotation (Adeney, 2013). The six categories of permitted ‘fair dealing’ purposes are exclusive, and unlike in Canada, courts have interpreted them narrowly. People who would legally reuse copyright material must be able to show that their use is genuinely for one of the permitted purposes and that they used no more than necessary for that purpose (Suzor, 2008). There is no exception for informational work outside of the business of immediate news. There is no exception that permits search or machine learning (artificial intelligence); thus, all companies operating Internet search functions serving Australia operate offshore. Unlike the U.S., Israel and some Asian nations, which have fair use, Australia must redesign its exceptions after innovation in communication, expression and technology occurs. For instance, the VCR, which was first made available commercially in 1971, was not legally useable to record free-to-air television for personal use in Australia until 2006, when a specific exception precisely for that purpose was created (Copyright Act 1968 (Cth) s 111). At the same time, digital production and distribution are only accelerating the pressures for change. As far back as 2010, 38% of Australian artists made their art directly using the Internet (Throsby and Zednick, 2010). As of 2015, 14% of Australian creators were turning to Internet-based collaboration, building new platforms and projects on the Internet, reaching audiences and networking in their fields (Australia. Australia Council for the Arts, 2015). 
The lack of a quotation exception or an open-ended fair use exception in Australian law has been the subject of policy debate over the last two decades. In 1998, the Copyright Law Review Committee’s ‘simplification review’ recommended the introduction of an ‘open-ended’ fair use style exception (Copyright Law Review Committee, 1998). In 2000, the Ergas Committee reported that the costs of introducing fair use would likely outweigh the benefits (Australia. Intellectual Property & Competition Review Committee, 2000). In 2005, following the conclusion of the Australia – United States Free Trade Agreement, the Attorney-General’s Department conducted a review of whether a Fair Use provision should also be introduced into Australian law, following criticisms that while Australia imported the extra enforcement strength of US law, it did not import the counter-balancing limitations (Weatherall, 2007). The most comprehensive review was completed in 2014 by the Australian Law Reform Commission, which recommended that Australia should introduce an open-ended fair use style exception (Australia. Australian Law Reform Commission, 2014). Rather than implement its recommendations, the Government then referred the issue to the Productivity Commission, which also recommended that Australia should introduce a fair use style exception (Australia. Productivity Commission, 2016). The Government’s response to the most recent Productivity Commission report notes that it will conduct further consultations on whether or not to introduce a fair use style exception in 2018 (Department of Industry, Innovation & Science, 2017). These policy debates took place in the context also of high profile and controversial litigation, including the ‘Kookaburra’ case, where Men At Work’s iconic anthem ‘Down Under’ was found to infringe copyright in a 1932 folk song by copying the folk song’s melody in an eight second flute riff – in a form changed so much that it went undiscovered for nearly twenty years (Collins, 2010; Rimmer, 2012). These debates have been heated and protracted, and the issue remains deeply politically contested. There has also been a tendency by copyright interests to conflate focused recommendations for more flexible copyright exceptions with broader and far more complex concerns about how creators can earn a living from their work in the digital age, how existing production models can adapt to changes in online media markets, and how Australia’s IP system can better respond to the needs of Indigenous Australians to protect their traditional culture (Aufderheide & Davis, 2017 #1620). The Australian Government implemented some of the recommendations of the Australian Law Reform Commission in 2017, when it simplified the statutory licenses and introduced new exceptions for disability access and for libraries and cultural institutions, but it has recently announced yet another round of consultations on fair use, orphan works, and the ability to override exceptions through contract (Australia. Department of Communications and the Arts, 2018). 
The Australian creative industries have a small but significant role in the Australian economy and a larger one in the expression of Australian national identity and culture. The Australia Council for the Arts estimates that the economic and cultural benefits of the arts account for $66 billion AUD annually (Australia. Australia Council for the Arts, 2015). Australian creators strive not only to serve the national market but to orient their work toward international markets as well. In those markets, they face competition from creators who work under conditions where they pay less to create their work, and take less time, because of the ability to use unlicensed material. 
Nonetheless, there has been virtual silence on the topic of the cost to creators during their production process of such narrow exceptions, perhaps because of the political context of the policy debate. In that debate, creators’ interests have been largely represented by collecting societies, whose interests lie predominantly in licensing, and publishers, including newspaper publishers concerned to recoup or stem losses to a disrupted business model. Collecting societies, and particularly the Copyright Agency, have taken the lead in developing arguments and materials for the creators’ guilds, unions, and associations, many of which are, compared with the collecting societies, under-resourced. Their core argument, made without evidence or with evidence that has been repeatedly debunked (Australia. Australian Government Productivity Commission, 2016, pp. 178–179), has been that the cost to creators of losing license fees from uses that might be made under exceptions (as opposed to other licensing) would be devastating. The Copyright Agency’s main response to the Productivity Commission’s inquiry was to equate the limited right of fair use with unfettered free use, and many arts organizations and creators adopted the ‘free is not fair’ slogan in their submissions (Aufderheide and Davis, 2017 #1620). Individual creators and leaders of their guilds have largely seen copyright reform, therefore, as threatening. Thus, the question of what today’s system costs them as creators rather than copyright holders has gone unasked, although it is immediately relevant to policymaking. This study was designed to address that lack.

