Repair Right draft report

The Productivity Commission's draft report on the Right To Repair offers the following key points 

• This report finds that there are barriers to repair for some products and that there is scope to reduce these barriers. The proposed reforms would improve consumers’ right to repair, without the uncertainty and costs associated with more forceful policy interventions. 

• A ‘right to repair’ is the ability of consumers to have their products repaired at a competitive price using a repairer of their choice. Realising this aspiration in a practical way involves a range of policies, including consumer and competition law, intellectual property protections, product design and labelling standards, and environmental and resource management. 

• Consumers already have considerable rights to have their products repaired, replaced or refunded under guarantees in Australian Consumer Law. These guarantees are comprehensive and generally work well, but they could be improved by:

– the Australian Competition and Consumer Commission (ACCC) providing guidance on the reasonable period of product durability for common household products, so that consumers and manufacturers can better understand when consumer guarantees apply 

– providing regulators with alternative dispute resolution processes to assist consumers to resolve their claims, and enabling designated consumer groups to lodge ‘super complaints’ about consumer guarantees, with these fast tracked by the ACCC 

– the inclusion of text in manufacturer warranties that prominently states that consumers are not required to use the repairers or spare parts specified by the product’s manufacturer to access their rights to a guarantee under consumer law. 

• The Commission is seeking further evidence on other reforms that could help consumers obtain repairs and make more informed purchase choices. These potential reforms involve:

– requiring manufacturers to provide software updates for a reasonable period 

– amending copyright laws to enable third party repairers to copy and share repair manuals, and access repair data hidden behind digital locks 

– prohibiting manufacturer warranties from being voided if consumers do not use the repairers and spare parts specified by the manufacturer 

– developing a product durability or repairability labelling scheme to help consumers identify products that best meet their needs. 

• There is also scope to improve the way products are managed when they become ‘e waste’ by amending regulated product stewardship schemes to remove current incentives that focus solely on product recycling, rather than repair and reuse. Global positioning system (GPS) trackers should also be used to improve monitoring of e waste. 

• The Commission is seeking evidence on the net benefits of a more extensive right to repair policy through a ‘positive obligation’ that would require manufacturers to provide third party access to repair information and supplies.

– The Commission’s preliminary analysis suggests that restrictions on third party repair supplies could be harming consumers in repair markets for agricultural machinery and mobile phones and tablets. However, the evidence base on the magnitude of repair barriers in these markets is patchy and largely anecdotal, preventing a rigorous assessment of whether additional policies would provide net benefits to the community. 

– At a minimum, a review of the policy landscape in the coming years would be warranted, supported by an evaluation of the proposed mandatory scheme for the sharing of motor vehicle service and repair information, once it has been in operation for at least three years. 

 The Commission notes that 

The ‘right to repair’ is a multifaceted policy issue 

There are growing concerns in Australia and overseas that repairs of consumer products are becoming progressively more difficult (sometimes impossible), resulting in costly and wasteful outcomes for consumers and broader society. The difficulty of repair, at least in part, reflects growth in the number of products that incorporate sophisticated technology. It is now commonplace for cars, fridges, and even coffee machines to have embedded software in them. These technological advances have provided many benefits to consumers, but can also increase the cost and complexity of repairs. The rise in tech enabled products means that much of the information required to diagnose a fault is digital, embedded into the product itself and held behind ‘digital locks’, requiring passwords or special tools to bypass. Increasing product complexity means that consumers often have to rely on the manufacturer of the product (or their authorised repairer) to fix or maintain their product. Manufacturers are typically the main and sometimes only provider of repairs for their products. This has contributed to widespread concerns that some manufacturers are using their dominant position in repair markets to restrict competition. Many participants made claims of manufacturers refusing to supply independent repairers with the parts, tools and information they need to do repairs. Relatedly, there are concerns that the lifespans of everyday products are becoming unnecessarily short and that products are being discarded prematurely, contributing to wasted resources and the proliferation of ‘e waste’. Some groups also claim that manufacturers are intentionally shortening product life through software updates and design strategies that force consumers into buying new products (‘planned obsolescence’). Such claims are often made with respect to consumer electronics, particularly smart phones. These concerns have led to calls for government to introduce a ‘right to repair’. The ACT Minister for Consumer Affairs, Shane Rattenbury, noted that ‘the right to repair movement has been gaining momentum around the world. Legislative reforms are being introduced and strategies are being prepared.’ Although there is no universal definition of a right to repair (box 1), in essence it is about the ability of consumers to have their products repaired at a competitive price using a repairer of their choice. While on face value this is a desirable objective, it is not immediately clear what government should do to enable such a right. This is because no single policy alone enables a right to repair; a broad range of policies are involved, covering consumer and competition law, intellectual property protections, product design and labelling standards, and environmental and resource management. Implementing or amending policies in any of these areas requires careful consideration, balancing the (sometimes competing) interests of consumers, manufacturers, suppliers and repairers. In weighing up the costs and benefits of potential right to repair reforms, the Commission has been mindful that it is not always preferable or cost effective for consumers to repair their products, or to keep them going for as long as possible. Consumers make choices to repair their products by weighing up the cost and convenience of repair, their preferences for newer products, and concerns about the environmental impacts of their consumption choices. Further, it is not reasonable or efficient to require a manufacturer to support a product for an indefinite amount of time; at some point it becomes prohibitively costly for manufacturers to repair older products. Thus, the inquiry’s focus has been on identifying if there are any unnecessary barriers to repair that are leading to adverse outcomes for the community as a whole, and if so, what policy responses may be needed. 

