Copyright and privacy

'Data Protection vs. Copyright' by Lee A. Bygrave in Dan Jerker B. Svantesson & Stanley Greenstein (eds.) Internationalisation of Law in the Digital Information Society: Nordic Yearbook of Law and Informatics 2010-2012 (Copenhagen: Ex Tuto Publishing, 2013) 55-75 considers 

changes in the relationship of copyright and protection of personal data brought about by the evolution of technological-organisational measures for enforcing copyright in the digital world. It assesses the impact of such measures on privacy and related interests in light of data protection legislation and case law of the Court of Justice of the European Union. 

Bygrave concludes

This paper has shown how the tension between copyright and data protection has gradually shifted focal point over the past fifteen years. Whereas a decade ago that focal point was the rollout of DRMS, it subsequently became piracy surveillance. With this shift, the tension between copyright and data protection flowed over into the relationship between IPR-holders and ISPs. However, some of the heat in the latter relationship is dissipating.

We see in the USA clear manifestation of this dissipation with the recent agreement between five major ISPs (AT&T, Comcast, Time Warner Cable, Verizon and Cablevision) and the RIAA and MPAA to set up a Center for Copyright Information (CCI) that operates a Copyright Alert System (CAS). The initiative establishes a ‘graduated response’ scheme for IPR enforcement whereby end-users suspected of engaging in copyright infringement are to receive a series of warnings to stop their apparently illicit behaviour and, in the event of recalcitrance, face more serious sanctions. Of particular importance is that this sort of scheme presupposes a relatively cordial relationship between ISPs and IPR-holders—copyright enforcement becomes a shared effort between allies rather than adversaries. This is not to suggest that ISPs have or will embrace this alliance with wholehearted enthusiasm. The agreement forged in the USA was the result of considerable pressure being applied not just from IPR-holders but also from government. Further, ‘it is a very soft agreement that gives ISPs near total discretion’. Yet it also reflects nascent corporate convergence of network providers and content providers—the merger of Comcast and NBC Universal being a case in point.  In some jurisdictions, though, ISPs are in any case being forced to cooperate pursuant to legislatively mandated graduate response schemes—the case, for instance, in South Korea, New Zealand, UK and France.

These developments are likely to lead to a realignment of the relative strength of copyright and data protection in the years ahead. Besides the fact that graduated response schemes help to ‘normalise’ surveillance on the Internet, they weaken the privacy-protective role that ISPs have (incidentally or intentionally) played. Even in countries that have not (yet) embraced such schemes, moves are afoot to weaken barriers to piracy surveillance which arise from data protection law. The Norwegian Parliament, for example, is currently considering a legislative bill aimed at circumventing the limitations imposed by data protection law on piracy surveillance. The bill proposes, inter alia, removing such surveillance from the licensing requirements of the Personal Data Act and providing a specific legal footing for it pursuant to proposed new provisions in the Intellectual Property Act of 1961.

Yet advocates of strong data protection can continue to take some comfort in the fact that DPI-based surveillance schemes seem still not to be widely used in the service of IPR enforcement, at least in Europe and the USA; piracy surveillance’ there continues to be ‘over the top’ rather than carried out by ISPs as part of their network management. While ISPs commonly use DPI-based ‘traffic management practices’ to regulate P2P traffic on their networks, these practices appear not to be harnessed to specifically target copyright infringement. This is due to a combination of economic and legal factors. Especially important has been the lack of any compelling commercial incentive for ISPs to conduct DPI for purposes other than management of their own network traffic, combined with disjuncture between most ISPs’ business interests and those of IPR-holders.

Moreover, DPI use going further than what is necessary for their own operational needs risks stripping ISPs of their immunity from legal liabilities as intermediaries: in the words of Marsden, DPI is ‘something of a Pandora’s box — if they [ISPs] look inside, all liabilities flow to them, from child pornography to terrorism to copyright breaches to libel to privacy breaches’. The proportionality principle as applied in the SABAM suite of cases is yet another restraining factor, at least in Europe.

