Flannel

It will be interesting to see the response to Geordie Guy's FOI request to the Office of the Australian Information Commissioner regarding the OAIC statement - or non-statement - about PRISM -

On Wednesday the 12th of June 2013 the privacy commissioner Timothy Pilgrim made a statement titled "US surveillance program — Statement from Australian Privacy Commissioner, Timothy Pilgrim". In that statement, the commissioner makes a number of comments regarding privacy in Australia and recent reports of widespread warrantless surveillance in the United States.

I am writing to request under the act, documents be disclosed that meet the following descriptions.

• Drafts of this statement, as well as any internal correspondence regarding its content 

• Requests either from the OAIC or other government departments or bodies that the OAIC and/or the privacy commissioner make such a public statement or any statement regarding media reports of US surveillance revelations 

• Legal advice or other general advice that the OAIC has sought or received unsolicited, that concern the legal status or legal implications of recent US surveillance revelations 

• Any documents which provide further detail regarding the aforementioned surveillance programs

The Privacy Commissioner's statement read -

Reports on the surveillance of the communications and online activity of citizens by US intelligence agencies have raised a number of questions, including what this means for the privacy of individuals.

Privacy is a fundamental human right, recognised in international law and protected under Australian laws such as the federal Privacy Act and telecommunications laws. However, the right to privacy is not absolute – it must be balanced against other important rights and ideals, such as freedom of expression and national security.

In Australia, the federal Privacy Act and telecommunications laws recognise this and include a number of exemptions and exceptions for intelligence and law enforcement agencies and their activities. For example, the Privacy Act includes limited exceptions that allow government agencies and private sector organisations covered by the Act to use and disclose personal information for the enforcement of criminal laws, or where the use or disclosure is required or authorised by or under Australian law.

The Privacy Act can extend to an act or practice that occurs outside Australia in certain circumstances. However, the Act also provides that an act or practice of an organisation done outside Australia does not breach the Privacy Act if it is required by an overseas law. Further, the Privacy Act will generally not cover the acts and practices of overseas government agencies.

Background

Article 17 of the International Covenant on Civil and Political Rights establishes privacy as a human right.

MOOCs

Noting Ian Bogost's thoughtful contribution in the LA Review of Books to a feature on MOOCs -

MOOCs are often discussed as an educational technology, as a new way of teaching. This is true to some extent, even if these courses look far less “disruptive” when understood in relation to the long tradition of online and distance learning. Will Oremus has offered a convincing (and deflationary) account of MOOCs’ potential as course material, suggesting that they are best understood as a replacement for traditional textbooks.

Even if MOOCs do sometimes function as courses (or as textbooks), a minority of their effects arises from their status as educational experiences. Other, less obvious aspects of MOOCs exert far more influence on contemporary life. Here are some different but important ways of understanding what MOOCs are and what they do.

MOOCs are a type of marketing. They allow academic institutions to signal that they are with-it and progressive, in tune with the contemporary technological climate. They make an institution’s administration appear to be doing novel work on “the future of higher education,” and they offer professors an opportunity to reach a large number of students who might also spread their ideas, buy their books, or otherwise publicize their professional practice. Less cynically, MOOCs can help deliver a taste of on-campus offerings to future students, parents, or the general public — although this latter function is hardly novel; iTunes U has distributed free lectures for years.

MOOCs are a financial policy for higher education. They exemplify what Naomi Klein has called “disaster capitalism”: policy guilefully initiated in the wake of upheaval. The need to teach more students with fewer resources is a complex situation. It’s partly caused by hubris, especially the blind search for higher institutional status through research programs, and it’s exacerbated by the tax base crises of the ongoing and seemingly permanent Great Recession. MOOCs offer the next logical step in this process of “cost containment.” But those who would call current funding models “unviable” and offer MOOCs as a convenient alternative fail to admit that the very need for an alternative presumes that we want to abandon public education in favor of a corporate-owned infrastructure in the first place.