There was no single view of a ‘right to repair’ presented in submissions to this inquiry. Participants most commonly associated a right to repair with: • independent repairers and consumers having access to the necessary parts, information and equipment needed to repair products, including access to embedded software in products • consumers having the choice of repairer, with price competition in the repair market • consumers being able to buy products that are repairable and durable • repair/reuse of products to reduce e waste and encourage the growth of the circular economy. These differing views on what a right to repair entails were reflected in the broad range of policy proposals that were put forward, which included: legal obligations on manufacturers to provide access to repair inputs; strengthening of the consumer guarantees under Australian Consumer Law; changes to intellectual property protections to facilitate sharing of repair information and access to embedded software; introduction of unfair conduct provisions to address behaviours of manufacturers; and use of minimum product standards and labelling. A wide range of reforms have also been connected to right to repair policies around the world. Many of these changes have been concentrated in the United States and the European Union. • In the United States, much of the debate has focused on consumer and competition issues, particularly access to necessary spare parts, tools and information, and the tension this can create with intellectual property rights. The term ‘right to repair’ appears to have originated from legislation in Massachusetts requiring motor vehicle manufacturers to provide access to diagnostic and repair information. An industry agreement then led to nationwide adoption of this approach. Some US states have also proposed broader right to repair legislation for digital products, such as consumer electronics and agricultural machinery. • In Europe, a right to repair is more commonly associated with product design and resource management, and is generally pursued through EU environmental regulations. For example, household appliances are required to have spare parts available to professional repairers for up to ten years, as well as repair and maintenance information. The European Union has also had similar requirements to the Massachusetts ‘right to repair’ law for motor vehicles since 2010. Overall, this draft report finds that there are barriers to repair for some products that policy reforms could reduce. The proposed reforms fall into five broad categories that collectively support consumers to repair their products (where they choose to do so) (figure 1). In some areas, evidence on the materiality of barriers to repair is lacking, so the draft report also contains a number of requests for further information and feedback to inform the final report.

The Commission offers a suite of Draft findings, recommendations and information requests 

The Australian repair sector 

Draft Finding 2.1 THE AUSTRALIAN REPAIR SECTOR 

A consumer’s decision to repair or replace a broken product is principally driven by price. Convenience, product repairability and consumer preferences for up-to-date products can also be important. The repair sector accounts for about one per cent of all business revenue in Australia and has grown modestly over the past decade. • Most repair activity (revenue, number of businesses and workers) comes from industries with more expensive products, such as motor vehicles and machinery, that require regular maintenance and where repair is often more cost-effective than replacement. • There was less activity in repair industries for less expensive products, such as electronics and appliances, where replacement tends to be more attractive. This is likely due to the relatively low and falling prices of these products over time, rapid technological development, and consumer preferences for new and up-to-date products. 

Existing consumer rights under consumer law 

Draft Finding 3.1 SCOPE TO IMPROVE THE APPLICATION OF CONSUMER GUARANTEES 

The Australian Consumer Law provides consumers with considerable legislative rights to obtain a remedy (repair, replacement or refund) for defective products through consumer guarantees. The consumer guarantees are comprehensive and operate reasonably well but there is scope to enhance consumers’ ability to exercise their rights when their product breaks or is faulty — by providing guidance on the expected length of product durability and better processes for resolving claims. 

Draft Recommendation 3.1 GUIDANCE ON REASONABLE DURABILITY OF PRODUCTS 

 

The Australian Competition and Consumer Commission (ACCC) should develop and publish estimates of the minimum expected durability for products within major categories of common household products. The estimates would be a guide only to support application of the acceptable quality consumer guarantee in section 54 of the Australian Consumer Law. It could use ranges to take into account lower and higher value products in each category. The ACCC guidance should be developed in consultation with State and Territory consumer law regulators, consumer groups and business groups representing product suppliers and manufacturers, and should be updated over time.  

