Alger is to America what Homer was to the Greeks

Nathanael West cruelly claimed that "Horatio Alger is to America what Homer was to the Greeks". Alan Trachtenberg's "Horatio Alger's Ragged Dick' at 154-166 in Lincoln's Smile and Other Enigmas (Hill & Wang, 2007) questions 'kindergarten capitalist' interpretations of Ragged Dick, suggesting that

the didactic lessons taught by the Alger narrator have less to do with the sharp-dealing and tooth-and-claw practices of the Jim Fiskes and Daniel Drews in the actual business world of the late 1860s than with simple self-respect. For Alger bourgeois life means security, comfort, cultivation, companionship, responsibility - the reverse of cut-throat competitiveness.

Trachtenberg goes on to comment that

Judicious economy is key in Alger's imagined world. It represents his effort to securalize the mystery of money, to bring it under the rational control of human will. Savings "earn" interest (a mystery in itself that even knowledge of arithmetic cannot explain), which then becomes discretionary income Dick can spend doing good, thereby exchanging potential capital for the more valuable (exchangeable) good of self-approval - a step toward attainment of the highest good: respectability. Thus Alger transfigures capitalist investment from an economic into a moral act: Dick exchanges the unearned increment of his saving (interest) into a gift that then earns him an intangible but real increment of moral value, in turn marketable as "respectability".

The commodification of virtue and saleability of respectability - prayer meetings led by Enron's Ken Lay, for example - is highlighted in D. Michael Lindsay's Faith in the Halls of Power: How Evangelicals Joined the American Elite (Oxford University Press, 2007), a look at some of the people who prefer a more traditional reading of Alger or who rely on works such as God Is My CEO (nothing like a chief executive without pesky shareholders or regulators and naming The Big Guy as CEO avoids the hubris implicit in 'God Is My Co-Pilot'). The Horatio Alger Association of Distinguished Americans Inc (HAADA)

bears the name of the renowned author Horatio Alger, Jr., whose tales of overcoming adversity through unyielding perseverance and basic moral principles captivated the public in the late 19th century. The Association ... was established in 1947 to dispel the mounting belief among the nation's youth that the American Dream was no longer attainable. [It] is dedicated to the simple but powerful belief that hard work, honesty and determination can conquer all obstacles. Today, through its Members, the Association continues to educate our nation's young people about the economic and personal opportunities afforded them by the promise of the American free enterprise system.

Perhaps the mounting belief was attributable to loss of "precious bodily fluids" under the influence of arch-socialist FDR.

Trachtenberg touches on Alger's self-construction after an enforced departure from Brewster for what might now be characterised as child molestation, noted in The Lost Life of Horatio Alger, Jr. (Indiana University Press, 1985) by Gary Scharnhorst & Jack Bales and The Fictional Republic: Horatio Alger and American Political Discourse (Oxford University Press, 1994) by Carol Nackenoff, commenting that

It is impossible to know whether Alger actually lived a double life, closeted as a secret homosexual. But there are hints that the male companionship he describes as a refuge from the streets - the cosy domestic arrangements between Dick and Fosdick, for example - may also have been an erotic relationship, or at least physically close enough so that the few instances of boys touching each other tenderly, or older men laying a light hand on the shoulder of boys, might arouse erotic wishes in readers prepared to entertain such fantasies. Nothing prurient appears in Ragged Dick but the vision of happiness in Dick's safe harbor with Fosdick, and the allure of good-looking youngsters for kindly older men - images that project Alger's critique of the same aggressive individualism he is supposed to have celebrated - may also imply a positive view of homoeroticism as an alternative way of life, a way of living by sympathy rather than by aggression.

Cue Edward Carpenter?

