Universities and TAFEs

'To What Extent are University IP Policies Legally Binding? Part 1: Staff' by Philip Mendes in (2016) LI(3) les Nouvelles – Journal of the Licensing Executives Society comments

All universities and other research organisations (for brevity, the term ‘university’ is employed, and refers not just to a university, but to all forms of a non-for-profit research organisation) have intellectual property (IP) policies. Like other policies, they serve an important function, stating the university’s position upon diverse matters ranging from conflicts of interests, to paid outside employment by academic staff, and from campus security to the use of the university’s libraries. But university IP policies go further than just stating a policy. They seek, by force of the policy alone, to change where the ownership of IP lies. This article describes the legal basis for IP policy in the US, Australia, United Kingdom and Canada with regard to staff in Universities.

There is a bleaker view of education in the announcement by the ACCC earlier this year - noted as part of a project on regulation of the for-profit VET sector - that proceedings were underway in the Federal Court against Australian Institute of Professional Education Pty Ltd (AIPE).

AIPE is a provider of VET FEE-HELP Diploma courses. The ACCC alleges that AIPE enrolled approximately 15,426 students into VET FEE-HELP Diploma courses between January 2013 and 1 December 2015 and accordingly received over $210  million from the Commonwealth.

AIPE used face-to-face marketing, including door-to-door sales, as well as telemarketing. It is alleged  that AIPE made false or misleading representations and engaged in unconscionable conduct, in breach of the Australian Consumer Law (ACL). For example, it is alleged that AIPE represented to prospective students that they would receive a free laptop or tablet and that the course(s) were free or were free if the consumer did not earn approximately more than $50,000 per annum. In fact, the laptop or tablet students received were on loan. Students enrolled in the courses incurred a VET FEE-HELP debt payable to the Commonwealth, with repayment commencing if they earned over a specified amount in a financial year ($53,345 in the 2014-2015 income year).

 It is also alleged that AIPE’s pattern of behaviour for enrolling students into its courses and its dealings with vulnerable consumers was, in all the circumstances, unconscionable.

 ACCC Chairman Rod Sims said

: “We allege AIPE marketed its courses to some of the most vulnerable and disadvantaged groups in the Australian community, including consumers from low socio-economic backgrounds and consumers with intellectual disabilities. Further, for these online courses, some people were enrolled who had limited reading and writing skills, could not use a computer, and were not able to use email. We allege that AIPE failed to take adequate steps to ensure that it was not taking advantage of these vulnerable consumers.” 

“It is also alleged that AIPE engaged in a pattern of behaviour that allowed sales to be made using incentives such as “free” laptops, Wi-Fi access and mobile phone credits, which involved the use of unfair tactics and failed to provide clear and accurate information about the price of the courses and the nature of the VET FEE-HELP loan,” 

NSW Fair Trading Commissioner Rod Stowe said

“This is yet another reminder to colleges that prospective students need to be properly informed before they can be enrolled. Prospective students need to know that by signing up for a course they do not get a free laptop, they incur a lifetime debt,”.

Victorian FOI, Data Protection and Privacy Regimes

Given that inconvenient statements tend to go offline I'm quoting this week's response by David Watts, Victoria's Commissioner for Privacy and Data Protection, regarding the state's problematical Freedom of Information Amendment (Office of the Victorian Information Commissioner) Bill 2016 -

The Victorian government has introduced into Parliament a Bill that would substantially change the governance of privacy and data protection in Victoria. There has been no significant public comment or discussion concerning the Bill which is to be debated in the forthcoming parliamentary session.

Under current legislation, my role includes consulting with those who are concerned with information privacy and publication, in the public interest, of reports and recommendations relating to my functions.

This paper is designed to ensure that those concerned with privacy and data protection issues in Victoria are aware of and have an opportunity to understand and comment on the proposals.

Freedom of Information issues

The Bill brings together in a single administrative structure the regulation of: • freedom of information (FOI); and • privacy and data protection.

As FOI policy falls outside my functions under Part 6 Division 2 of the Privacy and Data Protection Act 2014 my views on the Bill chiefly relate to proposals the Bill makes regarding privacy and data protection.