 

Draft Recommendation 3.2 POWERS FOR REGULATORS TO ENFORCE GUARANTEES 

State and Territory Governments should introduce alternative dispute resolution mechanisms to better resolve complaints about the consumer guarantees, such as compulsory conciliation or direction powers (as are used in South Australia and New South Wales). To inform the most effective design and use of any alternative dispute resolution mechanism, appropriate cost-benefit analysis and sufficient regulator resourcing would be required prior to implementation. 

Draft Recommendation 3.3 ENABLING A SUPER COMPLAINTS PROCESS 

The Australian Government should enable designated consumer groups to lodge ‘super complaints’ on systemic issues associated with access to consumer guarantees, with the complaints to be fast tracked and responded to by the Australian Competition and Consumer Commission (ACCC). The Australian Government should design the super complaints system in consultation with the ACCC, relevant State and Territory regulators and consumer groups. The system should be underpinned by sound operational principles — including criteria for the assignment (or removal) of designated consumer bodies, evidentiary requirements to support a complaint, and the process and time period by which the ACCC should respond. 

Info Request 3.1 REPAIR FACILITIES, SPARE PARTS AND SOFTWARE UPDATES 

To better understand whether consumers have reasonable access to repair facilities, spare parts and software updates, the Commission is seeking further information on: • whether consumers have faced difficulties accessing spare parts or repair facilities under guarantees when their product breaks or develops a fault, including specific examples of the type and age of the product, and the costs incurred by the consumer • costs and benefits of businesses being required to hold physical spare parts or operate repair facilities for fixed periods of time • whether consumers are experiencing problems using their products due to a software fault or lack of software updates, including specific examples where manufacturers have not addressed the problem because of claims that it is not covered by consumer guarantees • the costs and benefits of requiring that software updates be provided by manufacturers for a reasonable period of time after the product has been purchased. 

Competition in repair markets 

Draft Finding 4.2 LIMITS ON THIRD-PARTY ACCESS TO REPAIR SUPPLIES 

Available evidence does not point to a systemic competition problem in repair markets. However, for some products, anecdotal evidence suggests that manufacturers are limiting third party access to repair supplies (such as spare parts, repair information and tools). While manufacturers often justify these limits as a way to safeguard against risks from poor quality repair (such as to safety and security), these risks can be overstated. The Commission’s preliminary assessment indicates that limits to repair supplies could be leading to consumer harm in some repair markets. • Agricultural machinery — manufacturers have an incentive to limit third-party access to repair supplies to increase repair prices because these markets are large relative to the market for new machinery. Competition in the market for new machinery may be insufficient to compensate consumers through lower product prices. Further, consumers can be exposed to large financial risks if they are unable to access timely repair and face a high cost of switching to alternative products. • Mobile phones and tablets — there is a high concentration of manufacturers in these markets, suggesting competition in the market for new devices may not be strong enough to compensate consumers through lower product prices. Some consumers may also be locked in to using authorised repairers as they cannot easily switch to alternative brands (for example, due to low product compatibility or the loss of content). While any harm may be small per consumer, it could add up to significant harm across the economy. 

Info Request 4.1 CONSUMER HARM FROM LIMITS ON ACCESS TO REPAIR SUPPLIES 

The Commission is seeking feedback and evidence on its preliminary assessment of consumer harm (chapter 4) in repair markets for agricultural machinery, mobile phones and tablets. In particular: • is there any evidence of systematic differences in quality, safety or security between authorised and third-party repairers? If so, what is the cost to manufacturers (for example, damaged brand reputation, determining the cause of a fault, or other liability issues)? • what is the size of the repair market compared to the primary market? What proportion of repairs are conducted by authorised repairers? • how difficult is it for consumers to estimate the lifecycle costs of these products at the time of purchase? • to what extent are consumers locked in to using authorised repairers (for example, can consumers easily switch to other products or non manufacturer repair supplies)? • is competition in the primary market sufficient to compensate consumers for any harm in the repair market (as indicated by low concentration and/or barriers to entry)? • to what extent are consumers harmed by less choice, high transportation or travel costs, delays, and inconvenience, particularly in regional and remote locations? The Commission is also interested in evidence of where there is substantial consumer harm in other repair markets, including but not limited to medical equipment and high end watches (which were raised as areas of concern by participants to this inquiry) as well as construction machinery. 

