Personhood and Automation

'From Deep Blue to Deep Learning: A Quarter Century of Progress for Artificial Minds' by Dina Moussa and Garrett Windle in (2016) The Georgetown Law Technology Review comments

 In a future that is nearly upon us, machines outthink human beings. In many specialized domains, machines already do; beyond the nearly instantaneous math and text processing that has become mundane, computer systems have overtaken humans in tasks as complex as image and facial recognition, learning to play simple video games, and guessing where the nearest McDonald’s might be. Artificial intelligence (“AI”) systems have already entered the workforce, replacing grocery store cashiers, bank tellers, and, soon, taxi drivers. If the age of sentient machines is upon us, how must our law adapt?

Exploring the issue in 1992, Professor Lawrence Solum published 'Legal Personhood for Artificial Intelligences', in which he laid out two thought experiments. In the first, Solum imagines what the law might require before an AI agent could be allowed to serve as an independent trustee. In the second thought experiment, Solum evaluates such an AI’s claim to rights under the Constitution.

In this essay, we examine Solum’s theory and predictions in light of the intervening developments in technology and scholarship. We will first survey important technological developments in AI research, focusing on the deep learning algorithms that challenge previous assumptions about the pace and scope of the changes to come. We will then proceed to apply Solum’s dual thought experiments to these new technologies. Solum introduced the insight that for an AI system, we might separate the concepts of legal duties and legal rights. Applying a contemporary understanding of the facts and theory, we reimagine whether and how an AI system might shoulder legal duties such as trusteeship, and when such a system might have a colorable claim of constitutional rights. Finally, we synthesize these findings into an updated theory, in keeping with the framework that Solum first offered in 1992.

'Can Robots Be Lawyers? Computers, Lawyers, and the Practice of Law' by Dana Remus and Frank S. Levy comments

We assess frequently-advanced arguments that automation will soon replace much of the work currently performed by lawyers. Our assessment addresses three core weaknesses in the existing literature: (i) a failure to engage with technical details to appreciate the capacities and limits of existing and emerging software; (ii) an absence of data on how lawyers divide their time among various tasks, only some of which can be automated; and (iii) inadequate consideration of whether algorithmic performance of a task conforms to the values, ideals and challenges of the legal profession.

Combining a detailed technical analysis with a unique data set on time allocation in large law firms, we estimate that automation has an impact on the demand for lawyers’ time that while measureable, is far less significant than popular accounts suggest. We then argue that the existing literature’s narrow focus on employment effects should be broadened to include the many ways in which computers are changing (as opposed to replacing) the work of lawyers. We show that the relevant evaluative and normative inquiries must begin with the ways in which computers perform various lawyering tasks differently than humans. These differences inform the desirability of automating various aspects of legal practice, while also shedding light on the core values of legal professionalism.

Speech

The Parliamentary Joint Committee on Human Rights has been asked to report by 28 February 2017 on the following matters:

1. Whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) imposes unreasonable restrictions upon freedom of speech, and in particular whether, and if so how, ss. 18C and 18D should be reformed.

2. Whether the handling of complaints made to the Australian Human Rights Commission (“the Commission”) under the Australian Human Rights Commission Act 1986 (Cth) should be reformed, in particular, in relation to:

a. the appropriate treatment of: i. trivial or vexatious complaints; and ii. complaints which have no reasonable prospect of ultimate success;

b. ensuring that persons who are the subject of such complaints are afforded natural justice;

c. ensuring that such complaints are dealt with in an open and transparent manner;

d. ensuring that such complaints are dealt with without unreasonable delay;

e. ensuring that such complaints are dealt with fairly and without unreasonable cost being incurred either by the Commission or by persons who are the subject of such complaints;

f. the relationship between the Commission’s complaint handling processes and applications to the Court arising from the same facts.

3. Whether the practice of soliciting complaints to the Commission (whether by officers of the Commission or by third parties) has had an adverse impact upon freedom of speech or constituted an abuse of the powers and functions of the Commission, and whether any such practice should be prohibited or limited.

4. Whether the operation of the Commission should be otherwise reformed in order better to protect freedom of speech and, if so, what those reforms should be.

The Committee is asked, in particular, to consider the recommendations of the Australian Law Reform Commission in its Final Report on Traditional Rights and Freedoms – Encroachments by Commonwealth Laws [ALRC Report 129 – December 2015], in particular Chapter 4 – “Freedom of Speech”.

In this reference, “freedom of speech” includes, but is not limited to, freedom of public discussion, freedom of conscience, academic freedom, artistic freedom, freedom of religious worship and freedom of the press.

The Attorney-General comments

Among other things, the Committee will examine whether the existing processes of the Commission are sufficient to ensure that trivial or vexatious complaints to the Commission, and complaints which have no reasonable prospects of success, are identified and dismissed at an early stage. It will also examine ways to ensure that complaints are dealt with in an open and transparent way, without unreasonable delay, and in a manner which ensures those subject to complaints are afforded natural justice.

