Traditional Knowledge, Peru and FTAs

'Trend on the protection of traditional knowledge associated with genetic resources within intellectual property chapters of Free Trade Agreements: the Peruvian experience' by Diego Francoise Ortega Sanabria in (2019) 14(9) Journal of Intellectual Property Law and Practice 728–738 comments

During negotiations of Free Trade Agreements, the bargaining power of developed countries has pushed developing countries to yield to higher standards of intellectual property protection in exchange of commercial benefits. However, there is evidence that developing countries can also seek and ensure the adoption of measures aimed at safeguarding their legitimate interests as a result of these negotiations. An example is Peru, which has sought to ensure the inclusion of provisions to require patent applicants to disclose the origin of the genetic resources and the associated traditional knowledge when they are used in the development of an invention, as well as the presentation of the evidence as to the prior informed consent from their legitimate owners and the corresponding equitable benefit-sharing. This article seeks to analyze whether the terms finally adopted have had a real impact on the protection of the Peruvian traditional knowledge associated with genetic resources.

 The author states

Towards the second half of the 1990s, the Andean Community of Nations (CAN), then integrated by Bolivia, Colombia, Ecuador, Peru and Venezuela, adopted a set of rules specifically designed to safeguard the correct access to their genetic resources (GRs) and the traditional knowledge of their indigenous, Afro-American and local communities (TKs), done within the framework of integration under which that regional block regulates its policies. These rules included some sections that link the aforementioned resources and knowledge to the common intellectual property regime, aiming to avoid their misappropriation through the non-consented acquisition of exclusivity rights. 

Thus, in 1996, Decision 391 was issued, establishing a common regime on access to GRs that conditions the legality of any right (including intellectual property rights) to the fulfilment of the access provisions that were set forth in such a legal instrument. Later, in 2000, Decision 486 was adopted, setting up a new common regime on industrial property, which establishes that whenever a patent application or a granted patent covers an invention developed through the use of GRs or/and TKs, its granting or validity, respectively, will depend on the filing of evidence on the prior informed consent of their legitimate holders.3 It should be noted that Decision 486 is recognized as the first regional instrument that includes binding obligations regarding the disclosure of origin and demonstration of legal access to GRs and TKs in patent applications. 

In order to complement the referred regional norms, the Peruvian government has undertaken a series of local actions meant to strengthen and make operational the regional regulations mentioned above. Thus, in 2002, Law No 27811 was enacted (Regime for the Protection of TKs of Indigenous Peoples related to Biological Resources), establishing a sui generis regulation. In particular, this law provides for special registration mechanisms for TKs, as well as for the protection against the disclosure, acquisition or non-consensual use of this knowledge. Additionally, this local law establishes enforcement proceedings before the Peruvian Patent Office (INDECOPI). Furthermore, it was regulated that whoever applies for a patent related to a product or a process obtained from confidential TKs, has the obligation to present a copy of the licensing agreement with the respective Indigenous Peoples as a requisite to the granting of the exclusivity right. 

Likewise, with the purpose of strengthening a defensive protection scheme, in 2004 the Peruvian government created the National Commission for the Protection of Access to Peruvian Biological Diversity and Collective Knowledge of Indigenous Peoples, known as the National Commission Against Biopiracy, whose functions are aimed to prevent acts of misappropriation on a global scale, by monitoring patent applications filed all over the world, related to inventions based on GRs and/or TKs from Peru, for the purpose of taking further steps to object the patentability of those inventions. 

Notwithstanding the above, the Peruvian government recognizes that, in order to prevent acts of misappropriation of GRs and/or TKs, these solutions must be also adopted by other countries, reason why the Peruvian national policies are also addressed to develop a binding international legal framework. In this sense, taking into account the relevance of having an international set of strategic actions to the effect of defending its interests, Peru manages an agenda in the diplomatic forum, which comprises i) the development of negotiations in the forum held by the World Trade Organization (WTO) as a result of the Doha Ministerial Declaration of November 2001, which instructed the Council on the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) to examine, inter alia, the relationship between TRIPS and the Convention on Biological Diversity (CBD); and ii) negotiations undertaken to subscribe bilateral and multilateral free trade agreements (FTAs), incorporating GRs and TKs aspects into the corresponding intellectual property chapters. 

In this regard, it is worth mentioning that, within the WTO forum, Peru and countries such as Brazil and India have sought to amend of the TRIPS Agreement, with the objective of inserting a mandatory formal requirement within the patent chapter, in relation to inventions dealing with the use of GRs and/or TKs. In fact, it has been proposed to amend Art. 29 of the TRIPS Agreement, so as to include a provision whereby Members shall require patent applicants to disclose the origin of GRs and the associated TKs when the subject of the application is derived or developed from these resources, as well as the presentation of the evidence of prior informed consent and the equitable benefit-sharing resulting from its commercial exploitation. This proposal provides for the adoption of national legal mechanisms to reject or invalidate a patent whenever these conditions are not met. 

However, certain developed economies are very reluctant to adopt these measures. Thus, countries such as USA, Japan, Korea and Australia have expressed their opposition, while others, such as those belonging to the European Union promote the search of alternative solutions to tackle the problem of misappropriation. As a corollary, to date these negotiations have not reached any concrete result. In this context, it seems that the signing of bilateral and multilateral trade agreements remains the only path to achieve the objectives that are not being achieved in the WTO forum, due to the better fluency that negotiations carried out by fewer parties involve. As a matter of fact, for almost ten years Peru has been subscribing agreements with several countries, which include provisions on GRs and TKs. Taking this into account, it is important to assess whether the bilateral forum, in which Peru has deployed significant efforts, has produced effective results. 

In order to carry out the present analysis, first it will be identified what was the corresponding position of the developed countries with which Peru has signed trade agreements and what terms have been finally adopted, to then determine if the Peruvian government has achieved concrete results. For this purpose, the analysis will be focused on the agreements signed with the USA, which turns out to be the most reticent country in terms of linking the protection of GRs and TKs with the intellectual property system. The agreements with the European Union and the States of the European Free Trade Association will also be part of this analysis, taking into account that, as seen above, these economies promote some alternative approaches.

TRIPS, FTAs and access to medicines

'The access to medicine puzzle: scaling back the negative effects of the Jordan–US Free Trade Agreement' by Laila Barqawi in (2019) 14(9) Journal of Intellectual Property Law and Practice 678–686 comments

 Jordan is the first Arab country to have agreed to sign a Free Trade Agreement (FTA) with the USA. The Jordan–US agreement (JUSFTA) contains Trade Related Aspects of Intellectual Property Rights (TRIPs)-plus clauses which affect Jordan’s access to medicine by raising the price of drugs, delaying generic entry of medication into the market and therefore limiting access to medicines. Commentators have noted several concerns about FTAs, including their lack of flexibilities, such as compulsory licensing, and of exceptions for fair or non-commercial use. 

This article examines recommendations by the Jordanian Food and Drug Administration (JFDA) and explains the workability of these recommendations, using examples from countries which have signed FTAs with the USA and have successfully curtailed the negative effects of FTAs. The article also recommends further options which the Jordanian government can utilize to limit the negative impacts of TRIPs-plus clauses within their national laws. These options do not contravene JUSFTA and TRIPs and can increase access to medicines.

Barqawi states

 Jordanian officials have started to recognize the negative impact of data exclusivity as can be seen through the Jordan’s food and drug administration’s (JFDA) submissions to the UN High Level Panel below. We explore their workability in an attempt to scale back the negative effects of TRIPS-plus and data exclusivity. 

Data exclusivity operates as a ‘wholly distinct form of intellectual property rights and could not be overcome by a compulsory license.’ Furthermore, TRIPS protects only ‘undisclosed data’ to prevent ‘unfair commercial use’; it does not confer either exclusive rights or an automatic period of marketing monopoly. TRIPS does not define what constitutes ‘commercial use’. There have been arguments for data exclusivity in that it incentivizes innovation in the field of pharmaceutical drugs and assists pharmaceutical companies in recouping the costs of clinical trials and clinical trial data transparency. These arguments have been refuted on the basis that a few years of patent protection is adequate to recover the cost of clinical trials as US companies, for example, have made an excess of USD 1 billion on 55 ‘blockbuster’ drugs in 2013. 

