Gene Patents

The short 'Edifying Thoughts of a Patent Watcher: The Nature of DNA' by Dan L. Burk in (2013) 60 UCLA Law Review Discourse 92-102 comments

In the pending case Myriad Genetics v. Association for Molecular Pathology, the United States Supreme Court will consider the patentability of human genes under the “product of nature” doctrine. Patentable subject matter is generally held to encompass materials and artifacts created by humans, and not that which exists independently in nature. However, it is not clear that this is a meaningful or helpful distinction. Given on one hand that the concept of a gene is a human construct, and on the other hand that all human creations are drawn from the material environment, the question of gene patenting is better addressed as a matter of innovation policy than of imponderable labeling. ...

Unfortunately, many of the briefs filed in the AMP case tend to go on as if our view of the universe—and of the patent system—is predestined, rather than a creative human endeavor. Even more unfortunately, some of the worst offenses in this regard are advanced by scientists or scientific societies. But as I have shown here the definition of gene is a human, not a natural, construct, and that the physical properties of DNA molecules are necessarily altered to some degree from their native state anytime they are the subject of human investigation. Indeed, having here taken a hard look at the characteristics of the contested molecules in the AMP case, one wonders whether the most sensible course is to simply abandon the product of nature exercise altogether. At its endpoints, the doctrine either proves everything or proves nothing. Either everything is a product of nature—drawn from and existing in the world—or nothing is a product of nature—having been intellectually and socially constructed by human cognition.

This is not to say that the product of nature doctrine is utterly without content or, at least, that a proper formulation of it need not be. If the universe will not tell us outright what we ought to consider natural or inventive, how do we decide what items fit these categories? We look to the policy work that the doctrine is intended to do. The proper criterion has been articulated by the Supreme Court in the related context of laws or principles of nature: “Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.” Such tools are essential to any technical progress; granting exclusive rights in such fundamental and necessary concepts would likely impede rather than promote innovation. Similarly, if the product of nature doctrine stands for anything, it is surely a shorthand for the parallel concept that there may be some materials so fundamental to further inventive activity that restricting them through grants of exclusive rights would prove detrimental to innovation. At the same time, there is nearly universal agreement that patents are intended to reward inventive activity by means of exclusive rights.

Failure to provide such rights could deter investment in the development or acquisition of fundamental materials. Thus, the product of nature question is not a question of ontology, but a question of epistemology: What do we know or hope to know about a certain material to promote the progress of science and the useful arts? There will be a fine line between enabling access to required tools and undersupplying them.

Drawing the line is purely a matter of public policy informed by economic reality and technical practice. The label “product of nature” does not tell us where that line lies, nor does the fact that a given tool was extracted at some level from material substance. In the end, the label product of nature is a conclusion rather than a criterion, and no substitute for the hard policy choice entailed in the Supreme Court’s question in AMP v. Myriad.

Genomic Bad News

'Disclosure ‘downunder’: misadventures in Australian genetic privacy law' by Wendy Bonython and myself in Journal of Medical Ethics comments that

Along with many jurisdictions, Australia is struggling with the unique issues raised by genetic information in the context of privacy laws and medical ethics. Although the consequences of disclosure of most private information are generally confined to individuals, disclosure of genetic information has far-reaching consequences, with a credible argument that genetic relatives have a right to know about potential medical conditions. In 2006, the Privacy Act was amended to permit disclosure of an individual's genetic information, without their consent, to genetic relatives, if it was to avoid or mitigate serious illness. Unfortunately, additional amendments required for operation of the disclosure amendment were overlooked. Public Interest Determinations (PIDs)—delegated legislation issued by the privacy commissioner—have, instead, been used to exempt healthcare providers from provisions which would otherwise make disclosure unlawful. This paper critiques the PIDs using documents obtained under the Freedom of Information Act—specifically the impact of both the PIDs and the disclosure amendment on patients and relatives—and confidentiality and the procedural validity of subordinate laws regulating medical privacy.

The thirty page 'The Return of Results in Genetic Testing: Who Owes What to Whom, When, and Why?' [PDF] by Stephanie Alessi comments

With the advent of large-scale genetic research, discoveries about the human race that never before seemed possible are becoming a reality. To support these scientific discoveries, biobanks catalog library-sized collections of DNA samples and offer researchers access to an increasingly diverse supply of genetic material on which to do research. These stored samples provide the means for studies that, over time, will uncover benefits about which we can now only speculate.