Art Economics

The detailed Making Art Work: An economic study of professional artists in Australia by David Throsby and Katya Petetskaya for the Australia Council for the Arts comments
This survey is the sixth in a series carried out over more than 30 years at Macquarie University, with funding from the Australia Council. The surveys have thrown light on the ways in which professional arts practice has been changing over time. The development of the internet and digital technologies have transformed not only the ways in which artists can participate in the international art world and the global economy, but also the very processes of artistic creation. At the same time, employment conditions for artists have been changing radically, with increasing insecurity in contractual arrangements, and the replacement of steady employment with the emerging concept of the portfolio career, characterised by a variety of work arrangements. Nevertheless, there is also a sense in which nothing changes. The fundamental processes of creativity, the pursuit of an artistic vision and the passionate commitment to art that characterises art professionals—these things remain at the heart of what it is to be a practising artist. For many artists the real challenge is to keep hold of these core values in such a rapidly changing environment.
The survey is concerned with serious, practising professional artists. The seriousness is judged in terms of a self-assessed commitment to artistic work as a major aspect of the artist’s working life, even if creative work is not the main source of income. The practising aspect means that we confine our attention to artists currently working or seeking to work in their chosen occupation. The term professional is intended to indicate a degree of training, experience or talent and a manner of working that qualify artists to have their work judged against the professional standards of the relevant occupation. 
The survey covers both full-time and part-time artists; employed and self-employed artists; and artists regardless of whether all, some or none of their income comes from art practice. It identifies artists according to their principal artistic occupation (PAO), grouped into eight occupational classifications: writers; visual artists; craft practitioners; actors and directors; dancers and choreographers; musicians and singers; composers, songwriters and arrangers; community cultural development artists (formerly known as community artists or community cultural development workers). The survey does not cover film-makers or interior, fashion, industrial or architectural designers. In previous surveys, as in the present one, a number of Indigenous artists working in urban and regional locations are picked up in the sampling procedures. But it has always been a matter of concern that the surveys have not been able to include Indigenous artists working in remote and very remote areas of Australia. Fortunately this longstanding shortcoming in coverage of Australian artists is now being overcome; a national survey of Aboriginal and Torres Strait Islander artists in remote communities is underway at present on a region-by-region basis, undertaken by the Macquarie University research team.
The artist population 
Estimates of the population of artists in Australia depend on the definitions adopted. If attention is focused on practising professional artists according to our own definition, the size of the population is estimated at just under 50 thousand.
Looking at trends in numbers over recent years, we note that during the 1990s the artist population grew substantially but thereafter remained reasonably steady. In the most recent period, total numbers have increased, rising by about 10 percent in total over the past seven years. Over this time we estimate that the numbers of actors, writers, dancers and musicians have continued to grow, while the numbers of craft practitioners and community cultural development artists appear to have declined.
Demographics
On average, artists are older than the labour force as a whole; among artistic occupations, writers are the oldest and dancers are the youngest. The population of artists is divided approximately equally between men and women, unlike the labour force, which has a higher proportion of males. Most artists (75 percent) were born in Australia, and there is a lower proportion of persons from a non- English speaking background among artists (10 percent) than among the wider workforce (18 percent).
In broad terms the family circumstances of artists parallel those of the labour force as a whole, although the largest group—artists living with a partner and with no dependent children—is proportionately greater in size than for the labour force (42 percent compared to 34 percent). Almost three-quarters of Australian artists reside in a capital city, reflecting the fact that major metropolitan centres are where arts infrastructure tends to be concentrated.
Education and training
Overall, artists are more highly educated than the workforce at large; just over three- quarters of them hold a university degree, compared to only 22 percent in the wider labour force. Beyond their general education, many artists have undergone specific training in their artform or in a related artform—about three-quarters have had formal training and 56 percent have had private training of some sort. Almost two-thirds identify self-teaching and/or learning on the job as avenues for their arts training. Among the various training experiences that artists have undergone, just under 40 percent see formal training as the most important type, and 23 percent refer to learning on the job as their most important pathway.
Obtaining a basic qualification to become an artist takes six years on average, and is often not the end of training; many artists continue to engage in advancing their education and training throughout their career. Most artists acknowledge that they improve their skills through self-education and learning on the job. Some seek new skills in another artform to extend their creative range. Others may enrol in refresher courses or workshops to maintain or enhance their skills. Overall, lifelong learning may perhaps be a stronger reality in the arts than in many other professions.
