Capacity

'Capacity to Consent to Sexual Risk' by Elaine Craig in (2014) 17(1) New Criminal Law Review 103 comments

 In delineating the legal boundaries of capacity to consent to sexual touching, law makers and jurists must grapple with tensions between sexual liberty, morality, sexual minority equality interests, and public safety. Legal rules that stipulate that an individual cannot consent in advance to unconscious sexual activity or to sado-masochism, or that an individual under a certain age or with a particular intellectual capacity cannot consent to sexual touching have an impact on sexual liberty and should be justified. This paper argues that establishing these limits based on normative assessments about specific sexual acts poses too great a threat to the liberty interests of women and sexual minorities. A better approach is to accept that in sex, as is probably true of all complex human interactions, an accurate application of the definitional turns on the particular. Context is everything. No sexual act, including one that objectifies, is inherently harmful. The paper offers an alternative approach by suggesting that laws defining capacity to consent should be justified on the basis of assessments of risk rather than moral assessments about sex. This stands to circumscribe law’s limits on sexual liberty in ways that are better for women and sexual minorities. What this approach does not resolve is the paradox presented by the reality that although sex is inherently contextual, criminal laws prohibiting violations of sexual integrity should not be applied contextually. The paper explores how a recent legal ruling in Canada denying the capacity to provide advance consent to unconscious sex reveals this paradox. The discussion concludes by asserting that the failure of law to exclude morally inculpable unconscious sex between ongoing sexual partners reveals the limits of law and in doing so suggests the need to reevaluate the law’s conception of the relationship between sexual liberty and sexual integrity.

a US Droit?

The US Copyright Office has released a 112 page report [PDF] that broadly favours establishment of a national droit de suite regime in the US.

The report states that

A well-functioning copyright law must provide robust support for authors, who are, after all, the first beneficiaries of the copyright system. Indeed, U.S. copyright law derives fundamentally from the principle that authors’ interests are inseparable from the broader public interest. While “[t]he immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor,” the “ultimate aim is . . . to stimulate artistic creativity for the general public good.” Accordingly, to the extent that the current copyright system is not working effectively for authors – or is disfavoring a discrete class of authors – Congress should be concerned. 

In the framework of the resale royalty discussions, the authors at issue are certain visual artists, including painters, illustrators, sculptors, and photographers (hereinafter “visual artists” or “artists”). Based on the information and comments provided during the preparation of this report, as well as the Office’s independent research, the Office agrees that, under the current legal system, visual artists are uniquely limited in their ability to fully benefit from the success of their works over time. The distinctive nature of the creation and marketing of visual art has not changed since the Office’s main study on the topic, published in 1992. At the same time, recent developments – including in particular the adoption of resale royalty laws by more than thirty additional countries since the Office’s prior report – would seem to warrant renewed consideration of the issue. 

In general, visual artists do not share in the long-term financial success of their works. Instead, the financial gains from the resale of their works inure primarily to third parties such as auction houses, collectors, and art galleries. Moreover, the income typically available to other authors through reproduction and derivative uses of their works is more limited for artists. Although the Internet has provided artists with greater opportunities to exploit derivative images and/or sell mass-produced copies of their works, stakeholders agree that “for most visual artists . . . the amounts involved in reproduction or representation are generally insignificant.” Indeed, it appears to be common ground that reproduction rights represent a “very minor aspect of [most artists’] careers” and that the first sale of a work is “the main or exclusive source of income for almost all American artists.”

The Copyright Office agrees that these factors place many visual artists at a material disadvantage vis-à-vis other authors, and therefore the Office supports congressional consideration of a resale royalty right, or droit de suite, which would give artists a percentage of the amount paid for a work each time it is resold by another party. A large and growing number of countries around the world – more than seventy in total – now follow that approach. Other potential responses might include the facilitation of voluntary initiatives among stakeholders in the art market, amending the copyright law to give artists a continuing economic interest in their works through, for example, greater interests in public display or commercial rental rights, and increased federal grants for visual art programs. 

