Letters

Overseas action regarding data breaches provides a perspective on Australian practice.

The UK Information Commissioner has penalised St George’s Healthcare NHS Trust £60,000 for sending a "vulnerable individual’s sensitive medical details" to the wrong address.

The Information Commissioner indicates that

The information was contained in two letters that were sent out by the Trust in May 2011. While the letters were addressed to the correct recipient, they were sent to an old address, despite the person not having lived in the property for nearly five years. The ICO’s investigation found that the individual’s current address had been provided to the trust’s staff before the medical examination took place. Additionally the correct address had been logged on the national care records service, known as NHS SPINE, in June 2006. The mistake was made after the Trust’s staff failed to use the address supplied before the examination, or check that the individual’s recorded address on their local patient database matched the data on the SPINE. The Trust had set up a prompt to remind staff about the need to check and update patient information against SPINE; however the Trust knew the prompt could be bypassed and failed to take action to address the problem until it was too late.

The ICO’s Head of Enforcement commented that -

It’s hard to imagine a more distressing situation for a vulnerable person than the thought of their sensitive health information being sent to someone who had no reason to see it. This breach was clearly preventable and is the result of the Trust’s failure to make sure the contact details they have for their patients are accurate and up to date. 

This is the fourth monetary penalty we have issued to the NHS in the past two months. It is vital that these organisations make sure they have the necessary measures in place to keep patients’ details secure.

The NHS Trust has reportedly taken action to make sure that the personal information is kept secure, including "making sure adequate checks are in place to ensure that local information the trust has for patients is correct, by cross checking that information against SPINE and other relevant sources". The Australian legal framework is different, with the national Privacy Commissioner having neither the power to impose financial penalties nor apparently (until a succession of promo items, replete with snaps of the Commissioner himself) much interest in shaming errant bodies.

Yesterday the Canberra Times - only slightly less provincial than the Bungedore Mirror - reported that "A defence agency emailed the personal details of almost 2500 former military personnel to hundreds of people, even though its software had warned it not to". The information apparently included each former ADF member's name, ID number, unit name, date and reason for leaving the service and personal email address.

The Defence Department - like Telstra, Sydney University, Vodafone, First State Super and other organisations that have been criticised regarding a breach - offered the usual response: it is "treating this matter with the utmost seriousness". They would say that, wouldn't they. "An external consultant is undertaking a formal investigation and Defence has conducted an immediate review of its processes and procedures pending the outcome of this investigation".

The Defence Community Organisation, which helps families that are struggling to adjust to military life, has since acknowledged the error was a ''serious breach of privacy and … also a breach of trust". 

Last month, one of its new employees accidentally attached the database to a survey, which was then sent to about 400 people who had recently left the Australian Defence Force.

The computer initially blocked the email, warning that it contained an "unauthorised security clearance". However, after seeking advice, the employee was then told to "just send the email again". ... the email contained personal information of more than 2400 former personnel, "including members who were now deceased".

The Times reports that staff members involved in the incident have been counselled and directed to undertake privacy training. We might wonder about the meaningfulness of that training.

The Organisation's site does not provide information about the data breach; apparently less important than the announcement that "The Defence Child Care Centres have successfully transitioned to a new service provider, Mission Australia Early Learning Services (MAELS) from 1 July 2012".

Do Not Track

''Do-Not-Track' as Contract' by Joshua Fairfield in 14(3) Vanderbilt Journal of Entertainment and Technology Law (2012) 101 comments that -

 Support for enforcement of a do-not-track option in browsers has been gathering steam. Such an option presents a simple method for consumers to protect their privacy. The problem is how to enforce this choice. The Federal Trade Commission (FTC) could enforce a do-not-track option in a consumer browser under its section 5 powers. The FTC, however, currently appears to lack the political will to do so. Moreover, the FTC cannot follow the model of its successful do-not-call list since the majority of Internet service providers (ISPs) assign Internet addresses dynamically — telephone numbers do not change, whereas Internet protocol (IP) addresses may vary. 

This Article explores whether, as a matter of contract law, a browser do-not-track option is enforceable against a corporation, and concludes that it is. The emerging standard of online consent has been whether a party proceeds with a transaction after the counterparty informs the party of the terms of the contract. Adhesion contracts in electronic contexts have bound consumers for over a quarter century in precisely this manner. 

This Article argues that what applies to consumers should apply to corporations. When a consumer expresses her preference, in the very first exchange between the consumer and corporate computers, for the corporation not to track her information, the company is free to refuse the transaction if it does not wish to continue on the consumer’s terms. This Article therefore proceeds in three broad parts. Part I introduces the current methods of corporate surveillance of consumers, which have reached dizzying heights. Part II discusses the law of e-commercial and mass-market contracts, which courts have held to bind consumers even on the merest fig leaf of a legal theory of consent. Part III proposes a solution: the answer is not to continue making consumers read more privacy policies on various websites, but instead to enforce the simple preferences that the consumer expresses once.

