23 August 2019

Protecting stinky cheese and artisanal ham? Geographical Indications

Another day in what one undergrad intellectual property student dubs the stinky foreign cheese wars!

The Department of Foreign Affairs and Trade has released information regarding 'Public objections procedure concerning terms proposed by the European Union for protection as geographical indications in Australia'.

DFAT states
In June 2018 the Australian Government launched negotiations for a comprehensive and ambitious Free Trade Agreement (FTA) with the European Union (EU), which will provide increased commercial opportunities for Australian exporters. As a bloc, the EU is Australia's second largest trading partner and largest two-way investment partner. The Government will be tireless in pursuing Australia's interests in this FTA, but we will only achieve the best outcome for Australia if we also consider the EU's interests.
Consistent with its approach toward other FTA partners, the EU has identified the protection of geographical indications (GIs) as one of its key objectives in the negotiations.
A GI is essentially a name used on a product that has a specific geographical origin, and possesses qualities or a reputation that are due to that origin. 'Champagne' is a well-known example of a GI. Once a GI is protected, the name may not be used except by producers who meet the rules protecting the GI.
In order to move to the essential market access stage of the negotiations, Australia is publishing the list of product names the EU wants Australia to protect as GIs.
The Government has made no commitment to protect EU GIs. The Government has, however, committed to engage with the EU on its GIs interests as part of the FTA negotiations. In doing so, the Australian Government has agreed to publish the EU list of GIs for public objection.
The Government will continue to consult closely with stakeholders on the issue of GIs. The public objections process is your opportunity to advise the Government formally of any concerns you may have regarding the protection of individual EU GI names.
Decisions on EU GIs that will be protected by Australia will be taken by the Government at a later point in the FTA negotiations. Any commitments on GIs in the FTA will depend on the overall outcomes the EU is prepared to offer Australia, including with regard to market access.
 Further, DFAT states
What GI names are the EU seeking to protect?
The EU has asked Australia to protect 236 spirit names and 172 agricultural and other foodstuff names as GIs in Australia. The names relate to a range of sectors including, dairy, meat, smallgoods, horticulture, confectionery, oils, beer and spirits.
Who should lodge an objection?
You should make an objection if you think protection of a specific EU GI name will adversely affect your interests (noting protection would enable EU GI producers to prevent use of the relevant name by others). You can make objections in relation to any EU GI name or part of a name, as well as any translation, transliteration or transcription of a name.
On what basis can you object to an EU GI name?
You should base your objections on at least one of the following grounds:

  • the name is used in Australia as the common name for the relevant good; 

  • the name is used in Australia as the name of a plant variety or an animal breed; 

  • the name is identical to, or likely to cause confusion with, a trade mark or GI that is registered or the subject of a pending application in Australia; 

  • the name is identical to, or likely to cause confusion with, an unregistered trade mark or GI that has acquired rights through use in Australia; or 

  • the name contains or consists of scandalous matter.

15 August 2019

Fake News and US election law

'Deep Fakes, Bots, and Siloed Justices: American Election Law in a Post-Truth World' by Richard Hasen in (2019) St. Louis University Law Journal comments
 About a decade or so ago, the major questions in the field of election law were familiar to scholars and centered on the Supreme Court, including the constitutionality of corporate spending limits in candidate campaigns, the constitutionality of the preclearance provision of the Voting Rights Act, and the constitutionality of strict state voter identification laws. While issues related to these cases continue to churn in the courts and remain of vital importance to American democracy, some of today’s most urgent election law questions seem fundamentally different and less Court-centric than those of the past, thanks to rapid technological change during a period of hyperpolarization that has called into question the ability of people to separate truth from falsity. 
These questions include: What can be done consistent with the First Amendment and without raising the risk of censorship to ensure that voters can make informed election decisions despite a flood of virally-spread false and misleading speech, audio, and images? How can the United States minimize foreign disinformation campaigns aimed at American elections and attempts to sow social discord via bot armies? How can voters obtain accurate information about who is trying to influence them via social media and other new forms of technology? How can we expect judges to evaluate contested voting rights claims when they, like others, may live in information cocoons in which the one-sided media they consume affects their factual priors? Will voters on the losing end of a close election trust vote totals and election results announced by election officials when voters are bombarded with conspiracy theories about the reliability of voting technology and when foreign adversaries target voting systems to undermine confidence? 
This Essay considers election law in the post-truth era, one in which it has become increasingly difficult for voters to separate true from false information relevant to election campaigns. Rapid technological change and the rise of social media have upended the traditional media’s business model and radically changed how people communicate, educate, and persuade. The decline of the traditional media as information intermediaries has transformed—and coarsened—social and political communication, making it easier for misinformation and vitriol to spread. The result? Political campaigns that increasingly take place under conditions of voter mistrust and groupthink, with the potential for foreign interference and domestic political manipulation via new and increasingly sophisticated technological tools. Such dramatic changes raise deep questions about the conditions of electoral legitimacy and threaten to shake the foundation of democratic governance. 
Part II of this Essay briefly describes what I mean by the “post-truth” era in politics. Part III examines the effects of the post-truth era on campaign law, arguing for a new law requiring social media to label as “altered” synthetic media, including so-called “deep fakes.” I defend such a law as necessary to support the government’s compelling interest in assuring voters have access to truthful political information. Part IV considers campaign finance law, arguing for campaign disclosure laws requiring those who use online and social media to influence voters, including those using bots and other new technology, to disclose their true identities and the sources and amounts of their spending. Part V considers the difficulty of using courts to adjudicate voting rights claims when there is fundamental disagreement about the basic facts related to issues such as voter fraud in our hyperpolarized, cocooned political environment. The Essay concludes with some thoughts on whether election law is up to the task of dealing with technological change and polarization which threaten some of the key suppositions of how democracy is intended to function, including as an aid to the peaceful transition of power.