Draft Finding 4.3 COMPETITION PROVISIONS ARE AVAILABLE TO ADDRESS REPAIR ISSUES 

Although infrequently relied upon, there are existing remedies available under Part IV of the Competition and Consumer Act 2010 to address anti-competitive behaviours in repair markets, such as provisions to prevent the misuse of market power, exclusive dealing or anti-competitive agreements. Based on the evidence presented to this inquiry, the Commission does not see a strong case for changes to these provisions to address specific issues in repair markets (such as refusals to deal or tied servicing arrangements), particularly as the remedies have had recent changes that are yet to be fully tested in court. 

Info Request 4.2 A POSITIVE OBLIGATION TO PROVIDE ACCESS TO REPAIR SUPPLIES 

The Commission is seeking feedback and evidence on the costs and benefits of different approaches to designing and implementing a positive obligation on original equipment manufacturers to provide access to repair supplies to third-party repairers. In particular: • evidence on the effectiveness of positive obligation schemes overseas (such as motor vehicle repair information schemes in the United States and Europe, and spare parts requirements in Europe) • should a positive obligation be applied across all product markets or targeted towards particular product markets? If so, which product markets, and why? • should a positive obligation mandate access to all repair supplies or a subset of repair supplies (such as repair information, spare parts, or diagnostic tools)? • how should a positive obligation be implemented and enforced in practice? 

Draft Recommendation 4.1 EVALUATE MOTOR VEHICLE INFORMATION SHARING SCHEME 

The Australian Government should evaluate the Motor Vehicle Service and Repair Information Sharing Scheme that is designed to improve access to repair information, once it has been in operation for three years. The evaluation should focus on compliance with the scheme, the costs imposed on manufacturers, the benefits to independent repairers and consumers, and any implementation issues that require changes to the scheme, including consideration of whether the scheme should continue. 

Manufacturer warranties and their influence on repair 

Draft Finding 4.1 VOIDING WARRANTIES FROM INDEPENDENT REPAIR 

Terms within manufacturer warranties that automatically void such warranties if non authorised repairs are undertaken (including ‘warranty void if removed’ stickers) can deter consumers from using third party repair during the warranty period. The Commission found examples of such terms in warranties for mobile phones, gaming consoles, washing machines and high-end watches. Even where these terms do not exist, many consumers appear to be under the mistaken belief that their warranties will be void if they undertake third party repair. They may also not be aware that consumer guarantees (that they are entitled to under the Australian Consumer Law) cannot be displaced by terms in warranties and are not extinguished due to independent repairs. 

Draft Recommendation  4.2 ADDITIONAL MANDATORY WARRANTY TEXT 

The Australian Government should amend r. 90 of the Competition and Consumer Regulations 2010, to require manufacturer warranties (‘warranties against defect’) on goods to include text (located in a prominent position in the warranty) stating that entitlements to consumer guarantees under the Australian Consumer Law do not require consumers to use authorised repair services or spare parts. 

Info Request 4.3 A PROHIBITION ON WARRANTY VOID TERMS 

The Commission is considering recommending provisions similar to the Magnuson-Moss Warranty Act in the United States, which prohibit manufacturer warranties from containing terms that require consumers to use authorised repair services or parts to keep their warranty coverage. We are seeking feedback and evidence on the costs and benefits of this approach. In particular: • would manufacturers respond by increasing product prices or making their warranties less generous? Would this latter change have any practical impact on consumers given they are also covered for defects under consumer guarantees? • how could such a prohibition be designed and communicated to ensure that consumers are aware that voiding terms are now prohibited? • how could the prohibition be designed to limit manufacturer liability for damage beyond their control? For example, the Magnuson-Moss Warranty Act permits warranty terms that limit manufacturer liability for damage caused by unauthorised repairs or parts, if they can demonstrate third-party fault. In a similar vein, should terms within end-user license agreements that purport to restrict repair related activities (discouraging third-party repair) also be prohibited? Is a disclosure as proposed under draft recommendation 4.2 sufficient or is a legislative prohibition required? 

Intellectual property protections and repair 

Draft Finding 5.1 INTELLECTUAL PROPERTY-RELATED BARRIERS TO REPAIR 

In Australia, evidence on the extent to which intellectual property protections restrict repair is patchy and largely anecdotal. Notwithstanding this, copyright laws that prevent third-party repairers from accessing repair information (such as repair manuals and diagnostic data) appear to be one of the more significant intellectual property-related barriers to repair. 