Traditional Knowledge and the US

'A Defense of Native American’s Rights over their Traditional Cultural Expressions' by Kay Mathiesen argues

The Protocols for Native American Archival Materials (PNAAM) recommend a set of best practices for dealing with Native American Traditional Cultural Expressions and Traditional Knowledge held in libraries and archives. “Traditional cultural expressions” (TCE) have been defined by the World Intellectual Property Organization (WIPO) as cultural materials created by the community that reflects that “community’s cultural and social identity” and are a “community’s heritage” “handed down from one generation to another” (WIPO 2005, 5). Traditional knowledge (TK) has been defined as “traditional technical know-how, or traditional ecological, scientific or medical knowledge” (WIPO 2005, 4). Thus, Native American TCE and TK would potentially include any materials that represent in some way the cultural heritage or knowledge that has been developed and passed down by Native American tribes and Native Hawaiians. 

The normative foundation of PNAAM’s recommendations is that Native American tribes have rights over the TCE and TK held in libraries and archives. It is important to note that the rights claimed in PNAAM are moral rights; a “moral right” creates an obligation for others to respect it, whether or not the right is encoded in law. As Joel Feinberg puts it, a person “has a moral right when he [or she] has a claim the recognition of which is called for...by moral principles, or the principles of an enlightened conscience” (Feinberg 1970, 253). Concern for the moral rights of others is nothing new to the library and archival professions. Consider, for example, the rights listed in the Library Bill of Rights, which do not necessarily have the force of law, but which are, nevertheless, held up as guides for the ethical conduct of library professionals (ALA 2002). 

In particular, PNAAM recommends that librarians and archivists recognize the rights of Native Americans to limit or deny access to Native American stories, images, and information. While there is anecdotal evidence that some non-tribal archives have formal or informal policies in line with some or all of the recommendations of PNAAM (Walters 2011), such policies and practices are not generally accepted within the archival profession. According to one archivist, “The Protocols call for sweeping power to control what is studied and written about Native American communities, which ... is incompatible with our basic professional tenets of open and equitable access to information, and the practice of free and open inquiry ...” (Bolcer 2009, 4). Others have objected that, “The Protocols challenge many ‘bedrock’ principles of American archival practice” (Society of American Archivists 2008). Concerns such as these have led both the Society of American Archivists (SAA) and the American Library Association (ALA) to refrain from endorsing PNAAM (SAA 2008, ALA Office for Information Technology Policy 2011). 

At heart, the controversy over PNAAM is based on a disagreement about the norms that ought to guide ethical practice in the archival and library professions. Like any profession, archivists have ethical codes that govern the practice of the profession (Danielson 2010, 301-337). “Ethics” have been defined as the “well-founded standards of right and wrong that prescribe what humans ought to do, usually in terms of rights, obligations, benefits to society, fairness, or specific virtues” (Velasquez and Andre 1986). “Professional ethics” are “the principles and standards that underlie a profession's responsibilities and conduct” (Davis 2003). Ethical responsibilities of archivists include the obligations to safeguard records from theft or destruction, to ensure equitable access to records, and to protect the privacy of the subjects of archival records. Work in archival ethics discusses the rationale for the codes and how they apply to specific cases (Cox and Wallace 2002, Benedict 2003, Danielson 2010). The issue of how to deal with Native American archival materials, however, has gained little attention from those writing on archival ethics in the United States. Karen Benedict’s 2003 Ethics and the Archival Profession: Introduction and Case Studies, for example, contains no case studies dealing with the issue of the proper treatment of Native American Archival materials. Elena Danielson’s 2010 book, The Ethical Archivist, briefly mentions the issue in a single paragraph, but does not cover the controversial ethical issues surrounding it. While there has been some description of archival projects involving materials held by Native American tribes (Christen 2011), these articles do not provide an in-depth discussion of the ethical issues involved. 

Globally, the ethical questions surrounding control over Indigenous TCE and TK have received much more attention. International organizations such as the United Nations (UN) and the WIPO have drafted statements asserting the rights of indigenous peoples to control access to their TCEs and TK (UN 2006, WIPO 2003). The Declaration of the Rights of Indigenous Peoples, for instance, states that indigenous peoples, “have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions” (U.N. 2007, Article 31) Archivists in countries such as Australia have been grappling with these ethical issues for almost twenty years. The Aboriginal and Torres Strait Islander Protocols for Libraries, Archives and Information Services (ATSI Protocols), which served as an inspiration for PNAAM, was written in 1995 and was endorsed by the Australian Society of Archivists in 1996 (Aboriginal and Torres Strait Islander Library Information Resources Network 2005). Since that time, a significant scholarly literature has developed on the ethical and legal issues surrounding the ATSI Protocols (Nakata and Langton 2006). 