The review of provisions of Part IIA of the Racial Discrimination Act was recommended by the Australian Law Reform Commission in its Report on Traditional Rights and Freedoms – Encroachments by Commonwealth Laws, released earlier this year. The review of the Commission’s complaints-handling procedure was invited by the Commission itself.

It is important that Australia strikes the right balance between laws which protect social harmony and mutual respect, and the fundamental democratic value of freedom of speech. The purpose of the inquiry is to ensure that we have that balance right. Equally, it is important that the machinery for human rights protection in Australia operates in such a way as to ensure procedural fairness, and that it cannot be used as a vehicle for vexatious complaints

Incarceration

The national Government has released the draft Terms of Reference for the Australian Law Reform Commission inquiry into the incarceration rate of Indigenous Australians .

The Attorney-General of Australia states

 In referring to the ALRC an inquiry on laws and legal frameworks, it is acknowledged that these are an important, but not the only, factor that contributes to the rate of Indigenous incarceration.

It is also acknowledged that, while the rate of imprisonment of Indigenous Australians significantly exceeds the rate of imprisonment of non-Indigenous Australians and while Indigenous Australians experience contact with the criminal justice system – as both offenders and as victims – at much higher rates than non-Indigenous Australians, the majority of Indigenous Australians never commit criminal offences.

The draft continues

Scope of the reference

In developing its recommendations, the ALRC should have regard to laws and legal frameworks that contribute to the incarceration rate of Indigenous Australians, including:

• laws and legal frameworks that inform decisions to hold or keep Indigenous Australians in custody, including decisions in relation to:

o cautioning

o protective custody

o arrest

o remand and bail

o diversion

o sentencing, including mandatory sentencing

o parole, parole conditions and community reintegration

• factors within laws and legal frameworks that affect decisions to hold or keep Indigenous Australians in custody, including:

o consideration of community safety

o the nature of the offences resulting in incarceration

o availability of alternatives to incarceration

o degree of discretion available to decision-makers

o consideration of incarceration as a last resort

o consideration of incarceration as a deterrent and as a punishment

• whether certain laws and legal frameworks, for example laws that regulate the availability of alcohol, contribute to the rate of Indigenous offending and incarceration

• legal institutions and law enforcement, including police, courts (including courts specialising in dealing with Indigenous offenders), legal assistance services and prisons

• differences in the application of laws in different local contexts.

In conducting its inquiry, the ALRC should have regard to existing data and research that demonstrates:

• best practice laws and legal frameworks both in Australia and internationally that reduce the rate of Indigenous incarceration

• the effects of laws and legal frameworks on the rate of Indigenous incarceration, including:

o the paths of Indigenous Australians through the criminal justice system, including most frequent offences, relative rates of bail and diversion and progression from juvenile to adult offending

o the availability of alternatives to custody in reducing Indigenous incarceration and/or Indigenous offending, including rehabilitation, therapeutic alternatives and community reintegration supports

o the availability of and access to legal assistance and Indigenous language and sign interpreters

• the experiences of the legal system and incarceration and its impacts for Indigenous Australians, including in relation to employment, housing, health, education and families

• the broader contextual factors contributing to Indigenous incarceration and any laws and legal frameworks with regard to these, including:

o the characteristics of the Indigenous prison population

o the relationships between Indigenous offending and incarceration and alcohol and drug use, trauma including inter-generational trauma, loss of culture, poverty, discrimination, experience of violence, child abuse and neglect, educational access and performance, availability of disability supports, housing circumstances and employment

o availability and effectiveness of programs that intend to reduce Indigenous offending and incarceration.

In undertaking this reference, the ALRC should identify and consider other reports, inquiries and action plans that relate to this issue, including:

• the Royal Commission into Aboriginal Deaths in Custody

• the Royal Commission into the Protection and Detention of Children in the Northern Territory (due to report 31 March 2017)

• Senate Standing Committee on Finance and Public Administration’s inquiry into Aboriginal and Torres Strait Islander experience of law enforcement and justice services

• Senate Standing Committee on Community Affairs’ inquiry into Indefinite detention of people with cognitive and psychiatric impairment in Australia

• Senate Standing Committee on Indigenous Affairs inquiry into Harmful use of alcohol in Aboriginal and Torres Strait Islander communities

• reports of the Aboriginal and Torres Strait Islander Social Justice Commissioner

• the ALRC’s inquiries into Family violence and Family violence and Commonwealth laws

• the National Plan to Reduce Violence against Women and their Children 2010-2022.

 In conducting its inquiry the ALRC should also have regard to relevant international human rights standards and instruments. The ALRC should also consider the gaps in available data on Indigenous incarceration and consider recommendations with regard to laws and legal frameworks that might improve data collection.