12 August 2019

Cheating and Australian non-university higher education providers

The valuable 'Contract cheating in Australian higher education: a comparison of non-university higher education providers and universities' by Tracey Bretag, Rowena Harper, Kiata Rundle, Philip M. Newton, Cath Ellis, Sonia Saddiqui and Karen van Haeringen in (2019) Assessment and Evaluation in Higher Education comments
This article reports on one aspect of a nationally funded research project on contract cheating in Australian higher education. The project explored students' and educators’ experiences of contract cheating, and the contextual factors that may influence it. This article reports the key findings from non-university higher education providers (NUHEPs). It compares survey responses from 961 students and 91 educators at four NUHEPs with previously reported findings from eight universities (14,086 students and 1,147 staff). NUHEP and university students report engaging in contract cheating in similar ways. However, while NUHEP educators spend more time teaching academic literacies and discussing contract cheating, NUHEP students are 12 times more likely than university students to report use of a professional academic writing service. Both NUHEP and university educators require systematic professional development regarding the relationship between the teaching and learning environment and students’ contract cheating behaviour. NUHEPs need to be cognisant of students’ vulnerability to commercial contract cheating services, and ensure they have access to timely academic and social support. 
The authors note
 In the Australian context, there are two main types of higher education provider: universities and non-universities. The latter group, referred to as non-university higher education providers (NUHEPs), offer a broad range of educational experiences for students, and their institutional sub-categories include technical and further education (TAFE), faith-based not-for-profit, other not-for-profit and for-profit (Tertiary Education Quality and Standards Agency [TEQSA] 2017a). NUHEPs currently outnumber universities by about three to one (127 versus 43) (TEQSA 2018b). At the time that this research was undertaken, there were 166 registered NUHEPs, with seven NUHEPs that had been registered in 2015 no longer being registered at the end of 2016, and seven new providers gaining registration in 2016 (TEQSA 2018c). Table 1 provides details of equivalent full-time student load (EFTSL) of domestic and international students in Australian higher education, according to the four main categories of universities, for-profit, not-for-profit and TAFE. 
As shown in Table 1, there has been a marked increase in international students enrolled in all categories of Australian higher education. Of the NUHEPs, the largest number of international students are enrolled in for-profit providers, and the largest percentage of growth was in not-for-profit NUHEPs. 
Despite their non-university status, many NUHEPs play a vital role in widening participation in university study through the provision of ‘pathways’ to higher education. These pathways provide opportunities for students who may not have achieved the necessary qualifications or had the appropriate academic preparation for direct entry to a bachelor program in a university. Of the 166 registered NUHEPs in 2016, fourteen were ‘pathway’ colleges linked to Australian universities. 
Evidence provided to the Kemp and Norton 2014. Review of the demand driven funding system (the Commonwealth Government policy which provided funding for domestic students admitted to bachelor degrees in Australian public universities, 2012–2017) demonstrated that:
higher education providers are actively working to identify and better support less adequately prepared students… the support offered by specialised sub-bachelor pathway colleges is effective. 
Furthermore, evidence provided by a number of NUHEPs to the Kemp and Norton review suggested that students who had entered a degree program via a NUHEP pathway course not only exceeded expectations based on their original level of academic preparation, but often achieved comparable outcomes with their direct-entry peers in terms of academic results and retention. Another advantage of NUHEP pathway courses is the opportunity for students who decide not to proceed to a bachelor degree to achieve an exit qualification such as a diploma. Kemp and Norton  concluded that two types of non-university providers (pathway colleges and TAFEs) ‘are well-designed for providing the right kind of educational support for students… entering the higher education system’ (2014, p. 54). This ‘educational support’ is particularly evident in the more personalised nature of pathway NUHEPs, including smaller classes, longer teaching periods, teaching focussed staff and an emphasis on pastoral care for vulnerable students. Most NUHEPs focus completely on teaching and they are specialised in comparison to universities (Norton 2016). In 2016, business-related courses were the most common in the NUHEP sector. 
Despite this positive assessment, the for-profit nature of many NUHEPs (as opposed to institutions that operate on government subsidised places) has at times positioned them to be in competition with universities, and the quality of some NUHEP programs has been questioned. Changes to government assistance for domestic NUHEP students in 2003 and the introduction of the student loan system VET FEE-HELP in 2009 led to a significant expansion of the sector, in terms of the number of providers. With this rapid expansion came concerns about fraudulent practices and abuses of VET FEE-HELP, which ultimately led to the demise of that loan system and the introduction of the much more tightly regulated VET Student Loans program in 2017. Nonetheless, there have been ongoing concerns about the challenges of maintaining academic standards in NUHEPs. Since 2012 NUHEPs have been assessed by TEQSA according to the same Higher Education Standards Framework (Threshold Standards) as universities, as part of TEQSA’s remit for ‘protecting and promoting the interests of higher education students and the reputation of the higher education sector’ (TEQSA 2017c). 
Of particular concern to TEQSA – and to many higher education regulators internationally – is the issue of contract cheating. National regulators in a range of contexts have provided advice to both educators and institutions on how to address this threat to academic integrity. Media scandals regularly expose contract cheating among university students, yet similar scandals have not emerged from NUHEPs, perhaps because of the relatively smaller numbers of students enrolled in NUHEPs versus universities (see Table 1). Our recent research demonstrated that a student’s language other than English (LOTE) status makes them especially vulnerable to contract cheating (Bretag et al. 2018b). Given the growing number of international students at NUHEPs, most of whom are LOTE, it might be anticipated that contract cheating would be an issue in that context. However, despite the size and importance of NUHEPs to the Australian higher education sector and their often critical relationship with universities, no parallel research on contract cheating in NUHEPs has been conducted. This may be because of the diversity and fluctuating nature of the sector and that teaching (rather than research) is their primary function. It is therefore timely to investigate the issue of contract cheating in the context of NUHEPs.
The authors' literature review notes
Although the term ‘contract cheating’ was first coined over a decade ago, the topic has gained significant attention in recent years due to the rise and visibility of commercial academic essay writing services. A range of definitions of contract cheating have been posited in the literature. Drawing on the original definition by Clarke and Lancaster considered the term contract cheating to be cheating whereby students order an assignment of a given standard to be delivered in a given period at a fixed price. However, Walker and Townley suggest that contract cheating refers to a cluster of practices relating to the outsourcing of students’ assessment to third parties, whether or not these entities are commercial providers. According to Ellis, Zucker and Randall ‘Contract cheating occurs when a student procures a third party (who knows about and benefits from the transaction) to produce academic work (that is usually, but not always assessable work) that the student then submits to an educational institution as if it were their own’ (2018, p. 1). Lancaster and Clarke have refined their definition, stating that contract cheating occurs ‘where a student is requesting an original bespoke piece of work to be created for them’ states that contract cheating is ‘where students recruit a third party to undertake their assignments’, and Harper et al maintain that ‘contract cheating occurs when a student submits work that has been completed for them by a third party, irrespective of the third party’s relationship with the student, and whether they are paid or unpaid’ (p. 1). For the purpose of this study, we use the Harper et al definition, on the basis that the issue at stake is whether students have engaged with and fulfilled the learning objectives of an assignment, not whether the provider of such an assignment receives a benefit, financial or otherwise. 
In response to a number of scandals across the globe about the perceived rise of contract cheating , there has been an increase in research and scholarship on the topic in recent years. Researchers have sought to determine the prevalence of contract cheating, with general agreement that a relatively small percentage of students engage in the practice. Bretag et al reported that 5.8% of university students engage in one or more of the five cheating behaviours investigated, but a relatively high proportion of students engage in ‘sharing’ behaviours – 15% reported buying, selling or trading notes, and 27% reported providing a completed assignment to others. Curtis and Clare’s analysis of previous studies indicated that 3.5% of students outsource their work to third parties, in comparison to research in specific cultural contexts (and based on a range of research methodologies), where the behaviour has been reported to occur at higher rates. For example, Foltýnek and Králíková found that 7% of the Czech students in their survey reported contract cheating, Eret and Ok stated that 18.9% of the Turkish students in their study had paid someone else to do their assignment, and Abukari (2016) reported that 45.8% of the students in their Ghana research had paid another person to complete an assignment for them. 
Other researchers have used experiments in authentic teaching situations to explore the challenges of detecting contract cheating, concluding that it is often possible to detect, particularly when educators are alert to the possibility that it is occurring. Practitioners have provided advice about how to detect contract cheating, or described teaching settings where intervention have reduced contract cheating and a range of practical resources have been available through the Contract Cheating and Assessment Design Project (www.cheatingandassessment.edu.au). Harper et al. explored the role of the educator, as well as the impact of the broader institutional setting, in minimising, identifying and responding to contract cheating. In response to commonly held views about the importance of ‘authentic’ assessment to prevent contract cheating, some researchers have investigated the relationship between assessment design and contract cheating, determining that while assessment design is important for learning, it cannot in itself prevent students from outsourcing their work to third parties. 
Bretag et al used multivariate analysis to uncover the key determinants which influence contract cheating behaviour among university students, reporting that LOTE status, the perception that there are ‘lots of opportunities to cheat’ and dissatisfaction with the teaching and learning environment, are the underlying issues which need to be addressed. More recent research has sought to understand why students choose not to engage in this type of cheating. Moving beyond the individual student or educational institution, researchers have begun to investigate the underlying business model of commercial academic writing companies, and the marketing strategies used to promote these services. There has also has been some exploration of the potential role of legislation to stop commercial academic writing services from providing assignments to students. 
In this context of global concern about contract cheating in higher education, it important to understand the extent of contract cheating at NUHEPs and to compare this to existing data about contract cheating at Australian universities. The four NUHEPs involved in this research approached the project team to specifically request participation by their institutions. To our knowledge, the issue of contract cheating at NUHEPs has not been previously studied. This article therefore seeks to address the following research questions:
  • How prevalent is contract cheating in Australian NUHEPs? 
  • Is there a relationship between cheating behaviours and sharing behaviours at NUHEPs? 
  • What are the teaching and learning factors associated with contract cheating and other forms of outsourcing at NUHEP? 
  • How do the answers to 1–3 compare with responses by university staff and students?