MOOCs are an academic labor policy. As a consequence of the financial policy just described, MOOCs are amplifying the precarity long experienced by adjuncts and graduate student assistants, and helping to extend that precarity to the professoriate. MOOCs encourage an ad-hoc “freelancing” work regime among tenured faculty, many of whom will find the financial incentives for MOOC creation and deployment difficult to resist. This is particularly true of public institution faculty who have gone years without raises. Many institutions offer tens of thousands of dollars of direct compensation for MOOC development and teaching. And, in some cases, MOOCs offer direct access to student tuition and direct competition among faculty for those new resources, extending the “entrepreneurial” institutional politics of professional schools (and corporate life more generally) to all disciplines.

MOOCs are speculative financial instruments. The purpose of an educational institution is to educate, but the purpose of a startup is to convert itself into a financial instrument. The two major MOOC providers, Udacity and Coursera, are venture capital-funded startups, and therefore they are beholden to high leverage, rapid growth with an interest in a fast flip to a larger technology company or the financial market. The concepts of “disruption” and “innovation,” so commonly applied to MOOCs, come from the world of business. As for EdX, the MOOC consortium started by Harvard and MIT, it’s a nonprofit operating under the logic of speculation rather than as a public service. If anything, it will help the for-profits succeed even more by evangelizing their vision as compatible with elite nonprofit educational ideals.

MOOCs are an expression of Silicon Valley values. Today’s business practices privilege the accrual of value in the hands of a small number of network operators. Anything unable to be maximally leveraged isn’t worth doing. MOOCs subscribe to leverage as a primary value proposition (“massiveness”), implicitly rejecting the premise that some things benefit from “inefficiency.” MOOCs also evangelize the Silicon Valley ideology of technological salvation that Evgeny Morozov has called “solutionism,” and David Golumbia “computationalism.” Specifically MOOC researchers-turned-entrepreneurs Daphne Koller and Sebastian Thrun assume that AI techniques can “solve” the problems of education through computational automation.

MOOCs are a kind of entertainment media. We are living in an age of para-educationalism: TED Talks, “big idea” books, and the professional lecture circuit have reconfigured the place of ideas (of a certain kind) in the media mainstream. Flattery, attention, the appeal of celebrity, the aspiration to become a member of a certain community, and other triumphs of personality have become the currency of thinking, even as anti-intellectualism remains ascendant. MOOCs buttress this situation, one in which the professor is meant to become an entertainer more than an educator or a researcher. The fact that MOOC proponents have even toyed with the idea of hiring actors to present video lectures only underscores the degree to which MOOCs aspire to reinvent education as entertainment.

MOOCs are also a way of employing the MOOCatariat, in particular engineers and educational administrators who aren't particularly good at - or even in touch with - teaching but know that there are opportunities in telling teachers what to do.

Lookalikes in UK Law

The UK Intellectual Property Office has released a report [PDF] on lookalikes.

The summary is as follows -

The issue of lookalikes is one that has been on the policy and business agenda for at least two decades. Well-known brands, and brand-owners’ groups, have long advocated specific and adequate protection against lookalikes under United Kingdom (UK) law, particularly in the context of possible business-to-business harm. More recently, the issue has also become more prominent on the agenda of the European Union (EU) both in the context of so-called “free-riding” in relation to trade mark law, and with respect to possible unfair commercial practices. 

This report uses a working definition of a lookalike in the following terms: a lookalike product is a product sold by a third party which looks similar to a manufacturer brand owner’s product and, by reason of that similarity, consumers perceive the lookalike to share a greater number of features with the manufacturer brand owner than would be expected simply because the products are in the same product category. This report further defines own brand in this report as a product sold under a retailer’s brand name (whether or not is it also a lookalike), and a manufacturer brand as a brand controlled by an entity that manufactures the products itself, rather than applying its own branding to something manufactured by a third party. 

The literature review  

The literature suggests that innovation leads to growth in consumer markets. Further, brands provide consumer security as brands need to retain consistent quality to survive. The literature also indicates that large brand owners, who manufacture and design their products, innovate more than non-manufacture brands rivals. 