Consultation

In undertaking this inquiry, the ALRC should identify and consult with relevant stakeholders including Aboriginal and Torres Strait Islander persons and their representative organisations, state and territory governments, relevant policy and research organisations, law enforcement agencies, Indigenous legal assistance service providers and the broader legal profession, community service providers and the Australian Human Rights Commission.

Timeframe

The ALRC should provide its report to the Attorney-General by 15 December 2017.

NZ Trusts Reform

The New Zealand Government has released A new Trusts Act for New Zealand: Exposure draft of the Trusts Bill as the basis of consultation that is expected to result in new legislation in 2017.

The Trusts Bill reflects the Law Commission’s 2013 report Review of the Law of Trusts: A Trusts Act for New Zealand, accepted by the Government in March 2014 with adoption of 48 of the Commission’s 51 recommendations.

The consultation document states

 Part 1 – preliminary provisions

Part 1 of the Bill sets out preliminary matters such as the purpose and scope of the Bill and definition s of terms used in the Bill . The purpose provision in cl 3 is a key aid to interpretation for the courts. It ’s intended to reflect the overall policy objectives of the trust law reforms and reflect the relationship between the Bill and the existing body of trust common law and equity . The Bill isn’t intended to be an exhaustive code but rather a statement of key principles and administrative rules for trusts to enhance accessibility. The Bill isn’t intended to completely displace the common law or equitable rules on trusts . Clause 3(3) reflects the policy intent that common law and equity will continue to apply unless it’s inconsistent with the provisions of the Bill . Common law and equity will continue to provide context when interpreting the Bill (unless to do so would be clearly inconsistent with the Bill ).

Part 2 – express trusts

Part 2 sets out the core principles governing express trusts covered by the Bill such as the characteristics of an express trust and how they must be created. An express trust under the Act must satisfy the characteristics under cl 9 and be created in accordance with cl 10. Clause 9 provides that a trust under the Act: • must have the fundamental characteristics specified in cl 9(1), or • if it does not have the fundamental characteristics, but does have characteristics recognised at common law as constituting a trust, the Court may determine that the trust has the characteristics for the purposes of the Act (cl 9(2)). Clause 10 sets out how a trust may be created under the Act. It reflects the well-accepted requirements for the creation of a trust – the 3 certainties articulated in Lord Langdale’s judgment in Knight v Knight (1840) 3 Beav 148; (1840) 49 ER 58. These are that the settlor: • indicates an intention to create a trust • identifies the beneficiaries or the permitted purpose, and • identifies the trust property. The 3 certainties are essential components of an express trust and should remain as a requirement in the statutory test. These provisions aren’t intended to exclude common law rules that provide that an express trust may be invalid for other reasons. The intent is that cl 3(3) preserves the common law in this regard without express reference. Trusts created by any means will be covered by the Bill when they meet the criteria in these key provisions. It is intended that the Bill will apply to trusts created through a will or upon intestacy under the Administration Act 1969.

Part 3 – trustees’ duties and information obligations

Subpart 1 – duties of trustee

Subpart 1 of Part 3 contains the mandatory and default duties of a trustee. This gives effect to R2, R3, R13, R14(2) of the Commission’s report. The intention is to improve the clarity and accessibility of a trustee’s duties by summarising and restating the current law while leaving room for the interpretation of these duties by the courts. Mandatory duties As outlined in cl 14, the mandatory duties must be performed and can’t be modified or excluded by the terms of the trust deed. Common law will continue to inform the content and application of those duties ( cl 3(3)). However, while the terms of the trust can’t exclude a mandatory duty, the trust deed can influence how the duty to hold or deal with trust property for the benefit of the beneficiaries or permitted purpose is applied (cl 14 (2)).

Default duties

The default duties are the key common law trustee duties, which can be modified or excluded, expressly or implicitly, by the terms of a trust. An exclusion or modification of a default duty must be consistent with the mandatory duties. Clause 15 (3) clarifies that excluding one of the specified default duties is not inconsistent with the mandatory duties. Again, the common law will continue to inform the content and application of the duties ( cl 3(3) ) . Clause 15 (4) adds to what was proposed by the Commission – it requires paid trust advisers to disclose and explain the exclusion or modification of any default duty. A failure to do so won’t invalidate the terms of the trust (cl 15 (5)), but may give rise to a claim against the adviser in tort or under the advisors’ rules of professional conduct. Standard of care The Commission’s report recommended inserting a standard of care: that when exercising a power of administration, a trustee must exercise such care and skill as is ‘reasonable in the circumstances’, taking account of any special knowledge or experience that the trustee has (R13). This is already part of the common law and can be excluded by the terms of a trust. In giving effect to this recommendation, the Bill frames the standard of care as a general default duty of care, which may be excluded by the terms of the trust deed (cl 22). A separate provision deals with the standard of care that applies to investment and is taken from existing section 13B of the Act (cl 23, giving effect to R1 4 (2)). A trustee must exercise the care and skill that a prudent person of business would exercise in managing the affairs of others. In both cases, a higher standard of care is likely to arise if a person has special knowledge or experience (cls 22(b) and 23 (b)).