Given the increasing international attention to the question of Indigenous peoples’ rights over their TCE and TK, it is imperative that archivists and other LIS professionals in the United States engage in a serious discussion of the ethical issues involved. This paper seeks to advance this discussion by engaging in an ethical analysis of the key question involved: “Do Native Americans have a moral right to control access to their TCE and TK?” As a work of applied ethics, this paper “seeks a reasoned defense of a moral viewpoint” using “considered judgments and moral frameworks to distinguish justified moral claims from unjustified ones” (Beauchamp 2005, 23). The moral viewpoint defended here is that Native Americans do have a moral right to control access to their TCE and TK. Group privacy and the concept of restorative justice provide an ethical justification of this right. 

The case for the rights of Native American tribes to control access to their cultural heritage only makes sense when situated within its historical context. Thus, this essay begins with a short description of the history of suppression and appropriation of Native American cultures. In the second section of the paper, some of the controversial recommendations of PNAAM are summarized, and a number of objections that have been made to them are noted. The third section grapples with questions of methodology in ethics. John Rawls’ “overlapping consensus” approach is adopted as a method for resolving ethical conflicts between cultural groups. The fourth section surveys a number of proposed defenses of Native American rights over their TCE and TK, and argues that they fail to provide the basis for an overlapping consensus. The fifth section argues that the right to privacy, as extended to groups, does provide such a basis. The final section of the paper addresses objections to the group privacy argument, most notably, that recognizing Native American rights to their cultural information will put us on a slippery slope towards massive restrictions on access to information. It is argued that the nature, context, and history of Native American cultures are unique. Consequently, the right of Native Americans their TCE and TK as grounded in cultural privacy does not extend to other social, cultural, ethnic, or religious groups. 

It must be emphasized that I do not claim in this paper to speak for Native American tribes or individuals. I approach this topic as a non-native ethicist trained in western philosophical ethics. I have sought to construct an ethical argument that provides a basis for a shared understanding of the rights of Native Americans’ over their TCE. I am deeply indebted for my understanding of these issues to both my Native American students and to Native American and Indigenous scholars who have written so passionately and convincingly on these issues. For a deeper understanding of the perspectives of Native Americans, readers can do no better than to consult what Native Americans have written on this topic (see e.g., Nason 2001, PNAAM, Todd 1990, Tulalip Tribes 2003). 

Furthermore, it should be noted that no policy proposals or suggestions for implementation will be made here. I argue that there are grounds already accepted within the archival ethics to justify the rights of Native American’s to their TCE and TK. Exactly how these rights may be best respected through practices, policies, and laws is beyond the scope of this paper. Indeed, it would be inappropriate to make such suggestions here, as any such policies should be the result of dialogue and negotiation between Native American Tribes and those who handle their cultural materials. Such dialogue is a central theme of PNAAM and a key component of a restorative justice approach to the legacy of past injustices (Zion and Yazzie 2006).

Rigidification

In SNF (Australia) Pty Ltd v Ciba Specialty Chemicals Water Treatments Ltd [2012] FCAFC 95 Finn, Dowsett & Bennett JJ of the Federal Court have dismissed SNF's challenge to Ciba's 'rigidification' patents.

They found that Kenny J in SNF (Australia) Pty Ltd v Ciba Specialty Chemicals Water Treatments Limited [2011] FCA 452 had not erred in concluding that the term 'rigidification' was not a term of art and was to be constructed ordinarily. The Full Court endorsed the primary judge's conclusions regarding novelty and innovative step.

Dowsett J quoted Lord Hoffmann in Kirin-Amgen Inc and Others v Hoechst Marion Roussel Ltd [2004] UKPC 6; (2004) 64 IPR 444 regarding construction in patent claims

Construction, whether of a patent or any other document, is of course not directly concerned with what the author meant to say. There is no window into the mind of the patentee or the author of any other document. Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance was addressed would have understood the author to be using the words to mean. Notice, however, that it is not, as is sometimes said, “the meaning of the words the author used”, but rather what the notional addressee would have understood the author to mean by using those words. The meaning of words is a matter of convention, governed by rules, which can be found in dictionaries and grammars. What the author would have been understood to mean by using those words is not simply a matter of rules. It is highly sensitive to the context of and background to the particular utterance. It depends not only upon the words the author has chosen but also upon the identity of the audience he is taken to have been addressing and the knowledge and assumptions which one attributes to that audience. ... 