'Tomboys, Bad Boys, and Horatio Alger: When Fatherhood Became a Problem' by David Leverenz in 10(1) American Literary History (1998) 219-236 more pointedly asks

Why does nobody notice that this model of boyish honesty is lying all the time? Not only does Dick continuously fake upscale connections, but his linguistic bravado constitutes much of his appeal. As with Pen Lapham, people call it "droll." As with Pen Lapham, Dick's drolling enables his upward mobility by pleasing his listeners. Why? Perhaps Dick's extravagant name dropping admiringly yet mockingly mirrors his audience's uneasy negotiations between character and theatricality, sincerity and fraud.

Indigenous Rights in the Nordic states

'The New Developments Regarding the Saami Peoples of the North' by Malgosia Fitzmaurice in 16(1) International Journal on Minority and Group Rights (2009) 67-156 explores recent developments regarding the Saami peoples of Northern Europe. It focuses on the Draft Saami Convention and Norwegian legislation regarding self-determination.

Fitzmaurice notes that the 2005 Norwegian Finnmark Act grants indigenous peoples of the North far-reaching rights regarding rights to land and natural resources. (Some Saami would presumably argue that the state merely recognises rights.) The Act seeks to implement the 169 ILO Convention on Indigenous and Tribal Peoples in Independent Countries [C169], which revised the ILO 1957 Convention on Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (aka the Indigenous & Tribal Populations Convention).

Article 6 of C169 requires governments to establish means by which peoples (a term that "conveys recognition of the existence of organized societies with an identity of their own, rather than mere groupings sharing some racial or cultural characteristics") can freely participate at all levels of decision-making in elective and administrative bodies, to at least the same extent as other sectors of the population.

It also requires governments to consult "indigenous and tribal peoples", through adequate procedures and their representative institutions, whenever consideration is given to legislative or administrative measures that may affect them directly. Those consultations must be undertaken in good faith and in an appropriate form, with the aim of achieving an agreement or consent to proposed measures.

Article 7 states that the peoples have the right to decide their own development priorities and to exercise control over their own economic, social and cultural development. Those peoples should participate in formulation, implementation and evaluation of regional and national plans and programmes that directly affect them and "plans of overall economic development for the areas inhabited by indigenous and tribal communities have to be designed with a view, among other things, to improve their living conditions, employment opportunities, and educational attainments". Governments are required, whenever appropriate, to

carry out, in cooperation with the indigenous or tribal peoples concerned, studies in order to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The cooperation of indigenous and tribal peoples must be sought also in the design, execution and evaluation of health and education services, including vocational training schemes.

C169 has been adopted by a handful of nations (eg Mexico, the Netherlands and Norway) and appears unlikely to gain major traction in the near future. It has been seen by some critics as too weeak and damned by others as too strong, with Lisa Strehlein for example criticising it as founded on a "liberal democratic model" antithetical to recognition of inherent rights. Strehlen's spirited 'The Price of Compromise: Should Australia Ratify ILO Convention 169' at 63-86 Majah: indigenous peoples and the law (Annandale: Federation Press 1996) edited by Greta Bird, Gary Martin & Jennifer Nielson argued that Australia should reject the Convention as "fundamentally flawed", embodying "a new language of assimilation" and unacceptable because "in deference to the claims of nation states" the C169 rejects the inherent rights of indigenous peoples to self-determination.

The Norwegian Act goes beyond the Australian High Court's very limited recognition of rights following abandonment of the terra nullius doctrine in Mabo.

The Act also grants the Saami the right to be consulted on matters which impact on their livelihood. On the basis of the legislation the Norwegian Government transferred about 95% (about 46,000 km2) of the area in the Finnmark county in Norway to the inhabitants of Finnmark.

That area is managed by the Finnmark Estate agency. The Estate is managed by a six-member board of directors: three are appointed by the Sámediggi - Sami Parliament - of Norway (a counterpart of the Sami Parliament in Sweden, which among other things has absorbed the Central Administration for the Reindeer Industry) and three by the Finnmark County Council. The Sámediggi was established in 1989 and as of 2001 had an electoral register of around 10,000 Sami. It is broadly analogous to the former ATSIC in Australia. It reflects the obligation in the revised Norwegian Constitution for the state to create conditions to ensure that the Sami people can preserve and develop their language, culture and social life. The Sámediggi's remit covers everything that, in the national legislature's opinion, affects the Sami people in particular. Observers have characterised it as having no clear constitutional position: "not under the control of the Government, but neither is it an independent body".