10 August 2019

Traditional Knowledge, Peru and FTAs

'Trend on the protection of traditional knowledge associated with genetic resources within intellectual property chapters of Free Trade Agreements: the Peruvian experience' by Diego Francoise Ortega Sanabria in (2019) 14(9) Journal of Intellectual Property Law and Practice 728–738 comments
During negotiations of Free Trade Agreements, the bargaining power of developed countries has pushed developing countries to yield to higher standards of intellectual property protection in exchange of commercial benefits. However, there is evidence that developing countries can also seek and ensure the adoption of measures aimed at safeguarding their legitimate interests as a result of these negotiations. An example is Peru, which has sought to ensure the inclusion of provisions to require patent applicants to disclose the origin of the genetic resources and the associated traditional knowledge when they are used in the development of an invention, as well as the presentation of the evidence as to the prior informed consent from their legitimate owners and the corresponding equitable benefit-sharing. This article seeks to analyze whether the terms finally adopted have had a real impact on the protection of the Peruvian traditional knowledge associated with genetic resources.
 The author states
Towards the second half of the 1990s, the Andean Community of Nations (CAN), then integrated by Bolivia, Colombia, Ecuador, Peru and Venezuela, adopted a set of rules specifically designed to safeguard the correct access to their genetic resources (GRs) and the traditional knowledge of their indigenous, Afro-American and local communities (TKs), done within the framework of integration under which that regional block regulates its policies. These rules included some sections that link the aforementioned resources and knowledge to the common intellectual property regime, aiming to avoid their misappropriation through the non-consented acquisition of exclusivity rights. 
Thus, in 1996, Decision 391 was issued, establishing a common regime on access to GRs that conditions the legality of any right (including intellectual property rights) to the fulfilment of the access provisions that were set forth in such a legal instrument. Later, in 2000, Decision 486 was adopted, setting up a new common regime on industrial property, which establishes that whenever a patent application or a granted patent covers an invention developed through the use of GRs or/and TKs, its granting or validity, respectively, will depend on the filing of evidence on the prior informed consent of their legitimate holders.3 It should be noted that Decision 486 is recognized as the first regional instrument that includes binding obligations regarding the disclosure of origin and demonstration of legal access to GRs and TKs in patent applications. 
In order to complement the referred regional norms, the Peruvian government has undertaken a series of local actions meant to strengthen and make operational the regional regulations mentioned above. Thus, in 2002, Law No 27811 was enacted (Regime for the Protection of TKs of Indigenous Peoples related to Biological Resources), establishing a sui generis regulation. In particular, this law provides for special registration mechanisms for TKs, as well as for the protection against the disclosure, acquisition or non-consensual use of this knowledge. Additionally, this local law establishes enforcement proceedings before the Peruvian Patent Office (INDECOPI). Furthermore, it was regulated that whoever applies for a patent related to a product or a process obtained from confidential TKs, has the obligation to present a copy of the licensing agreement with the respective Indigenous Peoples as a requisite to the granting of the exclusivity right. 
Likewise, with the purpose of strengthening a defensive protection scheme, in 2004 the Peruvian government created the National Commission for the Protection of Access to Peruvian Biological Diversity and Collective Knowledge of Indigenous Peoples, known as the National Commission Against Biopiracy, whose functions are aimed to prevent acts of misappropriation on a global scale, by monitoring patent applications filed all over the world, related to inventions based on GRs and/or TKs from Peru, for the purpose of taking further steps to object the patentability of those inventions. 
Notwithstanding the above, the Peruvian government recognizes that, in order to prevent acts of misappropriation of GRs and/or TKs, these solutions must be also adopted by other countries, reason why the Peruvian national policies are also addressed to develop a binding international legal framework. In this sense, taking into account the relevance of having an international set of strategic actions to the effect of defending its interests, Peru manages an agenda in the diplomatic forum, which comprises i) the development of negotiations in the forum held by the World Trade Organization (WTO) as a result of the Doha Ministerial Declaration of November 2001, which instructed the Council on the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) to examine, inter alia, the relationship between TRIPS and the Convention on Biological Diversity (CBD); and ii) negotiations undertaken to subscribe bilateral and multilateral free trade agreements (FTAs), incorporating GRs and TKs aspects into the corresponding intellectual property chapters. 
In this regard, it is worth mentioning that, within the WTO forum, Peru and countries such as Brazil and India have sought to amend of the TRIPS Agreement, with the objective of inserting a mandatory formal requirement within the patent chapter, in relation to inventions dealing with the use of GRs and/or TKs. In fact, it has been proposed to amend Art. 29 of the TRIPS Agreement, so as to include a provision whereby Members shall require patent applicants to disclose the origin of GRs and the associated TKs when the subject of the application is derived or developed from these resources, as well as the presentation of the evidence of prior informed consent and the equitable benefit-sharing resulting from its commercial exploitation. This proposal provides for the adoption of national legal mechanisms to reject or invalidate a patent whenever these conditions are not met. 
However, certain developed economies are very reluctant to adopt these measures. Thus, countries such as USA, Japan, Korea and Australia have expressed their opposition, while others, such as those belonging to the European Union promote the search of alternative solutions to tackle the problem of misappropriation. As a corollary, to date these negotiations have not reached any concrete result. In this context, it seems that the signing of bilateral and multilateral trade agreements remains the only path to achieve the objectives that are not being achieved in the WTO forum, due to the better fluency that negotiations carried out by fewer parties involve. As a matter of fact, for almost ten years Peru has been subscribing agreements with several countries, which include provisions on GRs and TKs. Taking this into account, it is important to assess whether the bilateral forum, in which Peru has deployed significant efforts, has produced effective results. 
In order to carry out the present analysis, first it will be identified what was the corresponding position of the developed countries with which Peru has signed trade agreements and what terms have been finally adopted, to then determine if the Peruvian government has achieved concrete results. For this purpose, the analysis will be focused on the agreements signed with the USA, which turns out to be the most reticent country in terms of linking the protection of GRs and TKs with the intellectual property system. The agreements with the European Union and the States of the European Free Trade Association will also be part of this analysis, taking into account that, as seen above, these economies promote some alternative approaches.

TRIPS, FTAs and access to medicines

'The access to medicine puzzle: scaling back the negative effects of the Jordan–US Free Trade Agreement' by Laila Barqawi in (2019) 14(9) Journal of Intellectual Property Law and Practice 678–686 comments
 Jordan is the first Arab country to have agreed to sign a Free Trade Agreement (FTA) with the USA. The Jordan–US agreement (JUSFTA) contains Trade Related Aspects of Intellectual Property Rights (TRIPs)-plus clauses which affect Jordan’s access to medicine by raising the price of drugs, delaying generic entry of medication into the market and therefore limiting access to medicines. Commentators have noted several concerns about FTAs, including their lack of flexibilities, such as compulsory licensing, and of exceptions for fair or non-commercial use. 
This article examines recommendations by the Jordanian Food and Drug Administration (JFDA) and explains the workability of these recommendations, using examples from countries which have signed FTAs with the USA and have successfully curtailed the negative effects of FTAs. The article also recommends further options which the Jordanian government can utilize to limit the negative impacts of TRIPs-plus clauses within their national laws. These options do not contravene JUSFTA and TRIPs and can increase access to medicines.
Barqawi states
 Jordanian officials have started to recognize the negative impact of data exclusivity as can be seen through the Jordan’s food and drug administration’s (JFDA) submissions to the UN High Level Panel below. We explore their workability in an attempt to scale back the negative effects of TRIPS-plus and data exclusivity. 
Data exclusivity operates as a ‘wholly distinct form of intellectual property rights and could not be overcome by a compulsory license.’ Furthermore, TRIPS protects only ‘undisclosed data’ to prevent ‘unfair commercial use’; it does not confer either exclusive rights or an automatic period of marketing monopoly. TRIPS does not define what constitutes ‘commercial use’. There have been arguments for data exclusivity in that it incentivizes innovation in the field of pharmaceutical drugs and assists pharmaceutical companies in recouping the costs of clinical trials and clinical trial data transparency. These arguments have been refuted on the basis that a few years of patent protection is adequate to recover the cost of clinical trials as US companies, for example, have made an excess of USD 1 billion on 55 ‘blockbuster’ drugs in 2013. 
As part of Jordan’s WTO’s accession package, Jordan agreed to block registration and marketing approval of generic medicine for five years, ‘even when no patents exist’. This has been implemented through the Trade Secrets and Unfair Competition Draft Law, which had been referred to Parliament in November 19998 and is now Article 8 of Jordan’s Law No 15 of 2000 on Unfair Competition and Trade Secrets (UCTS).  This is clearly TRIPS-plus in nature. 
Moreover, restrictions by JUSFTA also require three further years for data exclusivity for new uses, which clearly is an excessive form of protection for an existing TRIPS-plus condition. The effect of this restricted use of data exclusivity is evidenced by the 103 registered medicines which were launched since 2001 and had no patent protection in Jordan; of these, at least 79 per cent had no competition from a generic equivalent as a consequence of data exclusivity. This suggests that data exclusivity limits competition. Beyond implications for competition, there are financial effects as well. For example, an analysis funded by the Medicines Transparency Alliance estimated that the delayed market entry of generics resulting from TRIPS-plus requirements in JUSFTA cost consumers in Jordan’s retail market US$ 18 million in 2004. 
The Jordanian government should implement the recommendations in this article with backing from the USA, because the USA is the main financer to Jordan’s economy. Furthermore, defying the USA means that countries such as India, which challenge the USA on IP, feature regularly on the USA’s ‘Priority Watch List’ in its 301 Reports. For example, the USTR’s 2018 Special 301 Report clearly states that India has ‘Longstanding IP challenges facing US businesses in India’.
 She concludes
 There is policy space that the Jordanian government could utilize to limit the effects of TRIPS-plus. Jordan’s data exclusivity clauses are the most harmful to Jordan’s access to medicine. However, this article offers practical solutions to scale back Jordan’s data exclusivity restraints, following the example of other countries that have signed similar terms with the USA. This article builds on the recommendations of the JFDA by advocating further measures for the Jordanian government to increase its access to medicine. Jordan could restrict definitions such as NCE, patentability criteria and bar second use patenting, a decision that would prevent ‘evergreening’ of existing patents, supporting wide access to medicines. Jordan’s laws could also allow for policy space to be interpreted within its national laws as per Peru’s Amended Article 4 in its Legislative Decree. The Jordanian government could put a cap on the drug prices in comparison with other similar economies. Consequently, Jordan could attempt to overhaul its national legislation to streamline its IP. The Jordanian government should, ideally, have its decisions backed by the USA to maintain its relationship with the USA and not feature in the USTR’s 301 Report’s Watch List.