Subpart 2 – exemption and indemnity clauses

Clauses 33 – 36 give effect to R4 of the Commission’s report and set out rules relating to the extent to which trustees can limit or exclude their liability. Two key features of these provisions are : • the terms of a trust can’t exclude a trustee from being liable, or indemnify a trustee, for a breach arising from dishonesty, wilful misconduct or gross negligence (cl s 33 and 34 ) , and • paid advisors must explain the effect of any exclusion or indemnification (cl 3 6 ). 9.

Subpart 3 – trustee’s obligations to keep and give trust information

Documents to be kept by trustee Clauses 37 – 40 set out basic requirements on trustees to keep specified documents, reflecting R5 of the Commission’s report. The p rovisions are drafted in a way that doesn’t require the information to be provided in a particular medium, so trustee s can retain the information in elect ronic form if they wish. Clause 3 7 sets out a list of documents of such significance to all trusts that they must always be kept. Trustees may choose to keep other documents as well. These provisions can’t be excluded or modified by the terms of a trust, although the terms of the trust could require additional information to be kept. Giving information to beneficiaries Clauses 41 – 47 give effect to R6 of the Commission’s report. The Commission intended the general principle in Schmidt v Rosewood Trust [2003] UK PC 26; [2003] 2 AC 709 be codified and clarified to make trustee’s information disclosure obligations clearer. The overall effect is that a trustee must proactively disclose some trust information, so that at least one beneficiary must know about the trust, to enable the trust to be enforced . Clauses 41 – 47 , therefore , replace existing common law rules, preserving the Court’s supervisory role in necessary cases (cl 4 7 ). These provisions can’t be overridden by the terms of a trust, but the terms can influence the decision about giving information to beneficiaries (cl 45 (2)(c)).

Part 4 – trustees’ powers and indemnities

Subpart 1 – powers of trustee

General powers

Subpart 1 of Part 4 sets out the powers of a trustee and is based on R7, R8, R10 – 12, R14 – 17 , R 27 and R28 of the Commission’s report. In line with the Commission’s recommended approach, cl 48 of the Bill confirms that trustees have legal capacity to deal with trust property, and all the powers necessary to carry out the trust. The trustee’s powers under this clause can be limited. The existence and extent of the powers are informed by the terms of the trust as well as by the applicable mandatory and default duties. The terms of the trust may: • specify particular powers , or • specifically, or by implication, exclude other powers.

Specific default powers set out in the Bill

The remainder of subpart 1 in Part 4 of the Bill provides specific default powers, in line with the Commission’s recommendations. It is necessary to provide these powers in statute, despite the breadth of cl 4 8 , because there may be some doubt about their existence if not included in the Bill (for example, the mandatory duties might be seen as precluding the ability for other persons to exercise trustee powers). The powers in these provisions are default so will be read into each trust, but can be modified or excluded expressly or by implication by the terms of the trust. The Bill specifically includes: • powers regarding investment (cls 51 – 5 5 ) • powers regarding the application of trust property for maintenance, education, and advancement (cls 56 – 63) • a power to appoint others to act in relation to the trust (cls 64 – 65) • a power to delegate the trustee’s powers if a person is temporarily unable to perform the role of a trustee for one of a number of specified reasons ( for example, temporary mental incapacity) (cls 66 – 69 ) • a power to appoint a special trust advisor (cls 70 – 72) • a power to distribute trust property without regard to claims of which the trustee doesn’t have notice (cl 75).

Exercise of trustee powers and functions by others

Clauses 64 and 65 reflect R10, R11, R17 and R27 of the Commission’s report, relating to the appointment of agents, nominees and custodians, and investment managers, but in a simplified form. This clarifies the obligations of a trustee and removes any overlap if the different types of 13 appointment are dealt with separately. These provisions are all exceptions to the general principle that a trustee must act personally. Under cls 64 and 65 the ability to appoint others to act in relation to the trusts is default (the terms of a trust can exclude or modify the power), but it’s mandatory for a trustee who does exercise this ability to keep the arrangement under review, and consider whether they need to intervene at any point. The general standard of care will always apply to that obligation. We consider that where a trustee is allowing another party to make trustee decisions or exercise a trustee function, the trustee must retain some oversight of that individual.

Subpart 2 – trustees’ indemnities

Clauses 76–79 replicate the well - understood principles relating to trustees’ liability for expenses, other liabilities, and their right to indemnity in respect of these matters, giving effect to R47 and R 48 of the Commission’s report. These provisions can’t be excluded or modified by the terms of the trust. Clauses 80 – 85 replicate specific provisions from the Act that deal with particular instances of trustee liability or indemnity.