As part of Jordan’s WTO’s accession package, Jordan agreed to block registration and marketing approval of generic medicine for five years, ‘even when no patents exist’. This has been implemented through the Trade Secrets and Unfair Competition Draft Law, which had been referred to Parliament in November 19998 and is now Article 8 of Jordan’s Law No 15 of 2000 on Unfair Competition and Trade Secrets (UCTS).  This is clearly TRIPS-plus in nature. 

Moreover, restrictions by JUSFTA also require three further years for data exclusivity for new uses, which clearly is an excessive form of protection for an existing TRIPS-plus condition. The effect of this restricted use of data exclusivity is evidenced by the 103 registered medicines which were launched since 2001 and had no patent protection in Jordan; of these, at least 79 per cent had no competition from a generic equivalent as a consequence of data exclusivity. This suggests that data exclusivity limits competition. Beyond implications for competition, there are financial effects as well. For example, an analysis funded by the Medicines Transparency Alliance estimated that the delayed market entry of generics resulting from TRIPS-plus requirements in JUSFTA cost consumers in Jordan’s retail market US$ 18 million in 2004. 

The Jordanian government should implement the recommendations in this article with backing from the USA, because the USA is the main financer to Jordan’s economy. Furthermore, defying the USA means that countries such as India, which challenge the USA on IP, feature regularly on the USA’s ‘Priority Watch List’ in its 301 Reports. For example, the USTR’s 2018 Special 301 Report clearly states that India has ‘Longstanding IP challenges facing US businesses in India’.

 She concludes

 There is policy space that the Jordanian government could utilize to limit the effects of TRIPS-plus. Jordan’s data exclusivity clauses are the most harmful to Jordan’s access to medicine. However, this article offers practical solutions to scale back Jordan’s data exclusivity restraints, following the example of other countries that have signed similar terms with the USA. This article builds on the recommendations of the JFDA by advocating further measures for the Jordanian government to increase its access to medicine. Jordan could restrict definitions such as NCE, patentability criteria and bar second use patenting, a decision that would prevent ‘evergreening’ of existing patents, supporting wide access to medicines. Jordan’s laws could also allow for policy space to be interpreted within its national laws as per Peru’s Amended Article 4 in its Legislative Decree. The Jordanian government could put a cap on the drug prices in comparison with other similar economies. Consequently, Jordan could attempt to overhaul its national legislation to streamline its IP. The Jordanian government should, ideally, have its decisions backed by the USA to maintain its relationship with the USA and not feature in the USTR’s 301 Report’s Watch List.

Algorithmic Bias and Tax Profiling

'The Missteps of the FIRST STEP Act: Algorithmic Bias in Criminal Justice Reform' by Raghav Kohli in (2019) 1 Journal of the Oxford Centre for Socio-Legal Studies comments

Contrary to his tough-on-crime rhetoric, Donald Trump in December 2018 signed the FIRST STEP Act (the ‘Act‘) into law, a criminal justice reform legislation aimed at reducing recidivism and reforming prison and sentencing laws. With a 87-12 vote in the Senate and a 358-36 vote in the House, a bitterly divided Congress approved the Act in a rare display of bipartisanship earlier that month. Apart from triggering an awakening within Congress about the dire need to decarcerate, the Act unified an unusual coterie of proponents, including tycoons such as the Koch Brothers, and celebrities such as Kim Kardashian. Whilst hailed as historic and sweeping in some quarters, the Act only affects the federal system, which houses a small fraction of the United States prison population. Out of approximately 2.1 million people imprisoned, only 180,413 are federal inmates. Nonetheless, the Act aims to introduce several reforms. It mandates the Department of Justice to establish a ‘risk and needs assessment system’ to classify the recidivism risk of prisoners, and to incentivise participation in productive activities. For instance, it allows prisoners to earn ‘time credits’ through their participation and apply them towards early release to pre-release custody. Other proposed changes include retrospective modification of ‘good time credit’ computation, reduced sentences for drug-related offences, and a ban on shackling of pregnant women. 

However, inmates do not benefit equally from these reforms. The risk and needs assessment system employs algorithms to classify each prisoner as having a minimum, low, medium, or high risk for recidivism. The Act only permits prisoners falling within the minimum and low risk brackets to apply for time credits towards pre-release custody. 

This article seeks to critically examine the impact of such algorithmic decision-making in the criminal justice system. Analysing different instances of algorithmic bias and the recent Wisconsin Supreme Court decision of State v. Loomis, it argues that opaque algorithmic decisions violate due process safeguards. In conclusion, the increasing use of such algorithms in the criminal justice system, including the FIRST STEP Act, is found to be undesirable, unless tempered with solutions which meaningfully improve their accuracy and transparency.

'Profiling tax and financial behaviour with big data under the GDPR' by Eugenia Politou, Efthimios Alepis and Constantinos Patsakis' in (2019) 35(3) Computer Law and Security Review 306-329 comments

 Big data and machine learning algorithms have paved the way towards the bulk accumulation of tax and financial data which are exploited to either provide novel financial services to consumers or to augment authorities with automated conformance checks. In this regard, the international and EU policies toward collecting and exchanging a large amount of personal tax and financial data to facilitate innovation and to promote transparency in the financial and tax domain have been increased substantially over the last years. However, this vast collection and utilization of “big” tax and financial data raise also considerations around privacy and data protection, especially when these data are fed to clever algorithms to build detailed personal profiles or to take automated decisions which may exceptionally affect people's lives. Ultimately, these practices of profiling tax and financial behaviour provide fertile ground for discriminating processing of individuals and groups. 

In light of the above, this paper aims to shed light on the following four interdependent and highly disputed areas: firstly, to review the most well-known profiling and automated decision risks emerged from big data technology and machine learning algorithmic processing as well as to analyse their impact on the tax and financial privacy rights through their immense profiling practices; secondly, to document the current EU initiatives toward financial and tax transparency, namely the AEOI, PSD2, MiFID2, and data retention policies, along with their implications for personal data protection when used for profiling and automated decision purposes; thirdly, to highlight the way forward for mitigating the risks of profiling and automated decision in the big data era and to investigate the protection of individuals against these practices in the light of the new technical and legal frameworks; in this respect, we finally delve into the regulatory EU efforts towards fairer and accountable profiling and automated decision processes, and in particular we examine the extent to which the GDPR provisions establishes a protection regime for individuals against advanced profiling techniques, enabling thus accountability and transparency.

Saying Sorry

'Should Public Figures Apologize? Preliminary Evidence and Speculations' by Cass R. Sunstein comments

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

Fake News

'Fake News From A Legal Perspective: The United States And South Korea Compared' by Ahran Park and Kyu Ho Youm in (2019) Southwestern Journal of International Law comments

"Fake news" has emerged as a pressing concern since the 2016 U.S. presidential election. As media columnist Jim Rutenberg of The New York Times noted in November of 2016, "[t]he internet-borne forces that are eating away at print advertising are enabling a host of faux-journalistic players to pollute the democracy with dangerously fake news items."' Similarly, The Washington Post media columnist Margaret Sullivan, a former New York Times public editor, wrote one month later that "the era of fake news causing real trouble" has arrived in the United States. 

Publishing fake news has been around as a legal issue for many years.' As early as the late 18th century, fake news was already addressed by the United States Congress. When Congress passed the Alien and Sedition Act in 1798, one of its objectives was to punish "malicious" falsehoods about the government as a crime. 

Fake news and its counterpart - "real news" - is not limited to the United States. The impact of fake news is global. Freedom House reports that fake news was spread in 30 of the 65 countries examined between June 2016 and May 2017. South Korea is no exception in confronting fake news as a sociopolitical and legal issue. Koreans dealt with fake news during a presidential impeachment in early 20176 and a snap presidential election in May 2017. Fake news has been often abused to calumniate political opponents in Korea. 