Draft Finding 5.2 OPTIONS TO IMPROVE ACCESS TO REPAIR INFORMATION 

There are two main options to amend intellectual property protections to improve access to repair information. • Amend the Copyright Act 1968 to allow for the reproduction and sharing of repair information, through the introduction of a fair use exception or a repair-specific fair dealing exception. • Amend the Copyright Act 1968 to allow repairers to legally procure tools required to access repair information protected by technological protection measures (TPMs), such as digital locks. This may also require the Australian Government to clarify the scope and intent of the existing (related) exception for circumventing TPMs for the purpose of repair. To reduce the risk of manufacturers using contractual arrangements (such as confidentiality agreements) to ‘override’ the operation of any such reforms, it may also be beneficial to amend the Copyright Act 1968 to prohibit the use of contract terms that restrict repair-related activities otherwise permitted under copyright law. 

Info Request 5.1 IMPROVING ACCESS TO REPAIR INFORMATION 

The Commission is considering recommending amendments to intellectual property laws to improve access to repair information through the options outlined in draft finding 5.2. It is seeking views on each option, in particular: • whether the proposed reform options will assist repairers in accessing repair information, and therefore facilitate third-party repair • what types of contractual arrangements that could override such reforms are most likely to be of concern • the costs, benefits and risks of pursuing each option. 

Product obsolescence and e-waste 

Draft Finding 6.1 PREMATURE OBSOLESCENCE IN AUSTRALIA 

There is growing community concern in Australia and overseas that product lifespans are becoming unnecessarily short (premature obsolescence), with detrimental impacts on consumers and the environment. Premature obsolescence is unlikely to be a significant problem in Australia. • There is little evidence that manufacturers are intentionally reducing product lifespans. • Consumers often choose to upgrade their products well before they come to the end of their useful life or break. Additional policies to prevent premature product obsolescence (in the form of product standards or expanded consumer protection laws to address planned obsolescence) would be unlikely to have net benefits to the community. Further views and evidence (in response to information request 6.1) will help clarify the potential net benefits of a product labelling scheme in Australia. 

Info Request 6.1 PRODUCT LABELLING SCHEME 

The Commission is seeking further evidence on the significance of information gaps that might contribute to premature obsolescence, including: • the specific type of information gaps (such as on product repairability, durability, or the environmental impacts of products) that prevent consumers from making informed purchase decisions • the significance of these information gaps (for example, the cost to consumers from obtaining information independently) • evidence that these gaps are undermining the efficient operation of the market (for example, evidence that consumers are systematically overestimating product durability and repairability when making purchase decisions) • whether these information gaps affect specific types of products more than others. The Commission is also seeking input on how government and industry might work together to design a product labelling scheme to maximise the net benefits to consumers and the community. 

Draft Finding 7.1 E-WASTE IS A SMALL BUT GROWING WASTE STREAM 

Annual e-waste generation is growing relatively quickly (more than doubling by weight between 2009-10 and 2018-19), but is a small share (less than one per cent by weight) of total waste generated in Australia. Information on e-waste is limited, but available data suggests that: • the main sources of e-waste (by weight) over the past decade were tools, washing machines, air conditioners, small domestic appliances (such as adapters, irons and clocks), cooking appliances (such as food processors and grills), and cathode ray tube televisions • solar panels and lithium-ion batteries are expected to generate growing quantities of e-waste over the coming decade. Although e‑waste contains some hazardous materials that can be harmful to the environment and human health, Australia’s landfill management systems and regulations are generally effective in substantially reducing these impacts (particularly in newer and larger landfills). 

Draft Recommendation 7.1 IMPROVING THE MANAGEMENT OF E-WASTE 

The Australian Government should amend the National Television and Computer Recycling Scheme (NTCRS) to allow e-waste products that have been repaired or reused by co regulatory bodies to be counted towards annual scheme targets. The exact design features that need to be incorporated into the NTCRS to enable reuse options should be determined in consultation with the scheme’s liable parties and co regulatory bodies. The changes should be designed in a way that minimise any adverse incentives, including risks from: • double-counting, where the same products cycle through the scheme without legitimately being reused • unlawful exports for reuse that result in more products in the informal recycling sector, generating worse health and environmental outcomes. Any future co-regulatory or mandatory product stewardship schemes should also include repair and reuse as options within their targets. 

Draft Recommendation 7.2 USE OF GPS TRACKERS TO MONITOR E-WASTE EXPORTS 

The Australian Government should amend the monitoring arrangements for the National Television and Computer Recycling Scheme so that global positioning system (GPS) trackers can be used to determine the end of life location of e waste collected for recycling as part of the scheme. This should be done using a risk based sampling approach that focuses on the types of products and supply chains that present the highest risk of unlawful exports or disposal of e waste.