Part 5 – appointment and discharge of trustees

Part 5 sets out the provisions related to the appointment and removal of trustees, and transfer of trust property to new trustees. These provisions are based on R18 – R 26 of the Commission’s report, as well as certain sections of the Act not considered by the Commission. The aim of the policy is to provide a clear and comprehensive statutory framework for appointing and removing trustees and transferring trust property. Part 5 updates and clarifies provisions from the Act, ensuring there’s clear guidance about when and how a trustee can be removed. The provisions incorporate aspects of the common law, such as the duties that apply to people exercising the power to appoint and remove trustees. Part 5 alters the current position in some areas to provide further clarity and to ensure the process is simple, flexible and doesn’t require recourse to the courts in non - contentious cases. For example, the provisions provide a mechanism for transferring registered trust property when the departing trustee doesn’t, or can’t, complete the transfer documentation, which doesn’t require recourse to the court. The Bill includes some minor departures from the Commission’s recommendations.

Clauses 96 and 97 allow the trustee who is being removed to apply to the court and object to the removal, which will ensure the power of removal is only used in appropriate cases. Clause s 102 – 106 don’t adopt the Commission’s re commendations in relation to supervision by the Public Trust over the removal and replacement of trustees in certain situations and over the transfer of registered trust property. This oversight would create extra work and costs for trustees without a clear benefit in risk reduction. The oversight of the courts will be retained in appropriate cases.

Clause 88(1) sets out the people who may remove a trustee – should this include the receiver of a company in receivership?

Part 6 – revocation and variation of trusts

The clauses in Part 6 of the Bill give effect to R29, 30 and 31 of the Commission’s report. Clauses 108 – 110 are intended to reflect and replace the rule in Saunders v Vautier (1841) Cr & Ph 240, (1841) 41 ER 482 (Ch) which provides that, if the beneficiaries of the trust are all adults with full legal competence and they’re in agreement, they can require the trustees to terminate or vary the trust. The provisions also replace sections 64 and 64A of the Act, as explained by the Commission. The provisions also provide for certain powers of the court in relation to revocation and variation. Under the Bill, the court can: • approve a revocation, variation, or resettlement under clauses 108 or 109 on behalf of a minor, incapacitated or unborn beneficiary (under the current law, the rule in Saunders v Vautier can’t be used in this situation) (cl 111) • waive the requirement for consent of beneficiaries (cl 112), and • vary or extend the powers of trustees in relation to property transactions in certain circumstances (cl 113).

Part 7 – court powers and dispute resolution

Part 7 of the Bill sets out certain powers of the court in relation to trusts, including jurisdiction of the Family Court and facilitating the use of alternative dispute r esolution. It implements R4(3), R14 (in part), R32 – R36, R41, R42 and R46 of the Commission’s report. Court powers aren’t intended to replace the High Court’s inherent supervisory jurisdiction, but set out certain specific powers of the court. For example, cls 114 and 115 set out a new procedure for the court to review a trustee’s act, omission or decision, on application of a beneficiary, replacing section 68 of the Act. Clauses 132–138 implement R 42 of the Commission’s report and aim to facilitate the use of alternative dispute resolution when there are disputes involving trusts .

Part 8 – miscellaneous provisions

Part 8 sets out a number of miscellaneous provisions including : • provisions relating to the transfer of certain trust property to the Crown (which implements R37 of the Commission’s report ) • provisions about the audit of accounts of trust property ( R44 of the Commission’s report ) • a provision giving a life tenant the powers of a trustee (re - enacting section 88 of the Act). Part 8 also has provisions about transitional matters (dealt with in schedule 1, see below), consequential amendments and repeals.

...

Schedule 2 – wholesale investment trusts

Capital markets use trusts to structure the large scale raising of capital. Trusts are a key wholesale (that is, not public or retail) market mechanism banks and corporations use to borrow money and structure their debt. Wholesale investment trusts are structured in a way that is different to typical family trusts. For example, in wholesale finance trusts it is creditors or investors and not beneficiaries that are the main focus. Such trusts are used as part of highly negotiated transactions, involving participants with a high degree of knowledge about the nature of the arrangement. Schedule 2 of the draft Bill modifies how certain provisions of the Bill will apply to wholesale investment trusts. The modifications are intended to remove obligations that are not relevant to the context in which wholesale investment trusts operate. The definition of wholesale investment trust has been developed to align with the Financial Markets Conduct Act 2013. We’re aware that there may be other interface issues between the Bill and that Act. We will work to ensure that both Acts operate together in a way that minimises compliance costs for trusts governed by both pieces of legislation. In considering any modifications required, the objective has been to maintain coherent and principled trust law that applies to all trusts in New Zealand where possible, while allowing some modifications in its application to trusts used in wholesale investment where appropriate

Patents and Moral Rights

'Patent Purchases and Litigation Outcomes' by Mark A. Lemley, Erik Oliver, Kent Richardson, James Yoon and Michael Costa comments 

We test empirically whether purchased patents that are litigated fare better or worse than litigated patents that aren’t purchased. We identified every case filed in 2009 and 2010 that had a definitive winner and had information on the presence or absence of an assignment or other transfer. That left us with 516 decisions. Of those 516 decisions, the patentee won 125, or 24.2%. Of the patents, 280, or just over half, had been transferred before the litigation began.