In the case of a patent specification, the notional addressee is the person skilled in the art. He (or, I say once and for all, she) comes to a reading of the specification with common general knowledge of the art. And he reads the specification on the assumption that its purpose is both to describe and to demarcate an invention – a practical idea which the patentee has had for a new product or process – and not to be a textbook in mathematics or chemistry or a shopping list of chemicals or hardware. It is this insight which lies at the heart of “purposive construction”. If Lord Diplock did not invent the expression, he certainly gave it wide currency in the law. But there is, I think, a tendency to regard it as a vague description of some kind of divination which mysteriously penetrates beneath the language of the specification. Lord Diplock was in my opinion being much more specific and his intention was to point out that a person may be taken to mean something different when he uses words for one purpose from what he would be taken to mean if he was using them for another. The example in the Catnic case was the difference between what a person would reasonably be taken to mean by using the word “vertical” in a mathematical theorem and by using it in a claimed definition of a lintel for use in the building trade. The only point on which I would question the otherwise admirable summary of the law on infringement in the judgment of Jacob LJ in Rockwater Ltd v Technip France SA ... is when he says in subpara (e) that to be “fair to the patentee” one must use “the widest purpose consistent with his teaching”. This, as it seems to me, is to confuse the purpose of the utterance with what it would be understood to mean. The purpose of a patent specification, as I have said, is no more nor less than to communicate the idea of an invention. An appreciation of that purpose is part of the material which one uses to ascertain the meaning. But purpose and meaning are different. If, when speaking of the widest purpose, Jacob LJ meant the widest meaning, I would respectfully disagree. There is no presumption about the width of the claims. A patent may, for one reason or another, claim less than it teaches or enables. 

“Purposive construction” does not mean that one is extending or going beyond the definition of the technical matter for which the patentee seeks protection in the claims. The question is always what the person skilled in the art would have understood the patentee to be using the language of the claim to mean. And for this purpose, the language he has chosen is usually of critical importance. The conventions of word meaning and syntax enable us to express our meanings with great accuracy and subtlety and the skilled man will ordinarily assume that the patentee has chosen his language accordingly. As a number of judges have pointed out, the specification is a unilateral document in words of the patentee’s own choosing. Furthermore, the words will usually have been chosen upon skilled advice. The specification is not a document inter rusticos for which broad allowances must be made. On the other hand, it must be recognised that the patentee is trying to describe something which, at any rate in his opinion, is new; which has not existed before and of which there may be no generally accepted definition. There will be occasions upon which it will be obvious to the skilled man that the patentee must in some respect have departed from conventional use of language or included in his description of the invention some element which he did not mean to be essential. But one would not expect that to happen very often. 

One of the reasons why it will be unusual for the notional skilled man to conclude, after construing the claim purposively in the context of the specification and drawings, that the patentee must nevertheless have meant something different from what he appears to have meant, is that there are necessarily gaps in our knowledge of the background which led him to express himself in that particular way. The courts of the UK, the Netherlands and Germany certainly discourage, if they do not actually prohibit, use of the patent office file in aid of construction. There are good reasons: the meaning of the patent should not change according to whether or not the person skilled in the art has access to the file and in any case life is too short for the limited assistance which it can provide. It is however frequently impossible to know without access, not merely to the file but to the private thoughts of the patentee and his advisors as well, what the reason was for some apparently inexplicable limitation in the extent of the monopoly claimed. One possible explanation is that it does not represent what the patentee really meant to say. But another is that he did mean it, for reasons of his own; such as wanting to avoid arguments with the examiners over enablement or prior art and have his patent granted as soon as possible. This feature of the practical life of a patent agent reduces the scope for a conclusion that the patentee could not have meant what the words appear to be saying. It has been suggested that in the absence of any explanation for a restriction in the extent of protection claimed, it should be presumed that there was some good reason between the patentee and the patent office. I do not think that it is sensible to have presumptions about what people must be taken to have meant but a conclusion that they have departed from conventional usage obviously needs some rational basis.

Personhood

'Atrocity, Entitlement, and Personhood in Property' (Vanderbilt Public Law Research Paper No. 12-30) by Daniel Sharfstein comments that -

 For a generation since Margaret Jane Radin’s classic article Property and Personhood, scholars have viewed personhood as a conception of property that affirms autonomy, dignity, and basic civil rights, a progressive alternative to traditional, more economically focused property theories. This article presents a fundamental challenge to personhood as a progressive approach to property. It shows that personhood claims often derive from violent and other harmful acts committed in the course of acquiring and owning property. This persistent and pervasive connection between personhood and violence — the “atrocity value” in property — upends core assumptions about the American property tradition and complicates the progressive social function of property law. This article explains why atrocity creates entitlement, drawing from social psychology and accounts of law and violence to show how violence can foster personhood. The article then explores the deep historical roots of atrocity within the American property tradition, which helped establish an abiding cultural value that encouraged personal identification with property. Finally, the article surveys how atrocity continues to foster personhood in an array of contexts involving common ownership, exclusion, and use. Ultimately, personhood emerges less as a progressive value in property than as a challenge that the law has had to negotiate. Property law is often successful in promoting progressive and cooperative goals because courts do not attempt to decide cases on the basis of a personhood value in property. ... 