Algorithmic Bias

'The Missteps of the FIRST STEP Act: Algorithmic Bias in Criminal Justice Reform' by Raghav Kohli in (2019) 1 Journal of the Oxford Centre for Socio-Legal Studies comments
Contrary to his tough-on-crime rhetoric, Donald Trump in December 2018 signed the FIRST STEP Act (the ‘Act‘) into law, a criminal justice reform legislation aimed at reducing recidivism and reforming prison and sentencing laws. With a 87-12 vote in the Senate and a 358-36 vote in the House, a bitterly divided Congress approved the Act in a rare display of bipartisanship earlier that month. Apart from triggering an awakening within Congress about the dire need to decarcerate, the Act unified an unusual coterie of proponents, including tycoons such as the Koch Brothers, and celebrities such as Kim Kardashian. Whilst hailed as historic and sweeping in some quarters, the Act only affects the federal system, which houses a small fraction of the United States prison population. Out of approximately 2.1 million people imprisoned, only 180,413 are federal inmates. Nonetheless, the Act aims to introduce several reforms. It mandates the Department of Justice to establish a ‘risk and needs assessment system’ to classify the recidivism risk of prisoners, and to incentivise participation in productive activities. For instance, it allows prisoners to earn ‘time credits’ through their participation and apply them towards early release to pre-release custody. Other proposed changes include retrospective modification of ‘good time credit’ computation, reduced sentences for drug-related offences, and a ban on shackling of pregnant women. 
However, inmates do not benefit equally from these reforms. The risk and needs assessment system employs algorithms to classify each prisoner as having a minimum, low, medium, or high risk for recidivism. The Act only permits prisoners falling within the minimum and low risk brackets to apply for time credits towards pre-release custody. 
This article seeks to critically examine the impact of such algorithmic decision-making in the criminal justice system. Analysing different instances of algorithmic bias and the recent Wisconsin Supreme Court decision of State v. Loomis, it argues that opaque algorithmic decisions violate due process safeguards. In conclusion, the increasing use of such algorithms in the criminal justice system, including the FIRST STEP Act, is found to be undesirable, unless tempered with solutions which meaningfully improve their accuracy and transparency.

09 August 2019

Saying Sorry

'Should Public Figures Apologize? Preliminary Evidence and Speculations' by Cass R. Sunstein comments
In the modern era, the statements and actions of public figures are scrutinized with great care, and it often emerges that they have said or done things that many people consider objectionable, hurtful, offensive, or despicable. A persistent question is whether public figures should apologize for those statements or actions. Suppose that an apology has a purely strategic motivation: helping a politician to be elected or reelected, helping an executive to keep his job, helping a nominee to be confirmed by the U.S. Senate. Empirical work presented here suggests that an apology might well turn out to be futile or even counterproductive. One reason is Bayesian; an apology produces updating that can be unfavorable to the apologizer (by, for example, resolving doubts about whether the apologizer actually said or did the objectionable thing, and about whether what the apologizer did was actually objectionable). Another reason is behavioral; an apology triggers the public’s attention, makes the public figure’s wrongdoing more salient, and can help define him or her. But many open questions remain about the reasons why apologies by public figures fail, and about the circumstances in which they might turn out to be effective.

Fake News

'Fake News From A Legal Perspective: The United States And South Korea Compared' by Ahran Park and Kyu Ho Youm in (2019) Southwestern Journal of International Law comments
"Fake news" has emerged as a pressing concern since the 2016 U.S. presidential election. As media columnist Jim Rutenberg of The New York Times noted in November of 2016, "[t]he internet-borne forces that are eating away at print advertising are enabling a host of faux-journalistic players to pollute the democracy with dangerously fake news items."' Similarly, The Washington Post media columnist Margaret Sullivan, a former New York Times public editor, wrote one month later that "the era of fake news causing real trouble" has arrived in the United States. 
Publishing fake news has been around as a legal issue for many years.' As early as the late 18th century, fake news was already addressed by the United States Congress. When Congress passed the Alien and Sedition Act in 1798, one of its objectives was to punish "malicious" falsehoods about the government as a crime. 
Fake news and its counterpart - "real news" - is not limited to the United States. The impact of fake news is global. Freedom House reports that fake news was spread in 30 of the 65 countries examined between June 2016 and May 2017. South Korea is no exception in confronting fake news as a sociopolitical and legal issue. Koreans dealt with fake news during a presidential impeachment in early 20176 and a snap presidential election in May 2017. Fake news has been often abused to calumniate political opponents in Korea. 
In the United States, where freedom of speech and the press is the rule, not the exception, however, "[t]he real question is not whether fake news is protected, but under what circumstances would fake news not be protected." But in other countries, which are less speech-friendly, disseminating fake news is rarely not discussed as a part of free speech. In Ireland, for example, a new law proposed would criminalize spreading fake news on social media. In Germany, a social media law came into force in October of 2017 that requires social media sites to remove fake news promptly.'" The German law gives social media networks twenty-four hours to take actions on fake news after they have been alerted. " 
From a comparative perspective, South Korea and the United States deserve careful attention, given that American law has exerted a considerable impact on Korea's democratic process as a rule-of-law-nation over the years. Fake news and freedom of expression is a timely topic for comparatists, since it illustrates how society approaches evolving free speech issues like fake news. This Article first examines the definitional framework of fake news in the United States and Korea. Second, it analyzes where fake news is placed as a legal issue in the United States and Korea. And finally, the contrast of the United States with Korea is analyzed by looking at how fake news is framed as a new or not so new issue in free speech jurisprudence.

08 August 2019

California as a Privacy Catalyst

'Catalyzing Privacy Law' by Anupam Chander, Margot E. Kaminski and William McGeveran comments
The United States famously lacks a comprehensive federal data privacy law. In the past year, however, nearly half of state legislatures have proposed or enacted broad privacy bills or have established privacy legislation task forces, while Congress has scrambled to hold hearings on multiple such proposals. What is catalyzing this legislative momentum? Some believe that Europe’s General Data Protection Regulation (GDPR), which came into force in 2018, is the driving factor. But with the California Consumer Privacy Act (CCPA) scheduled to take effect in January 2020, California has emerged as an alternate contender in the race to set the new standard for privacy. 
Our close comparison of the GDPR and California’s privacy law reveals that the California law is not GDPR-lite: it retains a fundamentally American approach to information privacy. Reviewing the literature on regulatory competition, we argue that California, not Brussels, is catalyzing privacy law across the United States. And what is happening is not a simple story of powerful state actors. It is more accurately characterized as the result of individual networked norm entrepreneurs, influenced and even empowered by data globalization. Our account has implications not just for companies that must comply with both laws, but for policymakers and citizens at both state and federal levels.

Aged Care

Looking for an insight on public/private sector interaction, federation and the exploitation of the elderly? The Royal Commission into Aged Care has released a useful background paper on the Legislative framework for Aged Care Quality and Safety regulation.

The paper states
Aged care quality and safety regulation is intended to protect and enhance the health and wellbeing of care recipients.  
This Background Paper summarises the key aspects of quality and safety regulation provided for in the Aged Care Act 1997 (Aged Care Act), the Aged Care Quality and Safety Commission Act 2018 (Quality and Safety Commission Act) and supporting legislative instruments, including:
  • approval of providers, making them eligible to receive government subsidies and supplements to provide aged care 
  • the responsibilities of approved providers, including in relation to quality of care, user rights and accountability 
  • accreditation and quality review processes 
  • enforcement and sanctions 
  • complaints processes 
  • advocacy and community visitors.
There are some aged care services that are grant funded and operate outside the legislative framework of the Aged Care Act, namely the Commonwealth Home Support Programme and the National Aboriginal and Torres Strait Islander Flexible Aged Care Program. The arrangements in place to regulate the quality and safety of these programs will also be described in this paper. 
The Background Paper does not cover the following aspects of the aged care regulatory framework:
  • the allocation of aged care places 
  • the approval and classification of care recipients 
  • setting of accommodation payments and accommodation contribution levels 
  • oversight of refundable deposits and accommodation bonds 
  • the role of the Aged Care Pricing Commissioner.
The aged care system also interacts with a broad range of regulatory bodies and frameworks. For example: consumer protection issues are regulated by the Australian Competition and Consumer Commission; health practitioner issues are regulated by the Australian Health Practitioner Regulation Agency; and each jurisdiction has its own work health and safety regulator. Legislation and regulations relating to local planning, building, fire safety, food safety and public health, among others areas, all apply in the aged care context. This broader regulatory context is not the focus of this paper. 
The Background Paper does not provide commentary or a view on the adequacy or effectiveness of the current quality and safety regulatory scheme. 
Legislative framework 
The Aged Care Act and the Quality and Safety Commission Act provide the legislative framework for the Australian aged care system. 
Sitting underneath the Aged Care Act is a suite of principles that contain detail about the operation and regulation of the aged care system. The current principles, which are legislative instruments and can be made and amended by the Minister, are as follows:
  • Accountability Principles 2014 
  • Allocation Principles 2014 
  • Approval of Care Recipients Principles 2014 
  • Approved Provider Principles 2014 
  • Classification Principles 2014 
  • Committee Principles 2014 
  • Extra Service Principles 2014 
  • Fees and Payments Principles 2014 (No 2) 
  • Grant Principles 2014 
  • Information Principles 2014 
  • Prioritised Home Care Recipients Principles 2016 
  • Quality of Care Principles 2014 
  • Records Principles 2014 
  • Sanctions Principles 2014 
  • Subsidy Principles 2014 
  • User Rights Principles 2014.
Other legislative instruments made under the Aged Care Act are Aged Care Determinations, including a determination by the Secretary under section 14–6 of conditions that apply to all allocations of places and to allocations of certain flexible care places1F and a determination by the Minister setting the amount of subsidies and supplements payable to approved providers of aged care services. 
Sitting underneath the Quality and Safety Commission Act are the Aged Care Quality and Safety Commission Rules 2018 (Quality and Safety Commission Rules), which contain much of the detail relating to the functions and operation of the Aged Care Quality and Safety Commission.

