Productivity Commission's draft Intellectual Property Arrangements report

The Productivity Commission yesterday released its draft report on Intellectual Property Arrangements, ie the inquiry into the intellectual property regime noted here.

Quick comments feature in a piece here.

The report features the following findings and recommendations

The analytical framework

Draft Recommendation 2.1 In formulating intellectual property policy, the Australian Government should be informed by a robust evidence base and have regard to the principles of: • effectiveness, which addresses the balance between providing protection to encourage additional innovation (which would not have otherwise occurred) and allowing ideas to be disseminated widely • efficiency, which addresses the balance between returns to innovators and to the wider community • adaptability, which addresses the balance between providing policy certainty and having a system that is agile in response to change • accountability, which balances the cost of collecting and analysing policy–relevant information against the benefits of having transparent and evidence–based policy that considers community wellbeing.

Copyright term and scope

Draft Finding 4.1 Australia’s copyright system has expanded over time, often with no transparent, evidence based policy analysis demonstrating the need for, or quantum of, new rights.

Draft Finding 4.2 While hard to pinpoint an optimal copyright term, a more reasonable estimate would be closer to 15 to 25 years after creation; considerably less than 70 years after death.

Draft Recommendation 4.1 The Australian Government should amend the Copyright Act 1968 (Cth) so the current terms of copyright protection apply to unpublished works.

Copyright accessibility: licensing and exceptions

Draft Recommendation 5.1 The Australian Government should implement the recommendation made in the House of Representatives Committee report At What Cost? IT pricing and the Australia tax to amend the Copyright Act 1968 (Cth) to make clear that it is not an infringement for consumers to circumvent geoblocking technology. The Australian Government should seek to avoid any international agreements that would prevent or ban consumers from circumventing geoblocking technology.

Draft Recommendation 5.2 The Australian Government should repeal parallel import restrictions for books in order for the reform to take effect no later than the end of 2017.

Draft Recommendation 5.3 The Australian Government should amend the Copyright Act 1968 (Cth) (Copyright Act) to replace the current fair dealing exceptions with a broad exception for fair use. The new exception should contain a clause outlining that the objective of the exception is to ensure Australia’s copyright system targets only those circumstances where infringement would undermine the ordinary exploitation of a work at the time of the infringement. The Copyright Act should also make clear that the exception does not preclude use of copyright material by third parties on behalf of users. The exception should be open ended, and assessment of whether a use of copyright material is fair should be based on a list of factors, including: • the effect of the use on the market for the copyright protected work at the time of the use • the amount, substantiality or proportion of the work used, and the degree of transformation applied to the work • the commercial availability of the work at the time of the infringement • the purpose and character of the use, including whether the use is commercial or private use. The Copyright Act should also specify a non–exhaustive list of illustrative exceptions, drawing on those proposed by the Australian Law Reform Commission. The accompanying Explanatory Memorandum should provide guidance on the application of the above factors.

Patent system fundamentals

Draft Recommendation 6.1 The Australian Government should amend ss. 7(2) and 7(3) of the Patents Act 1990 (Cth) such that an invention is taken to involve an inventive step if, having regard to the prior art base, it is not obvious to a person skilled in the relevant art. The Australian Government should state the following in the associated Explanatory Memorandum: • the intent of this change is to better target socially valuable inventions • the test should be applied by asking whether a course of action required to arrive at the invention or solution to the problem would have been obvious for a person skilled in the art to try with a reasonable expectation of success. The Australian Government should explore opportunities to further raise the overall threshold for inventive step in collaboration with other countries in international forums.

Draft Recommendation 6.2 The Australian Government should incorporate an objects clause into the Patents Act 1990 (Cth) (Patents Act). The objects clause should describe the purposes of the legislation as being to enhance the wellbeing of Australians by providing patent protection to socially valuable innovations that would not have otherwise occurred and by promoting the dissemination of technology. In doing so, the patent system should balance the interests of patent applicants and patent owners, the users of technology — including follow–on innovators and researchers — and Australian society as a whole. The Australian Government should amend the Patents Act such that, when making a decision in relation to a patent application or an existing patent, the Commissioner of Patents and the Courts must have regard to the objects of the Patents Act.