Cyberspace Regulation

'A Genealogy of Digital Platform Regulation' by Elettra Bietti  comments 

In this Chapter, I connect two parallel genealogies into one larger story. I develop a genealogy of the disagreements that have emerged around the notion of digital platform power and the conflicting regulatory proposals these disagreements have led to. I do so by tracing these debates’ roots in earlier 1990s debates about Internet regulation: contestations around the meaning of freedom, law, power and democracy in digital spaces. In particular, I isolate three paradigmatic views, or moments, in early Internet regulation discourse. First, anarcho-libertarian views portray the Internet as an autonomous and utopian sphere of free social interaction immune from external interferences from the state or the law. Second, liberal views include a number of different perspectives. Most notably, Joel Reidenberg and Lawrence Lessig developed the idea that code is law, that law and behavior-modifying regulation exist in digital environments, but that they manifest in different ways, most effectively through architectural and material means. Finally, a small group of critical thinkers questioned prevalent (anarcho-libertarian and liberal) understandings of cyberspace, showing that many of these views eluded the way power and commercial logics manifested and in practice governed the Internet. 

I ask how these three views or moments have influenced and led to a symmetric spectrum of views on how to regulate digital platforms, their power and how to promote freedom and emancipation in digital spaces. The move from an Internet of networks to an Internet of platforms represents a significant shift: from a hybrid decentralized environment where freedom seemed the norm, to a centralized and privately controlled space where the default is enclosure and digital life is dependent on a few commercial actors. In spite of this shift, the three paradigmatic views I identify with regard to platform governance remain surprisingly aligned with earlier 1990s visions. In the digital platform context, anarcho-libertarianism has retreated and morphed into a libertarian aversion to regulation as well as a series of market optimist perspectives; liberal views continue to expand, forming a vast liberal and neoliberal terrain of contestation that has absorbed large parts of anarcho-libertarian ideologies and critical tendencies in directions that include proposals for platform self-regulation, fiduciary obligations, data protection, competition and utility regulation. Finally, the terrain of critique remains fertile and is key to advancing the overall discourse on platform governance, with questions of power and surveillance capitalism now viewed as central. 

In mapping these perspectives, my method is genealogical. The term “genealogy” was first used by Friedrich Nietzsche in the sense I intend it here and was subsequently borrowed and re-adapted by a number of critical scholars and philosophers, importantly Michel Foucault. I adopt a genealogical method to unveil a story about the ways in which conceptions of freedom, law and power have evolved and mutated in response to new infrastructural and material digital conditions. Complacency about freedom and faith in competitive marketplaces and individual preferences has significantly conditioned and allowed the concentrated arbitrary and opaque manifestations of digital power in existence today. To avoid similar trajectories in the future, a genealogical perspective is in order.

Genealogy

'Traditional Laws Meet Emerging Biotechnologies: The Impact of Genetic Genealogy on Indigenous Land Title in Australia' by Elizabeth Watt, Emma Kowal, and Carmen Cummings in (2020) 79(2) Human Organization comments 

The increasing popularity and availability of genetic testing has the potential to play into debates surrounding forms of Aboriginal and Torres Strait Islander land ownership known as “native title.” This paper draws on research with applied anthropologists working in native title, and a review of descriptions of native title holders in existing determinations, to address three key questions: Are native title holders and claimants interested in using genetic genealogy for claiming native title or resolving membership disputes? If so, can this biotechnology offer them the kind of information they seek? And finally, does the legal framework allow or support its use for these purposes? Our findings highlight the importance of disseminating current information about genetic genealogy among Indigenous Australians and having frank conversations about the opportunities and limits of genetic technologies in this context. 

 The authors state 

On November 8, 2017, the second author of this paper received an unexpected email. It was sent by a lawyer representing three Indigenous citizens of the Australian state of Queensland. They had been dismissed from their roles as cultural officers in the Barada Barna Indigenous Corporation (BBIC) a year earlier. All three were members of one family, who’d been active in the Barada Barna people’s campaign to claim their ancestral lands under the Native Title Act, 1993 (Cth). Shortly after the claim succeeded in 2016, the board of BBIC, the Registered Native Title Body Corporate (RNTBC) set up to hold and manage the group’s native title, suspended their family’s membership — claiming they’d failed to provide evidence of their biological connection to the Barada Barna people. Because group membership was an “inherent requirement” of the cultural officer role, the three were also dismissed from their positions (Roos v. Winnaa Pty Ltd, FWC 3568 [2018]). 