There are however some aspects of the Bill dealing with FOI issues ultimately relate to data management and so interact with my functions. The first of these issues is that the FOI changes are minor compared to community expectations for the future of FOI. The government has indicated that a root and branch review of FOI is to occur at some unspecified future time. In this context, the Bill is an opportunity lost. The changes proposed by the Bill to FOI are largely process changes rather than substantive. The regime could be significantly more effective if supported by improvements in the substantive requirements for disclosure.

The second issue relates to the community’s dissatisfaction with current FOI arrangements that stem from its inefficiency. Requests are frustrated and unnecessarily delayed because the system presupposes the paper-based data management environment that prevailed some decades ago. The proposal in the Bill to reduce FOI response times from forty five to thirty days will be meaningless unless accompanied by either the significantly greater human resources support or a fundamental rethink of FOI systems and processes.

While the definition of ‘documents’ (that need to be searched and considered for disclosure) appears wide enough to include electronic material, the determined practice of agencies is to deal in paper for FOI purposes.

One consequence of this practice is that searching for and photocopying documents causes significant delays and constitutes a significant disincentive to FOI applications. The practice also utilises excessive public sector resources which could be better allocated elsewhere and generates unnecessary costs for the public sector and fees for applicants. If the legislation clarified the requirements so that electronic searching were expressly required, significant cost and delay could be avoided.

If Google can produce a consolidated search history result in fractions of a second for each user, it is disappointing that the Bill allows the disconnection between current document management practice and FOI practice to continue and fails to drive digital solutions and efficiencies. This issue has been identified in a number of publications. Of note is the by no means recent reference in Moira Paterson, Freedom of Information and Privacy in Australia, (Ed.1, 2005) at [2.25-6].

Finally, the proposed merger of: • FOI functions, which relate to the release of information; with • privacy and data protection functions, which usually do not, raises the issue of whether the Bill proposes to embed a conflict of interest into the administrative structure. Balancing this concern, there may be an argument that this apparent conflict provides a useful discipline with security including the need to provide assurance that the information is available for appropriate purposes, without hindrance. These complex issues deserve careful policy consideration before any misstep is taken. I will consider this issue further later in this paper.

A missed opportunity for reform

If the priority is to reform the administration of privacy and data protection through merging existing statutory bodies, the sensible first step would be to consolidate the administration of health privacy with the current framework that applies to all other personal information. The distinction between privacy issues in the context of health and other personal and sensitive information has presented a number of administrative challenges that are not justified by any public interest benefit. This is a more significant and urgent issue than the possibility of merging FOI and privacy functions.

The health privacy role of Health Services Commissioner has been seriously under- resourced since it was created and has not had the significant impact on the management of the privacy of health records that the public is entitled to expect on the basis of the legislation that created the role. This issue needs to be addressed.

Governance issues

As already noted, the main focus of the Bill appears to be on revisions to governance. The Bill proposes that three areas of activity - freedom of information, privacy and data protection - should be administered in a single statutory body through creation of an overarching Information Commissioner, overseeing the three functions, with 2 Assistant Commissioners also appointed. I refer to this structure as the ‘information commissioner model’.

Introduction of the information commissioner model in Victoria

This structure has not been the subject of consultation – either within government, (including with my office or that of the FOI Commissioner), with non-government stakeholders or with the community in general. It is modelled on a similar structure adopted in other jurisdictions, including the Commonwealth and NSW. In those contexts there does not appear to have been any substantial policy basis for the introduction of the structure.

In Victoria, the normal processes applicable to the development of policy proposals and obtaining approval in principle from Cabinet do not appear to have been followed. The policy proposal for the Bill appears to have been developed within the Department of Premier and Cabinet (DPC) in apparent secrecy.

I was first advised that the proposal had been considered and approved by Cabinet at a meeting on 3 March 2016. The concerns I expressed were dismissed as being ‘too late’ because Cabinet had already approved the proposal - presumably at the immediately previous scheduled meeting on 29 February 2016.

At that meeting I was advised that my comments on the Bill, when it was drafted, would be sought. When this occurred I chose not to so because the fundamentals of the Bill had been predetermined.