Draft Recommendation 6.3 The Australian Government, with input from IP Australia, should explore the costs and benefits of using higher and more pronounced renewal fees later in the life of a standard patent, and making greater use of claim fees to limit the breadth of patent protection and to reduce strategic use of patents. The Australian Government should seek international cooperation on making greater use of patent fees to help ensure that patent holders are not overcompensated and to limit the costs of patent protection on the community.

Innovation patents

Draft Recommendation 7.1 The Australian Government should abolish the innovation patent system.

Business methods and software patents

Draft Recommendation 8.1 The Australian Government should amend s. 18 of the Patents Act 1990 (Cth) to explicitly exclude business methods and software from being patentable subject matter.

Pharmaceutical patents

Draft Recommendation 9.1 The Australian Government should reform extensions of patent term for pharmaceuticals such that they are calculated based only on the time taken for regulatory approval by the Therapeutic Goods Administration over and above one year.

Draft Recommendation 9.2 Regardless of the method of calculating their duration (draft recommendation 9.1), extensions of term in Australia should only be granted through a tailored system which explicitly allows for manufacture for export in the extension period.

Draft Recommendation 9.3 There should be no extension of the period of data protection, including that applicable to biologics. Further, in the context of international negotiations, the Australian Government should work with other nations towards a system of eventual publication of clinical trial data in exchange for statutory data protection.

Draft Recommendation 9.4 The Australian Government should introduce a transparent reporting and monitoring system to detect any pay-for-delay settlements between originator and generic pharmaceutical companies. This system should be administered by the Australian Competition and Consumer Commission. The monitoring should operate for a period of five years. Following this period, the Australian Government should institute a review of the regulation of pay-for-delay agreements (and other potentially anticompetitive arrangements specific to the pharmaceutical sector).

Draft Recommendation 9.5 The Australian Government should reform s. 76A of the Patents Act 1990 (Cth) to improve data collection requirements. Thereafter, extensions of term should not be granted until data is received in a satisfactory form. After five years of data has been collected, it should be used as part of a review to consider the ongoing costs and benefits of maintaining the extension of term system.

Registered designs

Draft Recommendation 10.1 Australia should not join the Hague Agreement until an evidence-based case is made, informed by a cost–benefit analysis.

Draft Finding 10.1 Despite the deficiencies of the registered design system, Australia has committed internationally to protecting designs and there is no clear superior alternative.

Trade marks and geographical indications

Draft Recommendation 11.1 In order to improve the effectiveness of the trade mark system, the Australian Government should: • restore the power for the trade mark registrar to apply mandatory disclaimers to trade mark applications, consistent with the recommendation of the Advisory Council on Intellectual Property in 2004 • repeal part 17 of the Trade Marks Act 1995 (Cth) (Trade Marks Act) • amend s. 43 of the Trade Marks Act so that the presumption of registrability does not apply to the registration of marks that could be misleading or confusing • amend the schedule of fees for trade mark registrations so that higher fees apply for marks that register in multiple classes and/or entire classes of goods and services.

IP Australia should: • require the Trade Marks Office to return to its previous practice of routinely challenging trade mark applications that contain contemporary geographical references (under s. 43 of the Trade Marks Act). Challenges would not extend where endorsements require goods and services to be produced in the area nominated • in conjunction with the Australian Securities and Investments Commission, link the Australian Trade Mark On-line Search System database with the business registration portal, including to ensure a warning if a registration may infringe an existing trade mark, and to allow for searches of disclaimers and endorsements.

Draft Recommendation 11.2 The Australian Government should amend s. 123 of the Trade Marks Act 1995 (Cth) to ensure that parallel imports of marked goods do not infringe an Australian registered trade mark provided that the marked good has been brought to market elsewhere by the owner of the mark or its licensee. Section 97A of the Trade Marks Act 2002 (New Zealand) could serve as a model clause in this regard.

Plant Breeder’s Rights

Draft Recommendation 12.1 The Australian Government should proceed without delay to implement the Advisory Council on Intellectual Property 2010 recommendation to amend the Plant Breeder’s Rights Act 1994 (Cth) to enable essentially derived variety declarations to be made in respect of any variety.

Competition policy

Draft Recommendation 14.1 The Australian Government should repeal s. 51(3) of the Competition and Consumer Act 2010 (Cth) (Competition and Consumer Act). The Australian Competition and Consumer Commission should issue guidance on the application of part IV of the Competition and Consumer Act to intellectual property.