However, as pointed out above, the barrier erected by that suite of cases against DPI surveillance is far from insurmountable. If OTT surveillance fails to deliver satisfactory results for IPR-holders, they will probably bring their considerable resources to bear on legislators to introduce statutory, DPI-based control schemes. Such schemes are likely to pass judicial muster by the CJEU and ECtHR if their statutory framework meets the ‘rule of law’ requirements flowing from, inter alia, ECHR Articles 8(2) and 10(2), and does not require ISPs to bear the bulk of additional costs involved. That cost reduction will undoubtedly weaken ISPs’ resistance to introducing such a framework. Their resistance, at least as an industry group acting in unison, will further decrease if, as is probable, more of them have entered into the business of content production. Civil society groups campaigning for privacy and data protection are accordingly likely to fight their coming battles over DPI with significantly less ISP support.

Risk metrics and airport security

'Cost-Benefit Analysis of Australian Federal Police Counter-Terrorism Operations at Australian Airports' (ARC Centre of Excellence in Policing & Security Working Paper 2013) by Mark G. Stewart and John Mueller [PDF] is a paper that crunches some numbers about security theatre,  recommends the standard nostrums of identity imaging (ANPR, cards, CCTV and so forth) and can be read subversively in debunking fashionable hyperbole from particular politicians and agencies.

The authors comment that

The terrorist attacks of 11 September 2001 highlighted the vulnerabilities of airports and aircraft. Further attacks in 2002, 2007 and 2009, have led to major government reforms in passenger processing and airport access. The security of Australian airports has also followed this trend, with an increased police presence. However, limited consideration has been given to the costs of these measures, compared to benefit. This Working Paper identifies the factors to be considered in such cost-benefit analyses and the authors outline their preliminary findings. The scope for further research is highlighted, particularly in relation to risk analysis and cost.

The authors state that

Much research on aviation security focuses on airplanes due no doubt to the events of September 11 2001 and to the more recent attempts to bomb U.S. bound flights in 2002, 2006 and 2009. However, Elias (2010) notes that an airport has ‘unique vulnerabilities because it is unsecured’. There is little information about whether airport security satisfies a cost-benefit assessment, or how airport policing can be made more effective. The Australian Office of Best Practice Regulation, U.S. Office of Management and Budget, and other regulatory agencies strongly recommend risk and cost-benefit assessments of major programmes. A risk and cost-benefit assessment quantifies risk reduction of security measures, losses from a successful attack, threat likelihood, probability that attack is successful, and cost of security measures. This allows costs and benefits of security measures to be compared and optimal security measures to be selected. This Working Paper seeks to assess the risks and cost-effectiveness of Australian Federal Police (AFP) airport counter-terrorism (CT) policing designed to protect airport terminals and aircraft from terrorist attack. 

They conclude

If the annual threat probability at all airports in Australia is less than 1% (or one in a hundred) the BCR [benefit to cost] for airport CT policing is significantly less than one, and the security measure consequently fails to be cost-effective by a considerable margin. However, a threat probability of 50% (or one attack every two years) would yield a BCR of 15.8 and airport CT policing would be cost-effective under that condition, and $1 of cost would buy $15.80 in benefits. Table 3 shows that airport CT policing would also be cost-effective when the annual threat probability exceeds 5% or one attack every 20 years - that is, it would have to be solely responsible for deterring, foiling, or protecting against one threat every twenty years for the security measures to be cost-effective. It also needs to be kept in mind that many threats against the aviation industry would be deterred, foiled or prevented by other (non airport) police and security measures (as well as by public awareness and response, etc.). ... The co-benefit of CT airport policing may well exceed $25 million per year, particularly if CT airport policing is able to utilise number plate recognition capability, passenger photograph identification and other measures to apprehend people with outstanding criminal issues. If a security measure also enhances the passenger experience, there would be an additional co-benefit, dramatically improving the measure’s cost-effectiveness. ....

This Working Paper sets out the basic principles of risk and cost-benefit analysis. These principles are applied to airport CT policing provided by the AFP. The results are preliminary, and based on our ‘best estimates’ using publicly sourced material, and are a starting point for this type of risk analysis. The preliminary results show the combinations of risk reduction and threat probability that allow airport CT policing to be cost-effective. For example, airport CT policing is costeffective if it reduces risk by approximately 25% and that the probability of an attack at any airport in Australia exceeds 5% per year. The co-benefits of airport CT policing - such as reduction in crime and reassurance to the travelling public - can be considerable, and will dramatically improve the costeffectiveness of airport CT policing. Further work should focus on more comprehensive threat scenarios; the layers of airport security, interactions and interdependencies; analysis of operational data on effectiveness of airport CT policing; and improved cost data, including co-benefits. The scope could be broadened to encompass all airport police, their rates of crime deterrence and prevention, and propose how airport policing may be made more effective/efficient by the use of other security measures, for example, number plate recognition capability and passenger photograph identification ID.