As part of the Finnmark Estate scheme a Special Commission and Tribunal will be set up to recognize existing rights of use and ownership in the Finnmark area.

Fitzmaurice considers the Saami right to self-determination in relation to the Act, noting that the legislation is

ethnically neutral ie the legal position of an individual is not dependent on him or her being Sami, Norwegian, Kven, or a member of another population group.

She suggests that

The 2005 Saami Draft Convention constitutes the most innovative approach to indigenous peoples beyond the statist paradigm. It treats the Saami peoples in Finland, Norway and Sweden as one people and grants them very far reaching rights to land and natural resources.

Another Copyright Collecting Society?

Jennifer Wilson (Twitterer, AIMIA executive and former Head of Innovation at ninemsn) has authored The Digital Deadlock: How clearance and copyright issues are keeping Australian content offline, a white paper under the auspices of the AFTRS Centre for Screen Business and the Screenrights copyright collecting society. 

 The 23pp paper identifies several options in response to "problems faced by screen content producers in getting to grips with the digital world as a place to distribute product, generate audience and find new revenue sources". Wilson offers the conventional wisdom that "our ways of thinking about copyright have failed to keep pace with this new digital landscape, and that they are a hindrance rather than a help" to producers, the creative industries (industries that are apparently different to producers) and "more importantly to consumers (and, by extension, to the public good)".  What is wrong? Wilson's answer is that

In essence, the task of clearing rights is so onerous and so expensive that it acts as a heavy deterrent to producers. Most people involved in screen content are in the business because they love it, but they still need to be able to see a return on their investment. While it might seem that digitising our content for posterity is costless, simple and straightforward, it really is none of those things. Many screen content producers, production houses and broadcasters admit that they have old film footage that is being left to deteriorate. When asked why they don't make it available in a digital format, they all give the same response: The issues involved in clearing those rights are so problematic that the investment of time and money is simply not worthwhile.

The answer seems to be a new collecting society, abeit one wrapped in a fashionable peer to peer blanket. The options outlined by the white paper fall into three groups. The first group, for a 'media levy' (echoes of the 1980s Blank Tape Levy, despatched in Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480; [1993] HCA 10) and overseas digital media levies, encompasses -

+ a levy on all recordable media or devices - to be paid into a fund to be distributed to rights holders under a collection society arrangement  + a levy at the ISP level based on packet sniffing the data and charged by the ISP, with revenue paid to an independent copyright collecting society for distribution to rights holders

The second group, for an "industry-based collection society", is -

+ the "Industry" should voluntarily create a collection society "(similar to, APRA and AMCOS)" which would collect fees "(from all collection means)" and distribute the monies proportionally to rights holders. + the "music industry should be encouraged to enter into a collective scheme for the granting of rights", a suggestion that I suspect reflects the history of disagreement between the film and music industries (or between film and music industry executives and associated service providers) + if such a scheme is "not voluntarily established it should be legislated" and a collecting society "similar to Screenrights created to manage collection and distribution

The IP atheists in the Productivity Commission and Treasury will presumably howl with delight at that suggestion and then ask whether it would be simpler to let Screenrights (or one of the larger collecting societies) handle the task. The third group comprises an "independently-managed" and "industry supported P2P network". Operation of the network would feature "a low fee for subscribers to access all content, with "the body" also acting as collecting society for rights holders. 

 One response is that in the classic 'Collectivisation of Copyright Exploitation: Competition Issues' by Jill McKeogh and Stephen Teece in (1994) 17(1) UNSW Law Journal 259-284. 