In the United States, where freedom of speech and the press is the rule, not the exception, however, "[t]he real question is not whether fake news is protected, but under what circumstances would fake news not be protected." But in other countries, which are less speech-friendly, disseminating fake news is rarely not discussed as a part of free speech. In Ireland, for example, a new law proposed would criminalize spreading fake news on social media. In Germany, a social media law came into force in October of 2017 that requires social media sites to remove fake news promptly.'" The German law gives social media networks twenty-four hours to take actions on fake news after they have been alerted. " 

From a comparative perspective, South Korea and the United States deserve careful attention, given that American law has exerted a considerable impact on Korea's democratic process as a rule-of-law-nation over the years. Fake news and freedom of expression is a timely topic for comparatists, since it illustrates how society approaches evolving free speech issues like fake news. This Article first examines the definitional framework of fake news in the United States and Korea. Second, it analyzes where fake news is placed as a legal issue in the United States and Korea. And finally, the contrast of the United States with Korea is analyzed by looking at how fake news is framed as a new or not so new issue in free speech jurisprudence.

California as a Privacy Catalyst

'Catalyzing Privacy Law' by Anupam Chander, Margot E. Kaminski and William McGeveran comments

The United States famously lacks a comprehensive federal data privacy law. In the past year, however, nearly half of state legislatures have proposed or enacted broad privacy bills or have established privacy legislation task forces, while Congress has scrambled to hold hearings on multiple such proposals. What is catalyzing this legislative momentum? Some believe that Europe’s General Data Protection Regulation (GDPR), which came into force in 2018, is the driving factor. But with the California Consumer Privacy Act (CCPA) scheduled to take effect in January 2020, California has emerged as an alternate contender in the race to set the new standard for privacy. 

Our close comparison of the GDPR and California’s privacy law reveals that the California law is not GDPR-lite: it retains a fundamentally American approach to information privacy. Reviewing the literature on regulatory competition, we argue that California, not Brussels, is catalyzing privacy law across the United States. And what is happening is not a simple story of powerful state actors. It is more accurately characterized as the result of individual networked norm entrepreneurs, influenced and even empowered by data globalization. Our account has implications not just for companies that must comply with both laws, but for policymakers and citizens at both state and federal levels.

Aged Care

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

The paper states

Aged care quality and safety regulation is intended to protect and enhance the health and wellbeing of care recipients.  

This Background Paper summarises the key aspects of quality and safety regulation provided for in the Aged Care Act 1997 (Aged Care Act), the Aged Care Quality and Safety Commission Act 2018 (Quality and Safety Commission Act) and supporting legislative instruments, including:

• approval of providers, making them eligible to receive government subsidies and supplements to provide aged care 

• the responsibilities of approved providers, including in relation to quality of care, user rights and accountability 

• accreditation and quality review processes 

• enforcement and sanctions 

• complaints processes 

• advocacy and community visitors.

There are some aged care services that are grant funded and operate outside the legislative framework of the Aged Care Act, namely the Commonwealth Home Support Programme and the National Aboriginal and Torres Strait Islander Flexible Aged Care Program. The arrangements in place to regulate the quality and safety of these programs will also be described in this paper. 

The Background Paper does not cover the following aspects of the aged care regulatory framework:

• the allocation of aged care places 

• the approval and classification of care recipients 

• setting of accommodation payments and accommodation contribution levels 

• oversight of refundable deposits and accommodation bonds 

• the role of the Aged Care Pricing Commissioner.

The aged care system also interacts with a broad range of regulatory bodies and frameworks. For example: consumer protection issues are regulated by the Australian Competition and Consumer Commission; health practitioner issues are regulated by the Australian Health Practitioner Regulation Agency; and each jurisdiction has its own work health and safety regulator. Legislation and regulations relating to local planning, building, fire safety, food safety and public health, among others areas, all apply in the aged care context. This broader regulatory context is not the focus of this paper. 

The Background Paper does not provide commentary or a view on the adequacy or effectiveness of the current quality and safety regulatory scheme. 

Legislative framework 

The Aged Care Act and the Quality and Safety Commission Act provide the legislative framework for the Australian aged care system. 

Sitting underneath the Aged Care Act is a suite of principles that contain detail about the operation and regulation of the aged care system. The current principles, which are legislative instruments and can be made and amended by the Minister, are as follows:

• Accountability Principles 2014 

• Allocation Principles 2014 

• Approval of Care Recipients Principles 2014 

• Approved Provider Principles 2014 

• Classification Principles 2014 

• Committee Principles 2014 

• Extra Service Principles 2014 

• Fees and Payments Principles 2014 (No 2) 

• Grant Principles 2014 

• Information Principles 2014 

• Prioritised Home Care Recipients Principles 2016 

• Quality of Care Principles 2014 

• Records Principles 2014 

• Sanctions Principles 2014 

• Subsidy Principles 2014 

• User Rights Principles 2014.

Other legislative instruments made under the Aged Care Act are Aged Care Determinations, including a determination by the Secretary under section 14–6 of conditions that apply to all allocations of places and to allocations of certain flexible care places1F and a determination by the Minister setting the amount of subsidies and supplements payable to approved providers of aged care services. 

Sitting underneath the Quality and Safety Commission Act are the Aged Care Quality and Safety Commission Rules 2018 (Quality and Safety Commission Rules), which contain much of the detail relating to the functions and operation of the Aged Care Quality and Safety Commission.

Character and Mutual Recognition

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

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

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

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

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

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

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

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

Mental Health Apps

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

 'How private is your mental health app data? An empirical study of mental health app privacy policies and practices' by Lisa Parker, Vanessa Halter, Tanya Karliychuk and Quinn Grundy in (2019) 64 International Journal of Law and Psychiatry comments

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

HealthEngine and the ACL

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

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

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

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

Its media statement comments

 “We allege that HealthEngine refused to publish negative reviews and altered feedback to remove negative aspects, or to embellish it, before publishing the reviews,” ACCC Chair Rod Sims said. 

“We will argue that HealthEngine disregarded around 17,000 reviews, and altered around 3,000 in the relevant time period.” 

“The ACCC considers that the alleged conduct by HealthEngine is particularly egregious because patients would have visited doctors at their time of need based on manipulated reviews that did not accurately reflect the experience of other patients,” Mr Sims said. 

The ACCC also alleges that from 30 April 2014 to 30 June 2018, HealthEngine gave information such as names, phone numbers, email addresses, and date of birth of over 135,000 patients to private health insurance brokers for a fee without adequately disclosing to consumers it would do so. 

“We also allege that patients were misled into thinking their information would stay with HealthEngine but, instead, their information was sold off to insurance brokers,” Mr Sims said.

The ACCC is seeking penalties, declarations, corrective notices and an order for HealthEngine to review its compliance program. The ACCC is also applying for an order from the Court that would require HealthEngine to contact affected consumers and provide details of how they can regain control of their personal information.

Marriage and Civil Disability

As Dr Pangloss pointed out in the musical version of Candide,

 Why, marriage, boy, 

Is such a joy, 

So lovely a condition, 

That many ask no better than 

To wed as often as they can, 

In happy repetition. 

 There is a deeper view in 'While They Waited: Pre- Obergefell Lives and the Law of Nonmarriage' by Michael J Higdon in (2019) 129 Yale Law Journal Forum 1 .

Higdon comments 

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

Nominalism and magic hats

'You Name it: On the Cross-Border Regulation of Names' by Sharon Shakargy in (2019) American Journal of Comparative Law comments 

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

In K Sheridan v Colin Biggers & Paisley [2019] NSWSC 528 Black J has considered claims by Kyle Lester Sheridan - who reportedly prefers to be addressed as Lord Sheridan - that have a pseudolegal basis. 

The judgment states 

 By Notice of Motion filed on 15 April 2019, the Defendants, Colin Biggers & Paisley Pty Ltd (“CBP”) and Grant Thornton Australia Ltd (“GTA”) apply under rr 13.4 and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and the Court’s inherent jurisdiction for orders that the whole of a Statement of Claim filed by the Plaintiff on 9 November 2018 be struck out; that the proceedings be dismissed under UCPR r 13.4; and that the Plaintiff pay their costs of the proceedings, including the costs of the application. The Plaintiff prefers to be described as “Lord Sheridan” rather than by his given name and surname, although he did not identify the manner in which he acquired his title. I will refer to him, without any discourtesy, as the Plaintiff. ... 