Career progression
In the overall population of practising professional artists in Australia, around 60 percent can be identified as “established”, with the remaining either “starting out” or “becoming established”. Almost all established artists can identify a single moment at which they felt they had gained established status; the moment most often nominated was “my first big professional engagement; my poem/ novel/play/script/composition published/ performed/ produced; my first solo show/ exhibition”, identified by one-third of artists.
Factors that might work to advance an artist’s career, can be classified as intrinsic—those factors that are personal to the artist, or extrinsic—factors that arise from external circumstances. For example, intrinsic factors include an artist’s talent, motivation or self- belief, whereas extrinsic factors include support from family and friends, recognition by others, financial assistance or a lucky break that just happens at the right time. Respondents to the survey identified the personal qualities of persistence and passion in approximately equal measure as the most important intrinsic factors advancing their careers, whilst support and encouragement from others was the most important extrinsic factor.
In regard to negative influences, the great majority of artists point to economic factors such as lack of financial return from creative practice, lack of work opportunities, and lack of time to do creative work due to other responsibilities, as the most important factors holding back their professional development. It is notable that, in contrast to the factors advancing an artist’s career, all of these inhibiting factors are extrinsic.
The multi-talented artist
Artists show considerable versatility in the range of work they have been engaged in within their own artform during their careers. Moreover many artists do not confine their creative work to a single artform, but cross over into other areas of artistic practice. For example, our data show that many actors have had experience in writing or singing, and many community artists have been involved in acting, directing or writing. There is some evidence, in comparison with previous survey data, that the extent of cross-artform engagement has been increasing over time, especially among performing artists.
Although the contribution of Australian artists to our cultural life is widely recognised, the enormous breadth and depth of output of Australia’s professional artists is not always fully appreciated. Our data demonstrate the range of achievements of artists—much of this work meets the highest professional standards appropriate to their respective artforms. About 60 percent of artists have had a professional engagement interstate. In addition, just over 40 percent have had their work seen overseas, helping to advance international recognition of the Australian arts.
Patterns of working time
In analysing artists’ allocation of their working time, we make the now standard distinction between three types of work: creative work, arts-related work (primarily teaching), and non-arts work. From our data it appears that artists consistently spend about 55–60 percent of their working time on creative work, about a quarter of their working time on arts-related activities, and the remaining 20 percent on non-arts work.
On average we find that artists are currently working a 45-hour week, about half of which is devoted to creative work in their PAO. Overall, artists spend on average 28 hours on creative work of various sorts, nine hours on paid arts-related work and eight hours on paid non-arts work.
About one-quarter of a professional artist’s time on average is spent on arts-related work, which uses the artist’s creative skills and artistic knowledge either directly or indirectly. The overwhelmingly most common form of arts-related work is teaching, mostly in the artist’s own artform but occasionally crossing into another artform; on average 70 percent of artists across all artforms who are engaged in arts-related work do so through teaching.
Not all artists are able to work in the arts full-time. In fact our data show that only 56 percent of artists spend all their working time at arts work (creative plus arts-related), and many fewer (23 percent) spend 100 percent of their time solely at creative work. The data show that two-thirds of artists would like to spend more time at their creative practice, and one-third is happy with the way things are.
Among those who would like to spend more time at their creative practice, the problems preventing them from doing so are overwhelmingly related to their economic circumstances. These include the lack of available work (which is especially true for performing artists), inadequate financial return for work sold (affects visual artists, craft practitioners, and community artists), and insufficient markets (as may be a problem for writers, visual artists, craftspeople, and composers).
Income and expenditure
In the financial year 2014–15, Australian practising professional artists earned average gross incomes of $48,400, comprising $18,800 in creative income, $13, 900 in arts-related income, and $15,700 in non-arts income. The distribution of incomes is heavily skewed towards the lower end; our data indicate that about 60 percent of artists make less than $10 thousand per year on average from creative work, and even when all earned income sources are accounted for, there are still around 20 percent of artists who make less than $10 thousand in total. At the other end of the income scale, only 13 percent of all artists made more than $50 thousand from their creative work in 2014–15. From our data it is clear that artists’ income from creative work in their chosen profession is far below that earned by similarly qualified practitioners in other professions. Even when other arts-related earnings and non-arts income are added in, the gross incomes of artists are substantially less than managerial and professional earnings. Indeed their total incomes on average are lower than those of all occupational groups, including non- professional and blue-collar occupations.