Send policemen, guns and money, in other words ... and stop along the way to follow up the authors' citation of their  ‘The Price is Not Right: The U.S. spends too much money to fight terrorism’ in (2011) 58(10) Playboy 149-150. Personally I preferred Mueller's Atomic Obsession: Nuclear Alarmism from Hiroshima to Al-Qaeda (Oxford University Press, 2010)

Patents

Catching up with GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 102, with the Federal Court of Australia Full Court allowing the appeal of GlaxoSmithKline Australia Pty Ltd against a second interlocutory judgment restraining GSK from marketing its Children's Panadol 1-5 Years with an alternative syringe that GSK acknowledges is a “design-around” for the device marketed by Reckitt for delivery of its Nurofen analgesic. The preceding judgment is Reckitt Benckiser Healthcare (UK) Ltd v GlaxoSmithKline Australia Pty Ltd (No 2) [2013] FCA 736.

The FCAFC found that the alternative syringe did not infringe the patent of Reckitt Benckiser Healthcare (UK) Ltd.

The Court also found that the balance of convenience tilted in favour of GSK, as there was no reasonable option available in supplying the apparatus without the bottle neck liner and that there was a strong public interest in consumers having the option to choose between Children’s Panadol 1-5 years with a safe dispensing system and other paediatric analgesics.

TPP and digital romanticism

As I prepare for a consultation - or 'consultation' - about the controversial TransPacific Partnership Agreement (aka TPP or TPPA or TRIPsplus or TRIP++) it's interesting to see the core paras on the TPP in the latest DFAT annual report [PDF] -

Trans-Pacific Partnership Agreement Progress in the negotiations accelerated in 2012–13 with TPP trade ministers confirming the commitment to finalise a comprehensive, regional agreement by the end of 2013, if possible. Through the five negotiating rounds, the department led Australia’s contribution to the conclusion of a number of chapters setting out disciplines for TPP parties. 

The TPP has the potential to eliminate tariffs and other barriers to trade in key Australian export markets and streamline trade processes across the TPP membership, including through adoption of common rules of origin and reduction of production costs. During the year, the department pressed for unprecedented levels of services, investment and government procurement commitments from TPP partners and drew attention to greater opportunities for facilitating trade via electronic transmission. 

In April 2013, current parties to the agreement—Australia, Brunei, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam—agreed by consensus to admit Japan to the initiative. As Australia’s second largest export market, Japan’s entry is important and now means that the TPP countries will account for 38 per cent of global GDP. The department conducted domestic consultations on the TPP negotiations, holding stakeholder briefings in mainland capital cities and in the margins of negotiating rounds.

And that, folks, is where it ends.

I attended the public consultation in Sydney last week, where regrettably we received little more information than an indication of the TPP chapter headings and an indication that the Government expects to have negotiations completed by the end of this year, presumably followed at short order by a brisk scrutiny by a Senate committee before the Agreement becomes law. It is unlikely that the scrutiny will result in unwinding of particular features of the agreement.

The report features a nice photo of happy TPP negotiators, glossed thus -

The DFAT TPP team is a group of highly skilled and experienced negotiators from the department’s Office of Trade Negotiations. They work with experts from other Australian government agencies on what is a comprehensive ‘21st century’ trade agreement, with 29 chapters under negotiation. The 11 countries currently participating in the TPP negotiations are of differing sizes and levels of economic development, including the United States, Vietnam and Brunei. This makes navigating the dynamic and complex negotiating environment an enormous challenge. Japan’s entry to the negotiations in July 2013 will bring membership to 12 countries and represent over 34 per cent of Australia’s total two-way trade. Overcoming the sensitivities of individual countries and ensuring a strong outcome for Australia requires an in-depth knowledge of both the issues under negotiation and the countries at the table.