Policy basis of the information commissioner model

The information commissioner model was first implemented in Australia by the Rudd government. Research has not identified policy material or an evidence base to support it.

Senator Sherry said in the second reading speech for the Australian Information Commissioner Bill 2010, which first introduced the structure: ‘The Government considers that the co-location of privacy and FOI policy will enhance oversight and allow for consistent information policy.’ and: and: The a priori policy hopes behind these views have proven to be wrong. Experience in a number of jurisdictions indicates that the model does not work. The current position is that either these structures are not filled, or are not functional.

The experience in NSW is that the structure has led to conflict. This dysfunction has led to persistent and intractable disputes between commissioners. In Queensland, the privacy commissioner position was not permanently filled for years.

Similar issues with the Commonwealth legislation have led to significant turnover in the roles, with two of the three not currently filled and the senior role currently the subject of an acting appointment. In the case of the Commonwealth, the article at: ‘The nature of the FOI functions and privacy functions are too extensive for one office holder to effectively manage.’ ‘...the Government expects that the three office holders will work together cooperatively ...’ 3 http://www.canberratimes.com.au/national/public-service/the-slow-death-of-the- office-of-the-australian-information-commissioner-20150826-gj81dl.html sums up the situation well, albeit with some unsurprising journalistic spin. In short, the evidence base that has emerged following implementation of the information commissioner model elsewhere in Australia suggests that structural dysfunction will be the outcome of passing the Bill.

The operational consequences of this dysfunction have meant that the community has not been well served. Each of the Commonwealth, NSW and Queensland offices has been held back in their response to the complex digital-age issues relevant to privacy and FOI. In a privacy context, this has meant that key contemporary and sophisticated issues such as guidance and thought leadership about information sharing, information security, cloud computing, de-identification and the phenomenon of big data have been hampered.

Protective Data Security

Victoria’s information management framework is substantially different to those of other jurisdictions and cannot properly be compared them. The Privacy and Data Protection Act 2014 (PDPA) addressed long-outstanding recommendations from the Auditor-General and the Ombudsman that highlighted security deficits within the Victorian public sector. The PDPA responded by providing structural support for a statutory protective data security framework for the Victorian public sector that extends to all government information, not just personal information. There is no counterpart elsewhere in Australia. Victoria is the only jurisdiction that mandates transparency and independent assurance and oversight for security.

The Victorian public sector is significantly divided on the attractiveness of this approach. A number of agencies that encounter difficult data security issues through delivery of higher risk services have become supporters of the assurance that the legislation provides. Other, predominantly central, agencies are less aware of the risks they face and being at a very early stage of cultural change, in some cases display fairly open opposition to the legislation.

The Bill may endanger the progress achieved to date in implementing this reform, without any policy-based indication that this risk is justified by likely public benefit. There is a significant likelihood that stakeholders productively involved in improving data security will suffer a drop in confidence in the process that has achieved a great deal of progress in the last 2 years. If the Bill is passed without the support of a preliminary and durable policy process public and media perception can be expected to criticise the merger of functions as giving rise to conflict of interest. It should be expected that public trust and confidence in both security and FOI will suffer as a result.

Continuity

The PDPA has been in place for something less than 2 years. In the context of: • the 5 year appointment of the existing CPDP; and • the significant cultural challenge for the public sector represented by introduction of the PDPA replacement of the governance regime for privacy and data protection appears premature. In this short period it is inconceivable that government could have tested the existing governance arrangements, found them wanting and developed a more effective model.

Since 2014 significant progress has been made in developing privacy and data protection policy and frameworks and in encouraging sensible operational responses to adverse incidents involving privacy and data protection. Despite this progress, the developments are still at an early stage and need to be consolidated. A governance change at this stage can be expected to damage and at least to some degree reverse this process. It is tempting to conclude that the proposed changes are a reaction to discomfort caused by the existing governance structure and the effectiveness of developments. This is not a positive conclusion.

Cultural change

Fundamentally, the PDPA was designed to drive public sector cultural change. The change process the PDPA mandates is not welcome in many parts of the Victorian public sector.