Despite the enormous potential that the future of genetic research holds, the research process has potentially troublesome implications for the human subjects who contribute their genetic materials. Chief among these concerns is the question of what to do with the individual data that arise as a result of genetic research. Genetic material may reveal features of a person that she was not even aware existed, providing potentially useful insight into one’s health status that, if available, many individuals would want to know. On the other hand, some people, for moral reasons or otherwise, may prefer not to learn about their genetic predispositions due to the inherent uncertainty of such information. Thus, research design and governance must allow individuals to make their own decisions.

Furthermore, placing a responsibility on researchers to provide their subjects with all theoretically interesting or useful information can detract time and resources from a study’s primary purpose. As such, researchers frequently find themselves forced to balance the subjects’ personal interests against their research goals. Yet there exist no uniform standards on which either researchers or subjects may rely as they perform this balancing act; there is little guidance for either party as to what information should be communicated. They are thus left with the unanswered question: To what extent is there an ethical obligation, and to what extent should there be a legal duty to return genetic results to a research subject?

This paper balances three competing goals — promoting socially beneficial genetic research, protecting individual health and access to personal information, and protecting individual autonomy and privacy — and proposes the adoption of specific, limited duties regarding planning for, acquiring informed consent about, and reporting genetic results.

ADR

'Living with 'ADR': Evolving Perceptions and Use of Mediation, Arbitration and Conflict Management in Fortune 1,000 Corporations' by Thomas Stipanowich &  J. Ryan Lamare in (2013) Harvard Negotiation Law Review (Forthcoming) comments that

 As attorneys for the world’s most visible clients, corporate counsel played a key role in the transformation of American conflict resolution in the late Twentieth Century. In 1997 a survey of Fortune 1,000 corporate counsel provided the first broad-based picture of conflict resolution processes within large companies. In 2011, a second landmark survey of corporate counsel in Fortune 1,000 companies captured a variety of critical changes in the ways large companies handle conflict. Comparing their responses to those of the mid-1990s, clear and significant evolutionary trends are observable, including

• a further shift in corporate orientation away from litigation and toward “alternative dispute resolution (ADR),” 

• moderated expectations of ADR; 

• increasing use of mediation, contrasted with a dramatic fall-off in arbitration (except, importantly, consumer and products liability cases); 

• greater control over the selection of third-party neutrals; 

• growing emphasis on proactive approaches such as early neutral evaluation, early case assessment, and integrated systems for managing employment disputes.

This article summarizes and analyzes the results of the 2011 Fortune 1,000 survey, compares current data to the 1997 results, and sets both studies against the background of a half-century of evolution. The article concludes with reflections on the future of corporate dispute resolution and conflict management and related research questions.

The authors note that

The present survey raises an assortment of considerations for future research, including subjects to be developed and studied. 

As a preliminary matter, it is time to acknowledge the shortcomings of the term “ADR,” a catch-all concept comprising the entire range of diverse alternatives to court trial. While it may be useful as a term of convenience in discussions of conflict management, its utility in research into the dynamics of public and private dispute resolution is inversely related to the very breadth and variety of the approaches it embraces. Wherever possible, queries about attitudes toward “ADR” should give way to more specifically tailored questions. 

Broad-based surveys like the present one and its 1997 precursor are useful in helping to identify broad trends and alert us to key “tipping points” such as the recent reduced emphasis on arbitration. They are, however, not designed to provide meaningful insights into the dynamics of individual dispute resolution processes or of conflict management systems; instead, they offer a springboard for research on these issues. The latter include (1) the priorities and expectations of business clients and other parties regarding dispute resolution and conflict management; (2) the performance and effectiveness of multi-step dispute resolution approaches, or of conflict management systems; (3) the dynamics of mediation processes, including mediator styles and strategies and the interplay between mediators and advocates; (4) arbitrator styles and strategies in pre-hearing and hearing management, deliberating and rendering awards; and (5) the impact of neutral experience, education and professional background.

Patenting Meat

'Owning Omega-3: Monsanto and the Invention of Meat' by Matthew Rimmer in (2011) 8(1) Farm Policy Journal 11-21 [PDF] offers an excellent point of entry to debate about 'ag patenting'.

Rimmer comments that

In August of 2010, Anna Salleh of the Science Unit of the Australian Broadcasting Corporation broke a story about Monsanto seeking to patent the enhancement of meat, including omega-3 fatty acids:

‘Enhanced port is sparking debate over the ethics of placing patents on food. Patent applications covering the enhancement of meat, including pork with omega-3 fatty acids, are stimulating debate over the ethics and legalities of claiming intellectual property over food. Monsanto has filed patents that cover the feeding of animals soybeans, which have been genetically modified by the company to contain stearidonic acid (SDA), a plant-derived omega-3 fatty acid... Omega-3s have been linked to improved cardiovascular health and there are many companies engineering them into foodstuffs. But the new patent applications have touched a raw nerve among those who see them as an attempt by the company to exert control over the food chain.’