This Article explores how people identify with their property when they have committed hurtful and harmful acts in its acquisition and use. The inverted correlation between ownership and violence complicates a dominant view in legal scholarship that property creates or reinforces “personhood,” a “value” in property law that has long been equated with autonomy, dignity, and basic civil rights. Rooted in Hegel’s Philosophy of Right, given concrete form by a century of psychological literature, and canonized in legal thought in a classic 1982 article by Professor Margaret Jane Radin, personhood theory views property as necessary for an individual “to achieve proper self-development — to be a person.” Because people are “bound up” in their property, it has a crucial “human flourishing” function as well as a central role in the progression “from abstract autonomy to full development of the individual in the context of the family and the state.” As a result, personhood presents what Radin calls a “moral basis” for resolving legal questions across a broad range of property-related doctrines, separate and apart from categorical defenses of the right to exclude or utilitarian justifications for particular allocations of rights and uses. For thirty years, scholars have viewed Radin’s insights as an alternative from the left to traditional, more utilitarian and economically focused property theories. 

It is undoubtedly true that many people derive great satisfaction and a sense of personhood from exercising their property rights in socially and environmentally responsible ways and from contributing to the interests and aspirations of a broader community. At the same time, this Article suggests that when conflicts over ownership and use arise, even harmful conduct can become conflated with the rights of ownership and with people’s identities as owners. These moments when violence and pain intensify the bond between people and their property reveal how personhood does not always have a progressive valence. It presents itself less as a value that should be recognized — a basis for decision making — than as a set of challenges for property law to navigate as it seeks to define and protect individual rights and obligations in a peaceful, pros- perous, and democratic society. 

The connection between violence and personhood has deep roots in the American experience, extending back to the earliest colonial encounters between Europeans and Native Americans, and it continues today at a less cataclysmic level in everyday conflicts involving property owners, their neighbors, and the government. If colonial violence played a role in establishing a cultural value that encouraged personal identification with property, today’s conflicts show how personhood remains a complicated product of ownership that can defy easy categorization as good or bad. 

In writing about the connection between violence and personhood, I discuss a broad spectrum of conduct, from historical massacres to the most commonplace unneighborly acts. To reflect this conceptual range, I call the personhood that arises from nasty conduct the “atrocity value” in property. It is a phrase that encompasses the worst acts imaginable — what the Oxford English Dictionary terms “horrible or heinous wickedness” — as well as acts that are merely “atrocious,” or “violations of taste or good manners.” If “atrocity” appears to be a hyperbolic way to describe, say, unsightly landscaping that dismays the neighbors, it captures the vehemence with which people fight over such matters and the significance that keeping a ratty couch in the yard can attain with regard to how owners see their property and themselves. 

In questioning personhood’s progressive valence, this Article develops three insights about personhood and the American prop-erty tradition. First, I argue that personhood is more pervasive and deeply rooted in American property law than most scholars have realized because it is not limited to doctrinal areas associated with progressive goals for property. If personhood is fostered by bad conduct, in cases where “human flourishing” and “the freedom to live one’s life on one’s own terms” through property ownership is a function of mistreating others, it becomes much more difficult to resolve property disputes on the basis of personhood. There will always be winners, and there will always be losers - and in some cases the winners will value their property precisely because there are losers. Progressive theorists have declared that “[p]roperty law can render relationships within communities either exploitative and humiliating or liberating and ennobling.” In cases in which the humiliating and ennobling aspects of property are two sides of the same coin, the absence of a stated goal of promoting personhood - related to what Professor Henry Smith describes as the indirect connection between ends and means in property law - has allowed property law to domesticate and resolve even the most inflamed conflicts within an institution that promotes order, predictability, and cooperation. 

Second, this Article seeks to refine one sense of how property works in American society. It is often said that property is a social institution. But so is a pogrom. Social institutions do not have to be sociable; violence can also be constitutive of communities. But property regimes are not violent. They often reveal human behavior at its most inspiring. They require, as Professor Carol Rose observed, a great deal of cooperation, enough in fact to call into question classical assumptions of rational utility-maximizing. Property is a sociable institution despite the high stakes of conflicts over it — not just economic stakes, but deeply personal stakes on both sides of an issue. One of the achievements of property law is the way that it contains personhood, turning threats to the regime into occasions that strengthen it. While property law tends to check much of the most atrocious behavior, the decisions often turn on questions that are independent of whether the litigants’ conduct is good or bad or whether they are deriving the right kind of personhood from their property. Not basing decisions on personhood can mean that some people succeed in getting a right to be hurtful, unneighborly, or worse. But more often, it means that property law can guide and govern people who are invested in atrocious exercises of ownership without directly attacking their personhood or otherwise defining them as outsiders to the regime. 