Between 2010 and May 2017, Courtenay House Pty Limited (in liq) and Courtenay House Capital Trading Group Pty Limited (in liq) (“Companies”) operated a Ponzi scheme, in which they claimed to trade in foreign exchange, futures and commodities on behalf of investors and paid monthly returns to investors generated by such trading. In fact, little of the deposited funds were traded by the Companies and monthly “returns” paid to investors were largely paid using funds deposited by investors. That scheme operated until about April 2017, when this Court made freezing orders over the Companies’ assets and bank accounts on the application of the Australian Securities and Investments Commission (“ASIC”). On 16 May 2017, the Court appointed Messrs Jahani and McInerney of GTA as the liquidators of the Companies, also on ASIC’s application. CBP has acted as the solicitors for the liquidators and the Companies in subsequent litigation, including proceedings brought against persons involved in the Ponzi scheme. 

The Plaintiff appears to be associated with “Oceanic Sun Group”, which is not an incorporated entity, and which invested amounts totalling $10,600,000 with the Companies prior to their liquidation. In particular, Oceanic Sun Group invested amounts totalling $7,800,000 in a purported investment product offered by the Companies called the “Brexit Special Product”. These amounts were deposited into an account (“NAB 1 Account”) operated by the Companies. Oceanic Sun Group also invested amounts totalling $2,800,000 in other purported investment products offered by the Companies, which were deposited into another account (“Westpac Account”) operated by the Companies. 

In his judgment in Re Courtenay House Capital Trading Group Pty Limited (in liq) and Courtenay House Pty Limited (in liq) [2018] NSWSC 404; (2018) 125 ACSR 149, Brereton J found the funds invested in respect of the Brexit Special Product were held by the Companies on express trust or under a Quistclose trust for the investors in that product. On 22 June 2018, Brereton J made orders: “That the Liquidators are justified in distributing funds that were held in the NAB 1 Account to The Oceanic Sun Group or [Kyle] Sheridan in the amount specified in Schedule C of the Liquidators’ affidavit, less an amount representing a proportionate amount for provision for the Liquidators’ future costs and expenses (as referred to in the orders above), to be approved in accordance with the Court Orders of 11 December 2017, pending further directions of the Court.” 

The liquidators have since distributed funds to those investors that invested in the Brexit Special Product, including the Oceanic Sun Group, less deductions for their costs and expenses as approved by the committee of inspection. The Oceanic Sun Group was repaid the sum of $7,542,991.33 (referable to their original investment of $7,800,000 in the Brexit Special Product) on 27 June 2018. The shortfall in that repayment reflected the liquidators’ costs and expenses. On 8 August 2018, Brereton J held that the liquidators were entitled to pay their proportionate costs and expenses from the amount of $7.8 million deposited by the Oceanic Sun Group with the Companies and dismissed an interlocutory process filed by the Plaintiff seeking a contrary order. 

By letter dated 26 October 2018, the Plaintiff demanded that his “property” be returned immediately by the liquidators and the “trespass” on his property be discontinued by them. 

On 31 October 2018, the liquidators filed an Interlocutory Process seeking directions from the Court as to how the remaining funds in the Westpac Account should be distributed. Those proceedings have been set down for hearing on 24 and 25 July 2019. There has not yet been any distribution paid to any investors in respect of amounts deposited in the Westpac Account. I will refer below to the evidence as to the likely distribution to the Oceanic Sun Group in respect of the amounts deposited in the Westpac Account. 

The Plaintiff then filed his Statement of Claim on 9 November 2018 in the Common Law Division, bringing a claim for $75 million against CBP and GTA. That Statement of Claim identified and provided particulars of the claim as follows:

“I, a man claim: ● The said wrongdoers Trespass upon my property ● The casual agents of the trespass comes by way of Theft ● The trespass did and does harm my property ● The trespass did and does cause injury ● The commencement of the wrong and harm began on May 16, 2017 ● The wrong and harm continues to this day ● I require compensation for the initial and continual trespass upon my property [theft] ● Compensation due: Seventy Five Million Australian Dollars” 

The reference to “i, a man” in the Plaintiff’s Statement of Claim and other documents which he seeks to file, to which I refer below, appears to have something in common origin with the references to a “flesh and blood man”, noted to have many variations, in Meads v Meads [2012] ABQB 571, where the Court of Queen’s Bench of Alberta, Canada, undertook a comprehensive review of the characteristic features of what it described as “organized pseudolegal commercial argument”. That decision has in turn been noted by the High Court of New Zealand in Meenken v Family Court at Masterton [2017] NZHC 2103 and in decisions of the Federal Circuit Court of Australia, including Ennis v Credit Union Australia [2016] FCCA 1705, Deputy Commissioner of Taxation v Woods [2018] FCCA 1815 and Lion Finance Pty Ltd v Johnston [2018] FCCA 2745, with reference to a class of arguments deployed by self-represented creditors in a different context, in order to seek to avoid payment of debts: see also T Bloy, “Pseudolaw and Debt Enforcement” [2013] NZLJ 47. 

That Statement of Claim was verified by the Plaintiff with a notation “under protest & Duress Forced coerced against my Free will”. It appears that the relevance to duress, force and coercion arose from the Court Registry’s requirement that a Statement of Claim filed in this Court comply with the forms prescribed by the UCPR. I will turn to the form of claim which the Plaintiff prefers below. 

The Plaintiff in turn recorded his position in respect of the Statement of Claim, as filed, by an email dated 19 November 2018 to the Common Law Registrar which stated that: “The ‘Sheridan Court’ hereby delivers notice: i, a man was forced to file my case by ‘administrator’ of the Supreme Court of New South Wales, under a ‘Civil Form’ application turning my ‘Claim’ into a “complaint”; Turning ‘Prosecutor’ into ‘Plaintiff’ and ‘Wrongdoers’ into ‘Defendants’; case number 2018/344655 is NOT a ‘civil’ action; i require a ‘court of record’ ; ‘trial by jury’ The administrator of the court refused to file documentation into a court of record, in order to for [sic] i, a man to obtain a case file number; i, believe this interferes with my rights ...” 

That email also referred to the Plaintiff’s dissatisfaction with events that had transpired at an appointment with a Registrar on 14 November 2018. ... 

The Plaintiff also sought to rely on an affidavit dated 10 April 2019, which did not comply with the requirements of the Oaths Act 1900 (NSW). The affidavit commenced with the words: “i, a man do solemnly and sincerely affirm and declare with good faith and with good conscience the following affidavit of the facts” That affidavit was not sworn or affirmed in the form prescribed by the Oaths Act, but signed by the Plaintiff and also included a red thumbprint, in a practice noted in Meads v Meads above. The Plaintiff was not identified in the manner required by s 34 of the Oaths Act. I did not permit the Plaintiff to rely on the affidavit in that form, but allowed him the opportunity to give oral evidence adopting that affidavit. He gave such evidence, on affirmation, at the hearing on 29 April 2019. 

The Plaintiff’s affidavit referred to some 27 “[f]act[s]”, many of them by assertion rather than in a narrative form, including that: “1. Fact 1: It is not incumbent upon a man to prove a claim until such time as another man, disputes the claim andor [sic] testifies against it. 2. Fact 2: No man has come forward in full liability to dispute claim andor [sic] testify against claim (The claim stands).” 