Character and Mutual Recognition

In Victorian Building Authority v Nickolaos Andriotis [2019] HCA 22, a judgment that has attracted less attention than yesterday's decision in Banerji, the High Court has held that s 20(2) of the Mutual Recognition Act 1992 (Cth) does not provide a state/territory registration authority with a discretionary power to refuse registration under the MRA.

 In considering the appeal from the Federal Court it has also held that a "good character" requirement in a state Act does not fall within the exception to the "mutual recognition principle" in s 17(2) of the MRA. Andriotis was registered in New South Wales as a waterproofer. He falsely stated in his application to the New South Wales registration authority that he had certain work experience. He then sought registration as a waterproofer in Victoria pursuant to the MRA. The Victorian Building Practitioners Board refused to grant registration on the basis that his NSW application demonstrated dishonesty. He was thus not of "good character" as required by s 170(1)(c) of the Building Act 1993 (Vic), the Victorian statute regulating registration. The Administrative Appeals Tribunal affirmed the Board's decision.

On the Andriotis' appeal to the Federal Court, the Victorian Building Authority as successor to the Board argued that a local registration authority retains a discretion under s 20(2) to refuse registration. It further argued that, in any event, the "good character" requirement in s 170(1)(c) of the Building Act falls within the exception to the mutual recognition principle in s 17(2) of the MRA.

The Full Court in Andriotis v Victorian Building Authority [2018] FCAFC 24 rejected both arguments and allowed Andriotis' appeal. The mutual recognition principle set out in s 17(1) of the MRA is that a person registered in the first state for an occupation is entitled, after notifying the local registration authority of the second state, to be registered in the second state for the equivalent occupation. Section 20(2) provides that the local registration authority "may" grant registration on that ground. Section 17(2) provides for an "exception" to the mutual recognition principle, which is that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State so long as those laws, relevantly, are "not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation".

In its judgment the FCAFC drew on Re Petroulias [2004] QCA 261, Re Tkacz; Ex parte Tkacz [2006] WASC 315, and Scott v Law Society of Tasmania [2009] TASSC 12 - three judgments of particular interest for law students heading towards admission as legal practitioners.

By grant of special leave, the Building Authority appealed to the High Court.

The Court held that the words "qualification … relating to fitness to carry on the occupation" in s 17(2) have a broader meaning than a qualification of an educational or technical kind, and clearly encompass the subject matter of s 170(1)(c) of the Building Act. That construction is consistent with the scheme of the MRA. The mutual recognition principle upon which the MRA is founded accepts that registration for an occupation in a first state is sufficient for recognition in the second state, without any further requirements of the law of the second State being fulfilled.

The Court held that the word "may" in s 20(2) of the MRA is empowering, providing a local registration authority with power to grant registration under the MRA on the "ground" referred to in s 20(1), namely registration in the first state. Section 20(2) does not admit of a broader discretion to refuse registration.

Mental Health Apps

Concerns regarding disclosure and sharing of information by health apps were noted here.

 'How private is your mental health app data? An empirical study of mental health app privacy policies and practices' by Lisa Parker, Vanessa Halter, Tanya Karliychuk and Quinn Grundy in (2019) 64 International Journal of Law and Psychiatry comments
Digital mental health services are increasingly endorsed by governments and health professionals as a low cost, accessible alternative or adjunct to face-to-face therapy. App users may suffer loss of personal privacy due to security breaches or common data sharing practices between app developers and third parties. Loss of privacy around personal health data may harm an individual's reputation or health. The purpose of this project was to identify salient consumer issues related to privacy in the mental health app market and to inform advocacy efforts towards promoting consumer interests. We conducted a critical content analysis of promotional (advertising) materials for prominent mental health apps in selected dominant English-speaking markets in late 2016-early 2017, updated in 2018. We identified 61 prominent mental health apps, 56 of which were still available in 2018. Apps frequently requested permission to access elements of the user's mobile device, including requesting so-called ‘dangerous’ permissions. Many apps encouraged users to share their own data with an online community. Nearly half of the apps (25/61, 41%) did not have a privacy policy to inform users about how and when personal information would be collected and retained or shared with third parties, despite this being a standard recommendation of privacy regulations. We consider that the app industry pays insufficient attention to protecting the privacy of mental health app users. We advocate for increased monitoring and enforcement of privacy principles and practices in mental health apps and the mobile ecosystem, more broadly. We also suggest a re-framing of regulatory attention that places consumer interests at the centre of guidance.

HealthEngine and the ACL

Several years ago I highlighted concerns regarding information-sharing by Australian online health booking platform HealthEngine, the subject of consumer criticism last year with the #HealthEngineFail tag on Twitter. (Work by other authors is noted here.)

HealthEngine characterises itself as Australia’s largest online health marketplace,  used by over a million consumers every month. It provides a booking system for patients alongside an online health care directory that lists over 70,000 health practices and practitioners in Australia. That directory allows patients to search for and book appointments with health practitioners. Up until June 2018, consumers could also access reviews from patients about the quality and services of health practitioners.

The ACCC has today announced institution of proceedings in the Federal Court against  HealthEngine for misleading and deceptive conduct relating to the sharing of consumer information with insurance brokers and the publishing of patient reviews and ratings.

 The ACCC claims that between 31 March 2015 to 1 March 2018, HealthEngine manipulated the patient reviews it published, and misrepresented to consumers why HealthEngine did not publish a rating for some health practices.

Its media statement comments
 “We allege that HealthEngine refused to publish negative reviews and altered feedback to remove negative aspects, or to embellish it, before publishing the reviews,” ACCC Chair Rod Sims said. 
“We will argue that HealthEngine disregarded around 17,000 reviews, and altered around 3,000 in the relevant time period.” 
“The ACCC considers that the alleged conduct by HealthEngine is particularly egregious because patients would have visited doctors at their time of need based on manipulated reviews that did not accurately reflect the experience of other patients,” Mr Sims said. 
The ACCC also alleges that from 30 April 2014 to 30 June 2018, HealthEngine gave information such as names, phone numbers, email addresses, and date of birth of over 135,000 patients to private health insurance brokers for a fee without adequately disclosing to consumers it would do so. 
“We also allege that patients were misled into thinking their information would stay with HealthEngine but, instead, their information was sold off to insurance brokers,” Mr Sims said.
The ACCC is seeking penalties, declarations, corrective notices and an order for HealthEngine to review its compliance program. The ACCC is also applying for an order from the Court that would require HealthEngine to contact affected consumers and provide details of how they can regain control of their personal information.

07 August 2019

Marriage and Civil Disability

As Dr Pangloss pointed out in the musical version of Candide,
 Why, marriage, boy, 
Is such a joy, 
So lovely a condition, 
That many ask no better than 
To wed as often as they can, 
In happy repetition. 
 There is a deeper view in 'While They Waited: Pre- Obergefell Lives and the Law of Nonmarriage' by Michael J Higdon in (2019) 129 Yale Law Journal Forum 1 .

Higdon comments 
 In the wake of Obergefell, the United States now has a large class of married, same-sex couples whose relationships began at a time when marriage was unavailable to them. The law must therefore wrestle with the question whether any portion of a pre-Obergefell relationship should count toward the length of the ensuing marriage — an important question given the number of marital benefits tied directly to this calculation. As courts and legislators alike wrestle with this difficult question, they will need to examine how these couples ordered their relationships during a time when “nonmarriage” was the only option. This Essay argues that such an examination provides a unique opportunity for the law to not only move toward true marriage equality, but also reconsider its overall approach to nonmarriage in general. Specifically, this Essay identifies three lessons that can be gleaned from same-sex couples whose relationships spanned both sides of the marriage equality movement. It argues that each of these lessons can help us craft greater protections for nonmarital relationships.