IP and public institutions

Draft Recommendation 15.1 All Australian, and State and Territory Governments should implement an open access policy for publicly funded research. The policy should provide free access through an open access repository for all publications funded by governments, directly or through university funding, within 12 months of publication. The policy should minimise exemptions. The Australian Government should seek to establish the same policy for international agencies to which it is a contributory funder, but which still charge for their publications, such as the Organisation for Economic Cooperation and Development.

Institutional and governance arrangements

Draft Finding 16.1 Model agreements on intellectual property would have the benefit of being fully transparent to Australian industry and to the broader community, as well as to foreign governments, so that all stakeholders are aware of what Australia sees as the ideal outcomes from a treaty.

International cooperation

Draft Finding 17.1 Approaches to international cooperation and lowering transaction costs will be most effective when pursued multilaterally rather than through bilateral arrangements. Moreover, harmonisation of laws is not the sole, or necessarily desirable, form of cooperation. Other approaches to international intellectual property cooperation can achieve their goals at lower cost and with greater flexibility.

Draft Recommendation 17.1 Australia should revive its role in supporting opportunities to promote global cooperation on intellectual property policy among intellectual property offices through the World Intellectual Property Organization and the World Trade Organization to avoid duplication and reduce transaction costs.

Compliance and enforcement

Draft Recommendation 18.1 The Australian Government should expand the safe harbour scheme to cover the broader set of online service providers intended in the Copyright Act 1968 (Cth).

Draft Finding 18.1 The evidence suggests timely and cost effective access to copyright-protected works is the most efficient and effective way to reduce online copyright infringement.

The report also features requests for further information -

Request  5.1 Other than for libraries and archives, to what extent are copyright licence conditions being used by rights holders to override the exceptions in the Copyright Act 1968 (Cth)? To what extent (if any) are these conditions being enforced and what are the resulting effects on users? Would amendments to the Copyright Act 1968 (Cth) to preserve exceptions for digital material have any unintended impacts?

Request  5.2 Is the code of conduct for copyright collecting societies sufficient to ensure they operate transparently, efficiently and at best practice?

Request  5.3 Will the Australian Government’s proposed reforms to simplify and streamline education statutory licences result in an efficient and effective scheme? Should similar reforms be made to the operation of the government statutory licence scheme?

Request  6.1 The Commission is seeking further information from participants on the likely costs and benefits from reforming patent filing processes. Would there be any unintended consequences from requiring applicants to construct their claims in the two–part form that applies in Europe or articulating why their invention is non–obvious? Are there better approaches available?

Request  6.2 The Commission is seeking information from participants on the costs and benefits of an exemption from infringement for experimental activities that use a patented invention. Are there any examples in Australia where the efforts of researchers have been hindered by the lack of such an exemption?

Request  8.1 What approaches or tests could be used to differentiate between inventions where the contribution of embedded software is trivial and inventions where the contribution of embedded software is genuinely deserving of patent protection? Should such tests be implemented in law or patent examination practices?

Request  9.1 How can transparency requirements for pay for delay settlements be implemented in a manner that retains effectiveness but minimises compliance cost? • Should there be public reporting of aggregated data? • How can the system adequately capture agreements that involve the transfer of non monetary benefits such as licences or transfer of rights?

Request  11.1 To what extent — in terms of incidence and costs — is trade marked metadata used in a way to confuse consumers? Is such a problem likely to get worse or better?

Request  11.2 To what extent and in what form does consumer confusion arise from the provision of wine and spirit geographical indications? Under what circumstances should wine and spirit geographical indications be amended or repealed? Who should make such decisions?

Request  12.1 Would extending essentially derived variety coverage to all plants reduce the potential for patent ‘sniping’ of varieties protected by Plant Breeder’s Rights? The Commission is also seeking feedback on the practicalities of developing and implementing a market–impact test to complement existing tests of essentially derived variety status.

Request  13.1 What would be the implications of repealing the Circuit Layout Act 1989 (Cth)? Are there better ways to provide circuit layout rights?

Request  14.1 Is there any evidence that grant back obligations or economic hold up are widespread problems in Australia? Is there a risk of these becoming problems in the future?