The Plaintiff also referred to aspects of the conduct of the proceedings, and alleged that: “10. Fact 10: Wrongdoer 1 [CBP] and Wrongdoer 2 [GTA] trespass upon my property (Trust) by holding Trust property (The Oceanic Sun group) to the amount of $10,600,000.00.” The Plaintiff set out (paragraph 13) allegations as to knowledge attributable to CBP, GTA and the Court and refers to a determination by Brereton J as to the Oceanic Sun Group’s entitlement to an amount of $7.8 million. The Plaintiff alleged that CBP and GTA committed “[t]heft” and “[t]respass” by paying only $7,542,991.33 of the $7,800,000 invested by Oceanic Sun Group in the Brexit Special Product, a “short fall of $257,008.67” (paragraph [16]). The Plaintiff also alleges that CBP and GTA (I interpolate, as distinct from the Companies or the liquidators) held the funds for over one year, earning interest which was never returned to the investors, which is described as “Theft, profiting from the proceeds of a crime” (paragraph [17]). The Plaintiff then stated that CBP and GTA “took fees from trust property without right, without consent, without approval of the Board of Trustees”, which is described as “Trespass, theft” (paragraph [18]). The Plaintiff also states that CBP and GTA “obtain[ed] funds without any contract with the trust andor [sic] trustees of The Oceanic Sun group” (paragraph [19]) and that the Defendants “failed to provide the funds in an expedited manner” (paragraph [21]). The Plaintiff also alleges, plainly referring to funds deposited to the Westpac Account, that CBP and GTA “continue to hold trust Property in excess to the amount of $2,800,000.00, excluding interest earned on the funds, while the trespasser control the funds” (paragraph [22]). The Plaintiff states that the “commencement of the wrong and harm began on May 16, 2017” (paragraph [23]), the date the liquidators were appointed by the Court. The affidavit refers to his claim for “compensation” in the amount of $75 million (paragraph [25]). ... 

Mr McKenzie’s evidence is that, as I noted above, the Plaintiff claims to represent the Oceanic Sun Group although searches undertaken by Mr McKenzie have not identified any registration for that group, which appears to be an unincorporated association or unincorporated group. Mr McKenzie also refers to the Oceanic Sun Group’s investment of $7.8 million in the Brexit Special Product and $2.8 million in other purported investments with the Companies to which I have referred above. Mr McKenzie also sets out the history of proceedings previously brought by the Plaintiff and refers to the payment made by the liquidators of $7,542,991.33 to the Oceanic Sun Group on 27 June 2018, in respect of its investment in the Brexit Special Product, to which I referred above. Mr McKenzie also refers to the liquidators’ estimate that the Oceanic Sun Group may be entitled to receive a distribution of between $344,621 and $614,874 from funds held in the Westpac Account, depending upon the outcome of the remaining application in respect of distribution of funds held by the Companies. 

... On 3 May 2019, the Plaintiff advised my Associate that he intended to discontinue these proceedings and had engaged Counsel for the purpose of reaching consent, if that were possible, with the Defendants as to costs. I relisted the matter for the afternoon of 6 May 2019 to allow any such discontinuance to be implemented. However, after the matter had been relisted, the Plaintiff advised my Associate on 5 May 2019 that he retracted his notice that he intended to discontinue the proceedings and discontinued any legal representation in relation to the matter and would attend the Court on 6 May 2019. 

The proceedings were then listed on the afternoon of 6 May 2019. The Defendants led no evidence and made no further submissions on that occasion. The Plaintiff advanced the submission that:

“... you [Black J] have no jurisdiction in the court. I'm not standing in your corporate court today and I'm standing you down. I'm retiring you [Black J] from this court. You're operating in a fraud in the statutory court and I hereby stand you down and retire you. I will be speaking today on the record and the inherent jurisdiction of the de jure Supreme Court of New South Wales under Her Majesty's Royal great seal.” (T1) 

The Plaintiff also advised that:

“There will be no judgment because you [Black J] are standing in a corporate court and I am standing you down and retiring you. The next time we have a conversation will be in Her Majesty's Federal Court of which we will deal with this. Right now I have documentation that is required to be pressed for the record, and I will not be interfered and I will not stand in your corporate court today. I have documented evidence currently to be submitted. I wish to have it ... advanced and filed.” (T1) 

The Plaintiff provided several documents to the Court, which I marked MFI 1, which he indicated were in response to Mr McKenzie’s affidavit and also addressed the decision in Meads v Meads above. These documents included a document titled “Living Testimony in a Form of an Affidavit Notice to agent is notice to principal, notice to principal is notice to agent”, which was also not sworn or affirmed in accordance with the requirements of the Oaths Act. That document contains quotations from Coke’s Institutes, referred to several maxims of equity; contains a number of religious references and also refers to the Uniform Commercial Code of the United States of America, to shipwrecks, and, oddly, to the Western Australian Treasury Corporation and the International Monetary Fund, which had not previously had any role in these proceedings. That document also asserted the existence of a “commercial lien” against GTA and CBP and, apparently also against the Supreme Court of New South Wales and several other persons (including Black J). The document further stated that:

“Those who have contracted me, without my consent either directly or indirectly where I have provided my FEE SCHEDULE, that will be made forcible by my application to the Federal Court for Judgement, where your Business House Trading as SUPREME COURT OF NSW, A.B.N 77 057 165 500, andor has DISHONOURED, whereby removing my infallible rights as a man at Common Law Jurisdiction”

That document also developed several broader propositions as to the nature of government, the nature of law and the Plaintiff’s capacity to act as a sovereign being upon coming of age. The Plaintiff also contended that several entities (including the Department of the Premier and Cabinet, the Department of Justice and Attorney General, the NSW Police Force, Treasury and several Queensland entities, which had also not previously had any role in the proceedings) were “Australian Businesses purporting to be ‘State Government entities’”. 

The Plaintiff also relied on an “International Public Notice” of a “Common Law Commercial Lien” extending to GTA, CBP, the Supreme Court of New South Wales and various individuals, claiming a commercial lien to the value of $300 million and relied a “Bill of Lading Ship From [sic]” which appeared to be connected with the “commercial lien”. The Plaintiff also issued an invoice to, inter alia, CBP and several individuals in the amount of $300 million, referable to the Plaintiff as lien claimant. I understand these documents to amount to an attempt unilaterally to create a liability of $300 million owed to the Plaintiff, by asserting the existence of that liability and relying upon a failure to controvert it. 

These documents appear to adopted on approach that was described by the Court of Queen’s Bench of Alberta, Canada in Meads v Meads above, where the Court noted (at [447]) that a class of self-represented litigants:

“frequently attempt to unilaterally foist obligations on other litigants, peace officers, state actors, or the court and court personnel. These foisted obligations take many forms. None, of course, creates any binding legal obligation. In that sense, these are yet more ‘magic hats’.”

The Court also observed (at [458]ff) that a unilateral document of that kind does not bind its recipient, absent acceptance of the offer comprised in such a document and establishment of the other requirements for a binding contract. It seems to me that that observation, while directed to Canadian common law, also reflects the position under the Australian law of contract. I do not presently need to address, and do not address, any question whether the Plaintiffs’ claim to impose the suggested lien on the Court or a trial judge, in respect of the performance of the Court’s inherent and statutory functions, might constitute a contempt of Court.

Struggle, Snowflakes and Revocation

Normalizing Struggle' by Catherine Martin Christopher in (2019) Arkansas Law Review (Forthcoming) comments

Learning lawyering skills, and becoming competent or proficient in them, is a struggle. This article is a call to action for all legal educators: We need to acknowledge that students struggle, to expect it, and to convey to students that their struggle is normal. In fact, struggle is productive — learning is hard, and lawyers learn and struggle throughout their careers. 

This article examines and criticizes the ways legal academia treats law students’ academic struggle as a problem, and suggests that legal educators reorient their attitudes toward struggle, forgiving and embracing student struggle, even building opportunities for struggle into the curriculum. By normalizing the fact of struggle, law schools will not only improve the wellness of their students, but also create lawyers who are better prepared to cope with the constant problem-solving required of successful lawyers.

'The Legalities of Revoking University Degrees for Misconduct: Recommendations for Australian Universities' by Pnina Levine and Michelle Evans in (2018) 41(1) UNSW Law Journal 185 comments 

 The revocation of university degrees, whilst once unheard of, has been increasingly employed by Australian universities in the wake of high-profile cheating scandals. Yet, to date, there is only one reported Australian case, Re La Trobe University; Ex Parte Hazan in which a student has challenged a university’s decision to revoke a degree. However, this case does not comprehensively address the legal issues surrounding decisions to revoke degrees. This paper therefore seeks to provide Australian universities with some clarity with respect to these issues, elucidating the source of the power of universities to revoke degrees, and the circumstances in which this power can be exercised. It does so through a review of English and United States case law, an analysis of accepted Australian administrative law principles, and an examination of university legislation in Australia.