We also find that although artists on average in 2014–15 spent almost 60 percent of their working time at their creative activities, they earned only 39 percent of their total income from this source. By contrast the 19 percent of their time that they devoted to non-arts work earned them one-third of their total income.
About half of the artists who live with a spouse or partner regard that person’s income as “important” or “extremely important” in sustaining their creative work. We note that 59 percent of female artists who have a partner regard the partner’s income as important, extremely important, or essential in supporting their creative work, compared to 39 percent for male artists.
Estimating the costs attributable to artists’ creative work is difficult, particularly because of problems in allocating some cost items to specific activities. Bearing these difficulties in mind, we estimate that on average artists incurred just over $10 thousand in 2014–15 in expenses related to their artistic practice.
We can identify some trends in artists’ incomes over recent years by reference to the results of earlier surveys. We find that between 2000–01 and 2007–08, the incomes of artists remained relatively stable in real terms. However it appears that over the period 2007–08 to 2014–15, creative incomes have declined by almost 20 percent in real terms, despite the fact the proportion of time artists devote to creative work has remained roughly the same. Nevertheless other components of income have either increased or not declined as much, meaning that artists’ total earned incomes have declined by only about four percent, or less than one percent annually, over this period. Overall, however, we conclude that professional artists in Australia have not shared in the real earnings growth that most occupations have enjoyed in recent years.
Employment and financial security
About four in five artists (81 percent) work as freelance or self-employed workers in their principal artistic occupation; this represents an increase of more than 12 percent since the survey, and is a continuation of a long-term trend. The majority work as unincorporated individuals, with an ABN, and receive their income as contracts for fixed amounts. In arts- related and non-arts work, the proportions working as freelancers are smaller (40 and 26 percent respectively).
Just under half of all artists are members of a superannuation scheme with an employer. Others have some other means of providing for their future financial security such as personal savings or investments, or support from a partner or family. The numbers without any arrangements have fallen dramatically since the previous survey, from 14 percent then to five percent now. Nevertheless it is worrying that four out of ten artists across the board do not consider their arrangements to be adequate.
In regard to unemployment, one-quarter of artists experienced some unemployment in the last five years, but this proportion has been declining—from 34 percent for the period between 1996 and 2001 and 28 percent for the period between 2004 and 2009. Fewer than half the artists who experienced unemployment between 2010 and 2015 applied for benefits Out of those who did, almost all were successful. But only about one-third of these artists were able to continue their arts practice as an approved activity. At least a quarter of all artists who applied for unemployment benefits encountered problems in accessing these benefits specifically because of their occupation.
Professional practice issues
Overall, 30 percent of all artists use an agent, gallery or dealer to promote their work, with the highest proportion among actors. Regardless of whether artists are using an agent, manager or gallery dealer, almost three- quarters of them state that they are themselves the most active promoter of their work.
About half of artists believe their business management skills to be good or excellent, but more than one-third of artists describe their skills only as adequate, and a further 11 percent regard their business skills as inadequate. About one-quarter of all freelance artists indicated that they were very likely to seek to improve their skills in the year ahead, and a further 38 percent said this was likely. More than four out of five artists (82 percent) believe that they hold copyright over their creative work, a proportion that has increased since 2009 (when it was 76 percent). More than half (53 percent) of Australian artists are a member of one or more copyright collecting societies. This proportion is a significant increase over the last seven years. The proportion of all artists receiving a payment from a collecting society in 2016 (33 percent) was more than double the proportion in 2009. About one-quarter of Australian artists believe that their copyright has been infringed in some way. Almost two in five artists whose copyright has been infringed have taken action, and about 60 percent of these actions have been successful. Around one-fifth of Australian artists believe that their moral rights have been infringed at one time or another, (approximately the same percentages as in 2009 and 2001). Visual artists, actors and community artists appear to be the groups most affected by moral rights infringements. 
There are a number of sources of financial assistance to artists including Commonwealth, State/Territory and local government programs, private foundations, arts organisations and so on. Such financial assistance frequently buys artists freedom from financial concerns in order to spend more time on their art; indeed this is the most common impact of financial assistance as recognised by artists themselves. 
The changing context of artistic practice 