In the context of data security, resistance to cultural change has caused significant delay since the PDPA came into force. The start date of the Victorian Protective Data Security Standards (VPDSS) was delayed three times either without explanation or on the pretext that further consultation was needed. This further proposed consultation involved minor or trivial matters that could have been addressed within days. The Department of Premier and Cabinet, being the party proposing this consultation, did not undertake it. Ultimately other stakeholders within government were in the interesting position of seeking the change that the Department primarily responsible for the policy area was resisting. While this reaction to cultural change is understandable, it is not laudable.

There is more than a passing appearance that the proposals for change to governance in the Bill are intended to further inhibit the change process commenced by the PDPA.

Terms of Appointment

I currently hold the role of Commissioner for Privacy and Data Protection (CPDP).

The CPDP is appointed by the Governor in Council and once appointed can be: • suspended by the Governor in Council, with the reasons for that suspension reported to Parliament within 7 days; and • removed by a resolution of both houses of Parliament. If suspension occurs and removal does not follow within 20 sitting days, the suspension ceases and the appointment continues (see s.100 of the PDPA).

These arrangements are the same as those for other governance appointments under Parliament, such as the Auditor-General, the Ombudsman and the heads of IBAC and the Victorian Inspectorate. In other words, privacy and data protection is a subject area ultimately administered by Parliament in the same way as other key governance issues within the public sector.

The Bill proposes that the balance of these arrangements changes so that the Governor in Council (that is the Executive) can suspend or remove either of the 2 Commissioners responsible for privacy and data protection, with only a requirement to report the grounds for that action to Parliament, within 10 sitting days (see clauses 6 (proposed s. 6N) and 80 (proposed s. 8L) of the Bill).

This change represents a significant weakening of: • the independence of the Commissioners; and • the effect of the provisions in the proposed legislation that the Commissioners are not subject to the direction of the Minister (Clauses 6 (proposed s. 6B(3)(a)) and 80 (proposed s. 8L) of the Bill).

A threat of removal may be used to similar effect as a power of direction.

Conclusion

These issues warrant careful consideration. I recommend that the Bill should be examined carefully for both intended and unintended consequences before it is passed. It would be appropriate for these issues to be dealt with in the course of the committee stages of Parliament considering the Bill.

Identity

The Births, Deaths and Marriages Registration Amendment Bill 2016 (Vic) introduced in the Victorian Legislative Assembly yesterday seeks to make it easier for trans gender, gender diverse and intersex people to gain new birth certificates that accurately record their gender.

Adults will be able to apply to alter the sex recorded on their Victorian birth registration and birth certificate. They will be able to nominate their sex descriptor as male, female or specify a gender diverse or non-binary descriptor. The Bill also introduces a new process enabling parents or a guardian to apply to alter the sex recorded on their child’s birth registration, subject to consent by that child and a supporting statement from a doctor or registered psychologist. Children over the age of 16 will be assumed to have capacity to consent.

Currently, if a person in a heterosexual marriage (i.e. under Commonwealth law) changes gender and wants a new birth certificate to reflect that, he or she will need a divorce first given non-recognition of same-sex marriage is illegal. The Victorian Bill, is passed, means that couples will no longer be forced to divorce if one partner wishes to apply to change the sex recorded on his or her birth registration.

Posthumous Moral Rights

'Dead Loss: Damages for Posthumous Breach of the Moral Right of Integrity' by Jani McCutcheon in (2016) 40(1) Melbourne University Law Review considers 

whether damages may be awarded for the posthumous breach of an author’s moral right of integrity, which endures for 70 years post-mortem and, in many common law countries, protects authors against certain conduct in respect of a work which is prejudicial to their honour or reputation. While remedies for infringement ostensibly include damages, this article interrogates whether death defeats the moral right by denying significant damages due to a number of obstacles, principally the apparent conundrum that the dead cannot suffer loss. Has Parliament legislated a puzzle by giving the dead rights that are practically ineffectual? The problem is significant because nonnominal damages mark and deter wrongs, justify the expense and risk of litigation, and support the role of posthumous moral rights and remedies in protecting the public’s interest in cultural heritage. The article explains the impediments to posthumous damages awards and advocates reform to facilitate them and enhance the efficacy of post-mortem moral rights.