That said, an “information problem” in the art market – something that many have acknowledged – does present certain challenges. Any assessment of the treatment of visual artists under U.S. law suffers from a lack of independently verifiable data about the operation of the art market and a resulting difficulty in determining whether a resale royalty in particular would truly operate to place artists on equal footing with other authors. At the same time, the Office recognizes that many of the arguments against the right are overblown. Moreover, according to the most recent studies, a number of the adverse consequences that this Office’s previous report predicted might follow from implementation of the right have not materialized in countries that have adopted droit de suite since that time. Accordingly, the Office finds no clear impediment to implementation of a resale royalty right in the United States and supports the right as one alternative to address the disparity in treatment of artists under the copyright law. 

The Copyright Office makes the following observations and recommendations:

• Although visual artists possess the same exclusive rights under copyright law as other authors, they are disadvantaged as a practical matter by certain factors endemic to the creation of works that are produced in singular form (or in very limited copies) and are valued for their scarcity. There are sound policy reasons to address this inequity, including the constitutionally-rooted objective to incentivize the creation and dissemination of artistic works. 

• While a resale royalty could be one of many factors affecting the location of auctions and other art sales, there is no evidence to conclusively establish that it would harm the U.S. visual art market. Studies produced since this Office last examined the issue in 1992 belie earlier assumptions that a resale royalty would substantially reduce prices in the primary art market or shift the secondary art market away from the United States. 

• Although adoption of a resale royalty right is one option to address the disparate treatment of artists under the law, it is not the only option, and more deliberation is necessary to determine if it is the best option. The Office’s 1992 report highlighted the fact that resale royalties appear to benefit only an extremely small number of artists. Current studies and reports remain consistent with this view. In light of the potentially limited benefits, the costs of the law (e.g., administration and enforcement), while not insurmountable, suggest that Congress should approach this issue with some caution. 

• Should Congress wish to adopt a resale royalty right in the United States, the Office recommends that the legislation:

o Apply to sales of works of visual art by auction houses, galleries, private dealers, and other persons and entities engaged in the business of selling visual art; 

o Include a relatively low threshold value to ensure that the royalty benefits as many artists as possible; 

o Establish a royalty rate of 3 percent to 5 percent of the work’s gross resale price (i.e., a range generally in line with royalty rates in several other countries) for those works that have increased in value; 

o Include a cap on the royalty payment available from each sale; 

o Apply prospectively to the resale of works acquired after the law takes effect; 

o Provide for collective management by private collecting societies, with general oversight by the U.S. Copyright Office; o Require copyright registration as a prerequisite to receiving royalties; 

o Limit remedies to a specified monetary payment rather than actual or statutory damages; 

o At least initially, apply only for a term of the life of the artist; and 

 o Require a Copyright Office study of the effect of the royalty on artists and the art market within a reasonable time after enactment.

Sharing

Migration Amendment (Disclosure of Information) Regulation 2013 (Cth) - under s 504(1) of the Migration Act 1958 (Cth) - amends the Migration Regulations 1994 to authorise the disclosure of information (specifically name, residential address, sex, date of birth and immigration status) of Subclass 050 (Bridging (General)) or Subclass 051 (Bridging (Protection Visa Applicant)) visa holders to the Australian Federal Police or a State/Territory police force. Disclosure will be authorised by the Minister of Immigration & Border Protection about individuals or whole classes of such BVE holders.

The Explanatory Memo for the Regulation states that

the Regulation supports and otherwise facilitates the compliance activities of the Department of Immigration & Border Protection. In particular, it is intended to ensure that the Police are able to readily identify if a person charged with a criminal offence is a BVE holder. The provision of name, residential address, date of birth, sex and immigration status will provide the Police with more than one personal identifier to cross-check, ensuring a positive identification. This would facilitate information sharing between the Police and the Department, so that cases that come to the attention of the Police can be referred to the Department so that visa cancellation may be considered, if appropriate. ... The Australian Government has become increasingly concerned about BVE holders who engage in criminal conduct after being released into the community from immigration detention.