The key questions in the Fair Work Commission case that followed revolved around the origins of the aggrieved family’s ancestor, Kitchener Brown. Authorities had removed Kitchener from Barada Barna land in 1908, along with Barada Barna children that he referred to as his “brothers.” A century later, the descendants of these brothers oversaw the return of Kitchener’s remains to Barada Barna land (Hamilton 2008). However, following the successful native title claim, these presumed relatives changed their position—arguing that Kitchener was in fact an adopted, rather than biological, broth- er. This means Kitchener’s ancestors did not meet the strict RNTBC membership rules, based on the group’s description in their native title determination. To prove otherwise, the Board members had called on Kitchener’s descendants to take DNA tests. They refused, stating the request was “offensive and culturally inappropriate” (personal communication). 

This is where the second author, a medical and cultural anthropologist who has researched the use of genetics in Aboriginal communities since 2007, came in. She was asked to provide an expert testimony about the cultural basis of this re- fusal and whether it was theoretically possible to demonstrate a biological connection between Kitchener’s descendants and their presumed Barada Barna relatives through DNA testing. Ultimately, the testimony was not decisive in the case. The Commissioners found in favor of Kitchener’s family, arguing that the RNTBC did not truly believe they were not rightful members at the time of their dismissal, as their membership had been suspended but not cancelled (Fair Work Commission v. Winnaa Pty Ltd, FWC 3568, C2017/371 [2018]). But the request for expert testimony itself raises broader questions. While there have been informal calls by Aboriginal people to “prove” their identity through DNA tests (Bevilacqua 2002; Noble 2015; Wood 2002), this is the first time (to our knowledge) that such a request has been recorded in a legal case. Is this a sign of things to come? Will the increased availability of genetic ancestry testing in Australia affect Aboriginal people’s access to native title rights in the future? 

In this paper, we address these two broad questions through three smaller ones: Are native title holders and claimants interested in using genetic genealogy for claiming native title or resolving membership disputes? If so, can this biotechnology offer them the kind of information they seek? And does the legal framework allow or support its use for these purposes? To answer these social, scientific, and legal questions, we draw on two primary data sources: a survey of forty anthropologists working in native title and a review of descriptions of native title holders—descriptions that provide the basis for RNTBC membership rules—in 213 of the existing 347 native title determinations. 

Combining and supplementing these two datasets, we offer some insight into the future use of genetics in Aboriginal land claims. Our research suggests that, while there is some interest in using genealogical DNA tests to prove native title, the hopes upon which this interest is built are generally mis- guided. It is highly unlikely that genealogical genetics will offer proof of descent from the original owners for specific regions, and such evidence is not in fact required by courts. But there is a greater—and growing—interest in using these tests to resolve membership disputes, and the scientific and legal scope for this application is potentially much greater. Genetic kinship tests are able to establish biological relation- ships between living people with increasing precision, and the descriptions of native title holders in Federal Court determinations increasingly contain lists of “apical ancestors” (similar to the “base roles” of Native American tribes).

US Personality Rights

'Endorsing After Death' by Andrew Gilden in (2022) 63 William and Mary Law Review comments 

An endorsement is an act of giving one’s public support to a person, product, service, or cause; accordingly, it might seem impossible for someone to make an endorsement after they have died. Nevertheless, posthumous endorsements have become commonplace in social media marketing and increasingly have been embraced by trademark and unfair competition laws. Entities representing Marilyn Monroe, for example, have successfully brought trademark claims for the unauthorized use of Marilyn’s name, have successfully brought false endorsement claims under Section 43(a) of the Lanham Act, and regularly have promoted products through the Instagram-verified ‘@marilynmonroe’ page. Marilyn Monroe survives today as a highly-paid celebrity endorser even though she died almost 60 years and her ‘Estate’ is controlled by individuals with zero personal connection to her. 

 This paper closely examines the growing body of posthumous endorsement law and sets forth a new framework that better respects both the agency of the deceased as well as the continuing bonds between the deceased, their fans, and their families. Intellectual property scholars have critiqued other forms of postmortem IP, such as copyright and publicity rights, but this article shows that posthumous endorsement rights pose unique and largely unaddressed concerns. First, these rights frequently pose a continuity problem: courts have allowed endorsement rights to shift from the decedent to their heirs to unrelated third parties without acknowledging just how differently situated each of these entities is with respect to the communicated endorsement. Second, these rights pose discursive problems: they allow rightsholders to speak in the ‘official’ voice of the decedent, leveraging the individual’s continuing cultural influence into commercial and political endeavors that emerge long after their death. Third, these rights pose dignitary concerns: individuals are often symbolically brought back from the dead without their consent and forced to speak on behalf of entities that have purchased their goodwill on the open market …