Tinkering

'Freedom to Tinker' by Pamela Samuelson in Theoretical Inquiries in Law (Forthcoming) comments 

Tinkering with technologies and other human-made artifacts is a long-standing practice. Freedom to tinker has largely existed without formal legal recognition. Tinkering has typically taken place in an unregulated zone within which people were at liberty to act unobstructed by others so long as they did not harm others. The main reason why it now seems desirable to articulate some legal principles about freedom to tinker and why it needs to be preserved is because freedom to tinker is being challenged by some legal developments. This Article explains that user-innovators have traditionally had considerable freedom to tinker under trade secrecy, patent, and trademark laws. Although copyright law permits a modest degree of tinkering with existing products, it restricts freedom to tinker more than other IP laws. Copyright law and sometimes contract law place substantial constraints on user rights to tinker with and modify computer programs and other digital works. These constraints are of particular concern to tinkerers because computer programs are embedded in such a wide range of technologies these days. This Article offers suggestions about how and why the law should protect a zone of freedom to tinker for socially beneficial purposes.

GMO Labelling

'On the Costs and Benefits of Mandatory Labeling, with Special Reference to Genetically Modified Foods' by Cass Sunstein comments

 As a result of movements for labeling food with genetically modified organisms (GMOs) Congress enacted a mandatory labeling requirement in 2016. These movements, and the legislation, raise recurring questions about mandatory product labels: whether there is a market failure, neoclassical or behavioral, that justifies them, and whether the benefits of such labels justify the costs. The first goal of this essay is to identify and to evaluate the four competing approaches that agencies now use to assess the benefits of mandatory labeling in general. The second goal is to apply those approaches to the context of GM food. 

Many people favor labeling GM food on the ground that it poses serious risks to human health and the environment, but with certain qualifications, the prevailing scientific judgment is that it does no such thing. In the face of that judgment, some people respond that even in the absence of evidence of harm, people have “a right to know” about the contents of what they are eating. But there is a serious problem with this response: the benefits of such labels would appear to be lower than the costs. Consumers would obtain no health benefits from which labels. To the extent that they would be willing to pay for them, the reason is likely to be erroneous beliefs, which are not a sufficient justification for mandatory labels. Moreover, GMO labels might well lead people to think that the relevant foods are harmful and thus affirmatively mislead them. 

Some people think that the key issue involves the need to take precautions in the face of scientific uncertainty: Because there is a non-zero risk that GM food will cause irreversible and catastrophic harm, it is appropriate to be precautionary, through labels or through more severe restrictions. The force of this response depends on the science: If there is a small or uncertain risk of serious harm, precautions may indeed be justified. If the risk is essentially zero, as many scientists have concluded, then precautions are difficult to justify. The discussion, though focused on GM foods, has implications for disclosure policies in general, which often raise difficult questions about hard-to-quantify benefits, the proper use of cost-benefit balancing, and the appropriate role of precautionary thinking.

Rights and Illegality

'The Anatomy of the Human Rights Framework for Intellectual Property' by Peter Yu in (2016) 69 SMU Law Review 37-95 comments

Since the U.N. Sub-Commission on the Promotion and Protection of Human Rights adopted Resolution 2000/7 on "Intellectual Property Rights and Human Rights" more than fifteen years ago, a growing volume of literature has been devoted to the debates on the human rights limits to intellectual property rights, intellectual property and human rights, and intellectual property as human rights. Commentators, myself included, have also called for the development of a human rights framework for intellectual property. Thus far, very few commentators have explored the place of patent rights in this framework. Very little research, if any, has also been devoted to the interplay of intellectual property rights and human rights in the area of scientific productions. 

Aiming to fill the lacuna, this article focuses on the complex interactions among scientific productions, intellectual property and human rights. It begins by outlining the various arguments for or against recognizing patent rights as human rights. It then explores the proper place of intellectual property rights — in particular, patent rights — in the human rights framework for intellectual property. To help facilitate a systematic and holistic study of the framework, this article advances a layered approach to intellectual property and human rights and identifies the framework's organizing principles and structural layers. 