The existing literature suggests that own brand products have an evolutionary life cycle with lookalikes existing in the later stages of that cycle. It also indicates that own brands are more successful in low innovation product categories. Accordingly, incremental innovation by manufacturer brand owners makes it more difficult for own brand to penetrate the market. This in turn might be a driver for manufacturers to innovate. 

There is little empirical evidence on whether own brand affects innovation. Further, in the food sector it has been found that the existence of own brand has had no effect in Europe (except in Spain). Nevertheless, it has been suggested that lost sales caused by own brand would lead to less money being spent by manufacturers on research and development 

The literature postulates certain types of business harm which might be caused by lookalikes. This includes lowering the level of innovation, wasted rents on packaging changes, brand followers being pushed out of the market place and an adverse effect on advertising. In addition, it suggests that there is a need to protect the investment in market research to obtain new consumer insights. 

The existing consumer evidence suggests that in the absence of the brand leader, products that look similar to that leader are better received by consumers than those that look distinct. In addition, when a lookalike is on the shelf at the same time as the brand leader the lookalike might be used for comparison purposes. Further, the presence of lookalikes will reduce a consumer’s reaction time in selecting a product and may (under time pressure and outside the normal shop environment) increase the chance of mistaken selection. 8. There have been numerous consumer surveys on the issue of similar packaging for fast-moving consumer goods. These studies demonstrate a high level of consumers making mistaken purchases. The reasons for these mistakes include similar packaging such as cues of colour, shape and size. Additionally shelf position is reported as a factor. 

Previous consumer surveys show that consumers have a perception that own brand goods have a common origin with manufacturer brand owner products (irrespective of packaging) and when packaging is similar there is an increased perception of common origin. Additionally, those surveys suggest that consumer perceptions of own brand are generally good with at least a quarter (and possibly three-quarters) of consumers perceiving own brand to be as good as the manufacturer brand owner’s products. 

Research findings 

The present research was divided into three parts. The first part comprises interviews with stakeholders in the fast-moving consumer goods market. The second part of the research comprises two consumer surveys: one considering whether there is a lookalike effect; and the second addressing the advantages and disadvantages perceived by consumers across three jurisdictions. The final part of the research involved the analysis of sales figures for certain brand leading products to see the impact, if any, of a lookalike entering the market. 

The study found a small, but statistically significant, lookalike effect leading consumers to believe that similar-looking products have similar product characteristics and similar origin. The effect is greater, however, in those consumers who do not use products within a particular product category (and so the effect is lower in relation to the persons most likely to buy the product). This is consistent with the existing literature which suggests consumers are confused when packaging is similar. 

It was found that that a high number of UK households reported that the accidental purchase of lookalikes disadvantages them very much (1.68 million) or somewhat (9.92 million). Conversely, a substantial number of households reported such a purchase to advantage them very much (0.99 million) or somewhat (8.99 million). This suggests that some consumers suffer detriment from the mistaken purchase whilst others find it to be a positive experience. However, the research did not investigate why some consumers perceived the purchase to be a good or bad experience. 

Impact of Lookalikes 

The study revealed that a substantial majority of consumers had deliberately purchased a lookalike and, of those consumers, most of them found the experience to be advantageous. The research did not analyse why some consumers perceived the purchase to be advantageous. 

The research found that there is a fine line between confusing packaging and using generic cues to provide useful signals to consumers. 

The study found limited evidence to support the suggestion that lookalikes spur manufacturer brand owners to innovate as it is the best way to maintain the price differential. Such an effect, however, might disappear in markets where market share (more precisely, sales) has declined so much that the cost of research cannot be recovered. 16. It was not found that lookalike products directly cause brand manufacturers to make additional (and wasteful) changes to their packaging. 

The literature suggested that lookalike packaging causes a greater loss of sales (or market share) than distinctive competitors. However, in interviews with the research team only one of the manufacturer brand owners reported this finding; the others gave a mixed picture. 