We find that overall, patentees won 21% of the time with patents that had been sold before litigation began, and 28% of the time with patents they developed in-house. But combining all patent cases may obscure important differences between plaintiffs who buy patents and those who don’t. Dividing our study into entity types produces a surprising result. Operating companies fare better when they assert patents they developed in house. They won 33% of the time when asserting their own patents, but only 23% of the time when asserting purchased patents. By contrast, inventor-owned NPEs -- but not patent assertion entities -- do better with purchased patents. The results also differ by area of technology

'Moral Rights: Exploring the Myths, Meanings and Misunderstandings in Australian Copyright Law' by Francina Cantatore and Jane Johnston in (2016) 21(1) Deakin Law Review 71 comments

This article examines how moral rights are treated in Australian publishing contracts, and whether this approach is consistent with the expectations of authors, journalists and academics. Although, in theory, moral rights cannot be sold or assigned in Australia, the apparent wide scope for exceptions raises questions of whether there is any real protection afforded to creators under the Copyright Act 1968 (Cth), notably in circumstances that relate to pressure on creators to accept contractual terms in order to get published. Additionally, Australian case law reflects some uncertainty about the traditionally accepted non-economic nature of moral rights. The article examines recent case law in this field, found in Meskenas, Perez and Corby, and considers the literature associated with development of moral rights in Australia. It then presents the findings of a two-part study of moral rights in Australia; first through the results of interviews with 176 Australian authors, journalists and academics, followed by an analysis of 20 publishing contracts. It concludes that — in some, but not all, instances — a combination of the exceptions allowed under the Act and practical exigencies have diluted the unique character of authors’ moral rights and have created an environment of uncertainty.

Genuine Fakes

The Canberra Times reports closure of a fake US embassy in Ghana, that supposedly issued "illegally obtained authentic visas" for over a decade.

"It was not operated by the United States government, but by figures from both Ghanaian and Turkish organised crime rings and a Ghanaian attorney practising immigration and criminal law," the US State Department said in a statement released late on Friday.

Turkish citizens, who spoke English and Dutch, posed as consular officers and staffed the operation.

US Department of State Investigations also uncovered a fake Dutch embassy, the US State Department said. Officials in the Netherlands were not able to be reached for comment on Sunday.

The crime ring issued legitimate, but fraudulently obtained, US visas and false identification documents, including birth certificates at a cost of $US6000 each, the statement said.

"The investigation identified the main architects of the criminal operation, and two satellite locations (a dress shop and an apartment building) used for operations," the statement said.

During raids that led to a number of arrests, authorities also seized authentic and counterfeit Indian, South African and European Union visas and 150 passports from 10 countries along with a laptop and smart phones.

The statement did not say how the gang obtained the authentic visas.

And the State Department did not say how many people were believed to have entered the US and other countries illegally using visas issued by the crime ring, which used bribery to operate unhindered.

I recall the loss in 2003 of the Papua New Guinea passports database, a stock of blank passports and even the machine used to print passports, reported at that time by the ABC

Papua New Guinea's Foreign Minister says blank passports were clearly the target of a break-in at his department's headquarters.

The country's national passport database and backups were stolen in the weekend theft. Foreign Affairs Minister Sir Rabbie Namaliu says the break-in and theft at the department's migration section is an extremely serious matter.

An investigation is underway, however it is believed there are no signs of forced entry.

Computer systems containing the country's national passport database, back-up materials and blank passports were stolen in the raid.

Sir Rabbie says the theft does not appear to be random, and instead was clearly targeted at passports and sensitive data.

He says if the passports fall into the wrong hands, the consequences could be serious.

A subsequent ABC report stated

SHANE MCLEOD: Around PNG it's known as "the passport scam". Allegations of widespread corruption surrounding the issuing of passports and visas allowing illegal immigrants both into PNG, and to use PNG travel documents to reach other countries, triggered a government investigation into the immigration system.

The report was delivered to the outgoing Morauta Government more than a year ago, and after much delay and not a little public pressure, finally the details of the investigation have come to light.

The Foreign Affairs Minister, Sir Rabbie Namaliu.

RABBIE NAMALIU: The report confirmed that abuses of the Migration Act for personal gains was rampant and was totally uncontrolled by the Department of Foreign Affairs. Officers at all levels in the Department, from senior management to the lower rank and file of migration officers had been parties to the scandal.