The authors concluded that

here is clearly a potential for anti-competitive effects arising from the activities of copyright collecting societies. It is also clear, however, that they are necessary to allow copyright owners a realistic method of enjoying the benefits of their copyright. If the plethora of statutorily created copyrights are to have some kind of meaningful value as proprietary rights, they must be enforceable, and the practicalities of this require some kind of collectivisation. The general approach taken to such problems has been to recognise their existence and to restrain blatant abuses of competition law, while continuing to permit the existence and operation of collecting societies which inevitably wield considerable market power ... the public also benefits if copyright is available as an enforceable and valuable property right, as creativity will thereby be encouraged. This view may be somewhat naive; in the Australian context it must be noted that the rights to very many, if not most, of the works exploited by copyright collecting societies belong to a few large, often foreign-dominated or multi-national corporations; their interests do not coincide with those of the Australian public.

We might be circumspect about privileging one industry (or group of interests) over another; indeed question whether some rights clearance problems are self-inflicted (and avoided by investment in new creativity rather than reuse of existing content, the approach advocated by one artist who says "create your own cute rodent rather than appropriating Mickey").

Bad Ink

As a fan of Written on the Body: The Tattoo in European and American History (Princeton Uni Press, 2000) edited by Jane Caplan and Bad Boys & Tough Tattoos: a social history of the tattoo with gangs, sailors, and street-corner punks, 1950-1965 (Haworth, 1990) by Samuel Steward I was interested to see the Nicholas Weston Trade Mark Blog's report on that firm's annual survey of bad ink, ie people decorating their bodies with trade marks rather than the usual hearts, anchors, names of one-time partners or signifiers that they are members of the Crips, Yakuza, Mongrel Mob or other nasties.

Of those receiving a tattoo, only around 2–5% receive a brand tattoo, and predominantly in the 18 – 25 age group. ... Tattooists [reported] that brand tattoos were obtained on impulse in some cases and as a carefully considered choice in others.

The Blog drily notes that

Opinion among tattooists was divided on whether the choice of brand-tattoo reflected its culturally iconic status or the recipient's faith in the brand. One tattooist opined that "it is a humour thing." One tattooee received payment to have toilet rolls of a certain brand inked onto his backside but otherwise the overwhelming majority were not paid to become human billboards. All of those surveyed denied that any recipients of a brand tattoo were visibly drunk or affected by drugs at the time.

In responding to the question "So What" Weston indicates that

Most well known brands and logos are registered trade marks. Use of a registered trade mark as a tattoo is generally not "use as a trade mark” by using the sign in the course of trade for the purposes of s 120 of the Trade Marks Act 1995 (Cth).

'Ads by Google' (ah, the joys, the joys of predictive marketing) has helpfully displayed an ad for an online ink service "7000 free tattoos for every body ... design your dream tattoo online" - presumably useful for clip art kids of various ages or those whose affiliations are a bit outside having a brand of toilet paper inked on their btm or bit of colour on the membrum virile. (I'm not going to take up one site's offer of "Genital Tribal Tattoos With Mermaids" ... and not just because the mermaids are so not me or because I'm persuaded by Christian Klesse's critique 'Modern Primitivism': Non-Mainstream Body Modification and Racialized Representation' in 5(2) Body & Society (1999) 15-38. Klesse argues that the philosophy underpinning the non-mainstream body modification practices of 'Modern Primitives'

seeks inspiration in the body modification techniques and bodily rituals of so-called 'primitive societies'. Establishing their prioritization of body, sexuality, community and spirituality as analytical links, the author shows that these self-perceived radical opponents of Western modernity nonetheless remain captured in its foundational discursive assumptions. The author argues that the movement's enthusiastic turn towards 'primitivism' represents a particular identity strategy within the late modern condition. Drawing on colonial discourse analysis, the author argues that the primitivist discourse originated as an ideology within colonialism and has informed the construction of the Western self-image. Modern Primitives' notion of 'primitivism' is seen as a postcolonial legacy of this tradition of 'othering', which inevitably reproduces stereotypes of racialized people.

