Marks, Cultural Politics and Vilification

'Trademark Counterpublics' by Sonia Katyal and Vicki T. Huang comments

 In 2017, the Supreme Court in Matal v Tam held that the disparagement clause (s.2(a) of the Lanham (Trademark) Act 15 USC §1052(a)) was facially unconstitutional under the First Amendment. In striking down this clause, the Court removed the primary barrier to the registration of racist slurs as trademarks. The decision allowed the applicant, Simon Tam, to register the trademark THE SLANTS; however, the registration also empowered other persons to also register racist trademarks, as evidenced by the flurry of applications for such marks in the period following the decision. Controversially, the decision also neutered the protracted efforts by some Native Americans to de-register NFL-owned racist trademarks such as REDSKINS on disparagement grounds. In this paper, which blends both critical and empirical research, we offer a theory of counterpublic trademarks, focusing on trademarks, like the Slants, that develop in parallel to their official public spheres and (as Nancy Fraser has described) “where members of subordinated social groups invent and circulate counter discourses to formulate oppositional interpretations of their identities, interests, and needs.” 

We first set out to answer a question: do counterpublic trademarks exist? We find that the answer is yes, but in very small numbers. Using empirical data, we argue that self-appropriation in counterpublic trademarks is critically distinct from the appropriation of a slur by a non-affected group, both in terms of the intent behind registration as well as the potential “public” that are affected by such trademarks. To prove this hypothesis, we set out a methodology to measure the quantum of “racist” trademark applications over a 30-year period from 1988 to 2018. Our preliminary results show that out of close to 8 million trademark applications, the number of racist applications has remained consistently low (less than 1%) both before and after the Tam decision. However, what is significant is the racial identity of the applicants. Drawing on US Census data to identify race, the paper finds meaningful distinctions between which races actively self-appropriate slurs versus which races (typically Native American) suffer from racial “appropriation” of slurs by another group. This paper also finds interesting results as to which races (typically White and more recently Asian) are actively appropriating slurs against minority groups.

'Weaponising Copyright: Cultural Governance and Regulating Speech in the Knowledge Economy' by Debora Halbert in Blayne Haggart, Kathryn Henne and Natasha Tusikov (eds) Information, Technology and Control in a Changing World (Palgrave, 2019) 165-185 comments

 This chapter investigates the political and cultural implications of regulating speech via copyright. After an exploration of copyright governance within the context of Susan Strange’s knowledge structure framework, this chapter discusses cultural governance through copyright as a mode of censorship. I take up two recent examples where copyright was weaponised to curb speech. The first is an effort to control the speech of a controversial YouTube star. The second is an effort to curb the association of a cartoon character with white supremacy. In both cases, copyright performs a normative, not commercial, function, as copyright owners exert their control over their creative work to limit the expression of others. There is much to be troubled by regarding both the resurgence of white supremacy and the use of copyright to shape what can and cannot be expressed.

In Australia Fiona Patten, leader of the Reason party in the Victorian Parliament, has introduced a Private Member's Bill to "stop trolling in its tracks" by extending the Racial and Religious Tolerance Act  2001 (Vic) to cover hate speech based on gender, disability, sexual orientation, gender identity and sex characteristics.

The Bill would rename the statute as the 'Elimination of Vilification Act 2001'. The Preamble of the current Act would feature —

 The Parliament further recognises that the people of Victoria have other diverse attributes in relation to gender, disability, sexual orientation, gender identity or sex characteristics and the majority of Victorians embrace this diversity and live harmoniously together. 

However, some Victorians are vilified on the ground of their unique attributes. Vilifying conduct is contrary to democratic values. It diminishes a person's dignity, sense of self-worth and belonging to the community. It also reduces their ability to contribute to, or fully participate in society as equals, thus reducing the benefit that diversity brings to the community. 

It is therefore desirable that the Parliament further enact laws to extend protections for Victorians and which support inclusion.

Forgery

In El Ali v R [2019] NSWCCA 207 the New South Wales Supreme Court of Criminal Appeal has considered an appeal by a man who apparently used Photoshop to alter an Australian Department of Defence export form to make it appear that he had permission to import firearm parts from Germany into Australia. Mr El Ali was unsuccessful in his appeal against conviction and sentence. The NSWCCA found that there was no duplicity in the prosecution's case as the offence of conspiracy differed from the substantive offence of possession. The NSWCCA also found that the NSW District Court had not erred in assessing the scope of the conspiracy, the subjective factors of the offender or in failing to find special circumstances.

Access

Austral Information Access Commissioners and the ACT Ombudsman have released the findings of their first cross jurisdictional study of community attitudes to access to government information. 

Commissioners from NSW, Victoria, Queensland, Western Australia, the Commonwealth (ie the OAIC) and the ACT Ombudsman  sponsored the research as part of Australia’s Open Government National Action Plan 2018–2020.

 The Information Access Study 2019 measures citizens’ awareness of the right to access government information, and their experiences and outcomes in exercising that right. The sponsors argue that the research provides a broad insight into citizens’ views and experiences of the right to access information.

The reported Key Findings (the actual report doesn't seem to be publicly available) include:

•  the importance of the right to access information is consistently recognised by respondents across state and national jurisdictions (85 – 93%); 
• the majority of respondents across the jurisdictions were aware that they had the right to access information from government departments/agencies (77- 85%); 
• around 4 in 10 respondents had contacted at least one government agency in the past three years to obtain government information; and 
• in general, citizens were able to obtain information successfully (60 – 91%). 

The sponsors state

By enhancing understanding of community attitudes and experiences, the study’s results will help inform activities to promote and support the right to access government information. The results will also enable governments to examine the performance of their respective access to information laws from a citizen perspective.  

The right to access government information is independently overseen by the Commonwealth and State and Territory Information Commissioners and Ombudsmen. ...  

The right to access information is a fundamental tenet of an open and democratic government. The study reflects the importance the community uniformly places on their right to access information. The valuable insights provided in this inaugural cross jurisdictional survey involving four Australian states, the ACT and the Commonwealth of Australia will assist in building a better understanding of information access frameworks. It reinforces commitments under the Open Government National Action Plans to better measure and understand the value citizens place on the right to access government information, and their experiences and outcomes. These results will assist Information Access Commissioners and ACT Ombudsman to encourage governments to promote access to government-held information to build public trust and continue to advance an effective and contemporary model of open government that is participatory, fair, accountable and transparent.

Major irony: the report accompanying the media release comprises a single page featuring four bar charts.

It is so simplistic as to be verging on meaningless and would, if submitted in a 2nd year law assignment, receive a 'Fail' grade.