Nominalism

'You Name it: On the Cross-Border Regulation of Names' by Sharon Shakargy in (2019) American Journal of Comparative Law comments 
Is your name “yours”? Are you free to choose a name for yourself? Does a name withstand border-crossing and even acquisition of new citizenships? In the common law world, the undoubted answer is yes. However, in civil law, this answer is not so clear. While the global tendency over the last few decades has been towards relaxing the norms governing names, old traditions die hard, and in some cases now re-emerge in other parts of the world. In an ever more globalized world, given widespread immigration, refugees, and people with dual- (or even multi-) citizenships, the different national attitudes towards names and the lack of proper cross-border regulation of names is becoming a relevant and pressing question. This paper maps out and conceptualizes the challenge of names by demonstrating the different approaches towards names and suggesting possible cross-border regulation (i.e., choice-of-law rules) that may address this issue for the benefit of the individuals and countries involved.

Struggle And Snowflakes

Normalizing Struggle' by Catherine Martin Christopher in (2019) Arkansas Law Review (Forthcoming) comments 
Learning lawyering skills, and becoming competent or proficient in them, is a struggle. This article is a call to action for all legal educators: We need to acknowledge that students struggle, to expect it, and to convey to students that their struggle is normal. In fact, struggle is productive — learning is hard, and lawyers learn and struggle throughout their careers. 
This article examines and criticizes the ways legal academia treats law students’ academic struggle as a problem, and suggests that legal educators reorient their attitudes toward struggle, forgiving and embracing student struggle, even building opportunities for struggle into the curriculum. By normalizing the fact of struggle, law schools will not only improve the wellness of their students, but also create lawyers who are better prepared to cope with the constant problem-solving required of successful lawyers.

05 August 2019

Personality Rights

'The Right of Publicity's Intellectual Property Turn' by Jennifer E. Rothman in (2019) 42(3) Columbia Journal of Law & the Arts comments
The Article is adapted from a keynote lecture about my book, THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age. 
The lecture (as adapted for this Article) explores in greater depth one major theme drawn from the book―the right of publicity’s turn in the late 1970s from being a personal right rooted in an individual to being an intellectual property right separable from the underlying identity-holder. This transformation of people into a form of intellectual property has led to significant expansions in the reach and scope of right of publicity laws across the country. At the same time, treating the right of publicity as IP has undermined First Amendment and copyright-based limits on these laws, and jeopardized the freedom of the very identity-holders upon whose interests the right is justified. The Article considers not only whether the IP rubric is appropriate for the right of publicity, but also whether the challenges posed by right of publicity laws are a magnified version of more general problems that IP laws face today ― in particular, the continued expansion of these rights unmoored from the initial justifications for the entitlements, and without adequate protections for socially valuable uses.

Theory

'Queer Phenomenology in Law: A Critical Theory of Orientation' by Nick J. Sciullo in (2019) 39 Pace Law Review comments
This article argues for the application of phenomenology to legal understanding, specifically as a way to think about and though queer people’s interactions with law as well as queer theory in law. There are both pragmatic and theoretical justifications for this project. The pragmatic justifications include the need to better address the legal issues and experiences of queer people, recent political and legal decisions and debates that affect queer people specifically, the need to better provide epistemological resources for queer lawyers, law scholars, law students, and their allies, and the need to better understand how law affects minoritarian populations regardless of specific identity characteristics. The theoretical justifications include the relative under-theorization of queer theory in law, the improvement of legal theory’s interaction with related theories in the humanities and social sciences, and the development of a more robust theory of everyday interactions with law consistent with individuals’ diverse experiences and identities. These justifications counsel for further study and attempts to account for diversity in law.
'What Good is Abstraction? From Liberal Legitimacy to Social Justice' by Nimer Sultany in (2019) 67(31) Buffalo Law Review comments
 The stakes could not be higher. Post-World War II political and economic institutions are under unprecedented pressure. The social coalitions that have sustained them are crumbling. Welfare-state capitalism is in retreat, and liberal institutions are besieged. Right-wing populists are cementing their power and consolidating their grip on political and legal institutions around the globe. The answer to these historical changes cannot be a return to the very status quo that led to them in the first place. 
This Article argues progressive liberal theoretical frameworks are unfit for purpose. They betray a loss of conviction and commitment to the very egalitarian ideals that progressive liberals advocate for. Specifically, it critiques abstraction as a mode of argumentation in political and legal theory in which there is a retreat from controversial political and moral territory to establish a consensual political regime and binding legal order. It is an internal critique to liberal theory that illustrates that this abstraction does not meet the theory’s own standards and fails to achieve its declared objectives. 
The main family of theories that betray this lack of conviction is “political liberalism,” as developed by eminent scholars such as John Rawls and Ronald Dworkin. Political liberalism draws a clear distinction between the ambitions of liberal justice and the institutional commitments of liberal legitimacy. Progressive liberals allow as legitimate policies and practices, such as welfare-state capitalism and neo-liberalism, that are detrimental to the very goals that they aspire to. Therefore, the egalitarian bark of progressive liberal theory is louder than its egalitarian bite. Ultimately, liberal legitimacy is not merely different from justice but it also defers justice and legitimates injustice.
'The Computational Analysis of International Law' by Wolfgang Alschner in Rossana Deplano and Nicholas Tsagourias (eds), Research Methods in International Law: A Handbook (2019) comments
When traditional international law techniques reach their conceptual and methodological limits, we need to look for help in other disciplines. International law scholars have in the past drawn inspirations from economics, political science or sociology to enrich the study and our understanding of international law. Now the time has come to add a new discipline to this list: computer science. The computational analysis of international law renders legal analysis scalable and empowers international lawyers to study international law in unprecedented depth and breadth. In this contribution, I provide an overview of computational techniques for the doctrinal and legal-institutional study of international law highlighting this neglected, but increasingly important field of interdisciplinary study.