Third, acknowledging the atrocity value in property may help explain some of the deep-seated resistance of many Americans to particular reforms that privilege social obligation or, more broadly, eliminate externalities. There are many ways to account for the widespread hostility to environmental measures and other forms of regulation. We often presume it is because regulation prompts people to imagine that the government will come for their property next. There is widespread denial that certain problems such as global warming exist, and, for a variety of reasons, many see the government as an outside entity that will never represent or consider their interests. But individuals are also capable of contemplating externalities and collective responsibility. The atrocity value that shadows personhood suggests how polluting uses can become indistinguishable from the meaning of a property right and of ownership itself. Property law’s success in realizing certain pro- gressive “human flourishing” goals will turn on how it acknowledges and works with manifestations of personhood that run contrary to those goals.

Sharfstein concludes -

A generation of scholars has embraced the “human fulfilling” aspects of property, but for hundreds of years, it has been possible for Americans to identify with their land because they have been able to hurt people in the course of acquiring and owning it. While long associated with the most progressive values of property, personhood has a dark side, as people justify morally unacceptable conduct by investing themselves in their land. From the beginning of the American experience of property, personhood has cut in multiple directions. It has been less of a progressive value in property than a challenge that the law has had to negotiate. 

It might seem possible to ignore the historical link between atrocity and personhood and focus on ways to cultivate human fulfillment in the present. But as long as people find personhood in bad behavior as owners, property will continue to have to balance incompatible personhood claims. Given its ambiguous valence, ignoring personhood altogether in favor of deciding property questions with other moral principles may be tempting. But the American cultural investment in property is so closely tied to personhood that ignoring it risks moving the law too far from shared normative assumptions about the obligations of ownership. As a result, people may view such rules as illegitimate, or they may invest less of themselves in the land, altering their sense of ownership in socially detrimental ways. 

Progressives aspire to shape property’s norms to “promote ... environmental stewardship, civic responsibility, and aggregate wealth” and to “establish the framework for a kind of social life appropriate to a free and democratic society.” But the complex moral valence of “human flourishing” compels more sustained attention to the ways individuals might resist progressive measures as well as the kinds of indirect approaches the law has long relied upon to contain and channel the behavior of property owners. When property conceives of personhood as a fact of ownership, for pleasure and for pain, as opposed to a basis for decision, it can balance competing interests and give both sides a continuing and ultimately cooperative stake in making the system work.

SSRN meanwhile offers 'Featuring People in Ads', a chapter by Eric Goldman & Rebecca Tushnet in their 2012 casebook Advertising & Marketing Law: Cases and Materials.

They note that

In the United States, privacy rights generally trace back to the immensely influential privacy article by Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 HARVARD L. REV. 193 (1890). Both Warren and Brandeis were lawyers at the time; Brandeis went on to become a celebrated U.S. Supreme Court justice. The authors were reacting to improvements in camera technology. Initially, camera shutter speeds were so slow that people had to pose (i.e., stand still) for photographs. However, technological evolutions reduced shutter speeds, which allowed photographers to take unconsented photos of people. Warren and Brandeis argued that “the existing law affords a principle from which may be invoked to protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for rewording or reproducing scenes or sounds.” 

Recapping privacy law in the early 1960s, Dean William Prosser classified privacy legal claims over the intervening seventy years into four categories. See William L. Prosser, Privacy, 48 CAL. L. REV. 383 (1960) and RESTATEMENTS (SECONDS) OF TORTS (for which Prosser was the reporter). As defined by Prosser, the key for our purposes here is category 4, “Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness,” which has evolved into the modern “publicity right.” 

Although the publicity rights doctrine is well recognized, its legal implementation is a little chaotic. There is no federal publicity right. Currently, twenty-eight states statutorily codify publicity rights, and some statutes explicitly provide that publicity rights survive beyond a person’s death. See, e.g., Cal. Civil Code § 3344.1 (surviving rights for seventy years post- mortem); Indiana Code 32-36 (surviving rights for 100 years post-mortem). In some states, publicity rights are protected by way of common law doctrines. California protects publicity rights both by statute and the common law. 

Because many celebrities reside there, California and New York play particularly important roles in the development of publicity rights laws. However, publicity rights are not limited to celebrities, and they usually equally protect both well-known and unknown individuals. 

Publicity rights generally govern two discrete activities: first, the “merchandizing” of a person by selling an item that incorporates some identifiable part of the person, such as the incorporation of a celebrity’s image on a t-shirt, and second, the depiction of a person in ad copy. Typically, the ad copy cases are doctrinally easier than the merchandizing cases, but both types of cases can create difficult line-drawing situations. In addition, the publicity rights doctrines have an uneasy fit with the First Amendment, especially in the merchandizing context. 