Around half of all artists have utilised their artistic skills in some other industry outside the arts, and more than 80 percent of these artists have generated some income from such activities. In most cases this sort of outside work involves applying artistic skills in education and research outside the arts, including teaching. But otherwise, the industries in which artists undertake these activities follow closely the opportunities that are appropriate to the skills involved. Technology plays a particular role in supporting and extending professional art practice. The most often used technologies are word processing software, and image and sound recording and playing devices. In addition, the great majority of artists use the internet in administering and supporting their creative practice, particularly via the use of email, blogs, and social media. Almost all artists also access the world-wide web for research related to their creative work and at least nine in ten use it to learn and train themselves in their creative practice. Sales and promotion also figure prominently in internet use; between 70 and 80 percent of artists promote their work through the internet.
Eight out of ten artists think it likely or very likely that future technological changes will open up new creative and income-earning opportunities for artists, but only just over 40 percent believe there will be more opportunities for them personally. 
Gender issues 
There are few significant differences between the genders in terms of average age, family circumstances, NESB status, educational levels, and factors seen as advancing or inhibiting their careers. However, although the proportions of female and male artists who have had children under their care at some point in their career are more or less the same, substantially more women than men feel that this restricted their work as an artist “significantly” (38 percent versus 18 percent).
The main area where differences between male and female artists exist is in regard to income. On all measures except one women fare worse than men—the exception is earnings from arts-related work where women spend a greater proportion of their time than men. Of particular concern is the substantially lower incomes earned by women for their creative work in their PAO, given that female artists on average spend about the same amount of hours working in their creative work as male artists. There seems no plausible reason to suppose that women are less productive in their creative work than men. It is clear that, however interpreted, the earnings gap for women artists is particularly acute.
Despite this, there is at least some positive news for female artists—the gender pay gap appears to be narrowing. In 2001 the average total income of male artists was 57 percent higher than that of women; the corresponding percentage difference had come down to 38 percent in 2008, and had reached 32 percent in 2015. The difference in creative incomes has also narrowed from 88 percent in 2008 to 44 percent in 2015.
Regional artists
Only a minority of artists across all artforms (21 percent) indicated that living and working outside a capital city had no effect on their work. Of those who did see some impact of location on their work, a larger proportion judged this impact to be negative rather than positive; this is a different result from that found in previous Artists Surveys, where the numbers seeing a positive effect have mostly been greater than those judging the effect to be negative.
On most measures there are few differences between artists according to their location. However, we can observe that on the whole artists living outside capital cities appear to earn significantly less than their urban counterparts.
Artists from non-English speaking backgrounds
About 10 percent of artists in Australia are from a non-English speaking background (NESB). The majority of artists (54 percent) who learned a language other than English as their first language see a more positive than negative effect on their art practice stemming from their NESB status, with about one- quarter (27 percent) indicating no effect, and the remainder (19 percent) saying they felt it has had a negative effect.
In common with artists as a whole, NESB artists see economic and work-related factors (lack of financial return, lack of time) as the most important factors inhibiting their professional development. However, it is significant that 18 percent (or twice as many NESB artists compared to artists from an English-speaking background) see the lack of access to funding or other financial support as the most important inhibiting factor at the present moment.
In regard to applying for financial assistance, the same proportion (more than half) of artists from English and non-English speaking backgrounds applied for a grant, fellowship, residence, prize or funding between 2010 and 2015. However, the success rate for NESB artists was lower than for artists from an English-speaking background (60 percent versus 68 percent).
Artists with disabilities
Overall about nine percent of all artists have some form of physical or mental disability that may affect their artistic practice. Around one in five artists with a disability say that it affects their artistic practice all the time, and a further 15 percent say it affects them most of the time. Most commonly, artists with a disability say that it affects them only sometimes (55 percent). About one in ten indicate that their disability does not affect their creative work. Artists with a disability earn significantly less than their colleagues with no disability. The negative differential in mean incomes is greatest for creative incomes—artists with disability earn an income from their creative work that is less than half that for other artists. The disparity is lessened to some extent with the addition of non-arts incomes but even so, artists with disability still fare considerably worse, with gross incomes that are not much more than half (58 percent) of the incomes of artists who do not have a disability to deal with.