04 August 2019

Access

'Good Reading for the Million: The ‘Paperback Revolution’ And the Co-Production of Academic Knowledge in Mid Twentieth-Century Britain and America' by Peter Mandler in (2019) 244(1) Past & Present 235–269 comments
The serious non-fiction paperback was one of the principal vehicles for the distribution of expert knowledge in the mid 20th century. This paper examines the market for serious non-fiction in both the US and the UK between the 1930s and the 1960s, by looking at the market leaders in the two countries, Pelican and Mentor Books, published by Penguin and New American Library respectively. It argues that novel modes of distribution and acts of selection by authors, publishers and readers constituted a process of the co-production of knowledge that problematizes views of mid-century expertise as expressions of governmentality. Different patterns of distribution and market demand in the two countries shed further light on who read, what they read and for what purpose.
Mandler argues
In 1952, at a time when his own future best-seller The Lonely Crowd was not yet in paperback, the American sociologist David Riesman reported to the readers of the Antioch Review on a new cultural phenomenon that might have previously escaped their notice. A friend of his in the publishing industry had told him that in an Ohio Valley steel town, population 75,000, which lacked a single bookstore and about which the department store buyer insisted ‘[p]eople here don’t read; they just look at television or go to the taverns’, nevertheless 750,000 paperback books a year were sold in restaurants, newsstands and drugstores, ‘many of them in the Mentor line of modern classics’. ‘I wish we had some knowledge and understanding of what these citizens made out of all they read’, Riesman continued, ‘the Faulkner novels, the Conant On Understanding Science, the Ruth Benedict Patterns of Culture, along with the Mickey Spillane and other mixtures of sadism with sex. But studies of this kind in the field of leisure have not yet been made, as far as I know’. 
As far as I know, they still have not been made. Of the paperback revolution in general, which brought books to new readerships around the world from the mid 1930s when Penguin pioneered the mass-market paperback in Britain, we know a fair amount, and literary scholars have demonstrated amply how a taste for classic and modernist fiction such as the Faulkner novels was aroused ‘along with the Mickey Spillane’. But Riesman’s curiosity about the even more incongruous taste for the serious non-fiction purveyed by the Mentor line — as we will see, a direct spin-off of Penguin’s Pelican imprint — has not been satisfied, although a rising tide of single-issue or single-title studies suggests that we are if anything now more curious about it. 
In this article I seek to provide a basic knowledge and understanding of the mass audiences for serious non-fiction paperbacks built up in the mid twentieth century. Apart from satisfying Riesman’s (and our) curiosity, such an enquiry can help to address broader questions about the diffusion of expert knowledge to democratic citizenries that have become staples in the dissection of what the Foucauldians call ‘governmentality’ — the ways in which ‘the values and ethics of democratic society’ become aligned with ‘the rationales and techniques of power’, as Nikolas Rose has put it. In the Foucauldian view of modernity, knowledge and power are completely interpenetrated; thus the mere transmission of knowledge, especially if yoked to internalized acknowledgement of the hegemony of expertise, is constitutive of (and not merely supportive of) power relations. A milder, post-Foucauldian revision of this view, popular amongst historians of science for some time now, takes a more benign or at least agnostic view of power, and considers knowledge to be not so much transmitted as ‘co-produced’ with its consumers. So far, however, this view has appeared easier to propound in theory than to demonstrate in practice. While it is sensible to hold that knowledge production rarely follows a straightforward diffusionist model, in which expert knowledge is disseminated downwards intact, it is harder to show how knowledge is received, reprocessed and fed back such that knowledge can be shown to have been co-produced in multiple nodes. A close study of the non-fiction paperback may shed some light on this complex process by specifying more closely the conditions of production and distribution, and the degree of co-production, of a prime vehicle for knowledge, at its peak in a period which even advocates of co-production tend to see as the heyday of the downward diffusion of expertise. 
The paperback book offers special opportunities and challenges for the study of expertise and its publics. With its depth of content, demands upon attention and relative permanence, it packed a punch that more ephemeral (though persistent) mass media such as radio, cinema and television lacked. While less ubiquitous in modern life than law and national symbolism, its direct address to subjectivity made it one of the more effective ‘technologies of the self’9 in an age when those technologies were manifestly multiplying. It entrained many actors and operated on many levels. Both production and consumption chains were highly ramified — authors, publishers, censors, wholesalers, retailers, educators, critics and, pre-eminently, readers could all use the paperback to get a grip on the ‘selves’ in construction around them. The product was also highly ramified. Pulp fiction was at first the predominant form, much decried then by moralists and educators, and subsequently by critics of the capitalist marketplace. As already noted, literary critics have threshed out of the mass of pulp a burgeoning taste for classic and contemporary fiction. Moving closer to expertise proper, paperbacks were the principal vehicle (alongside magazines) for expert management of daily life through self-help and advice manuals on topics ranging from ‘winning friends and influencing people’ to baby care, sexuality, marriage, career, health and nutrition. The best-selling non-fiction paperbacks in post-war America were Dr. Spock’s Baby and Child Care, well ahead of the pack with 18.5 million copies sold between 1940 and 1965, and Dale Carnegie’s How to Win Friends and Influence People, a distant second at five million. 
But as Riesman understood already in 1952, not far behind such advice manuals was a much more sophisticated body of expertise, drawing largely on academic writing and research and spanning the full range of modern academic subjects, from the traditional humanities (classics, history and philosophy) to the rising social sciences (psychology, sociology and anthropology) and the natural sciences (physics, physiology and mathematics). Unlikely as it sounds, best-sellers in these categories also reached a mass audience in the post-war decades — both Ruth Benedict’s Patterns of Culture, which Riesman noticed, and his own book The Lonely Crowd, which came out in paperback in 1953, had sold over a million copies by 1970. This kind of book — more abstract and conceptual, less directly targeted at the individual’s subjectivity and also less aggressively marketed — represented, I will argue, a different use of expertise. While its producers had missionary aspirations of their own, consumers had more say in choosing the type of expertise that suited them and more latitude in the uses they made of it. An anatomy of the academic mass-market paperback can therefore tell us something new about ‘technologies of the self’ that takes us well beyond the usual band of experts and bureaucrats and ideologies of social control. 
The mass-market paperback was a global phenomenon, but its impact was earliest and most intense in the Anglophone world. I will focus therefore on the pioneer, Pelican Books, published by Penguin in the United Kingdom (though also exported all over the world, notably to the Commonwealth), and Mentor Books, published by New American Library (hereafter NAL) in the United States, the two acknowledged market leaders in this field at least until the early 1960s. In what follows I will narrate the rise of Pelicans and Mentors, consider who were their readers, assess what they read, and finally attempt some answers to Riesman’s query about what they made of what they read — obviously the hardest part of all — and how their choices fed back into the process of knowledge production by inflecting what was on offer. 
The origin of Penguin is reasonably well known. The founder was Allen Lane, a distant connection of the John Lane publishing family. By his own admission, he did not start Penguin with a burning social or political mission; he was principally concerned to tilt against the snobberies of the book trade and at the same time make some money, by selling cheap, well-designed paperback editions of middlebrow novels and biographies to an underserved provincial and suburban audience. There had been such experiments before — notably in Germany, where Tauschnitz publishers and Albatross Books had aimed at British travellers on the Continent — but Lane caught the zeitgeist as no-one else had. His books were handsome, convenient, affordable and, as they proved popular, quickly became ubiquitous, breaking out of the bookshops into Woolworth’s chain stores, railway bookstalls, newsagents and tobacconists. Partly under this impetus, by 1940, 50 per cent more working-class readers were in the habit of buying books than borrowed them from libraries. 
By then Allen Lane was seeking something more than mere commercial success. In the depths of the 1930s Slump, Lane like many sensitive, comfortably-off young men of the time did have a mild social conscience and he was quickly swept up into a giddy whirl of earnest social reformers and adult-educators — old Fabians such as G. B. Shaw and H. G. Wells, whose titles proved instant hits for Penguin, the Indian nationalist Krishna Menon, the social historian Lance Beales, and most importantly Billy Williams, son of a Welsh carpenter, and a pillar of the adult-education movement. Lane, who like most middle-class boys had left school at 16, came to see something of what he had missed, and to view the paperback as a portable evening-class and not only as an entertainment. In the spirit of the 1930s — of the Workers’ Educational Association, the Left Book Club and the Popular Front — he married this educational impulse to a leftish stance, going so far as to contribute an article entitled ‘Books for the Million’ to the magazine Left Review in May 1938, which portrayed the Penguin paperback as a contribution to the people’s control of their own destiny. 
Lane’s principal vehicle for this educational and political mission was Pelican Books, the serious non-fiction line added to Penguin in 1937. Pelican only ever accounted for a minority of Penguin sales — 10 per cent in wartime, though a growing proportion thereafter; this amounted to nearly two million copies a year in wartime for a population of fifty million, and similar or higher levels thereafter. It was Pelican to which Lane was referring in Left Review when he attributed political significance to his enterprise — it was Pelican that gave ‘access to contemporary thought and to a reasonable body of scientific knowledge’ to put ever-growing numbers of people ‘in a position to control our future in the light of our knowledge of the past’.16 Billy Williams helped Lane move beyond his middle-class base to wider strata of self-improving working men, and to scout out the kinds of serious non-fiction that might appeal to and empower this audience — in the first instance, history, sociology, politics and economics, but increasingly also science, art, and later an ever-widening set of academic disciplines. Lane and Williams had their own educational and political motives and naturally gravitated at first to Fabian socialism, to the historical, literary and economic interests of the adult-education movement and to the political issues of the day (featured also in the famous series of Penguin Specials from 1938). But both their commercial interests and their open-mindedness about their audience (really an ignorance that they shared with everyone who had discounted even the possibility of a mass market for such fare) favoured an experimental approach. Any topic, so long as it met their minimum standards of decency and seriousness, was grist to their mill. Titles were selected informally and on the basis both of past sales and new enthusiasms, the enthusiasms not only of Lane and Williams, but also of two loose cannons Lane had recruited early on — Alan Glover, an eccentric auto-didact, known for the tattoo-removal scars that covered his face and his encyclopedic range of interests from Freud to Buddhism, and Eunice Frost, the talent scout sent out to ‘[keep] the house policy abreast with contemporary thought’. 
Even at the start, commentators were astonished by the range and altitude of the titles that could (it turned out) be sold in print-runs of fifty thousand or more — not just Shaw and Wells, or current affairs, but the likes of R. H. Tawney’s Religion and the Rise of Capitalism, Elie Halevy’s History of the English People (sold in seven parts), or Sigmund Freud’s The Psychopathology of Everyday Life. ‘These are all books which … have helped to make the intellectual history of this century’, marvelled the Spectator, and their availability for ‘the price of a cheap cinema seat or a packet of cigarettes’ was ‘a fact of enormous importance in the struggle to overcome economic restrictions to knowledge … one more indication of the hunger for information, for fact, for explanation, which exists unsatisfied at the present time’. ‘When the corner tobacconist is selling’ such books, the Times concluded, ‘it is a fair assumption that very large strata of purchasers are being tapped’. 
Even wider strata of potential purchasers beckoned temptingly across the Atlantic, where in the US, with three times the population but half the number of bookstores, there appeared to be a huge unexploited mass market. Starting with Pocket Books in 1939, a few paperback houses had opened in New York and during the war began to build a mass market mostly for pulp fiction by distributing through magazine wholesalers to a bewildering variety of retail newsstands, drugstores, smoke shops and variety stores. Lane felt certain that there were opportunities here for his quality lines as well. After a few abortive attempts to start up an American operation — Lane’s first representatives in New York insisted that they could only sell pulp through the retail outlets — he finally found two true believers like himself and Williams: Kurt Enoch, a founder of the original German Albatross Books, now providentially marooned in the States as an underemployed refugee, and Victor Weybright, a progressive publisher who had run the US propaganda office in London during the war. Weybright, who took editorial charge, and Enoch, who handled the business, set up an operation that was very much a mirror-image of Penguin, with its own Billy Williams-figure in E. C. Lindeman, a Columbia philosopher and adult-educator,19 and its own equivalent of the talent-spotting Eunice Frost, Arabel Porter. The first American Pelicans appeared in January 1946. 
For a time, the US and UK operations appeared to run in tandem. In both countries Pelicans formed a substantial and surprising proportion of total sales. They were a mix of reprints of classics, recent academic works that had only appeared in hardcover, and specially commissioned works — increasingly the last as Lane, Williams and Weybright learned what sold and could guide authors to providing suitable copy on subjects they wanted to try out. US Pelican borrowed titles from UK Pelican — Shaw, Wells, Tawney, Julian Huxley, the physicist James Jeans and the philosopher Alfred North Whitehead all sold well in both countries — and bought rights for equivalent titles tailored to the US market, such as Benedict’s Patterns of Culture, Walter Lippmann’s Public Opinion and, as an equivalent to Jeans, works by the physicist George Gamow.  As Williams wrote to Weybright, they shared a ‘common belief’ in publishing as ‘a vocation as well as a trade’, the peculiar synergy between ‘commerce’ and ‘conscience’ being responsible for their exceptional success in both: The great advantage which a man like you has over other crusaders is that he works in plain clothes and is not always parading his Holy Cross. No one, to look at Allen and you and me would suspect us of having good intentions, and that is the real reason why our intentions work out! 
Despite this common cause, two differences quickly intervened that led to a parting of the ways. Both derived from the special challenges of selling books in America. While Americans had much higher levels of formal education than the British, they did not read many books, even when in college, and once out of college poor distribution meant that they had few opportunities to buy books even if they wished. There were only something like 1,200 bookshops in the entire country, heavily concentrated in major metropolitan areas — a half of all bookshops were located in five states (New York, Pennsylvania, Massachusetts, Illinois and California), and 85 per cent of counties across the country had no recognized outlet for books at all. Mail-order book clubs, such as the Book-of-the-Month Club, founded in 1926, had done something to rectify this, but had only succeeded in doubling the volume of book sales, mostly to highly educated people, buying the same kind of books as were bought in shops.  Pocket Books’ solution, as we have seen, was to peddle books through wholesalers to magazine and newspaper outlets, of which there were up to a hundred thousand nationwide, reaching even the smallest communities. Weybright readily adopted this solution, but to make it work he felt he had to adopt two practices that were unacceptable to Lane. 
First, he needed some massive sellers to get the wholesalers to take his books in the first place, books that were guaranteed to sell anywhere in sufficient quantities to make it worth their while. So Weybright was prepared to lead his line with pulps and near-pulps — in addition to Dr. Spock, Pocket Books had used Erle Stanley Gardner’s Perry Mason detective stories for this purpose, and Weybright bought the rights to Mickey Spillane’s hard-boiled private eye stories and Erskine Caldwell’s sexed-up Southern Gothic tales. The pulp fiction did not affect the selection and sale of the more serious lines — nor did they cross-subsidize, because all of Weybright’s books aimed to make a profit — but they were needed to get access to the wholesalers, something which Lane could not and did not accept. He would rather not publish at all in the United States if it meant selling what he considered pornography. 
Second, in order to sell his serious lines through the retail outlets, Weybright went in for rather more aggressive marketing than Lane would tolerate, including colour covers (not as lurid as his pulp covers, but able to sit comfortably alongside them) and salesmanship on the jacket copy to entice reluctant or unsophisticated readers to crack the spine. Again, this packaging hardly affected the content of the books, as Weybright continued to print the same kind of material as Penguin (indeed often the same titles), but Lane forbade it; neither colour nor even illustration became common on Penguins until the 1960s and the jacket copy remained austere and descriptive. These irreconcilable differences were recognized quickly on both sides and by 1948 Lane had agreed to sell his interest to Enoch and Weybright. The US operation was relaunched in that year as NAL, with its Penguin lines rebranded as Signet Books and its Pelicans as Mentor Books. 
Despite these differences, Pelican and Mentor remained embarked on similar missions through the early 1960s at least, and remained the dominant purveyors in their respective markets of serious non-fiction in mass-market paperback form. Weybright even adopted for NAL a slogan he borrowed from Lane (slightly Americanized in diction), ‘Good Reading for the Millions’. They had no real rivals until Doubleday launched Anchor Books in the United States in 1953, followed by Knopf’s Vintage Books and a wave of similar quality-paperback imprints from other hardback houses. Even these so-called ‘egghead paperbacks’ were not quite in the Pelican and Mentor mould, being higher-priced and more clearly targeted at college and graduate markets. Although the egghead imprints had some impressive successes much like Mentor’s — conspicuously, one of Anchor’s first titles, Riesman’s The Lonely Crowd, and one of Vintage’s, Richard Hofstadter’s The American Political Tradition, eventually reached the million-sales mark attained by Benedict — Mentor remained the market leader until the early 1960s. Pelican had fewer competitors until the 1960s, although it was then challenged and finally capitulated to colour covers. Both imprints benefitted also from their early start, in that they had impressive backlists which formed an ever-larger proportion of sales as paperbacks moved in both countries into the bookshops in a big way in the late 1950s. Although by then the hardcover publishers were increasingly retaining the paperback rights for their own egghead imprints, Pelican and Mentor continued to thrive by commissioning their own books and selling on the rights to an initial hardcover edition. Their early start also meant that these two imprints were in the best position to benefit from a general shift from fiction to non-fiction reading in both countries that came about as a result of rising educational opportunity