Publicity rights only apply to individuals; companies or other business organizations “protect their name” through trademark law and related doctrines. If a person’s name develops secondary meaning in association with commercial offerings, people can develop trademark rights in their name or other attributes to complement their publicity rights (which exist automatically). When enforcing those rights, trademark law requires that the usage creates a likelihood of consumer confusion. (Recall the Lamparello v. Falwell case from Chapter 10.) In contrast, no consumer confusion is required for a publicity rights claim.

Kant, Law Schools and the ATO

Amid brouhaha about the carbon tax it is interesting to read Gary Banham's 'Kant & the Ethics of Taxation' in 13(3) Journal of Accounting, Ethics & Public Policy (2012),  a refreshing change from the aridity of tax scholarship in Australian law schools.

Banham comments that -

The discussion of the normative basis of taxation tends to fall into two parts with one part concerned with the possibility of justifying taxation as such and one part concerned with specific taxation policies, particularly with the question of the ethical ground for redistributive forms of taxation. There is a third type of discussion that is occasionally also engaged in, which concerns the justifiability or otherwise of principled resistance to taxation, which latter concern is a specialized part of the theory of civil disobedience. 

I will touch on all the first two elements of the ethical discussion of taxation in this article but there is a question, which is prior to any of them in principle although it is rarely raised. This is the question of the relationship between discussions of taxation, however conducted, and ethics as a generic inquiry into standards of justified conduct. The general absence of this question is part of the tendency of social and political theorists to fail to provide an account of the relationship of political institutions to ethics. It is, however, an important part of Kant's philosophy of right to establish a ground on which the question concerning what it is that is right is related back to supreme governing principles of ethics. Further, it is this specific focus of Kant that enables recourse to his theory in a way that promises a unified approach to the more specific questions raised at the beginning of this paragraph. 

If these considerations indicate a rationale for looking at Kant's views on taxation they also show a need to place his views within the wider context of his ethics and in so doing to provide the basis for a philosophical approach to taxation that relates it carefully to foundational questions of political theory. In this article I will endeavour to chart a course between Kant‟s own theory and contemporary interpretations of it. 

The interpretations that are current in the secondary literature either begin by moving directly from foundational ethical principles to an account of taxation, incorporating thereby Kantian insights into a wider theory that is only partially Kantian or they refer to the primary Kantian texts on taxation but for purposes that are not clearly those which Kant himself had when he explicitly discussed taxation. The structure of this paper will be dictated by a response first to some of these contemporary readings prior to providing a more detailed response to the specific considerations that Kant himself is concerned with, both in his philosophy of right and in the limited, but revealing, discussion he especially provides of taxation. Subsequently I will provide prospectus for an account of how Kant‟s view of taxation is connected to contemporary disputes concerning whether redistributive taxation is philosophically justifiable. 

In concluding Banham states, after discussion of Nozick and Rawls, that -

I want to return to the key methodological innovation in Kantian ethical theory, an innovation that is replicated at the level of the philosophy of right. This is of the priority of the right over the good. Kant‟s treatment of questions of public policy interest is in terms of a philosophy of right that we have seen to be based upon a universal principle that refers to the conditions of justifiable coercion through reference to mutuality of conditions of free action. 

This basic reference to the conditions of free action is one that we find constitutes the possibility of there being a civil condition and it is in this condition that we have found there to be obligations of the citizenry, especially the wealthy, towards the commonwealth that has enabled them to thrive. In putting the matter this way Kant effectively reverses a great deal of the debate that surrounds the justification of taxation. 

Murphy and Nagel in their work on taxation refer to what they term “everyday libertarianism” which is founded on the following basic assumption: “pretax distribution of material welfare is presumptively just” and “the question of justice in taxation is therefore properly a question of determining what is a fair distribution of sacrifice as assessed from that baseline”. This “everyday” assumption is quite different to the structural way in which Kant examines right. Rather than taking a set distribution as good and then determining what is right with regard to it, Kant rather sets out an elaborate description of the conditions of what is right and then assesses how distribution of property and taxation of it can conform to these conditions. 

So the set pattern and distribution of wealth does not have a presumptive validity in the first instance. Rather, the way in which material wealth is distributed is one that ensures free action in structured conditions of right, entails distributive effects that the state can adjust in ways that reflect the general will as represented in the legislature. 

It is the legislature, in its conformity with principles of right, which determines the justice or otherwise of the distribution of income, property and assets, and it is the task of the legislature to review this in relation to the generic standards of right. One of the constraints on the legislature is to ensure that “decency” is maintained through the provision of the police power to prevent the importunity of the poor but, balanced with this, the legislature also has the job of taxing the wealthy in order to provide means for those unable to help themselves. 