Request  16.1 What institutional and governance settings would best ensure that IP policy benefits from a policy champion and is guided by an overarching policy objective and an economywide perspective? Would vesting IP policy responsibility in a single department further these goals, and if so, which department would be best placed to balance the interests of rights holders and users, including follow on innovators? Are there any complementary or alternative measures that would help facilitate more integrated and evidence based IP policy making?

Request  16.2 Is there merit in establishing a clearer separation between policy and administrative functions for intellectual property, and if so, where should the dividing line lie? What mechanisms are available for transparently setting out the separation of IP policy and administration responsibilities?

Request  16.3 What features should be included in a model agreement covering intellectual property if one were to be adopted?

Request  17.1 How extensively have mechanisms such as the Patent Cooperation Treaty and patent prosecution highways been used to reduce the transaction costs of obtaining IP protection overseas? Have Australian businesses utilised opportunities for licensing through SourceIP? Are there other options that would facilitate and promote the licensing and transfer of intellectual property between Australia and other countries?

Request  18.1 Would changes to the jurisdiction of the Federal Circuit Court improve access to dispute resolution by small– and medium–sized enterprises? Should additional rules be introduced, such as caps on the amount of costs claimable in a case? What is the upper limit on damages claims the court should hear? Are there resourcing impediments to the proposed reforms to the Federal Circuit Court? Can greater use be made of cost orders in the Federal Court, including for discovery, to reduce costs further? Should additional Federal Court rules be introduced, such as caps on the amount of costs claimable in a case?

Human Services Contestability

The Productivity Commission is to undertake 

an inquiry into Australia's human services, including health, education, and community services, with a focus on innovative ways to improve outcomes through introducing the principles of competition and informed user choice whilst maintaining or improving quality of service.

The first stage of the inquiry will deliver an initial study report 'identifying services within the human services sector that are best suited to the introduction of greater competition, contestability and user choice'. That will involve examination of

•  the current level, nature and future trends in demand for each major area of service delivery 
• the current supply arrangements and future trends, including the scope for diversity in provision and informed user choice, alternative pricing and funding models, and the potential for contestability in supply by government, not-for-profit and private sector providers 
•  the effectiveness of previous reforms intended to introduce greater competition and user choice, and the pathway taken to achieve those reforms, through investigating case studies of existing practices and trials in Australian jurisdictions, international examples of best practice. 

In the second stage, the Commission will undertake a more extensive examination and provide an inquiry report making recommendations on how to introduce greater competition, contestability and user choice to the services that were identified above.

The Commission is expected to identify the steps required to implement recommended reforms. In developing policy options to introduce principles of competition and informed user choice in the provision of human services, the Commission will have particular regard, where relevant, to

•  the roles and responsibilities of consumers within the human service sector, and the service or services being considered 
•  the factors affecting consumer use of services and preferences for different models of service delivery, noting the particular challenges facing consumers with complex and chronic needs and/or reduced capacity to make informed choices the role of the government generally, and as a commissioner, provider and regulator, in the delivery of human services 
•  the role of government agencies in designing policy, commissioning and, in some cases, delivering human services in a client-centred way that encourages innovation, focusses on outcomes and builds efficiency and collaboration the role of private sector and not-for-profit providers 
•  the benefits and costs of applying competition principles in the provision of human services, including improving competitive neutrality between government, private and not-for-profit service providers 
•  how best to promote innovation and improvements in the quality, range and funding of human services the challenges facing the provision of human services in rural and remote areas, small regional cities and emerging markets 
• the need to improve Indigenous outcomes the development of systems that allow the performance of any new arrangements to be evaluated rigorously and to encourage continuous learning. 

The reference statement indicates

 The Australian Government is committed to working in partnership with State and Territory Governments and non-government service providers to ensure that all Australians can access timely, affordable and high quality human services, which are appropriate to their needs, and are delivered in a cost-effective manner. The human services sector plays a vital role in the wellbeing of the Australian population. It covers a diverse range of services, including health, education and community services, for example job services, social housing, prisons, aged care and disability services. There are some features that are common across the range of services and models of service provision, while other features are unique in nature. Complexity arises from differences in the characteristics of the services, and of the individuals receiving the services, the objectives sought, and the jurisdiction and market in which the services are being supplied. While governments have made progress in introducing competition, contestability and user choice to human services provision, the efficiency and effectiveness of the delivery of services within the sector varies significantly between jurisdictions. Service delivery frameworks in the human services sector that are inefficient and/or ineffective can result in significant costs to the economy and individuals, including poorer outcomes and reduced productivity.