About one-third of artists with a disability had some experience of unemployment between 2010 and 2015 compared to just under one- quarter of artists without a disability. Likewise the periods of time spent unemployed, and the longest consecutive periods of unemployment, were considerably longer. Almost one in five artists with a disability indicate that having a disability has been the most important factor inhibiting their professional development, both throughout their career and at the present time.
Wellbeing
The concept of subjective wellbeing has come into prominence in recent years in social and economic policy-making. This phenomenon can be measured in terms of individuals’ assessment of how satisfied they are with their lives. Artists in the survey indicated that on average they are generally satisfied with their lives, at a level similar to that of most Australians. It should be noted that some part—perhaps a major part—of our assessment of artists’ life satisfaction can be explained by the generally high quality of life in this country as experienced by all Australians. Also, the question in our survey refers to the artist’s life in general, not specifically to their life as an artist. There appears to be little variation across artforms in levels of life satisfaction. Although there may be some grounds for concluding that dancers are the most satisfied and community artists the least, the extent of variation around the mean is relatively minor. It appears that older artists are more satisfied than younger ones with their lives, a tendency especially noticeable among musicians, dancers and writers. 
Age rates are not greatly influenced by age for applicants for grants from the Australia Council or from State/Territory or local government funding sources. 
Mobility 
Some artistic occupations may require practitioners to move their place of residence from time to time. Across all artists we find that 55 percent have not changed their place of residence in the last five years, a similar proportion to the Australian population as a whole. However, there are significant differences between the artforms. Looking at the most mobile groupings—those who have re- located four or more times—we can see that it is performing artists who are the most strongly represented in this group.
In regard to incomes, the data show that artists relocating two or more times in the last five years are earning creative incomes that are around 25 percent less than those who have stayed put, and outcome no doubt due to the disruptions to the artist’s creative practice caused by the frequent need to move. Similarly total incomes of the most frequent movers are more than $10 thousand or about 20 percent less than the aggregate incomes of those who haven’t changed their place of residence.
Some longer-term trends
As noted earlier, the artistic workforce is growing older. The ageing of the population is particularly noticeable amongst visual artists, dancers, musicians and community artists. These trends are suggestive of the changing demographics in the artistic workforce—in particular its maturation, with increasing numbers of artists entering artistic professions later in their lives and of established artists continuing to practice for longer periods in their later years. These trends have been generating a larger body of senior practitioners in the artistic community over time. 
Assembling data from previous Artists 
Surveys going back to 1980, enables us to conclude that there does appear to be a gradual ageing of the population of artists in Australia over time. Over the approximately 30-year period covered by the data, it appears that the proportion of younger artists in the population has fallen, whilst the proportion over 55 has grown significantly—more than doubling over this period. The latter effect is particularly noticeable amongst visual artists, craft practitioners, musicians, composers and community artists. Trends in the proportions of the younger cohort of artists are less easy to discern, although there appears to have been a steady decline in the proportion of young people practising in community cultural development and the visual arts.
In the present survey, the most important factors identified by artists in the different age groups as inhibiting their professional development at the present time were economic factors. In particular younger artists are held back by lack of work opportunities, reflecting the perennial difficulties faced by new entrants in breaking into the arts profession. Mid-career artists suffer particularly from a lack of return to creative practice and a lack of time for creative work due to other pressures, including the need to sustain their incomes by taking on other employment, making it difficult for them to maintain their presence in the field.
There are clear patterns in the financial circumstances of artists according to their age. It is the mid-career period that is the most productive—creative incomes in this period are highest, and higher than for older artists, notwithstanding the fact that older artists spend a slightly larger proportion of their time at their creative work. As artists grow older, their inclination to apply for financial assistance declines, and their likelihood of success also appears to decline. On the whole success rates are not greatly influenced by age for applicants for grants from the Australia Council or from State/Territory or local government funding sources
Patterns of artists’ time allocation have remained remarkably stable. Since the early 1990s the average proportion of total working time spent on creative work hovered at just over 50 percent but has now increased to just under 60 percent. Whilst the average proportion of time spent working outside the arts altogether has remained around 20 percent. Likewise the weekly hours worked has seen only small fluctuations around a mean of about 43 hours.
In the case of incomes, little has changed
in real terms; artists’ creative incomes have increased sufficiently in nominal terms to keep pace more or less with inflation, but no more. Meanwhile, artists’ relative position in comparison with other professionals has deteriorated, since those other groups have enjoyed a rising trend in their real incomes for most of the period covered.