The statistical analysis of the sales figures showed that in a very limited number of product categories, an association was found between a reduction in the sales of the brand leader and an increase in the sales of the lookalike. This could have been caused by numerous factors, one of which is the similarity of the packaging (the lookalike effect at work). Such associations did not appear to relate to consumers’ relative perception of packaging similarity or common production origin and also did not generally appear to exist within the particular supermarket selling the own brand. The evidence is therefore inadequate to determine whether lookalike packaging generally diverts sales or if the effect of that packaging is negligible. 

In relation to advertising spend, there were differing responses by manufacturer brand owners when a lookalike enters the market. Accordingly, no meaningful conclusions can be drawn as to the effect on advertising spend when a lookalike enters the market. 

The discussions with manufacturer brand owners, reviews of the literature and the surveys suggest that if there were to be a statutory definition of a lookalike it could be: “goods which by virtue of their name, shape, colour, packaging or labelling or any combination thereof, are similar in overall appearance to the goods; but excluding any of those things where they are descriptive, functional or commonplace.” 

Manufacturer brand owners reported that lookalikes enabled competitors and retailers to take unfair advantage of the manufacturer brand owner’s research into consumer insights and packaging design. 

Legal analysis 

In none of the three jurisdictions examined - the UK, Germany and the United States – was the legal position of lookalikes particularly clear. Nevertheless, at the interim stage, there is a perception that a claimant is more likely to be successful in the favourable German forum than in either of the other two countries. 

It is probable that the prevention of certain lookalikes is within the scope of the Unfair Commercial Practices Directive (2005/29/EC). Under this assumption, the United Kingdom may not be free to legislate to further prevent lookalikes save in business-to- business transactions. However, it would also mean that certain lookalikes are already unlawful under the Consumer Protection from Unfair Trading Regulations 2008. 24. Accordingly, if there is a restriction on legislation in relation to lookalikes, a private right of action under the Consumer Protection from Trading Regulations 2008 would be permitted under the Unfair Commercial Practices Directive.

CoE response to PRISM

The Council of Europe (CoE) - the international entity that has driven Australian proposals for mandatory electronic data retention through the global Cybercrime Convention - has responded to the furore over PRISM.

Its media release states that the Council

today alerted its 47 member states to the risks of digital tracking and other surveillance technologies for human rights, the rule of law and democracy, and recalled the need to ensure their legitimate use. 

In a Declaration issued to governments, the Committee of Ministers say that legislation allowing for overly broad surveillance of citizens can challenge their privacy and have a chilling effect on their freedom of expression and the freedom of the media.

The Committee recall that tracking and surveillance measures by law enforcement authorities should comply with the Council of Europe’s human rights standards set out in the European Convention on Human Rights. Such measures should also strictly respect the limits, requirements and safeguards set out in the Data Protection Convention 108.

The Declaration also draws attention to the criminal law implications of unlawful surveillance and tracking and to the relevance of the Budapest convention on Cybercrime to address this challenge.

Finally, the Committee also encourages states to introduce suitable export controls to prevent the misuse of technology to undermine human rights standards.

The Declaration, which must have been fun to write, is as follows

1. The propensity to interfere with the right to private life has significantly increased as a result of rapid technological development and of legal frameworks which are slow to adapt. 

2. Data processing in the information society which is carried out without the necessary safeguards and security can raise major human rights related concerns. Legislation allowing broad surveillance of citizens can be found contrary to the right to respect of private life. These capabilities and practices can have a chilling effect on citizen participation in social, cultural and political life and, in the longer term, could have damaging effects on democracy. They can also undermine the confidentiality rights associated to certain professions, such as the protection of journalists’ sources, and even threaten the safety of the persons concerned. More generally, they can endanger the exercise of freedom of expression and the right to receive and impart information protected under Article 10 of the European Convention on Human Rights. 