Australia's human services sector is facing significant challenges, including increasing demand for services due to the ageing population, the effect of technology and cost increases associated with new and more complex service provision demands. Finding innovative ways to improve the efficiency and cost effectiveness of the human services sector, and to target services to those most in need, will help ensure that high quality service provision is affordable for all Australians and leads to improved outcomes for the economy and individuals. The Commission's [policy options] to improve outcomes ... should lead to improvement in the sector's efficiency and effectiveness and help to ensure all Australians can access timely, affordable and high quality services, which are appropriate to their needs, and are delivered in a cost-effective manner. 

 The Commission will publish the initial study report within six months of receiving these Terms of Reference. The report will set out the findings from case studies and international experiences and identify which services within the human services sector are best suited to the application of competition, contestability and informed user choice principles. The final inquiry report, including policy recommendations and a path and process to ensure sustainable, efficient and effective reform, will be provided within 18 months of receiving the Terms of Reference.

Consumer Law Inquiry

The Productivity Commission has been tasked by the Treasurer with an inquiry into the administration of consumer law, for completion by March 2017.

The Commission states that

The Australian Consumer Law (ACL) commenced on 1 January 2011 as a single, harmonised consumer law bringing together the consumer protection provisions of the Trade Practices Act 1974 and previous state and territory fair trading laws. The ACL operates under a 'single-law, multiple regulator' model where the ACL is jointly enforced and administered by the Australian Competition and Consumer Commission (ACCC) and state and territory consumer agencies. The Australian Securities and Investments Commission (ASIC) administer similar provisions under the ASIC Act in relation to financial products and services.

A review of the ACL is being undertaken by Consumer Affairs Australia and New Zealand (CAANZ), on behalf of the Legislative and Governance Forum on Consumer Affairs. CAANZ will examine the effectiveness of the provisions of the ACL, the extent to which the national consumer policy framework has met the objectives agreed by COAG and the flexibility of the ACL to respond to new and emerging issues.

Clause 23 of the Intergovernmental Agreement for the Australian Consumer Law provides that a review of the enforcement and administration arrangements supporting the ACL be undertaken within seven years of its implementation. This study satisfies this requirement. 

The study is

 to examine the effectiveness of the 'multiple regulator' model in supporting a single national consumer policy framework and make findings on how this model can be strengthened drawing from the experience of regulators in the period since the ACL commenced in 2011, including the risk-based approach of regulators to enforcement. The study will also review the progress that has been made in addressing issues with the previous framework raised by the Commission in its 2008 'Review of Australia's Consumer Policy Framework', including regulatory complexity, inconsistency, gaps and overlap in enforcement, and unclear delineation of responsibilities between Commonwealth, state and territory governments.

In undertaking the study the Commission should

• assess the complementary roles played by ACL regulators and the effectiveness of existing mechanisms in improving the coordination, consistency of approach and collaboration between ACL regulators having regard to the Memorandum of Understanding agreed by regulators 
• examine the roles of specialist safety regulatory regimes  (such as therapeutic goods, food safety, building and construction industry and electricity and natural gas regimes) in protecting consumers, their interaction with ACL regulators and the extent to which the responsibilities of different regulators are clear 
• consider the implications of changes in the level of resourcing and regulator involvement in the administration of the ACL, including the national product safety law 
• report on other regulatory models, including models or approaches to consumer protection overseas that may inform improvements to the current model to ensure it remains flexible and responsive in addressing new and emerging issues.

Sociology of patenting and buybacks

'On the Sociology of Patenting' by Dan L. Burk in Minnesota Law Review (Forthcoming) comments 

 Recent commentary on the patent system has argued that there is little evidence supporting the incentive justification for patenting, so that continued faith in patents constitutes a kind of irrational adherence to myth or falsehood. While an obituary for the incentive theory of patenting is likely premature, the concept that the patent system is based upon myth should not be surprising. Over the past 30 years, some of the most prominent work in sociology has focused on social ordering, including legal ordering, that is found to be structured around prevalent social narratives or myths. Explicitly rejecting the economic construct of rational behavior, such “new institutional” approaches to social ordering recognize that organizations adopt practices and structures according to widely recognized scripts or conventions that lend legitimacy to their goals. In this essay I suggest that the known behavior of patenting firms likely fits the models developed in new institutional sociology: firms patent because other firms patent, because investors expect them to patent, and because patents validate the firm as innovative and reputable. Following such conventions is socially rational, but not necessarily economically rational. Applying new institutional approaches to patenting could explain several pervasive yet puzzling behaviors within the patent system, and moves us away from interminable fruitless arguments over the idealized efficiency or inefficiency of patents.