It became clear that Papua New Guinea was being used by some foreign nationals and corporations involved in people smuggling schemes to gain access to the country both as destination for employment, as well as a transit point to gain entry to other destinations, particularly Australia, New Zealand, United States and Canada.

SHANE MCLEOD: But the events surrounding the passport scam have themselves been overtaken by recent developments.

Two weekends ago, a break-in at the Department's headquarters saw the nation's entire passport issuance and tracking computer system stolen. Computers, printers, blank passports and even back-up discs disappeared in a theft where it appears the criminals had the keys to the office.

In the interim, Australia has stepped in to help rescue the PNG passport system. But it appears from Sir Rabbie's parliamentary statement that help has been long overdue. For example, he says scores of passports have been issued to people who aren't PNG citizens, including one foreigner who is said to have three PNG passports.

RABBIE NAMALIU: Typically, the process involved middlemen being stationed in the country to facilitate the entry of aliens through Papua New Guinea to other destinations. The middlemen collaborated with the PNG migration officers prior to the entry of the foreigner, who would normally arrive with one-way tickets and cleared by the officers concerned at the Jacksons International Airport, and after paying appropriate "service fees", the foreigners were given pre-processed PNG passports for use in their onward journey.

SHANE MCLEOD: Sir Rabbie says action has been taken against a number of Immigration Department officials and foreigners allegedly involved in the scam, but while 12 officers were charged with offences under the Public Service Act, only eight eventually faced action, and of them, only six were retrenched.

Another two faced criminal charges, and while action is pending in one case, the other accused was acquitted at trial, which has a few people puzzling over the Prime Minister's recent attacks on the media, which reported a survey by the international corruption watchdog, Transparency International, ranking PNG among the worst countries internationally in terms of perceptions of corruption.

Sir Michael Somare says it's the media that's creating negative perceptions.

MICHAEL SOMARE: This corruption thing, Mr Speaker, goes everywhere in every country but Papua New Guinea seems to get the worse end all the time when papers, when the newspapers give us the publicity and I am concerned, I'm very concerned about our image that is being tarnished by our papers. I think they need to be more responsible. Factual reporting is what we need in this country, it's not sensational reporting.

Theory

'Intersectionality as buzzword: A sociology of science perspective on what makes a feminist theory successful' by Kathy Davis in (2008)9(1) Feminist Theory 67–85 comments

Since its inception, the concept of ‘intersectionality’ – the interaction of multiple identities and experiences of exclusion and subordination – has been heralded as one of the most important contributions to feminist scholarship. Despite its popularity, there has been considerable confusion concerning what the concept actually means and how it can or should be applied in feminist inquiry. In this article, I look at the phenomenon of intersectionality’s spectacular success within contemporary feminist scholarship, as well as the uncertainties and confusion which it has generated. Drawing upon insights from the sociology of science, I shall show how and why intersectionality could become a feminist success story. I shall argue that, paradoxically, it is precisely the concept’s alleged weaknesses – its ambiguity and open-endedness – that were the secrets to its success and, more generally, make it a good feminist theory. 

Davis argues

The occasion for this article was a two-day seminar on the subject of ‘intersectionality’ that I recently gave during a visiting stint at a university in Germany. To my surprise, the seminar, which was originally intended for a small group of women’s studies students, drew interest from Ph.D. candidates and colleagues from cities throughout the region, all prepared to sacrifice their weekend and put aside their language difficulties (the seminar was in English) in order to participate. While this interest in my course was obviously gratifying, it was also puzzling. Why the sudden concern with ‘intersectionality’, I wondered? My curiosity increased as I discovered that most of the participants were not at all sure what the concept meant, let alone how it should or could be used in their own fields of inquiry. At the same time, however, they were all convinced that intersectionality was absolutely essential to feminist theory and they had no intention of ‘missing the boat’.

In this article, I explore the secret of intersectionality’s remarkablesuccess in contemporary feminist scholarship, given the confusion which the concept evokes among those who would most like to use it in their own research. ‘Intersectionality’ refers to the interaction between gender, race, and other categories of difference in individual lives, social practices, institutional arrangements, and cultural ideologies and the outcomes of these interactions in terms of power. Originally coined by Kimberlé Crenshaw (1989), intersectionality was intended to address the fact that the experiences and struggles of women of colour fell between the cracks of both feminist and anti-racist discourse. Crenshaw argued that theorists need to take both gender and race on board and show how they interact to shape the multiple dimensions of Black women’s experiences. Intersectionality has since been heralded as the ‘most important contribution that women’s studies has made so far’ (McCall, 2005: 1771).