This article providers a critical evaluation of the controversy of Monsanto’s patent applications, and the larger issues over patenting food. It first considers the patent portfolio of Monsanto; the nature of the patent claims; and the examination of the claims by patent examiners. Second, it examines the withdrawal and revision of the patent claims by Monsanto in the wake of criticism by patent authorities and the public disquiet over the controversial application. Third, this article considers the larger policy issues raised by Monsanto’s patent applications – including the patenting of plants, animals, and foodstuffs. There is also a consideration of the impact of patents upon the administration of health-care, competition, and research. 

Defamation, Confidentiality and Privacy

In Sands v State of South Australia [2013] SASC 44 the Supreme Court of South Australia has found against photographer Derick Sands in his action for defamation against the State of South Australia.

As discussed in my article in this month's Privacy Law Bulletin, Sands also unsuccessfully claimed breaches of statutory duty, duty of care, duty of confidence and duty of privacy. He had already unsuccessfully sued Channel 7 and the ABC in Sands v Channel 7 Adelaide Pty Ltd [2009] SASC 215;  (2009) 104 SASR 452. His appeal to the Full Court in the latter case was dismissed [2010] SASC 202. His application there for special leave to appeal to the High Court was dismissed [2011] HCA Trans 20 (11 February 2011).

The South Australian Police Force (SAPOL) had made various statements at a press conference and in a media release during investigation into the murder of Corinna Marr. Those statements identified Sands as a prime suspect for the murder of Ms Marr.

The Court has found that although the media release and press conference exceeded what was reasonably necessary to achieve stated purpose for which the publications were made, SAPOL was justified in doing so because there were reasonable grounds to suspect Sands of the murder and because the evidence supported a conclusion that his conduct warranted reasonable suspicion.

The asserted duties in confidence, privacy and negligence said to flow from the Forensic Procedures Act are inconsistent with the obligations of the police to investigate a serious criminal offence. There is no general duty of confidentiality in the course of investigations which is recognised in Australian law. Subject to the restrictions contained in the Forensic Procedures Act, the defendant was under no general obligation to keep the fact of the forensic procedures application secret. Police had a duty to investigate the murder of Ms Marr. It may well involve them making a number of disclosures to various people in the course of the investigation. The very fact that the matter was only at an investigation stage might well involve the police in making allegations and inquiries which are both unproven and untested. Subject only to the statute and the law of defamation, the police owed no duty to the plaintiff as a suspect to keep the circumstances of the investigation a secret.

Sand’s family, friends and work colleagues knew that he was a suspect. The Forensic Procedures Act 1998  (SA) does not give rise to a civil cause of action and even if SAPOL breached the confidentiality provisions of that statute the plaintiff did not suffer loss. The Telecommunications (Interception and Access) Act 1979 (Cth) does not give rise to a civil cause of action. The Court also held that Sands' claim in breach of statutory duty was unpersuasive: no duty of care can be imposed where it would lead to conflicting duties upon police and incoherence with the law of defamation.

Unsurprisingly, the Court held that the tort of privacy is not recognised in Australian law. The information published by SAPOL was not in the nature of material that could be expected to be kept confidential.

The plaintiff relied on a decision in the Victorian County Court of Doe v Australian Broadcasting Corporation  to assert the existence of a tort of privacy and a breach of that right by the actions of the police in this case. 

The first observation I make about Doe is that in that case there was a duty owed to a victim of crime by virtue of the statute itself which establishes protection from publication by the media of the name or identity of any victim of crime. Here, there is no suggestion that there has been any publication by the police of the plaintiff’s name or identity by virtue of the making of the Forensic Procedures Act. 

In my respectful view, the reliance by the Court in Doe on Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd is misplaced. The ratio decidendi of the decision in Lenah is that it would require a further development in the law to acknowledge the existence of a tort of privacy in Australia. In my view, the statements of the majority in Lenah do not support the suggestion that the High Court in Lenah held out any invitation to intermediate courts in Australia to develop the tort of privacy as an actionable wrong. 

In Doe, the relevant confidential information improperly communicated by the ABC was information that the plaintiff had been raped. That was the information the subject of the statutory prohibition. On the facts here, none of the information relied on by the police in making the forensic procedures application was confidential. The police formed a suspicion based on grounds which were disclosed in an affidavit. Any asserted breach of a duty of confidence in relation to such information is, for the reasons I have explained, in conflict with the duty of the police to investigate serious crime. A suspect cannot claim that he or she has a right to privacy in respect of any information that might inculpate them in the commission of a serious criminal offence. Nor can he or she claim that such information as it related to him or her is in some way confidential. The information relied on by the police in making the forensic procedures application had been obtained by them in the course of their investigation into the murder of Ms Marr. 