Another perspective is offered by Christine Braunberger's article 'Sutures of Ink: National (Dis)Identification and the Seaman's Tattoo' in 31 Genders (2000)

Seamen (merchant and military) acted as the primary hosts for the tattoo's immigration from East to West. Concurrently, they altered the symbolic valence of tattoos in America from carnival freak show exoticism to an ambivalent marginal signifier of militarism and national fantasy. In tracing these shifts, I will argue that the tattoo's meaning was fluid across and within the various groups who utilized the form and thus erased stable readings while marking unstable possibilities. I will therefore contend that for the military itself, the tattoo functioned to simultaneously transgress and maintain militaristic interpellation. For the seamen, the tattoo fetishistically marked a desire to perform a phallic masculinity and the anxiety of what such a performance might mean. As an object which is not an object and hence always and never really "there," the tattoo destabilized the military's heterosexuality, functioning to both access an experiential homosexual eroticism and refuse acknowledgment of that access by symbolically representing a stable heterosexual "manhood." For the American public, the tattoo spoke of exoticism and eroticism that was "troubling," but could be subsumed under the banner of a positive national symbolic. The tattoo functioned as a fetish object for national anxiety which affects, and is affected by, the individual military body's various relational positions, but especially by those Others outside the borders.

UWA v Gray

The Full Court in University of Western Australia v Gray [2009] FCAFC 116 has dismissed UWA's appeal against the Federal Court trial judge's findings that the University did not own the intellectual property in work by Gray while employed by that institution as a professor. 

Bruce Gray, the respondent, was a full time employee of UWA as its Professor of Surgery from 1985 until 1997, when he went part time ("a fractional thirty percent appointment) focussing on clinical work at the Royal Perth Hospital. He was Head of UWA's Department of Surgery from October 1988 to December 1989. He resigned from UWA effective November 1999. As a full time employee the terms of his appointment required him to teach, conduct examinations, direct and supervise the work in his field. He was also required to undertake research, to organize research and generally to stimulate research among the staff and students. UWA claimed that by reason of his employment Gray had obligations to UWA regarding inventions (the production and use of microparticles or "microspheres" for the targeted treatment of cancerous tumours in humans, particularly in the liver) that were said to have been made wholly or in part by Dr Gray. As a consequence it claimed proprietary rights in respect of those inventions and of associated patent applications and patents. 

Gray indicated that research leading to his initial (1988) patent had been undertaken prior to employment by UWA. The primary Judge (now French CJ of the High Court) dismissed UWA's claim in its entirety. In that instance the Court found that the University's case depended on the proposition that an implied term of Gray's contract of employment gave UWA ownership of intellectual property developed in the course of Gray's employment. 

 The Court rejected that proposition, concluding that - in the absence of express agreement to the contrary - rights regarding inventions made by academic staff in the course of research (whether or not made with the use of UWA resources) ordinarily belong to the academic staff as the inventors under the Patents Act 1990 (Cth). The position would be different if staff had a contractual duty to produce inventions but "put simply, the duty to research did not signify a duty to invent". The University's intellectual property Regulations asserted ownership by UWA of all IP developed by its staff (apart from most copyright). The Court held that such provisions of the IP Regulations as purported to vest intellectual property rights in UWA or to interfere with the intellectual property generated by its academic staff were beyond the University's regulation-making power and that the Regulations did not come into effect until the invention period. 

 The Full Court held that in relation to Gray's employment as a professor of surgery

there was no "duty to invent" and the conditions required for the implication of a term at law were not satisfied; - in absence of implication of terms in law, there was no independent fiduciary obligation of a kind and scope that made Gray as an employee accountable to UWA for the inventions, applications for patents, or patents; - on the evidence, UWA university had abandoned its patent committee mechanism (a feature of the contract betwen Gray and the University) and the term incorporating the patent regulations did not avail university

The Full Court's decision is a reminder that the default position for patents differs from that of copyright created by employees, something that may surprise people who assume that all inventions created by employees areautomatically be owned by the employer. The decision highlights the need for research organisations to articulate coherent intellectual property policies and give effect to those policies through employment terms and administrative procedures. One implication is that universities and other research institutions will move to remind staff of existing policies, assert a particular interpretation of policies and procedures, and respond to greater activism by staff in contract negotiations. Another implication is that the decision will raise questions among current/former employees, university commercialisation units and business partners about the ownership of intellectual property created in the past. UWA v Gray has already prompted one high-tech business to seek reassurance from its public sector partner. The case isn't revolutionary but does present a 'wake up call' for institutions that haven't bothered to get their paperwork in order or that have assumed paperwork obviates any need to follow-through with actions.