'How Stock Buybacks Make Americans Vulnerable to Globalization' (Working Paper, East-West Center Workshop on Mega-Regionalism) by William Lazonick comments 

Drawing on a large and growing body of research, I summarize how rationalization, marketization, and globalization have eroded middle-class employment opportunities since the 1980s. Then I document the extent to which over the same time-period financial interests, including senior corporate executives, have extracted cash from companies in the name of maximizing shareholder value. Finally I indicate why this value-extracting activity has rendered ineffective traditional macroeconomic and international trade policy. I call for a policy focus on the governance of business enterprise to support stable and equitable growth.

He argues

There is an integral relation in the U.S. economy between the explosion of the incomes of the richest households and the erosion of middle-class employment opportunities. Since the early 1980s, employment relations in U.S. industrial corporations have undergone three major structural changes, summarized as “rationalization,” “marketization,” and “globalization,” that have eliminated existing middle-class jobs in the United States. Exacerbating the rate of job loss and limiting business investment in new career employment opportunities has been the financialization of the business corporation, manifested by massive stock buybacks in addition to dividend payments. 

From the early 1980s, rationalization, characterized by plant closings, terminated the jobs of high-school educated blue-collar workers, most of them well-paid union members. From the early 1990s, marketization, characterized by the end of a career with one company as an employment norm, placed the job security of middle-aged white-collar workers, many of them college educated, in jeopardy. From the early 2000s, globalization, characterized by the offshoring of employment to lower-wage nations, has left all U.S. workers vulnerable to displacement, whatever their educational credentials and employment experience. 

These structural changes in employment relations were, initially, business responses to changes in technologies, markets, and competitors. In the early 1980s, permanent layoffs of blue-collar workers were a reaction to the superior productive capabilities of Japanese competitors in consumer-durable and related capital-goods industries. In the early 1990s, the erosion of the one-company-career norm among white-collar workers was a response to the dramatic technological shift from proprietary systems to open systems, integral to the microelectronics revolution; a shift that favored younger workers with the latest computer skills, acquired in higher education and transferable across companies, over older workers with many years of company-specific experience. In the early 2000s, the sharp acceleration in the offshoring of jobs was a response to the emergence of large supplies of highly capable, and lower wage, labor in developing nations such as China and India which, linked to the United States through inexpensive communications systems and global value chains, could take over those U.S. employment activities that had become routine. 

Once U.S. corporations transformed their employment relations, however, they often pursued rationalization, marketization, and globalization to cut current costs rather than to reposition their organizations to produce competitive products. Defining superior corporate performance as ever-higher quarterly earnings per share (EPS), companies turned to massive stock repurchases to “manage” their own corporations’ stock prices. Trillions of dollars that could have been spent on innovation and related job creation in the U.S. economy over the past three decades have been used instead to buy back stock for the purpose of manipulating stock prices. Legitimizing this financialized mode of corporate resource allocation has been the ideology, itself a product of the 1980s and 1990s, that a business corporation should be run to “maximize shareholder value” (MSV). Through their stock options and stock awards, corporate executives who make these resource-allocation decisions are themselves prime beneficiaries of rising stock prices and EPS. While rationalization, marketization, and globalization have undermined stable and remunerative employment relations that characterized the post-World War II decades, the financialization of the U.S. corporation has ensured that new employment relations that support stable and equitable economic growth have not been instituted to take their place. Rather the top priority of senior corporate executives has been MSV, manifested by massive stock repurchases, often in addition to generous cash dividends. Incentivizing these distributions has been the stock-based 

remuneration of top corporate executives. Over the past decade, moreover, at an accelerating rate, hedge-fund activists have joined in the feeding frenzy in a process that can only be described as the legalized looting of the U.S. industrial corporation. Drawing on a large and growing body of research, I summarize how rationalization, marketization, and globalization have eroded middle-class employment opportunities since the 1980s. Then I document the extent to which over the same time-period financial interests, including senior corporate executives, have extracted cash from companies in the name of MSV. Finally I indicate why this value-extracting activity has rendered ineffective traditional macroeconomic and international trade policy. I call for a policy focus on the governance of business enterprise to support stable and equitable growth.