In summary, the defendant never disclosed any private information about the plaintiff in the context of making the application under the Forensic Procedures Act. The only disclosures made by the defendant were in the course of taking a lawful step in the course of the investigation. The refusal of the plaintiff to voluntarily provide a sample of his fingerprints left the police with no other option but to obtain an order under the Forensic Procedures Act. The suggestion that the police must keep confidential and private the fact that someone is a suspect and the fact that they are in the course of making inquires in relation to that person is in conflict with their duty to properly investigate all serious crimes.

Human Rights Squibs

'A Damp Squib in the Long Grass: The Report of the Commission on a Bill of Rights' by Mark Elliott in (2013) European Human Rights Law Review - a sprightly rather than damp article - comments [PDF] that

 In December 2012, the Commission on a Bill of Rights, established by the UK Government, issued its final report. The Report advances very limited, inchoate proposals for a UK Bill of Rights that are essentially superficial in nature. The Report fails to grapple with the fundamental questions that would naturally fall to be confronted as part of a serious debate about the future direction of human rights protection in the UK. The failure of the majority clearly to articulate what it understands a Bill of Rights to be renders vacuous its recommendation that such legislation be adopted in due course. While the proposals contained in the Report are highly unlikely to be implemented in the foreseeable future, the shortcomings of the Report - and of the process that yielded it - contain important lessons for how future debates of this nature ought to be conducted. … 

Articles do not normally begin by conceding—far less drawing attention to the fact—that their subject-matter is of little importance. This one, however, must. On 18 December 2012, the Commission on a Bill of Rights, almost two years after its establishment was announced to Parliament, published its Report. Divisions within the Coalition Government that were reflected in the Commission’s membership meant that the Report was never likely to contain clear-cut proposals capable of straightforward implementation. The Report nevertheless had the potential — by clearly demarcating the parameters of the debate and lucidly confronting the implications of the options available — to supply an authoritative reference ‑point for future discourse about the possibility of a “UK Bill of Rights”. The Report, however, signally fails to realise that potential; far from clarifying at least the parameters of the debate, its effect is essentially obfuscatory. Indeed, for reasons explored in this paper, if a domestic Bill of Rights is ever adopted and its history subsequently written, the Commission’s Report is likely, at the very most, to warrant a footnote. Paradoxically, however, the reasons that help to explain why the Report itself is a damp squib fully deserving of its likely fate in the long grass are themselves of great significance—not least because understanding what went wrong this time around may sharpen our appreciation of the characteristics that a future, mature Bill of Rights debate will need to have.

Elliott concludes that

The many shortcomings of the Report of the Commission on a Bill of Rights serve—in a somewhat perverse way—to point towards how a meaningful Bill of Rights debate might be conducted. Most obviously, such a debate would have to confront the big questions that the Commission was unwilling or unable to address. In particular, those & arguing for a UK Bill of Rights need to be clear—and need to be forced, through reasoned argument, to be clear— about what it is they are advocating. One of the principal factors that devalues the present Report is the chameleonic nature of the Bill of Rights that it proposes. A discussion about whether the UK should adopt a Bill of Rights is necessarily vacuous unless there is transparency about what sort of Bill of Rights is envisaged. And adopting a clear position in relation to the latter question necessitates confrontation of the sort of underlying, fundamental issues whose absence from the Report is so keenly felt.

The long grass is usually regarded as a habitat whose inhospitability to good ideas forms a source of regret. Occasionally, however, it is just the right place for proposals that are inchoate, inadequately reasoned or intellectually feeble. As such, it is precisely the right place for the Report of the Commission on a Bill of Rights—and exactly where it is likely to end up. But this does not mean that the Bill of Rights debate is over. Rather, the increasing explicitness with which politicians are willing to countenance withdrawal from the ECHR suggests that the debate is moving into new and uncharted territory, in which the stakes are very much higher. It is time, therefore, for those who oppose the HRA and the UK’s membership of the Council of Europe to nail their colours to the mast. And it is equally time for those who adopt the opposing position to articulate as persuasively as they can the case for strong judicial protection of rights whose fundamentality transcends national boundaries. The latter case is undoubtedly the stronger one—but neither the need to make it vigorously, nor the uphill struggle likely to be encountered in doing so, should be underestimated.

Drone Disclosure

Reading Congressman Markey's 'Drone Aircraft Privacy and Transparency Bill' [PDF], ie a proposed statute

To amend the FAA Modernization and Reform Act of 2012 to provide guidance and limitations regarding the integration of unmanned aircraft systems into United States airspace, and for other purposes. 