Lead negotiators draw on their trade, legal and economic expertise and their backgrounds in the department, as well as experience in the other government agencies and the private sector. The TPP team works closely with posts and holds regular public and private consultations with business, state government and other stakeholders across the country. 

Participating countries in the negotiations take it in turns to host meetings that involve over 500 delegates participating in as many as 12 parallel negotiating sessions over a two-week period. A unique feature is that the negotiators take up to a day out of their schedule to engage with business and other stakeholders to listen to their views on the content of the agreement.

There's a different perspective in 'Counter-commodification: The economy of contribution in the digital commons' by Andreas Wittel in (2013) 19(4) Culture and Organization 314.

Wittel states that

This is an article about digital production and the crisis of capitalism. It is about production in the digital commons and its implications for the building of alternatives to a commodified world. As digital production is at the very heart of cognitive capitalism, the digital commons is not just any other disruption of the process of commodification. This is the field of a fierce struggle over the future of the Internet and the future of capitalism itself. It is potentially the moment which moves back the frontiers of measurement, value and quantification towards qualities, values and an expansion of the gift economy. For this potential to unfold, it is vital that those who are giving, sharing, and contributing for the benefit of humanity are supported by global policies that enable them to do so. They have to be supported because their gifts are not based on reciprocity and the obligation to return the gift. This is an argument about the future of digital labour. The article concludes that this could be achieved through a global basic income scheme

Property and Flourishing

'Ownership and Obligations: The Human Flourishing Theory of Property' by Gregory S. Alexander in (2013) 43 Hong Kong Law Journal 451 comments

The thesis of this brief paper is straightforward, although not uncontroversial: The moral foundation of property, both as a concept and as an institution, is human flourishing. In the remainder of my remarks I will explain what I mean by human flourishing, as I use the term, and I will distinguish human flourishing from welfare as that term is commonly used today by economists and legal analysts. I will then briefly illustrate the approach through an example. 

Private property ordinarily triggers notions of individual rights, not social obligations. After all, the core function of private property, at least according to conventional lore, is to insulate individuals from the demands of society both in its organised political form and its non-political collective form. Of course, the common law has long recognised limits on the exercise of property rights, limits that grow out of the needs of others in cases of conflicting land uses. The obvious example is the common law of nuisance, which courts developed using the ancient maxim sic utere tuo ut alienum non laedas (“use your land in such a way as not to injure the land of others”) as their guiding principle. But such limits on property rights are considered the exception, not the rule, the periphery rather than the core. The core image of property rights, in the minds of many people, is that the owner has a right to exclude others and owes no further obligation to them. On this view trespass is the paradigmatic cause of action in the law of property. Hence if another intentionally commits trespass upon my land after I have refused permission to pass across it, the trespasser is properly liable for punitive damages even though only trivial damage was done to my property. 

That image is highly misleading. The right to exclude itself, thought by many to be the most important twig in the so-called bundle of rights, is subject to many exceptions, both at common law and by virtue of statutory or constitutional provisions. For example, the common law requires landowners to permit police to enter privately owned land to prevent a crime from being committed or to make an arrest. 

More generally, property owners owe far more responsibilities to others, both owners and non-owners, than the conventional imagery of property rights suggests. Property rights are inherently relational, and because of this characteristic, owners necessarily owe obligations to others. But the responsibility, or obligation, dimension of private ownership has been sorely under-theorised. 

In this brief paper I shall outline a theory of property that emphasises the obligations that owners owe to others, specifically, to certain members of the various communities to which they belong. These obligations vary in different contexts and at different times. As society has grown more complex and more interdependent, the obligations have thickened. Capturing all of these obligations under one theoretical umbrella, one may speak of a social-obligation norm that the law does and should impose on owners. This norm, I want to stress, in inherent in the concept of ownership itself. This is an important point because it means that when the law, whether by way of statutes, administrative action, or judicial decisions, announces some restriction on an owner’s use of her land or building, insofar as that announcement restates what is already part of the social-obligation norm, it is simply a legal recognition of a restriction that is inherent in the concept of ownership rather than being externally imposed and engrafted upon the owner’s bundle of right. 