This article further illustrates the proposed layered framework with examples involving four different types of scientific productions: (1) scientific publications; (2) scientific innovations (including inventions); (3) scientific knowledge; and (4) indigenous knowledge, innovations and practices. The article concludes by exploring whether an alternative human rights basis can be found in the right to own private property — a recurring debate among policymakers, commentators and intellectual property industries as well as one that has found support in recent human rights developments in Europe.

In Patel v Mirza [2016] UKSC 42 the UK Supreme Court has considered the common law doctrine of illegality as a defence to a civil claim, of interest to Australian equity law students.  

Patel had provided Mirza with £620,000 to bet on the Royal Bank of Scotland's share prices using insider information. Mirza expecting his contacts would inform him of a government announcement about the bank. Absent the announcement  the betting did not take place; Mirza however didn't return the money. Patel took Mirza to court, where Mirza argued Patel's claim should fail because of the illegality of the arrangement. Shades of The Highwayman's Case, which famously ended badly. Patel succeeded in the Court of Appeal in Patel v Mirza  [2014] EWCA Civ 1047, with Mirza being required to repay the money. Mirza unsuccessfully appealed to the Supreme Court. 

In a media release explaining the judgment the Supreme Court explains its reasoning, stating 

 Lord Mansfield said in Holman v Johnson (1775) 1 Cowp 341, 343 that “no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act”. Behind this maxim, there are two broad policy reasons for the common law doctrine of illegality as a defence to a civil claim. First, a person should not be allowed to profit from his own wrongdoing. Second, the law should be coherent and not self-defeating, condoning illegality by giving with the left hand what it takes with the right hand. The reliance test expressed in Tinsley v Milligan [1994] 1 AC 340 bars the claimant if he/she relies on the illegality in order to bring the claim. This test has been criticised and Tinsley should no longer be followed. 

The essential rationale of the illegality doctrine, as explained by the Supreme Court of Canada in Hall v Hebert [1993] 3 RCS 159, is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system. In assessing whether the public interest would be harmed in that way, it is necessary to consider

a) the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, 

b) any other relevant public policy on which the denial of the claim may have an impact and 

c) whether denial of the claim would be a proportionate response to the illegality.

Various factors may be relevant, but the court is not free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate. 

In considering whether it would be disproportionate to refuse relief to which the claimant would otherwise be entitled, as a matter of public policy, various factors may be relevant. Potentially relevant factors include the seriousness of the conduct, its centrality to the contract, whether it was intentional and whether there was marked disparity in the parties’ respective culpability. 

A claimant, such as Mr Patel, who satisfies the ordinary requirements of a claim for unjust enrichment, should not be debarred from enforcing his claim by reason only of the fact that the money which he seeks to recover was paid for an unlawful purpose. There may be rare cases where for some particular reason the enforcement of such a claim might be regarded as undermining the integrity of the justice system, but there are no such circumstances in this case. 

Lord Kerr writes a concurring judgment elaborating on aspects of Lord Toulson’s judgment. Lord Kerr identifies that there is a choice of approaches between a rule-based approach on the one hand and on the other a more flexible approach, taking into account the policy considerations that are said to favour recognising the defence of illegality. A rule-based approach to the question has failed to lead to the predictability it sought. Further, it is questionable whether particular weight should be given to predictability where a claimant and defendant have been parties to an illegal agreement.

In the judgment the Law Lords concluded  there is no inconsistency in permitting a party to an illegal arrangement to recover any sum paid under it, so long as restitution is possible. An order for restitution simply returns the parties to the positon in which they would and should have been, had no such illegal arrangement been made. 

Lord Neuberger however suggested that, in relation to other issues involving illegal arrangements, the approach suggested by Lord Toulson provides as 'reliable and helpful guidance as it is possible to give' Separate judgments expressing general agreement considered that, with the above clarification of the operation of restitution, there is no basis for replacing the clear-cut principle identified in Holman v Johnson and Hall v Hebert - founded on the need to maintain the integrity of the law.