The statute would not apply to "model aircraft".

The Bill notes that

Unmanned aircraft systems [government, commercial, and recreational unmanned aircraft systems] have traditionally been used almost exclusively overseas by military and security organizations; however, State and local governments, businesses, and private individuals are increasingly using unmanned aircraft systems in the United States, including deployments for law enforcement operations.

As the technology advances and the cost decreases—unmanned aircraft systems are already orders of magnitude less expensive to purchase and operate than piloted aircraft—the market for Federal, State, and local government and commercial unmanned aircraft systems is rapidly growing.

It has been estimated there could be as many as 30,000 unmanned aircraft systems in the sky in the United States by 2020.

There will no doubt be many beneficial applications of this technology, for as Secretary of Transportation Ray LaHood said in a statement on March 7, 2012, ‘‘Unmanned aircraft can help us meet a number of challenges, from spotting wildfires to assessing natural disasters.’’.

However, there also is the potential for unmanned aircraft system technology to enable invasive and pervasive surveillance without adequate privacy protections, and currently, no explicit privacy protections or public transparency measures with respect to such system technology are built into the law. 

Federal standards for informing the public and protecting individual privacy with respect to unmanned aircraft systems are needed.

Indeed.

The legislation would accordingly  require the Secretary of Transportation, in consultation with the Secretary of Commerce, the Federal Trade Commission and the Chief Privacy Officer of the Department of Homeland Security, to undertake a study that identifies "any potential threats to privacy protections posed by the integration of un-manned aircraft systems into the national airspace system, including any potential violations of the privacy principles". It characterises ‘privacy protections’ as protections that relate to the use, collection, and disclo- sure of information and data about individuals and groups of individuals, with ‘privacy principles’ meaning the principles in the Organization for Economic Co-operation & Development guidelines ‘Annex to the Recommendation of the Council of 23rd September 1980: Guidelines Governing The Protection Of Privacy And Transborder Flows Of Personal Data’ (1980).

The legislation would  prohibit the Secretary of Transportation from approving, issuing, or awarding "any certificate, license, or other grant of authority to operate an unmanned aircraft system in the national airspace system" unless the application for such authorisation includes a "data collection statement"  that provides reasonable assurance that the applicant will operate the drone in accordance with the privacy principles.

The data collection statement is to include information identifying

1) the individuals or entities that will have the power to use the unmanned aircraft system; 

2) the specific locations in which the un-manned aircraft system will operate; 

3) the maximum period for which the un- manned aircraft system will operate in each flight; 

4) whether the unmanned aircraft system will collect information or data about individuals or groups of individuals, and if so—

A) the circumstances under which such system will be used; and

B) the specific kinds of information or data such system will collect about individuals or groups of individuals and how such information or data, as well as conclusions drawn from such information or data, will be used, disclosed, and otherwise handled, including— 

(i) how the collection or retention of such information or data that is unrelated to the specified use will be minimized; 

(ii) whether such information or data might be sold, leased, or otherwise provided to third parties, and if so, under what circumstances it might be so sold or leased; 

(iii) the period for which such information or data will be retained; and 

(iv) when and how such information or data, including information or data no longer relevant to the specified use, will be destroyed

 5) the possible impact the operation of the unmanned aircraft system may have upon the privacy of individuals; 

6) the specific steps that will be taken to mitigate any possible impact identified under paragraph (5), including steps to protect against unauthorized disclosure of any information or data described in paragraph (4), such as the use of encryption methods and other security features that will be used; 

7) a telephone number or electronic mail address that an individual with complaints about the operation of the unmanned aircraft system may use to report such complaints and to request confirmation that personally identifiable data relating to such individual has been collected; 

8) in the case that personally identifiable data relating to such individual has been collected, a reasonable process for such individual to request to obtain such data in a timely and an intelligible manner;  

9) in the case that a request described in paragraph (8) is denied, a process by which such individual may obtain the reasons for the denial and challenge the denial; and 

10) in the case that personally identifiable data relating to such individual has been collected, a process by which such individual may challenge the accuracy of such data and, if the challenge is successful, have such data erased or amended.

A data minimization statement regarding a drone operated by a law enforcement agency, contractor, or subcontractor will detail applicable policies (backed by audit and oversight procedures) adopted by those entities that

• minimize the collection by the un-manned aircraft system of information and data  unrelated to the investigation of a crime under a warrant;
• require the destruction of such information and data, as well as of information and data collected by the unmanned aircraft system that is no longer relevant to the investigation of a crime under a warrant or to an ongoing criminal proceeding; and
• establish procedures for the method of such destruction.