3. In this connection, it is recalled that, in accordance with Article 8 of the European Convention on Human Rights, Council of Europe member States have undertaken to secure to everyone within their jurisdiction the right to respect of private and family life, home and correspondence. Restrictions to this right can only be justified when it is necessary in a democratic society, in accordance with the law and for one of the limited purposes set out in Article 8, paragraph 2, of the Convention. 

4. As a corollary to the Convention and relevant case law of the European Court of Human Rights, member States have negative obligations, that is, to refrain from interference with fundamental rights, and positive obligations, that is, to actively protect these rights. This includes the protection of individuals from action by non-state actors. 

5. People nowadays rely on a growing range of both fixed-location and mobile electronic devices which enhance their possibilities to communicate, participate and manage their everyday lives. However, a growing number of these devices are equipped with software that are capable of collecting and storing data, including personal data (e.g. keystrokes that reveal passwords) and private information such as user generated content, websites visited, and geographical locations that potentially allow tracking and surveillance of people. This data can reveal delicate and/or sensitive personal information (such as financial, health, political, religious preferences, sexual habits) which can be aggregated to provide detailed and intimate profiles of them. 

6. Tracking and surveillance technologies can be used in the pursuit of legitimate interests, for example to develop new services, improve user experience or facilitate network management, as well as law enforcement. On the other hand, they may also be used for unlawful purposes that lead to illegal access, data interception or interference, system surveillance, and misuse of devices or other forms of malpractice; for example, geo-location tracking could be used to stalk women and make them more vulnerable to gender-related abuse and violence. 

7. In all cases, the modalities for processing personal data should comply with relevant Council of Europe standards. This implies ensuring that law enforcement’s own tracking and surveillance measures respect the applicable human rights safeguards, which should provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations undertaken under the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations International Covenant on Civil and Political Rights, and other applicable international human rights instruments, and which should incorporate the principle of proportionality. It also concerns strict respect for the limits, requirements and safeguards set out in the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) and in its Additional Protocol as well as regard for other instruments such as Recommendation CM/Rec(2010)13 on the protection of personal data in the context of profiling. 

8. Against this background, the Committee of Ministers:

• - alerts member States to the risks of digital tracking and other surveillance technologies for human rights, democracy and the rule of law and recalls the need to guarantee their legitimate use which benefits individuals, the economy, society at large, and the needs of law enforcement; 

• - encourages member States to bear these risks in mind in their bilateral discussions with third countries, and, where necessary, consider the introduction of suitable export controls to prevent the misuse of technology to undermine those standards; 

• - welcomes steps taken by data protection authorities in some member States to raise awareness of the implications of tracking and surveillance technologies and to investigate these practices to ensure compliance with the provisions of Convention No. 108 and their national legislations; 

• - draws attention to the criminal law implications of unlawful surveillance and tracking activities in cyberspace and the relevance of the Budapest Convention in combating cybercrime; 

• - welcomes measures taken by both State and non-State actors to raise awareness among users, and, a fortiori, within the private sector and among technology developers about the potential impact of the use of such technologies on human rights and the steps which can be taken at the design stage to minimise the risks of interferences with these rights and freedoms (e.g. “privacy by design” and “privacy by default”); 

• - recalls the Council of Europe Internet Governance Strategy 2012-2015 which includes a number of action lines relevant to the challenges identified in this Declaration and looks forward to the concrete results of the work of the competent Council of Europe bodies.

Droit de suite inquiry

With the national election in sight the Commonwealth Arts Minister has announced terms of reference for the inquiry into the droit de suit, ie resale royalty for the visual arts under the Resale Royalty Right for Visual Artists Act 2009 (Cth) discussed in past posts.

The inquiry is to provide -

• an outline of the issues that the legislation was intended to address 
• an assessment of the efficiency and effectiveness of the legislation and associated scheme in achieving the original objectives 
• an analysis of the likely impacts had the legislation not been introduced 
• an assessment of the impact of the scheme on artists, the art market, art market professionals and consumers, including costs and benefits 
• the development and consideration of projections that show the likely scale of the scheme in future years 
• the identification and consideration of any revisions to the Act or regulations that could enhance the operation of the scheme.