The basis of this norm is human flourishing. The social-obligation theory builds on the claim that the basic purpose of property is to enable individual to achieve human flourishing. The theory further builds on Amartya Sen’s famous insight that flourishing is a matter of what a person is able to do rather than what he has. That is, the well-lived life should be measured by a person’s capabilities rather than by a person’s possession or by the satisfaction of his subjective preferences. Before developing the social obligation of ownership, I must first explain the foundational norm of human flourishing a bit further.

Nudges and Do Not Track

'Why Not Privacy by Default?' by Lauren E. Willis comments

We live in a Track-Me world, one from which opting out is often not possible. Firms collect reams of data about all of us, quietly tracking our mobile devices, our web surfing, and our email for marketing, pricing, product development, and other purposes. Most consumers both oppose tracking and want the benefits tracking can provide. In response, policymakers have proposed that consumers be given significant control over when, how, and by whom they are tracked through a system of defaults (i.e., "Track-Me" or "Do-Not-Track") from which consumers can opt out. 

The use of a default scheme is premised on three assumptions. First, that for consumers with weak or conflicted preferences, any default chosen will be "sticky," meaning that more consumers will stay in the default position than would choose it if an affirmative action were required to reach the position. Second, that those consumers with a fairly strong preference for the opt-out position — and only those consumers — will opt out. Third, that where firms oppose the default position, they will be forced to explain it in the course of trying to convince consumers to opt out, resulting in well-informed decisions by consumers. 

This article demonstrates that for tracking defaults, these assumptions may not consistently hold. Past experience with the use of defaults in policymaking teaches that Track-Me defaults are likely to be too sticky, Do-Not-Track defaults are likely to be too slippery, and neither are likely to be information-forcing. 

These conclusions should inform the "Do-Not-Track" policy discussions actively taking place in the U.S., in the E.U., and at the World Wide Web Consortium. They also cast doubt on the privacy and behavioral economics literatures that advocate the use of "nudges" to improve consumer decisions about privacy.

China-Australia FDI

Two papers on Australia, China and foreign direct investment.

'Navigating Adroitly: China's Interaction with the Global Trade, Investment and Financial Regimes' (UNSW Law Research Paper No. 2013-68) by Ross P Buckley and Weihuan Zhou explores

who has most skilfully used the rules of the global economic regime — China, or the nations whose companies invest in her? We first analyse China’s adoption and implementation of WTO commitments in the auto industry and the cultural goods sector. We then consider the liberalisation of China’s foreign direct investment (FDI) scheme and China’s use of FDI as a vehicle to acquire foreign technology, while also restricting FDI to protect the domestic banking sector. Finally, we analyse China’s engagement with the international financial regime, particularly its exchange rate policy, and whether this too represents a strategic implementation of reforms. Based on these four case studies, we conclude that while the West initially dictated the terms of China’s interaction with the global economic system, over time China has deftly engaged with global rules so as to promote its own national interests. 

 'China and Foreign Direct Investment: Does Distance Lend Enchantment to the View?' by Leon Trakman in (2013) Chinese Journal of Comparative Law 1 focuses

on international investment law relating to China in general and to investor-state arbitration in particular. It has six key goals. First, it explores the extent to which China is subject to investor-state arbitration claims by inbound investors. Second, it considers the extent to which China’s investment treaty partners are involved in claims brought by outbound Chinese investors. Third, it discusses the significance of these two kinds of claims. Fourth, it evaluates the paucity of foreign direct investor claims against China, contrasted with growing claims by outbound Chinese investors against China’s treaty partner states. Fifth, it evaluates the assertion that China has failed to adequately liberalize its investment treaties and practices and has accorded limited protection to foreign direct investors. In responding to this critique, it emphasizes China’s history as a developing state with a struggling economy, its past dependence on Western colonial powers and its limited economic capacity, and its recent meteoric rise to being the largest inbound investor destination and the fifth largest outbound investor state. Sixth, the article critiques the assertion that China ought to liberalize its investment law and practice in the tradition of the West. In exploring this issue, it notes that the self-same Western liberal powers that promoted investment liberalization in past decades have increasingly limited such liberalization to protect their vulnerable economics from foreign investment. The article also questions whether China ought to be bound by free market norms that suited the West in the past century but may not suit China in the twenty-first century.