Sensibly, the Bill provides that the FAA shall make available on [its] site in a searchable format

1) the approved certificate, license, or other grant of authority for each unmanned aircraft system awarded a certificate, license, or other grant of authority to operate in the national airspace system, including any such certificate, license, or other grant of authority awarded prior to the date of enactment of this section; 

2) information detailing where, when, and for what period each unmanned aircraft system will be operated;  

3) information detailing any data security breach that occurs with regard to information collected by an unmanned aircraft system; and 

4) in the case of a certificate, license, or other grant of authority awarded on or after the date of enactment of this section to operate an unmanned aircraft system in the national airspace system, the data collection statement … and, if applicable, the data minimization statement.

Hokum

From Victoria Beale's 5 April 2013 New Republic review of Paul Coelho

If you’ve absorbed any of Coelho’s incredible commercial success, without actually reading the 65-year-old, Brazilian author, it’s genuinely shocking to realize just how shoddy and lightweight his books are, how obvious and well-trodden their revelations. It’s tough to pick the most clichéd lines when there’s such choice, but here are a few of the best. From The Alchemist (1988): ‘‘Why do we have to listen to our hearts?’ the boy asked. … ‘Because, wherever your heart is, that is where you’ll find your treasure.’” From Veronika Decides to Die (1998): ‘‘And all of us, one way or another, are insane.’’ From The Zahir (2005): ‘‘God knows that we are all artists of life.’’ 

But the vapidity of Coelho is not his greatest sin. Nor is it the relentless self-promotion. At the heart of Coelho’s ostensibly encouraging philosophy is a brutal logic: If you’ve made it, your success is thanks to the mystical powers of positive thinking; if you haven’t, it’s your own fault for not trying hard enough. No credence is given to luck—good or bad—to geography or family background, to the substantial difficulties of economic and social mobility. All of these factors can be subsumed by focus and drive and single-mindedness. It’s a strikingly callous denial of reality, hedged in cuddly fairy tales.

Just a step away from victim blaming.

Blawgs

From Chris Ashford's incisive Law & Sexuality blog, announcing a shift from Blogger to Wordpress

When I started this blog – almost six years ago – I was using it primarily as a teaching tool to support my (then) new undergraduate Law and Sexuality course. I wanted to contextualise the module in a broader socio-legal environment. Then, I wanted to improve the blog as a teaching resource. I wanted the blog to become a ‘one stop shop’, to shave students moving from different access points (the virtual learning environment, individual sites etc). That meant providing some useful links, plus RSS feeds so that students could also see live updates of news headlines. When the excellent Pinksixty video news service was introduced, I also embedded that into my site, so that students could get a video news update, automatically updated every day. The longer the blog ran, the more data was accumulated and searchable. Finally, I wanted the blog to reveal a little of what Fiona Cownie has called ‘the private life of the Law School’, and it is perhaps revealing that my early posts relate to conferences – precisely the kind of activity that is often invisible to students. 

The explosion of social media in recent years brought a new audience to the blog, and shifted the focus away from students and more to fellow commentators, academics, lawyers, and activists. These readers are now the overwhelming majority of readers. A final category into this mix are students – both undergraduates and postgraduates – around the world studying law or sexuality-related courses. As the shift in readership has occurred, so too has a change in the way that we consume media, with people no longer needing updates all on this blog about breaking news. So, I’ve been able to adopt a much more minimal, cleaner structure for this blog. You can still subscribe to email updates (apologies to those who had done this over at Blogger, you’ll need to do it again). This is at the bottom of any page/post – you’ll see a subscription box. You can also search the blog as before, and like email updates this is accessible at the bottom of any page or post. The links section remain but I hope they are now clearer, and easier to navigate to. The personal aspect of this blog remains in terms of publications, media info etc, and these sections have been updated.

Publishing

'How Copyright Drives Innovation in Scholarly Publishing' by Adam Mossoff  comments that

Today, copyright policy is framed solely in terms of a trade off between the benefits of incentivizing authors to create new works and the losses from restricting access to those works. This is a mistake that has distorted the policy and legal debates concerning the fundamental role of copyright within scholarly publishing, as the incentive-to-create conventional wisdom asserts that copyright is unnecessary for researchers who are motivated for non-pecuniary reasons. As a result, commentators and legal decision-makers dismiss the substantial investments and productive labors of scholarly publishers as irrelevant to copyright policy. Furthermore, widespread misinformation about the allegedly “zero cost” of digital publication exacerbates this policy distortion. 