The authors state 

 The subject of revoking university degrees recently gained attention in Australia following the ‘MyMaster’ cheating scandal which resulted in several Australian universities revoking the degrees of graduates who had engaged in purchasing assignments during their degree studies. The consequences of revocation are unsurprisingly severe for a graduate. If a degree is revoked, the graduate’s career options, chances of enrolment in future study, and their reputation and livelihood can suffer substantial damage. Scandals involving the revocation of degrees by universities can also cause serious reputational damage to universities, and compromise the integrity of their degrees. 

Due to these cheating scandals, universities have become increasingly vigilant about discouraging, detecting and dealing with instances of misconduct. In these circumstances, it is likely that universities will be faced more frequently with the question of whether to revoke the degrees of their graduates and will need to be more mindful of the legal issues and consequences relating to such a course of action. However, the laws surrounding the power of universities to revoke degrees, including the grounds on which a university graduate may challenge the revocation of their degree, are largely untested in an Australian context and require clarification. There is some academic literature and case law on this issue in the United States. However, there is minimal academic literature in Australia, and only one reported case decided in 1993 by a University Visitor, being Re La Trobe University; Ex Parte Hazan (‘Hazan’). 

The decision in Hazan does not address many of the legal issues surrounding revocation. In fact, the case raises more questions about the legalities surrounding revocation than it answers. For example, what power does a university actually have to revoke a degree? If it does have such power, is this power unconstrained? More specifically, what sort of academic misconduct is sufficient to justify the revocation of a degree? Further, does the imposition of such a penalty apply only to academic matters, or could it extend to other disciplinary matters involving social misconduct? Given the severity of the consequences to a graduate that may result from the revocation of his or her degree, should all of the grounds upon which revocation may be justified be defined and listed in university statutes? Finally, what are the procedures that should be followed by a university before making a revocation decision? For example, what standard of procedural fairness is required to be afforded to a graduate facing the penalty of revocation? This article seeks to address these questions, which are largely untested in an Australian context.

Personality Rights

'The Right of Publicity's Intellectual Property Turn' by Jennifer E. Rothman in (2019) 42(3) Columbia Journal of Law and the Arts comments

The Article is adapted from a keynote lecture about my book, The Right of Privacy Reimagined For A Public World (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age. 

The lecture (as adapted for this Article) explores in greater depth one major theme drawn from the book―the right of publicity’s turn in the late 1970s from being a personal right rooted in an individual to being an intellectual property right separable from the underlying identity-holder. This transformation of people into a form of intellectual property has led to significant expansions in the reach and scope of right of publicity laws across the country. At the same time, treating the right of publicity as IP has undermined First Amendment and copyright-based limits on these laws, and jeopardized the freedom of the very identity-holders upon whose interests the right is justified. The Article considers not only whether the IP rubric is appropriate for the right of publicity, but also whether the challenges posed by right of publicity laws are a magnified version of more general problems that IP laws face today ― in particular, the continued expansion of these rights unmoored from the initial justifications for the entitlements, and without adequate protections for socially valuable uses.

'Selfmarks' by William McGeveran in (2018) 56 Houston Law Review 333 comments

'Selfmarks' are branded personal identifiers that can be protected as trademarks. From Kim Kardashian West to Beyoncé’s daughter, attempts to propertize persona through trademark protection are on the rise. But should they be? The holder of a selfmark may use it to send a signal about products, just like the routine types of brand extension, cross-branding, and merchandising arrangements fully embraced under modern trademark law. Yet traditional trademark doctrine has adjusted to selfmarks slowly and unevenly. Instead, the law has evolved to protect selfmarks through mechanisms other than trademarks. In an age where brands have personalities and people nurture their individual brands, it is time to ask what principled reasons we have not to protect the individual persona as a trademark.

Theory

'Queer Phenomenology in Law: A Critical Theory of Orientation' by Nick J. Sciullo in (2019) 39 Pace Law Review comments

This article argues for the application of phenomenology to legal understanding, specifically as a way to think about and though queer people’s interactions with law as well as queer theory in law. There are both pragmatic and theoretical justifications for this project. The pragmatic justifications include the need to better address the legal issues and experiences of queer people, recent political and legal decisions and debates that affect queer people specifically, the need to better provide epistemological resources for queer lawyers, law scholars, law students, and their allies, and the need to better understand how law affects minoritarian populations regardless of specific identity characteristics. The theoretical justifications include the relative under-theorization of queer theory in law, the improvement of legal theory’s interaction with related theories in the humanities and social sciences, and the development of a more robust theory of everyday interactions with law consistent with individuals’ diverse experiences and identities. These justifications counsel for further study and attempts to account for diversity in law.

'What Good is Abstraction? From Liberal Legitimacy to Social Justice' by Nimer Sultany in (2019) 67(31) Buffalo Law Review comments

 The stakes could not be higher. Post-World War II political and economic institutions are under unprecedented pressure. The social coalitions that have sustained them are crumbling. Welfare-state capitalism is in retreat, and liberal institutions are besieged. Right-wing populists are cementing their power and consolidating their grip on political and legal institutions around the globe. The answer to these historical changes cannot be a return to the very status quo that led to them in the first place. 

This Article argues progressive liberal theoretical frameworks are unfit for purpose. They betray a loss of conviction and commitment to the very egalitarian ideals that progressive liberals advocate for. Specifically, it critiques abstraction as a mode of argumentation in political and legal theory in which there is a retreat from controversial political and moral territory to establish a consensual political regime and binding legal order. It is an internal critique to liberal theory that illustrates that this abstraction does not meet the theory’s own standards and fails to achieve its declared objectives. 

The main family of theories that betray this lack of conviction is “political liberalism,” as developed by eminent scholars such as John Rawls and Ronald Dworkin. Political liberalism draws a clear distinction between the ambitions of liberal justice and the institutional commitments of liberal legitimacy. Progressive liberals allow as legitimate policies and practices, such as welfare-state capitalism and neo-liberalism, that are detrimental to the very goals that they aspire to. Therefore, the egalitarian bark of progressive liberal theory is louder than its egalitarian bite. Ultimately, liberal legitimacy is not merely different from justice but it also defers justice and legitimates injustice.

'The Computational Analysis of International Law' by Wolfgang Alschner in Rossana Deplano and Nicholas Tsagourias (eds), Research Methods in International Law: A Handbook (2019) comments

When traditional international law techniques reach their conceptual and methodological limits, we need to look for help in other disciplines. International law scholars have in the past drawn inspirations from economics, political science or sociology to enrich the study and our understanding of international law. Now the time has come to add a new discipline to this list: computer science. The computational analysis of international law renders legal analysis scalable and empowers international lawyers to study international law in unprecedented depth and breadth. In this contribution, I provide an overview of computational techniques for the doctrinal and legal-institutional study of international law highlighting this neglected, but increasingly important field of interdisciplinary study.

Access

'Good Reading for the Million: The ‘Paperback Revolution’ And the Co-Production of Academic Knowledge in Mid Twentieth-Century Britain and America' by Peter Mandler in (2019) 244(1) Past & Present 235–269 comments

The serious non-fiction paperback was one of the principal vehicles for the distribution of expert knowledge in the mid 20th century. This paper examines the market for serious non-fiction in both the US and the UK between the 1930s and the 1960s, by looking at the market leaders in the two countries, Pelican and Mentor Books, published by Penguin and New American Library respectively. It argues that novel modes of distribution and acts of selection by authors, publishers and readers constituted a process of the co-production of knowledge that problematizes views of mid-century expertise as expressions of governmentality. Different patterns of distribution and market demand in the two countries shed further light on who read, what they read and for what purpose.

Mandler argues

In 1952, at a time when his own future best-seller The Lonely Crowd was not yet in paperback, the American sociologist David Riesman reported to the readers of the Antioch Review on a new cultural phenomenon that might have previously escaped their notice. A friend of his in the publishing industry had told him that in an Ohio Valley steel town, population 75,000, which lacked a single bookstore and about which the department store buyer insisted ‘[p]eople here don’t read; they just look at television or go to the taverns’, nevertheless 750,000 paperback books a year were sold in restaurants, newsstands and drugstores, ‘many of them in the Mentor line of modern classics’. ‘I wish we had some knowledge and understanding of what these citizens made out of all they read’, Riesman continued, ‘the Faulkner novels, the Conant On Understanding Science, the Ruth Benedict Patterns of Culture, along with the Mickey Spillane and other mixtures of sadism with sex. But studies of this kind in the field of leisure have not yet been made, as far as I know’. 