PBR in Australia

An article by Jay Sanderson in (2008) 32(3) Melbourne University Law Review 980-1006 on 'Are Plant Breeder's Rights Outdated? A Descriptive and Empirical Assessment of Plant Breeder's Rights in Australia, 1987–2007' - ostensibly available on SSRN - considers PBR and the Plant Breeder's Rights Act 1994 (Cth).

Sanderson explores

the notion that plant breeder’s rights are out-of-date and unnecessary. To do so, this article adopts both descriptive and empirical approaches to examining a number of issues including: the nature of, and investment in, Australian plant breeding; biopiracy and enforcement; legal disputes and processes; and the use of the Australian plant breeder’s rights system. This review shows that the Australian plant breeder’s rights scheme is well used, has been progressively amended and extended, and is just one element in a suite of measures geared to stimulate plant-related innovation. As a consequence, future research needs to take into account the heterogeneous character of plant breeding and complementary government initiatives, identify the many reasons why the plant breeder’s rights scheme is seen as viable (or why not) and consider the interrelationships between these elements.

SSRN is misbehaving today, so the link points to Sanderson's 'Essential Derivation, Law and the Limits of Science' from (2006) 24(1) Law in Context 34-53, concerned with the concept of 'essential derivation', ie

where the breeder of one variety – the 'initial variety' – claims that another breeder has developed a second variety – the 'putative essentially derived variety' – that is virtually the same as the initial variety. Clarity is necessary to ensure the effectiveness of essential derivation as a legal concept and, more broadly, to enable the plant breeders’ rights scheme to remain relevant.

Sanderson comments that

In examining the concept of essential derivation, this article first looks at the general trends in plant breeding techniques. It then considers the concept of ‘essential derivation’ in light of the breeder’s exemption, the low threshold of distinctiveness and the limited infringement provisions in plant breeders’ rights schemes. This is followed by a discussion of the scientific (quantitative) approach to determining whether a variety is essentially derived and outlines the limits of such an approach. The article argues that the judiciary and legislature have imported notions of quality into the assessment of essential derivation. This has a number of advantages, including the ability to meet the needs of developments in plant breeding techniques and providing plant breeders with greater certainty in relation to whether new varieties are essentially derived.

Consent in Aust telco services

A 33pp report [PDF] from the Australian Communications Consumers Network (ACCAN) highlights flaws in obtaining consent in the Australian communications industry.

ACCAN's chief executive commented that

Our research has found that inconsistent and unsatisfactory consent requirements are scattered throughout a mix of telecommunication laws and industry codes of conduct. In many key cases consent requirements are absent entirely. The collection of informed consent from consumers is a key requirement in the communications sector. Consent is essential for contract formation, subscription services and the use of customer information

The report noted that

information provided to consumers regarding communications products – such as mobile phone and Internet subscriptions – ranged from zero information right through to 57 pages of detailed legal jargon ... few consent requirements that exist in laws and codes are inconsistent and do not include coverage of key issues such as the capacity of the individual to provide consent (such as young people or people with an intellectual disability).

Another concern is that there is no requirement to record consent in the communications sector, and this has led to a lot of problems for consumers involved in disputes. Caseworkers interviewed in this project reported numerous cases where the consumer denies all knowledge of a service that appears on their bill

The report also considers questions regarding obtaining informed consent from specific consumer categories, including indigenous consumers, people with disabilities and young people. The young and indigenous consumers faced significant challenges in dealing with the communications industry, reflected in over-representation in consent complaints statistics.