Feminist scholars from different disciplines (philosophy, social sciences, humanities, economy and law), theoretical perspectives (phenomenology, structuralist sociology, psychoanalysis, and deconstructionism) and political persuasions (feminism, anti-racism, multiculturalism, queer studies, disability studies) all seem to be convinced that intersectionality is exactly what is needed. It has generated heated theoretical debates throughout the US and Europe, becoming a standard topic in undergraduate courses, graduate seminars and conferences in the field of women’s studies. Special issues of feminist journals and anthologies are currently appearing, devoted to exploring the theoretical complexities of intersectionality.

Today, it is unimaginable that a women’s studies programme would only focus on gender. Textbooks and anthologies in the field cannot afford to neglect difference and diversity among women (although opinions differ about the best way to approach the issues). It is bon ton for women’s studies professors to ask their undergraduate and graduate students to reconsider the topics of their research in the light of multiple differences. Learning the ropes of feminist scholarship means attending to multiple identities and experiences of subordination. Feminist journals are likely to reject articles that have not given sufficient attention to ‘race’, class, and heteronormativity, along with gender. At this particular juncture in gender studies, any scholar who neglects difference runs the risk of having her work viewed as theoretically misguided, politically irrelevant, or simply fantastical.

Ironically, however, while most feminist scholars today would agree that intersectionality is essential to feminist theory, judging by the discussions which have emerged around the concept, scholars seem to share the same confusion that the participants of my seminar exhibited. Some suggest that intersectionality is a theory, others regard it as a concept or heuristic device, and still others see it as a reading strategy for doing feminist analysis. Controversies have emerged about whether intersectionality should be conceptualized as a crossroad (Crenshaw, 1991), as ‘axes’ of difference (Yuval-Davis, 2006) or as a dynamic process (Staunæs, 2003). It is not at all clear whether intersectionality should be limited to understanding individual experiences, to theorizing identity, or whether it should be taken as a property of social structures and cultural discourses. This raises the question how a theory which is so vague could come to be regarded by so many as the cutting edge of contemporary feminist theory. And does it need – as some have argued – a more coherent conceptual framework and methodology in order for it to live up to its potential and to grasp the complex realities it was initially intended to address (McCall, 2005)?

In this article, I look at the phenomenon of intersectionality’s spectacular success as well as the uncertainties which it generates. I shall not be providing suggestions about how to clarify the ambiguities surrounding the concept, nor how to alleviate uncertainties about how it should be used. Quite the contrary, I shall be arguing that, paradoxically, precisely the vagueness and open-endedness of ‘intersectionality’ may be the very secret to its success. To this end, I draw upon insights from the sociology of science. This branch of sociology is concerned with processes of scientific activity, the relationship between theories and their audience, and, more generally, how a specific theory or theoretical perspective can persuade an (academic) audience to view some aspect of the world in a certain way. In particular, I shall be turning to the work of Murray S. Davis who, several decades ago, produced two – in my view – sadly underrated articles called, respectively, ‘That’s Interesting!’ (1971) and ‘That’s Classic!’ (1986). In these articles, he explored what enables a specific social theory to capture the imagination of a broad audience of academics. Borrowing from phenomenology and the rhetoric of science, he analyses how theories that are widely circulated or are ‘in the air’ (1971: 312) come to be viewed as interesting by their audiences and, in some cases, even go on to achieve the venerable status of ‘classic’. He draws his examples from the grand theories of sociology (Marx, Durkheim, Weber), but his arguments can be applied to any theory – including, as I shall show, feminist theory. Davis is not concerned with whether a specific theory is good (as in valid or able to adequately explain certain aspects of the social world) or coherent (in terms of the logic of its propositions or consistency of its arguments). Indeed, he argues that no theory ever became famous because it was ‘true’ or coherent. Quite the contrary, in fact. Davis claims that successful theories thrive on ambiguity and incompleteness. Successful theories appeal to a concern regarded as fundamental by a broad audience of scholars, but they do so in a way which is not only unexpected, but inherently hazy and mystifyingly open-ended.

At first glance, intersectionality would appear to have all the makings of a successful feminist theory.  Leaving aside the issue of whether intersectionality can be treated as a full-fledged ‘theory’, I shall take a closer look at what it is about intersectionality that has allowed it to ‘move’ the minds of a broad audience of feminist scholars, not only whetting their interest, but compelling them to enter into theoretical debates and look for ways to use the concept in their own inquiries. Drawing upon Davis’s explanation for what makes a theory successful, I shall investigate the seeming paradox between the recent success of intersectionality within feminist theory and the confusion that it generates among feminist scholars about what it actually is and how to use it. More specifically, I explore the features of intersectionality that account for its success: its focus on a pervasive and fundamental concern in feminist theory, its provision of novelty, its appeal to the generalists as well as the specialists of the discipline, and its inherent ambiguity and open-endedness that beg for further critique and elaboration. After addressing the secret of intersectionality’s success within contemporary feminist theory, I raise the question of whether embracing such a chimerical and – some would argue – scientifically unsound5 concept should be only a reason for celebration or also a reason for some alarm.