31 July 2019

Animals

'‘Ruff’ Justice: Canine Cases and Judicial Law Making as an Instrument of Change' by Richard Jochelson and James Gacek in (2018) 24(1) Animal Law Review resonates with the current Australian Capital Territory move to recognise dogs and other non human animals as sentient beings.

The authors comment
 The regulation of animals in North America should be apprised of evolving socialities. As the judiciary encounters situations of contestation between humans and animals in adjudication, it should take notice of the emergence of animal recognition in Western societies. Law is apprised of sociality, can absorb social information, and may, at times, reflect how citizens view issues of justice. What was once innocent behavior can be reconstituted as criminal through the adjudicative exercise (and vice versa). In this Paper, we investigate socio-legal constructions of ‘the animal’ in two recent North American adjudications. In two recent cases, R. v. D.L.W. and State v. Newcomb, the Supreme Court of Canada and the Oregon Supreme Court contested what it means to be an animal in situations of bestiality and animal welfare investigations respectively. We argue that the jurisprudence in Canada and the United States should begin to incrementally shift towards progressive conceptions of animal existence. Such an understanding would (re)consider animals as beings, capable of worth and dignity – as more than expendable property. In light of a relative void of modern animal welfare legislation in North American jurisdictions, let alone animal bills of rights, the judicial decision remains the most likely site of progress for animal advocacy.

Mapping

'A Right Not to be Mapped? Augmented Reality, Real Property, and Zoning' (Ottawa Faculty of Law Working Paper No. 2019-17) by Elizabeth F Judge and Tenille E Brown comments
 The digital mapping applications underlying augmented reality have strong public benefits but can also have unappreciated effects on real property. In recent litigation on Pokémon Go, an enhanced digital mapping application in which players participate in a digital scavenger hunt by visiting real world locations, homeowners alleged that the augmented reality application harmed their residential properties by increasing the number of people in their residential areas. However, neither the existing laws on intellectual property nor those for real property are designed to address these types of harms. On the one hand, real property torts, such as nuisance and trespass, on which the homeowners relied, are ill-suited to address harms from a digital application as they are based on a right to exclude and consent. On the other hand, intellectual property laws have not focused on harms that could result from the intersection of intellectual property rights and real property. If it were to be framed anew, the basis of the homeowners’ claims would be most analogous to asserting “a right not to be mapped.” However, there is not yet a “right not to be mapped” in law, and there are compelling reasons for the law not to create one. We recommend three alternative mechanisms to regulate the relationship between augmented reality and real property. We recommend the application of zoning principles as a legal mechanism designed for location-sensitive regulation, which can balance the concerns of individual real property owners, as well as the larger context of community and city interests, and be adapted to innovative technologies such as augmented reality. Additionally, we suggest that catalogues of augmented reality applications be created to support zoning decisions and to provide public notice. We also consider the possibility of licensing schemes with micropayments for real properties affected by augmented reality.