The disclosure of information would help federal, state and territory police services to inform the department, as soon as reasonably practicable, that a BVE holder has been charged with a criminal offence. This will support and facilitate the department’s compliance activities, specifically by allowing prompt consideration of visa cancellation. Section 116(1)(g) of the Migration Act 1958 (Cth) and Regulation 2.43(1)(p) and (q) provide that a BVE may be cancelled if:

• the person has been charged or convicted of a criminal offence in Australia or another country;

• the person is subject to an Interpol notice relating to criminal conduct or a threat to public safety or for the purpose of locating and arresting the person; or

• the head of an Australian law enforcement or a security agency has advised that a Bridging E visa holder is under investigation and should not hold that visa.

Additionally, the proposed amendments assist in the continuation of a cooperative working environment between the department and federal, state and territory police services, enabling information sharing and collaborative work practices.

The Memo notes that

Subsection 504(1) of the Migration Act 1958 (Cth) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition, the following provisions may apply:

• subsection 116(1) of the Act provides that the Minister may cancel a visa if he or she is satisfied of at least one of a variety of circumstances, including that:

- the holder has not complied with a condition of a visa;

- another person required to comply with a condition of the visa has not complied with that condition;

- the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community;

- that a prescribed ground for cancelling the visa applies to the holder.

• sub-paragraph 2.43(1)(p)(i) of the Migration Regulations 1994 (‘the Principal Regulations’) provides that for the purpose of paragraph 116(1)(g) of the Act, in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging) (Protection Visa Applicant)) visa, a prescribed ground is that the Minister is satisfied that the visa holder has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country.

• sub-paragraph 2.43(1)(p)(ii) of the Principal Regulations provides that for the purpose of paragraph 116(1)(g) of the Act, a prescribed ground is that in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging) (Protection Visa Applicant)) visa the Minister is satisfied that visa holder has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country.

• paragraph 2.43(1)(q) of the Principal Regulations provides that for the purpose of paragraph 116(1)(g) of the Act, a prescribed ground is that in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging) (Protection Visa Applicant)) visa an agency responsible for the regulation of law enforcement or security in Australia has advised the Minister that the visa holder is under investigation by that agency and that the visa holder should not hold their visa.

As one practitioner commented to me, the implication of the regulation is that visas can and will be cancelled on the basis of suspicion - a charge is not a conviction. I wonder what Tim Hill (formerly of the IPA), the new 'Freedom Commissioner' at the AHRC, thinks of that.

Cheating

'Justification of Academic Corruption at Russian Universities: A Student Perspective' (Edmond J. Safra Working Papers, No. 30) by Elena Denisova-Schmidt comments that

Academic corruption in Russia is extensively spread; it is not an isolated phenomenon. Rather, academic corruption is tightly embedded into the general corruption in society: in politics, business, and in everyday life. This paper illustrates some common types of cheating and corruption as well as the motives of the involved actors for applying, accepting, ignoring and/or pretending to ignore these activities, focusing on the students’ perspective ....

The current research project illustrates the different cheating techniques that are widely used at Russian universities, as well as the motives of the involved actors for applying, accepting, ignoring and/or pretending to ignore these activities. Using quantitative (questionnaires) as well as qualitative (interviews and focus groups) research tools, this study collects and reviews data in selected regions in Russia. The data set includes the perspectives of the university administration, the professors and the students. Many of the actions performed by these three groups are not illegal per se, but altogether, they weaken the integrity of the universities and undermine public trust in the most important societal institution. This contribution describes the students’ perspective.

Meanwhile the Guardian has reported on another instance of identity crime, this time involving US Environment Protection Agency John Beale who successfully pretended - for over a decade - to be an undercover CIA agent. Beale has pleaded guilty to defrauding Uncle Sam of US$0.9m in salary, expense claims and other benefits, and has agreed to pay US$1.3m restitution.

Beale's fraud reportedly centred on failing to turn up for work – in one instance for a mere 18 months – on the basis that he had an intelligence role at the CIA.

The Guardian states that

He faked malaria, and a rescue mission on behalf of a CIA colleague who was being tortured by the Taliban. He billed the government $57,000 for five trips to California – which he used to see his parents – and for lavish trips to London. But the CIA has no record of Beale ever walking in the door, let alone earning a security clearance, and the climate expert was actually using his absences to go for long rides on his mountain bike or catch up on reading.