This balance is part of the priority of the right over the good as the “good” that wealth provides is not structurally one to which there is a set entitlement on behalf of the wealthy even though their accumulation of it has been in accord with right. The wealthy owe a debt to the civil condition generally as it is the base line that allows for their accumulation and it is to the civil condition that they repay their debt in taxation. 

Taxation, whilst experienced as a burden by those from whom it is extracted, is a device required by the state in order that there be conditions of right. Such conditions of right require maintenance and provision and have to be, once instituted, maintained in perpetuity. 

A rightful way of ensuring this is to make it possible that all citizens are supplied with the basic freedom that allows their survival, both physically and rightfully. This is ensured through the system of taxation and this system itself, as part of the basic rightful condition, has a presumptive validity over and above the material good that citizens themselves prize. Hence its justification precedes and makes possible the manner in which citizens are given lee-way to pursue their good and is structurally prior to it.

Open Access

The UK Universities and Science Minister has announced acceptance of some recommendations in last month's report of the Working Group on Expanding Access to Published Research Findings (aka the Finch Report on open access) promoted as giving "Academics, businesses and the public" "easier access to publicly funded research" and as "likely to see a major increase in the number of taxpayer funded research papers freely available to the public".

No hoopla, of course, about ongoing cuts to the UK education sector.

The report argued that improving the flows of the information and knowledge produced by researchers will promote -

- enhanced transparency, openness and accountability, and public engagement with research; 

- closer linkages between research and innovation, with benefits for public policy and services, and for economic growth; 

- improved efficiency in the research process itself, through increases in the amount of information that is readily accessible, reductions in the time spent in finding it, and greater use of the latest tools and services to organise, manipulate and analyse it; and 

- increased returns on the investments made in research, especially the investments from public funds.

As a consequence it recommended that -

•  a clear policy direction should be set towards support for publication in open access or hybrid journals, funded by APCs, as the main vehicle for the publication of research, especially when it is publicly funded; 
• the Research Councils and other public sector bodies funding research in the UK should – following the Wellcome Trust’s initiative in this area but recognizing the specific natures of different funding streams - establish more effective and flexible arrangements to meet the costs of publishing in open access and hybrid journals; 
• support for open access publication should be accompanied by policies to minimise restrictions on the rights of use and re-use, especially for non- commercial purposes, and on the ability to use the latest tools and services to organise and manipulate text and other content; 
• during the period of transition to open access publishing worldwide, in order to maximise access in the HE and health sectors to journals and articles produced by authors in the UK and from across the world that are not accessible on open access terms, funds should be found to extend and rationalise current licences to cover all the institutions in those sectors; 
• the current discussions on how to implement the proposal for walk-in access to the majority of journals to be provided in public libraries across the UK should be pursued with vigour, along with an effective publicity and marketing campaign; 
• representative bodies for key sectors including central and local Government, voluntary organisations, and businesses, should work together with publishers, learned societies, libraries and others with relevant expertise to consider the terms and costs of licences to provide access to a broad range of relevant content for the benefit of consortia of organisations within their sectors; and how such licences might be funded; 
•  future discussions and negotiations between universities and publishers (including learned societies) on the pricing of big deals and other subscriptions should take into account the financial implications of the shift to publication in  open access and hybrid journals, of extensions to licensing, and the resultant changes in revenues provided to publishers; 
• universities, funders, publishers, and learned societies should continue to work together to promote further experimentation in open access publishing for scholarly monographs; 
• the infrastructure of subject and institutional repositories should be developed so that they play a valuable role complementary to formal publishing, particularly in providing access to research data and to grey literature, and in digital preservation;
• funders’ limitations on the length of embargo periods, and on any other restrictions on access to content not published on open access terms, should be considered carefully, to avoid undue risk to valuable journals that are not funded in the main by APCs. Rules should be kept under review in the light of the available evidence as to their likely impact on such journals.

The Government has accepted recommendations about -

• moving to deliver open access through a ‘gold’ model, where article processing charges are paid upfront to cover the cost of publication. 
• itroducing 'walk-in rights' for the general public, so they can have free access to global research publications owned by members of the UK Publishers’ Association via public libraries. 
• extending the licensing of access enjoyed by universities to high technology businesses for a modest charge.

The UK Department for Business, Innovation & Skills claims that -

Currently most formally published research is only available behind restricted paywalls. Reforms will see publications opened up to a greater audience, providing more opportunities for research and development across a range of sectors. They will also support the commercial exploitation of research, contributing to the Government’s economic growth agenda. 

 The Minister similarly boasts that -

 Removing paywalls that surround taxpayer funded research will have real economic and social benefits. It will allow academics and businesses to develop and commercialise their research more easily and herald a new era of academic discovery. This development will provide exciting new opportunities and keep the UK at the forefront of global research to drive innovation and growth. 

The Higher Education Funding Council for England is reportedly developing proposals to make open access published research the basis for the Research Excellence Framework after 2014.