This paper fills a gap in the literature by providing the more complete policy, legal and economic context for evaluating scholarly publishing. It details for the first time the $100s millions in ex ante investments in infrastructure, skilled labor, and other resources required to create, publish, distribute and maintain scholarly articles on the Internet and in other digital platforms. Based on interviews with representatives from scholarly publishers, it reveals publishers’ extensive and innovative development of digital distribution mechanisms since the advent of the World Wide Web in 1993. Even more important, this paper explains how these investments in private-ordering mechanisms reflect fundamental copyright policy, as copyright secures to both authors and publishers the fruits of their productive labors. In sum, copyright spurs both authors to invest in new works and publishers to invest in innovative, private-ordering mechanisms. Both of these fundamental copyright policies are as important today in our fast-changing digital world as they were in yesteryear’s world in which publishers distributed scholarly articles in dead-tree format.

Glazer

From 'My Life in Sociology' by Nathan Glazer in (2012) 38 Annual Review of Sociology 1-16

Long before coming to Berkeley, I had given up, as a central interest, the discipline of sociology per se. I respected Merton's ambition to turn sociology into a science—he was well aware how far it was from being one. But it was not an ambition in which I participated. To me, sociology was always more of a humanistic discipline, as I wrote in an early article that was skeptical of the heralding of The American Soldier as a major advance in developing sociology as a science (Glazer 1949). Christopher Jencks once described sociology as “slow journalism,” and that too well described for me my approach to sociology. While sociology pursued its ambition to become more technical, more statistically advanced, more professional, more sophisticated theoretically—all worthy objectives—my own interests were more in the subjects and issues sociology dealt with than in the theory or methods it used in dealing with them. To me, sociology, like journalism, told stories, interesting and important stories. It was often my advice to graduate students, who so commonly chose thesis topics based on their lives and experiences and an interesting story they had to tell, to “tell the story!”, though I knew they also had to locate their stories within a theoretical framework. I wonder whether this was the best advice for them from the point of view of their future careers.

Grantseeking

Metrics on grant-seeking? 'Funding: Australia's grant system wastes time', a letter by Danielle Herbert, Adrian Barnett & Nicholas Graves in (2013) 495(7441) Nature, comments that

… scientists in Australia spent more than five centuries' worth of time preparing research-grant proposals for consideration by the largest funding scheme of 2012. Because just 20.5% of these applications were successful, the equivalent of some four centuries of effort returned no immediate benefit to researchers and wasted valuable research time.  

We surveyed a representative sample of Australian researchers and found that preparing new proposals for the National Health and Medical Research Council's project grants took an average of 38 working days; resubmitted ones took 28 days on average. Extrapolating this to all 3,727 submitted proposals gives an estimated 550 working years of researchers' time (95% confidence interval, 513–589), equivalent to a combined annual salary cost of Aus$66 million (US$68 million). This exceeds the total salary bill (Aus$61.6 million) at Melbourne's Walter and Eliza Hall Institute, a major medical-research centre that produced 284 publications last year.

Unsurprisingly - and of course unavailingly - the authors suggest the regime needs reforming, along with investigation of  "alternative funding processes".

They note that the proposals "were typically 80–120 pages" in length. A "more focused" approach would "reduce preparation costs and could improve the quality of peer review by reducing workloads".

We might wonder how many centuries are wasted, with less return, on grant seeking by the legal end of the academy.

Critical Animal Studies

The 1st Annual Oceania Conference for Critical Animal Studies (Animal Liberation and Social Justice: An Intersectional Approach to Social Change) is to be held on 6 July at the University of Canberra under the auspices of the Institute for Critical Animal Studies (ICAS) Oceania.

The conference

aims to raise consciousness and dialogue among the academic, activist and student community about the oppression of non-human animals, which is intrinsically connected to a larger social justice framework and movement for total liberation. 

CAS exists to expose and work towards the end of both human and nonhuman exploitation, oppression and domination based on an intersectional analysis of power relationships, domination and oppression. The explicit linkage of scholarly research and activism provides for and promotes an empowering and transformative agenda rooted in process of social transformation inside and outside the academy. CAS aims to have an assessable platform to promote further learning in order to support and improve conditions for social change. …

The organisers indicate that

this day-long conference will contribute to the solidification of CAS theory and praxis in Australia, interdisciplinary scholarship and linkages with other progressive movements. 

Open to diverse topics and areas, suggestions for areas of engagement and reflection include 

• Intersectionality in theory and praxis 

• Gender, sexuality and veganism 

• Race, class and Critical Animal Studies 

• The interdisciplinary turn 

• The rise of nonhuman animal activism in Australia 

• Effective approaches to social change

Ambushes

Ambush marketing?