Patrick Sullivan, the EPA assistant inspector general who carried out the investigation, told NBC: “I thought: ‘Oh my God, How could this possibly have happened in this agency?” He added: “I’ve worked for the government for 35 years. I’ve never seen a situation like this.”... A spokeswoman also said that the EPA had put additional safeguards in place to protect against fraud and abuse.

“John Beale is a convicted felon who went to great lengths to deceive and defraud the US government over the span of more than a decade,” the spokeswoman said. She added that Beale had begun his deception when George HW Bush was president, and that McCarthy was the first official to challenge his claims.

“Every subsequent senior manager of that office was told that Mr Beale was in fact working for the CIA, a narrative that was not questioned until November 2012,” the spokeswoman said. “After those questions were brought forward by Administrator McCarthy, and once the EPA was not able to confirm any relationship between Mr Beale and the CIA, the Agency promptly referred this matter to our Office of Inspector General.”

Postmarks

In Australian Postal Corporation v Digital Post Australia [2013] FCAFC 153 the Full Bench of the Federal Court of Australia has dismissed an appeal by Australian Postal Corporation against the Federal Court decision that the 'Digital Post Australia' trade mark was not an infringement upon the 'Australia Post' trade mark.

The FCA in Australian Postal Corporation v Digital Post Australia Pty Ltd (No 2) [2012] FCA 862 had correctly found that 'Digital Post Australia' and 'www.digitalpostaustralia.com.au' were not deceptively similar to Australia Post's registered trade marks.

Having compared the two marks visually and aurally and considered the relevant surrounding circumstances, I do not consider that there is a real, tangible danger of deception or confusion occurring as a consequence of DPA adopting the mark DIGITAL POST AUSTRALIA. I do not believe that the ordinary consumer might be caused to wonder whether the digital mail services proposed to be operated by DPA come from the same source as the digital mail services proposed to be offered by Australia Post. The ordinary consumer would not entertain a reasonable doubt about the matter.

The addition of the prefix “DIGITAL” and the different order of the words “POST” and “AUSTRALIA” in DPA’s mark are sufficient to avoid deception or confusion. The marks are visually and aurally distinct. They also convey different ideas to the consumer. The case of Health World Ltd v Shin-Sun Australia Pty Ltd [2005] FCA 5; (2005) 64 IPR 495 is instructive in this context. In that matter, Cooper J considered whether the marks HEALTHPLUS and INNER HEALTH PLUS were deceptively similar. As in this case, a descriptive word (“INNER”) had been added to prefix another existing two word mark (“HEALTH PLUS”). His Honour considered that the addition of the first word resulted in a substantial difference in meaning between the two marks. His Honour held there was no deceptive similarity even though the order of the second two words was not reversed. Jacobson J compared the marks again in Health World Ltd v Shin Sun Australia Pty Ltd [2008] FCA 100; (2008) 75 IPR 478 at [138] and found that:

the impression that the person of ordinary intelligence and memory would have of the Inner Health Plus mark is that of the dominant name and phrase, Inner Health...No such impression is created by the look or appearance of the trade mark HealthPlus...[which] is concerned with general health and well-being.

Similarly in this case, the essential element of DPA’s mark is the composite phrase “Digital Post” which conveys the idea of mail delivered in a digital form. The phrase “POST AUSTRALIA” which reverses “AUSTRALIA POST” in DPA’s mark would convey little meaning to the ordinary consumer in the absence of the preceding word.

The lack of deceptive similarity in the present case is even more apparent when one considers the surrounding circumstances which the Court must take into account. As Windeyer J said in Shell at 416:

the deceptiveness that is contemplated must result from similarity; but the likelihood of deception must be judged not by the degree of similarity alone, but by the effect of that similarity in all the circumstances.