Lex Informatica

'From Lex Informatica to the Control Revolution' by Julie Cohen in (2021) 35 Berkeley Technology Law Journal comments 

Legal scholarship on the encounter between networked digital technologies and law has focused principally on how legal and policy processes should respond to new technological developments and has spent much less time considering what that encounter might signify for the shape of legal institutions themselves. This essay focuses on the latter question. Within fields like technology studies, labor history, and economic sociology, there is a well-developed tradition of studying the ways that new information technologies and the ‘control revolution’ they enabled – in brief, a quantum leap in the capacity for highly granular oversight and management – have elicited long-term, enduring changes in the structure and operation of economic organizations. I begin by considering some lessons of work in that tradition for law understood as a set of organizations constituted for the purpose of governance. Next, I turn the lens inward, offering some observations about techlaw scholarship that are essentially therapeutic. The disruptions of organizational change have affected scholars who teach, think, and write about techlaw in ways more profound than are commonly acknowledged and discussed. It seems fitting, in a symposium dedicated to Joel Reidenberg’s life and work, to use the process of grief as a device for exploring the arc of techlaw scholarship over its first quarter century. The fit is surprisingly good and the takeaways relatively clear: If, as I intend to suggest, the organizational forms that underpin our familiar legal institutions have been in the process of evolving out from under us, we still have choices to make about how legal institutions optimized for the information economy will be constituted. Finally, I identify two sets of important considerations that should inform the processes of organizational and institutional redesign.

TRIPS

'TRIPS Through A Military Looking Glass' by Peter Drahos comments 

 The paper draws on an argument from Hanns Ullrich that the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) suffers for a legitimacy gap. This gap takes the form of an external conditioning of states’ sovereignty over innovation in markets. The paper argues there is a less-discussed and somewhat darker legitimacy gap of TRIPS. This gap relates to the US national security state (NSS) and its use of intellectual property to regulate globally innovation in weapons systems. The paper traces the links between the NSS, intellectual property and weapons innovation from World War II to the present day. TRIPS has lost legitimacy in the eyes of the NSS because it has failed to hold back China’s innovation in defense-sensitive areas such as 5G technology. Drawing on the work of Carl Schmitt, the paper offers a phenomenological reading of the NSS’ view of legitimacy. The paper finishes with an examination of the implications of Schmitt’s friend-enemy distinction for the future of intellectual property and the US-China relationship.

Fantastica

The Guardian reports conviction (and release on parole) of Samantha Azzopardi - who appeared in this blog here and here - after Australia, Ireland and Canada.

Azzopardi has a long history of dishonesty offences. In 2013 she showed up in central Dublin claiming to be a teenage sex-trafficking victim from eastern Europe. It cost the Irish government hundreds of thousands of dollars before her true identity was exposed. 

After being deported she emerged in Canada, where she said she was a victim of sexual assault and torture. 

In Australia, she convinced a Perth family she was a Russian gymnast named Emily whose entire family had been killed in a murder-suicide in France. 

In Sydney she passed herself off as a schoolgirl more than half her age. 

Azzopardi has criminal convictions for dishonesty offences in Queensland, Western Australia and New South Wales, as well as for Commonwealth offences. 

Explanation? A psychiatrist reportedly referred to 'a highly traumatic upbringing including emotional neglect and physical abuse', characterising Azzopardi as having 'a severe personality disorder and pseudologia fantastica' - a '“rare but dramatic” psychiatric disorder involving an “extreme type of lying”'.

Another footnote for my forthcoming book on identity crime.

A 2017 SMH piece noted her conviction on fraud charges after Azzopardi posed as a 13-year-old Sydney high school student named Harper Hart, using a fake Californian birth certificate and pretending to be a child sex-trafficking victim. 

The piece is interesting as a quantification of crime costs, stating 

 Her lies cost NSW charities and government departments more than $155,000, a figure updated from an initial calculation of $20,000. ... 

Hornsby Local Court heard that Irish authorities spent more than $400,000 trying to establish who she was and where she had come from. ... 

Canadian authorities spent $150,000 on their investigation before realising she was the same woman at the centre of the Dublin saga. Azzopardi was charged with public mischief in Calgary and faced a maximum sentence of five years in prison but, after pleading guilty, she was sentenced to the two months she'd already served in custody. Again she was sent home to Australia. ... 

The Sydney court heard she had to trick NSW authorities into thinking she was still a teenager. She was given an iPad, a phone and Opal card from the not-for-profit Burdekin House, an ambulance transfer paid for by Good Shepherd Australia and medication from the NSW Department of Family and Community Services. The $155,000 cost of her frauds included counselling costs and wages.