As far as I know, they still have not been made. Of the paperback revolution in general, which brought books to new readerships around the world from the mid 1930s when Penguin pioneered the mass-market paperback in Britain, we know a fair amount, and literary scholars have demonstrated amply how a taste for classic and modernist fiction such as the Faulkner novels was aroused ‘along with the Mickey Spillane’. But Riesman’s curiosity about the even more incongruous taste for the serious non-fiction purveyed by the Mentor line — as we will see, a direct spin-off of Penguin’s Pelican imprint — has not been satisfied, although a rising tide of single-issue or single-title studies suggests that we are if anything now more curious about it. 

In this article I seek to provide a basic knowledge and understanding of the mass audiences for serious non-fiction paperbacks built up in the mid twentieth century. Apart from satisfying Riesman’s (and our) curiosity, such an enquiry can help to address broader questions about the diffusion of expert knowledge to democratic citizenries that have become staples in the dissection of what the Foucauldians call ‘governmentality’ — the ways in which ‘the values and ethics of democratic society’ become aligned with ‘the rationales and techniques of power’, as Nikolas Rose has put it. In the Foucauldian view of modernity, knowledge and power are completely interpenetrated; thus the mere transmission of knowledge, especially if yoked to internalized acknowledgement of the hegemony of expertise, is constitutive of (and not merely supportive of) power relations. A milder, post-Foucauldian revision of this view, popular amongst historians of science for some time now, takes a more benign or at least agnostic view of power, and considers knowledge to be not so much transmitted as ‘co-produced’ with its consumers. So far, however, this view has appeared easier to propound in theory than to demonstrate in practice. While it is sensible to hold that knowledge production rarely follows a straightforward diffusionist model, in which expert knowledge is disseminated downwards intact, it is harder to show how knowledge is received, reprocessed and fed back such that knowledge can be shown to have been co-produced in multiple nodes. A close study of the non-fiction paperback may shed some light on this complex process by specifying more closely the conditions of production and distribution, and the degree of co-production, of a prime vehicle for knowledge, at its peak in a period which even advocates of co-production tend to see as the heyday of the downward diffusion of expertise. 

The paperback book offers special opportunities and challenges for the study of expertise and its publics. With its depth of content, demands upon attention and relative permanence, it packed a punch that more ephemeral (though persistent) mass media such as radio, cinema and television lacked. While less ubiquitous in modern life than law and national symbolism, its direct address to subjectivity made it one of the more effective ‘technologies of the self’9 in an age when those technologies were manifestly multiplying. It entrained many actors and operated on many levels. Both production and consumption chains were highly ramified — authors, publishers, censors, wholesalers, retailers, educators, critics and, pre-eminently, readers could all use the paperback to get a grip on the ‘selves’ in construction around them. The product was also highly ramified. Pulp fiction was at first the predominant form, much decried then by moralists and educators, and subsequently by critics of the capitalist marketplace. As already noted, literary critics have threshed out of the mass of pulp a burgeoning taste for classic and contemporary fiction. Moving closer to expertise proper, paperbacks were the principal vehicle (alongside magazines) for expert management of daily life through self-help and advice manuals on topics ranging from ‘winning friends and influencing people’ to baby care, sexuality, marriage, career, health and nutrition. The best-selling non-fiction paperbacks in post-war America were Dr. Spock’s Baby and Child Care, well ahead of the pack with 18.5 million copies sold between 1940 and 1965, and Dale Carnegie’s How to Win Friends and Influence People, a distant second at five million. 

But as Riesman understood already in 1952, not far behind such advice manuals was a much more sophisticated body of expertise, drawing largely on academic writing and research and spanning the full range of modern academic subjects, from the traditional humanities (classics, history and philosophy) to the rising social sciences (psychology, sociology and anthropology) and the natural sciences (physics, physiology and mathematics). Unlikely as it sounds, best-sellers in these categories also reached a mass audience in the post-war decades — both Ruth Benedict’s Patterns of Culture, which Riesman noticed, and his own book The Lonely Crowd, which came out in paperback in 1953, had sold over a million copies by 1970. This kind of book — more abstract and conceptual, less directly targeted at the individual’s subjectivity and also less aggressively marketed — represented, I will argue, a different use of expertise. While its producers had missionary aspirations of their own, consumers had more say in choosing the type of expertise that suited them and more latitude in the uses they made of it. An anatomy of the academic mass-market paperback can therefore tell us something new about ‘technologies of the self’ that takes us well beyond the usual band of experts and bureaucrats and ideologies of social control. 

The mass-market paperback was a global phenomenon, but its impact was earliest and most intense in the Anglophone world. I will focus therefore on the pioneer, Pelican Books, published by Penguin in the United Kingdom (though also exported all over the world, notably to the Commonwealth), and Mentor Books, published by New American Library (hereafter NAL) in the United States, the two acknowledged market leaders in this field at least until the early 1960s. In what follows I will narrate the rise of Pelicans and Mentors, consider who were their readers, assess what they read, and finally attempt some answers to Riesman’s query about what they made of what they read — obviously the hardest part of all — and how their choices fed back into the process of knowledge production by inflecting what was on offer. 

The origin of Penguin is reasonably well known. The founder was Allen Lane, a distant connection of the John Lane publishing family. By his own admission, he did not start Penguin with a burning social or political mission; he was principally concerned to tilt against the snobberies of the book trade and at the same time make some money, by selling cheap, well-designed paperback editions of middlebrow novels and biographies to an underserved provincial and suburban audience. There had been such experiments before — notably in Germany, where Tauschnitz publishers and Albatross Books had aimed at British travellers on the Continent — but Lane caught the zeitgeist as no-one else had. His books were handsome, convenient, affordable and, as they proved popular, quickly became ubiquitous, breaking out of the bookshops into Woolworth’s chain stores, railway bookstalls, newsagents and tobacconists. Partly under this impetus, by 1940, 50 per cent more working-class readers were in the habit of buying books than borrowed them from libraries. 

By then Allen Lane was seeking something more than mere commercial success. In the depths of the 1930s Slump, Lane like many sensitive, comfortably-off young men of the time did have a mild social conscience and he was quickly swept up into a giddy whirl of earnest social reformers and adult-educators — old Fabians such as G. B. Shaw and H. G. Wells, whose titles proved instant hits for Penguin, the Indian nationalist Krishna Menon, the social historian Lance Beales, and most importantly Billy Williams, son of a Welsh carpenter, and a pillar of the adult-education movement. Lane, who like most middle-class boys had left school at 16, came to see something of what he had missed, and to view the paperback as a portable evening-class and not only as an entertainment. In the spirit of the 1930s — of the Workers’ Educational Association, the Left Book Club and the Popular Front — he married this educational impulse to a leftish stance, going so far as to contribute an article entitled ‘Books for the Million’ to the magazine Left Review in May 1938, which portrayed the Penguin paperback as a contribution to the people’s control of their own destiny. 