The trade marks will be used in connection with digital mail services. Australia Post has a statutory monopoly over the delivery of letters and parcels. It is not yet associated in the minds of potential customers with the provision of digital mail. The potential audience for digital mail services is likely to be technologically competent and internet savvy. Members of that class will almost certainly be careful and astute in their selection of a digital mail service. Even in the context of a trade mark dispute concerning gourmet cheese, Middleton J in Yarra Valley Dairy Pty Ltd v Lemnos Foods Pty Ltd & Another [2010] FCA 1367; (2010) 191 FCR 297 considered at [278] that consumers were likely to:

at least take some care in choosing the product they intend to purchase. The consumer of this type of product is likely to be astute as to the characteristics of the product, and discerning in his or her purchasing habits.

It is difficult to imagine that anyone who is competent with computer technology will have any doubt that Digital Post Australia is separate and distinct from Australia Post. Although the name AUSTRALIA POST is entirely descriptive of its mail delivery services, it has become distinctive and iconic though extensive and prolonged use. In such circumstances, potential consumers of digital post services will perceive and pay attention to even slight changes to the mark. I find that the mark DIGITAL POST AUSTRALIA is not deceptively similar to the mark AUSTRALIA POST.

Citizenship

'The (Dwindling) Rights and Obligations of Citizenship' by Peter J. Spiro in (2013) 21 William & Mary Bill of Rights Journal 899 comments

 Citizenship is central to modern narratives of individual well-being. The popular conception holds that significant rights and obligations attach peculiarly to the citizenry. In his 2012 convention acceptance speech, for example, Barack Obama framed citizenship as “a word at the very essence of our founding,” as part of a recognition that “we have responsibilities as well as rights.” 

This essay interrogates the conventional wisdom that citizenship is central to situating the legal place of individuals in society. It concludes that citizenship status has limited consequence. What the state extracts from you and what it owes you is contingent on citizenship status in some contexts. Within the national territory, civil rights are extended without regard to citizenship or immigration status. Permanent resident aliens are legally disadvantaged with respect to some economic incidents of the welfare state, political rights, and immigration benefits. However, formal differentials are subject to work-arounds and underenforcement. In other words, rights differentials are not as significant as they might appear. The differential is narrower still in the context of obligations. With the exception of jury duty, citizenship imposes no additional societal burdens not also shouldered by non-citizen residents. Tax and military service obligations fall equally on citizens and noncitizens. Americans are required to do nothing for their country that they would not be required to do as mere legal residents. 

Outside the national territory, citizenship has greater salience on both sides of the balance sheet. Passport issuance is contingent on citizenship, as is diplomatic protection by U.S. authorities. The Supreme Court has found certain constitutional protections inapplicable to non-citizens outside of the United States, where the Bill of Rights has been fully portable for citizen carriers. External citizens also carry substantial tax obligations that are citizenship contingent. However, formal rights differentials have been counterbalanced by the rise of international human rights, which applies on a citizenship-blind basis. Recent growth in the number of external citizens renouncing their citizenship suggests that citizenship-contingent tax obligations are unsustainable. 

The contemporary convergence of citizenship and non-citizenship status reflects an evolution from more significant historical differentials. Citizenship status has grown less important in orienting the individual to law.

Harassment

In Ewin v Vergara (No 3) [2013] FCA 1311 Bromberg J has awarded $476,163 damages after finding that Ms Ewin was sexually harassed by her co-worker, verbally and physically, over a period of time.

Ms Ewin claimed that as a result of sexual harassment by Mr Vergara she suffers from post-traumatic stress disorder (PTSD) and other psychiatric illness. By reason of her inability to work and other disadvantage, she claimed that she suffered and will continue to suffer loss and damage, which she sought to recover through action under the Sex Discrimination Act 1984 (Cth). Section 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth) empowers the court to grant relief where satisfied that there has been unlawful discrimination by a respondent.

The FCA found that even though the co-worker was an employee of a labour hire firm engaged as a contract worker by the company where the woman was employed, Mr Vergara was covered by Sex Discrimination Act 1984 (Cth) s 28B(6).

The co-worker's acts constituted sexual harassment, irrespective of whether they occurred during working hours, and contravened s 28B(6) because the company office, where both parties worked, provided the requisite nexus to engage the relevant provision.