02 July 2018

WTO Panel decision re Tobacco Packaging

Past posts on this blog have referred to the Tobacco Plain Packaging Act 2011 (Cth) - aka TPP - and the Trade Marks Amendment (Tobacco Plain Packaging) Act 2011 (Cth), which provide restrictions on the packaging of tobacco products noted eg here, here, here and here.

The WTO Dispute Resolution Panel in Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging (DS435, DS441, DS458 and DS467) has now rejected complaints by Cuba, Indonesia, Honduras and the Dominican Republic against that tobacco plain packaging regime.

The Panel considers that the complainants had not demonstrated that the TPP measures are inconsistent with Australia’s obligations under
  • Article 2.2 of the TBT Agreement; 
  • Article 2.1 of the TRIPS Agreement in conjunction with Article 6quinquies of the Paris Convention (1967); 
  • Article 15.4 of the TRIPS Agreement; 
  •  Article 16.1 of the TRIPS Agreement; 
  • Article 20 of the TRIPS Agreement; 
  • Article 2.1 of the TRIPS Agreement in conjunction with Article 10bis of the Paris Convention (1967); 
  • Article 22.2(b) of the TRIPS Agreement; and 
  • Article 24.3 of the TRIPS Agreement.

Australian Government Agencies Privacy Code

The OAIC has announced that The Australian Government Agencies Privacy Code came into effect on 1 July 2018
requiring Australian Government Agencies to move to a best practice approach to privacy governance across the APS, with the ongoing support of the Office of the Australian Information Commissioner (OAIC). 
As with many OAIC announcements, the news is less exiting than it sounds.

Under the Code, agencies are required to
  • have a privacy management plan 
  • appoint a Privacy Officer, or Privacy Officers, and ensure that particular Privacy Officer functions are undertaken
  •  appoint a senior official as a Privacy Champion to provide cultural leadership and promote the value of personal information, and ensure that the Privacy Champion functions are undertaken 
  • undertake a written Privacy Impact Assessment (PIA) for all ‘high privacy risk’ projects or initiatives that involve new or changed ways of handling personal information 
  • keep a register of all PIAs conducted and publish this register, or a version of the register, on their websites 
  • take steps to enhance internal privacy capability, including by providing appropriate privacy education or training in staff induction programs, and annually to all staff who have access to personal information.
In practice we can expect to see the traditional OAIC emphasis on process over outcome, activity counts over quality. Being busy - and having a champion or two - is not synonymous with best practice.

One context for championship is the OAIC's own advocacy. In the past week law academics, health specialists and consumer advocates have been busy tweeting and blogging about #HealthEngineFail, ie controversy regarding that health sector booking service's expungement of negative consumer reviews and sale to law firms of information about people using the service. In essence HealthEngine is making money from a spotters fee, something prohibited in NSW in the tow truck sector. Somewhat dourly I've quipped that people appear to be less valuable than bent cars.

HealthEngine has claimed that users of the service have consented to the sale of their details; critics disagree, claiming that disclosure was inadequate.

As yet, there is no tweet from the OAIC or statement on its site indicating that the agency is aware, concerned, taking action. Mainstream media reports indicate that the national Health Minister has asked for an investigation. The OAIC does have social media and other resources: in recent days it has for example tweeted release of the best practice code and the participation of two senior executives at a conference in San Francisco.

The agency has presumably been in contact with HealthEngine and in time - which judging by past performance may be several months, in contrast to more timely action by ACMA - will presumably release the usual terse statement that there was contact and we should all move on.

That is regrettable. The notion of a 'Privacy Champion' should include the OAIC itself. It should set the stage for the 'champions' in other parts of the Commonwealth administration by using its soft power through timely public statements that address specific controversies and look beyond the specifics to reiterate privacy as a statutorily-recognised value across Australia.

Bureaucratic complaisance is not championship; it is instead a lost opportunity to both foster a privacy-respecting culture and reinforce the legitimacy of the OAIC.

01 July 2018

Demonstrations and Privacy in NSW public places

I have written several times about privacy, freedom of communication, freedom of association and restrictions on protests in public private spaces such as retail malls, parks and public streets. Corneloup and other judgments indicate that restrictions are permissible.