The Commonwealth Games Arrangements Regulation 2013 (Qld) under the Commonwealth Games Arrangements Act 2011 (Qld) prohibits conduct falsely inferring an association with the Gold Coast 2018 Commonwealth Games and unauthorised use of certain images and references for commercial or promotional purposes, with provision for speedy and cost-effective enforcement.

Ag-SLAPP

The New York Times notes that over 12 US state legislatures have proposed or enacted bills that would make it illegal to covertly video livestock farms or apply for a livestock farm job without disclosing ties to animal rights groups.

They have also drafted measures to require such videos to be given to the authorities almost immediately, which activists say would thwart any meaningful undercover investigation of large factory farms.

Critics call them “Ag-Gag” bills.

Some of the legislation appears inspired by the American Legislative Exchange Council, a business advocacy group with hundreds of state representatives from farm states as members. The group creates model bills, drafted by lobbyists and lawmakers, that in the past have included such things as “stand your ground” gun laws and tighter voter identification rules.

One of the group’s model bills, “The Animal and Ecological Terrorism Act,” prohibits filming or taking pictures on livestock farms to “defame the facility or its owner.” Violators would be placed on a “terrorist registry.”

The Times indicates that

Animal rights activists say they have not seen legislation that would require them to register as terrorists, but they say other measures — including laws passed last year in Iowa, Utah and Missouri — make it nearly impossible to produce similar undercover exposés. Some groups say that they have curtailed activism in those states.

“It definitely has had a chilling effect on our ability to conduct undercover investigations,” said Vandhana Bala, general counsel for Mercy for Animals, which has shot many videos, including the egg-farm investigation in 2011. ...

The American Farm Bureau Federation, which lobbies for the agricultural and meat industries, criticized the mistreatment seen on some videos. But the group cautions that some methods represent best practices endorsed by animal-care experts.

The videos may seem troubling to someone unfamiliar with farming, said Kelli Ludlum, the group’s director of Congressional relations, but they can be like seeing open-heart surgery for the first time.

“They could be performing a perfect procedure, but you would consider it abhorrent that they were cutting a person open,” she said.

In coming weeks, Indiana and Tennessee are expected to vote on similar measures, while states from California to Pennsylvania continue to debate them.

Opponents have scored some recent victories, as a handful of bills have died, including those in New Mexico and New Hampshire. In Wyoming, the legislation stalled after loud opposition from animal rights advocates, including Bob Barker, former host of “The Price is Right.”

In Indiana, an expansive bill became one of the most controversial of the state legislative session, drawing heated opposition from labor groups and the state press association, which said the measure violated the First Amendment.

After numerous constitutional objections, the bill was redrafted and will be unveiled Monday, said Greg Steuerwald, a Republican state representative and chairman of the Judiciary Committee.

The new bill would require job applicants to disclose material information or face criminal penalties, a provision that opponents say would prevent undercover operatives from obtaining employment. And employees who do something beyond the scope of their jobs could be charged with criminal trespass.

An employee who took a video on a livestock farm with his phone and gave it to someone else would “probably” run afoul of the proposed law, Mr. Steuerwald said. The bill will apply not just to farms, but to all employers, he added.

Nancy J. Guyott, the president of the Indiana chapter of the AF-CIO, said she feared that the legislation would punish whistle-blowers.

Nationally, animal rights advocates fear that they will lose a valuable tool that fills the void of what they say is weak or nonexistent regulation.

Livestock companies say that their businesses have suffered financially from unfair videos that are less about protecting animals than persuading consumers to stop eating meat.

Don Lehe, a Republican state representative from a rural district in Indiana, said online videos can cast farmers in a false light and give them little opportunity to correct the record.

“That property owner is essentially guilty before they had the chance to address the issue,” Mr. Lehe said.

As for whistle-blowers, advocates for the meat industry say that they are protected from prosecution by provisions in some bills that give them 24 to 48 hours to turn over videos to legal authorities.

“If an abuse has occurred and they have evidence of it, why are they holding on to it?” said Dale Moore, executive director of public policy for the American Farm Bureau Federation.

But animal rights groups say investigations take months to complete.

Undercover workers cannot document a pattern of abuse, gather enough evidence to force a government investigation and determine whether managers condone the abuse within one to two days, said Matt Dominguez, who works on farm animal protection at the Humane Society of the United States.

“Instead of working to prevent future abuses, the factory farms want to silence them,” he said. “What they really want is for the whistle to be blown on the whistle-blower.”

A useful perspective for my conference paper on Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, Windridge Farm Pty Ltd v Grassi & Ors [2011] NSWSC 196, animal rights activism and confidentiality law later in the year.