ALRC Privacy Inquiry

The Attorney-General has released terms of reference for the Australian Law Reform Commission inquiry into invasions of privacy.

As noted in this blog and in articles in Privacy Law Bulletin and the Conversation the need for that inquiry is unclear, given that both the Commission (ALRC), the NSW Law Reform Commission (NSWLRC) and Victorian Law Reform Commission (VLRC) have previously made cogent recommendations regarding establishment of a statutory tort of serious invasion of privacy. Observers might be forgiven that the current inquiry is an exercise in street theatre and delay rather than a substantive move towards law reform.

The terms of reference are -

The ALRC should make recommendations regarding: 

1. Innovative ways in which law may reduce serious invasions of privacy in the digital era.  

2. The necessity of balancing the value of privacy with other fundamental values including freedom of expression and open justice. 

3. The detailed legal design of a statutory cause of action for serious invasions of privacy, including not limited to:

• legal thresholds 

• the effect of the implied freedom of political communication 

• jurisdiction 

• fault elements 

• proof of damages 

• defences 

• exemptions 

• whether there should be a maximum award of damages 

• whether there should be a limitation period 

• whether the cause of action should be restricted to natural and living persons 

• whether any common law causes of action should be abolished 

• access to justice the availability of other court ordered remedies.  

4. The nature and appropriateness of any other legal remedies for redress for serious invasions of privacy.

The Commission should take into account the For Your Information ALRC Report (2008), relevant New South Wales and Victorian Law Reform Commission privacy reports, the Privacy Amendment (Enhancing Privacy Protection) Act 2012 and relevant Commonwealth, State, Territory legislation, international law and case law.

There is no indication that the ALRC will be provided with additional resources in conducting the inquiry, which is scheduled for completion mid next year.

Patent Litigation Histories

'Across Five Eras: Patent Enforcement in the United States 1929-2006' by Matthew Henry and John L. Turner uses univariate structural break analysis to estimate rates of patent enforcement in infringement suits in the United States over 1929-2006.

We separately estimate rates of validity and infringement for series constructed with district court and appellate court decisions. We find multiple structural breaks in series of both validity and infringement, and find that the breaks do not coincide. Our most reliable results suggest the rate of validity falls around 1939 and rises around 1983, and that the rate of infringement rises around 1951 and falls around 1990. We estimate an overall rate of winning on both validity and infringement to be between 27-29% for all years except for 1939-51 (when it falls to about 20%) and 1983-90 (when it rises to nearly 50%). ... 

[The] results lay out a sharp set of stylized facts to use in trying to understand the relation- ship between patenting, litigation and R&D. In light of these findings, it is interesting to note that the increase in the rate of patent validity in 1983 coincides with a surge in patenting and litigation, but the drop in the rate of patent infringement in 1990 leads to no similar reduction in patenting. Moreover, since 1990, we have seen the incidence and costs of patent litigation continue to grow (Bessen and Meurer 2008; Turner, Bessen, Neuhausler and Williams 2013). 

This suggests that the rate of patent validity may be a more important driver of patenting than the rate of patent infringement. Bolstering this argument, there is evidence for the impor- tance of the 1939 break in the rate of validity (for the rate of patenting) as well. Schmookler (1966, pp. 28-29) notes that from 1900-30, the number of technical engineers in the US econ- omy grew about five-fold, from 43,000 to 226,000. Contemporaneously, the number of patents quadrupled. Hence, the growth in patent roughly mirrors that in technical expertise. From 1938-54, the relationship between patents and technical know-how was far different. While the number of scientists, engineers and supporting personnel performing industrial research continued to explode, increasing six-fold, the number of corporate patents increased just 23%. 

In contrast, rates of infringement seem to have qualitatively different effects. It appears that, at least in the 1990s and 2000s, patentees’ willingness to initiate litigation has not been significantly dissuaded by a weaker doctrine of equivalents. This is also a period when non- practicing entity (NPE) litigation has flourished.