Lane’s principal vehicle for this educational and political mission was Pelican Books, the serious non-fiction line added to Penguin in 1937. Pelican only ever accounted for a minority of Penguin sales — 10 per cent in wartime, though a growing proportion thereafter; this amounted to nearly two million copies a year in wartime for a population of fifty million, and similar or higher levels thereafter. It was Pelican to which Lane was referring in Left Review when he attributed political significance to his enterprise — it was Pelican that gave ‘access to contemporary thought and to a reasonable body of scientific knowledge’ to put ever-growing numbers of people ‘in a position to control our future in the light of our knowledge of the past’.16 Billy Williams helped Lane move beyond his middle-class base to wider strata of self-improving working men, and to scout out the kinds of serious non-fiction that might appeal to and empower this audience — in the first instance, history, sociology, politics and economics, but increasingly also science, art, and later an ever-widening set of academic disciplines. Lane and Williams had their own educational and political motives and naturally gravitated at first to Fabian socialism, to the historical, literary and economic interests of the adult-education movement and to the political issues of the day (featured also in the famous series of Penguin Specials from 1938). But both their commercial interests and their open-mindedness about their audience (really an ignorance that they shared with everyone who had discounted even the possibility of a mass market for such fare) favoured an experimental approach. Any topic, so long as it met their minimum standards of decency and seriousness, was grist to their mill. Titles were selected informally and on the basis both of past sales and new enthusiasms, the enthusiasms not only of Lane and Williams, but also of two loose cannons Lane had recruited early on — Alan Glover, an eccentric auto-didact, known for the tattoo-removal scars that covered his face and his encyclopedic range of interests from Freud to Buddhism, and Eunice Frost, the talent scout sent out to ‘[keep] the house policy abreast with contemporary thought’. 

Even at the start, commentators were astonished by the range and altitude of the titles that could (it turned out) be sold in print-runs of fifty thousand or more — not just Shaw and Wells, or current affairs, but the likes of R. H. Tawney’s Religion and the Rise of Capitalism, Elie Halevy’s History of the English People (sold in seven parts), or Sigmund Freud’s The Psychopathology of Everyday Life. ‘These are all books which … have helped to make the intellectual history of this century’, marvelled the Spectator, and their availability for ‘the price of a cheap cinema seat or a packet of cigarettes’ was ‘a fact of enormous importance in the struggle to overcome economic restrictions to knowledge … one more indication of the hunger for information, for fact, for explanation, which exists unsatisfied at the present time’. ‘When the corner tobacconist is selling’ such books, the Times concluded, ‘it is a fair assumption that very large strata of purchasers are being tapped’. 

Even wider strata of potential purchasers beckoned temptingly across the Atlantic, where in the US, with three times the population but half the number of bookstores, there appeared to be a huge unexploited mass market. Starting with Pocket Books in 1939, a few paperback houses had opened in New York and during the war began to build a mass market mostly for pulp fiction by distributing through magazine wholesalers to a bewildering variety of retail newsstands, drugstores, smoke shops and variety stores. Lane felt certain that there were opportunities here for his quality lines as well. After a few abortive attempts to start up an American operation — Lane’s first representatives in New York insisted that they could only sell pulp through the retail outlets — he finally found two true believers like himself and Williams: Kurt Enoch, a founder of the original German Albatross Books, now providentially marooned in the States as an underemployed refugee, and Victor Weybright, a progressive publisher who had run the US propaganda office in London during the war. Weybright, who took editorial charge, and Enoch, who handled the business, set up an operation that was very much a mirror-image of Penguin, with its own Billy Williams-figure in E. C. Lindeman, a Columbia philosopher and adult-educator,19 and its own equivalent of the talent-spotting Eunice Frost, Arabel Porter. The first American Pelicans appeared in January 1946. 

For a time, the US and UK operations appeared to run in tandem. In both countries Pelicans formed a substantial and surprising proportion of total sales. They were a mix of reprints of classics, recent academic works that had only appeared in hardcover, and specially commissioned works — increasingly the last as Lane, Williams and Weybright learned what sold and could guide authors to providing suitable copy on subjects they wanted to try out. US Pelican borrowed titles from UK Pelican — Shaw, Wells, Tawney, Julian Huxley, the physicist James Jeans and the philosopher Alfred North Whitehead all sold well in both countries — and bought rights for equivalent titles tailored to the US market, such as Benedict’s Patterns of Culture, Walter Lippmann’s Public Opinion and, as an equivalent to Jeans, works by the physicist George Gamow.  As Williams wrote to Weybright, they shared a ‘common belief’ in publishing as ‘a vocation as well as a trade’, the peculiar synergy between ‘commerce’ and ‘conscience’ being responsible for their exceptional success in both: The great advantage which a man like you has over other crusaders is that he works in plain clothes and is not always parading his Holy Cross. No one, to look at Allen and you and me would suspect us of having good intentions, and that is the real reason why our intentions work out! 

Despite this common cause, two differences quickly intervened that led to a parting of the ways. Both derived from the special challenges of selling books in America. While Americans had much higher levels of formal education than the British, they did not read many books, even when in college, and once out of college poor distribution meant that they had few opportunities to buy books even if they wished. There were only something like 1,200 bookshops in the entire country, heavily concentrated in major metropolitan areas — a half of all bookshops were located in five states (New York, Pennsylvania, Massachusetts, Illinois and California), and 85 per cent of counties across the country had no recognized outlet for books at all. Mail-order book clubs, such as the Book-of-the-Month Club, founded in 1926, had done something to rectify this, but had only succeeded in doubling the volume of book sales, mostly to highly educated people, buying the same kind of books as were bought in shops.  Pocket Books’ solution, as we have seen, was to peddle books through wholesalers to magazine and newspaper outlets, of which there were up to a hundred thousand nationwide, reaching even the smallest communities. Weybright readily adopted this solution, but to make it work he felt he had to adopt two practices that were unacceptable to Lane. 

First, he needed some massive sellers to get the wholesalers to take his books in the first place, books that were guaranteed to sell anywhere in sufficient quantities to make it worth their while. So Weybright was prepared to lead his line with pulps and near-pulps — in addition to Dr. Spock, Pocket Books had used Erle Stanley Gardner’s Perry Mason detective stories for this purpose, and Weybright bought the rights to Mickey Spillane’s hard-boiled private eye stories and Erskine Caldwell’s sexed-up Southern Gothic tales. The pulp fiction did not affect the selection and sale of the more serious lines — nor did they cross-subsidize, because all of Weybright’s books aimed to make a profit — but they were needed to get access to the wholesalers, something which Lane could not and did not accept. He would rather not publish at all in the United States if it meant selling what he considered pornography. 

Second, in order to sell his serious lines through the retail outlets, Weybright went in for rather more aggressive marketing than Lane would tolerate, including colour covers (not as lurid as his pulp covers, but able to sit comfortably alongside them) and salesmanship on the jacket copy to entice reluctant or unsophisticated readers to crack the spine. Again, this packaging hardly affected the content of the books, as Weybright continued to print the same kind of material as Penguin (indeed often the same titles), but Lane forbade it; neither colour nor even illustration became common on Penguins until the 1960s and the jacket copy remained austere and descriptive. These irreconcilable differences were recognized quickly on both sides and by 1948 Lane had agreed to sell his interest to Enoch and Weybright. The US operation was relaunched in that year as NAL, with its Penguin lines rebranded as Signet Books and its Pelicans as Mentor Books. 

Despite these differences, Pelican and Mentor remained embarked on similar missions through the early 1960s at least, and remained the dominant purveyors in their respective markets of serious non-fiction in mass-market paperback form. Weybright even adopted for NAL a slogan he borrowed from Lane (slightly Americanized in diction), ‘Good Reading for the Millions’. They had no real rivals until Doubleday launched Anchor Books in the United States in 1953, followed by Knopf’s Vintage Books and a wave of similar quality-paperback imprints from other hardback houses. Even these so-called ‘egghead paperbacks’ were not quite in the Pelican and Mentor mould, being higher-priced and more clearly targeted at college and graduate markets. Although the egghead imprints had some impressive successes much like Mentor’s — conspicuously, one of Anchor’s first titles, Riesman’s The Lonely Crowd, and one of Vintage’s, Richard Hofstadter’s The American Political Tradition, eventually reached the million-sales mark attained by Benedict — Mentor remained the market leader until the early 1960s. Pelican had fewer competitors until the 1960s, although it was then challenged and finally capitulated to colour covers. Both imprints benefitted also from their early start, in that they had impressive backlists which formed an ever-larger proportion of sales as paperbacks moved in both countries into the bookshops in a big way in the late 1950s. Although by then the hardcover publishers were increasingly retaining the paperback rights for their own egghead imprints, Pelican and Mentor continued to thrive by commissioning their own books and selling on the rights to an initial hardcover edition. Their early start also meant that these two imprints were in the best position to benefit from a general shift from fiction to non-fiction reading in both countries that came about as a result of rising educational opportunity