 In New South Wales the state parliament has followed the ACT in passing the Public Health Amendment (Safe Access to Reproductive Health Clinical) Bill 2018 (NSW), which amends the Public Health Act 2010 (NSW) to establish a 150-metre ‘safe access zones’ around abortion clinics. 

The amended Act features the following offences (each with a maximum of six months imprisonment and/or a fine of $5,500 for a first offence, or 12 months in prison and/or a $11,000 fine for a second or subsequent offence) -
 Section 98C – Interfering with access of persons to reproductive health clinics 
(2) A person who is in a safe access zone must not interfere with any person accessing, leaving, or attempting to access or leave, any reproductive health clinic at which abortions are provided. 
(3) A person who is in a safe access zone must not, without reasonable excuse, obstruct or block a footpath or road leading to any reproductive health clinic at which abortions are provided. 
A ‘reproduction health clinic’ is defined as ‘any premises at which medical services relating to aspects of human reproduction or maternal health are provided, but does not include a pharmacy.’ 
The ‘safe access zone’ is: (a) the premises of a reproductive health clinic at which abortions are provided, and (b) the area within 150 metres of: any part of the premises of a reproductive health clinic at which abortions are provided, or (ii) a pedestrian access point to a building that houses a reproductive health clinic at which abortions are provided. ‘Interfere with’ is defined as including, to ‘harass, intimidate, beset, threaten, hinder, obstruct or impede by any means.’ 
Section 98D – Causing actual or potential distress or anxiety to persons in safe access zones 
(1) A person who is in a safe access zone must not make a communication that relates to abortions, by any means, in a manner: (a) that is able to be seen or heard by a person accessing, leaving, attempting to access or leave, or inside, a reproductive health clinic at which abortions are provided, and (b) that is reasonably likely to cause distress or anxiety to any such person. 
Employees and other person who provides services to the reproductive health clinic are exempted. 
Section 98E – Capturing and distributing visual data of persons in safe access zone 
(1) A person must not intentionally capture visual data of another person, by any means, without that other person’s consent if that other person is in a safe access zone. 
(2) A person must not publish or distribute a recording of another person without that other person’s consent if the recording: (a) was made while that other person was in a safe access zone, and (b) contains particulars likely to lead to the identification of that other person. 
‘Capture visual data’ of another person means to capture moving or still images of the other person by a camera or any other means in such a way that: (a) a recording is made of the images, or (b) the images are capable of being transmitted in real time with or without retention or storage in a physical or electronic form, or (c) the images are otherwise capable of being distributed. 
‘Distribute’ means: (a) communicate, exhibit, send, supply or transmit, whether to a particular person or not, or (b) make available for access, whether by a particular person or not, or (c) enter into an agreement or arrangement to do any thing mentioned in paragraph (a) or (b). 
The offence does not apply to: (a) the operation of a security camera, for security reasons only, by or on behalf of a person operating a reproductive health clinic at which abortions are provided, or premises adjacent to or near such a reproductive health clinic, or (b) a person employed or contracted to provide services at the reproductive health clinic at which abortions are provided, or (c) a person otherwise acting for or on behalf of a person operating a reproductive health clinic at which abortions are provided, but only if the visual data is provided either to the person operating the clinic or to a police officer, or (d) a police officer acting in the course of the officer’s duties as a police officer if the officer’s conduct is reasonable in the circumstances for the performance of those duties, or (e) a person who has another reasonable excuse.
The  Crown Land Management Regulation 2018 under the Crown Land Management Act 2016 (NSW) is now in effect, also restricting protests in crown estate land (inc town squares, parks, roads, public beaches and community halls). The Crown Lands Act 1989 (NSW) is replaced.

The Act provides for NSW police, local council officials and state government employees to direct individuals to refrain from conducting activities prescribed in the regulations, including 'taking part in any gathering, meeting or assembly'. It complements the Sydney Public Reserves (Public Safety) Act 2017 (NSW) which provided NSW police with enhanced move on powers, regarding Crown land within the City of Sydney local government area - for example camps in Martin Place - and the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 (NSW).  The latter creates a new offence of aggravated unlawful entry on inclosed lands (maximum fine  $5,500) alongside additional police powers to stop, search, detain, and seize the property of protesters

Section 9.5 of the Crown Land Management Act stipulates that the Minister for Lands and Forestry may order “a notice to be displayed in a conspicuous space” that prohibits individuals from carrying out prescribed activities on Crown lands. The Regulation specifies that a penalty notice for failing to comply with a direction will be $1,100. Failing  to comply with a notice has a penalty of $220.