Apologies

'“Trust Me, I’m Sorry”: The Paradox of Public Apology' by Alice MacLachlan in (2015) 98 The Monist 441-456 comments

Our attitude to official apologies is paradoxical. Despite widespread critique of most apologies issued by heads of state, government, and NGOs, public demand for such apologies continues to arise with predictable regularity — we demand even as we condemn. I argue that the role of apologies in securing public trust in a democratic contextcan explain this paradoxical attitude. By contrasting private and public apologies, I demonstrate that the latter have emerged as a performative (rather than legal or structural) model for accountability, and thus for reinspired public trust. I conclude by demonstrating significant democratic risks to this practice.

This apology means nothing. After what they’ve done, why would we trust a word out of their lying mouths? How can we move forward when they won’t even say they’re sorry?

An astute observer of public apologies will recognize the dissonance expressed in the two sentences above. Together, they demonstrate what we might call the paradox of public apology: namely, that even as we condemn (and outright mock) the public apologies issued by heads of states, politicians, as well as CEOs of corporations and other NGOs, public demand for such apologies continues to arise with predictable regularity each time a public figure or institution is found guilty of wrongdoing, negligence, or failure.

We seem to insist on this ritual even as we indict it as just that — mere ritual. Why is this? Why demand something that is increasingly devalued and dismissed? If official apologies are little more than political theater, why does the public appetite for this performance remain so insatiable? In this paper, I draw out a significant, shared element motivating both the dismissal and the appetite for contemporary public apology: trust. I propose that the significance of public trust goes a long way to explaining the paradox of apologies. While apologies have multiple functions, each function aims, in part, to restore conditions of warranted trust following wrongdoing (Koehn 2013). In typical cases of interpersonal apology, often taken to be the model for public apologies, the relationship be-tween apology and trust becomes a question of measuring trustworthiness; a successful apology persuades the recipient that the speaker is now more trustworthy than she once was, or is at least sincerely trying to become more trustworthy. A good apology gives the victim new reasons to trust the apologizer. In taking the expressive significance of apology seriously, we might even say that much of the merit of the apology stands in, as a kind of proxy, for the merit of the apologizer. Valuable apologies are trustworthy apologies, and trustworthy apologies reveal trustworthy apologizers.In the case of public apologies, the connection between expression and motive is murkier, for a host of reasons. It is harder to use an official apology as a reliable measure for the trustworthiness of the speaker or, indeed, of the institution that she rep-resents. Much of the blanket criticism aimed at public apologies emerges, I suspect,out of a sense of vulnerability and indignation — a suspicion that we are being asked and even expected to trust someone who has not yet earned it. Yet, if this is so, why does public appetite for apology remain insatiable? The answer, I believe, lies with the object of apology — the wrong which is being apologized for. Some state and institutional apologies are issued for historic wrongs: incidents and abuses in the distant (and not so distant) past for which acknowledgement have never been given and redress never made: examples range from the Irish Potato Famine (UK) to the Chinese Head Tax (Canada) and the Tuskegee syphilis experiment (US). Here, the demand for apology seems less surprising, since ongoing si-lence and lack of recognition are enduring, painful wrongs — spanning decades and even centuries. Official apologies alter distorted and oppressive histories. They “set the record straight” by correcting official accounts and acknowledging groups of citizens whose existence was denied or near-eradicated (Gibney and Roxstrom 2001;Nobles 2008; MacLachlan 2010). They represent and even enact important public moral change by asserting the wrongness of past norms and policies (for example,racist immigration practices or genocidal colonialism) that were once considered acceptable or even morally appropriate, and they announce and assert the very real harms these wrongful policies caused. Apology may not be all that victims of past wrongs and their descendants want, but it is less puzzling that apologies are often part of the reparation they demand (Torpey 2001; Walker 2013).

Instead, my interest lies with a subset of official apologies that are offered for recent wrongdoings. The paradox of public apology arises, I argue, in cases of public apology that more closely resemble personal apologies: cases where the wrong is both recent and an action already widely understood to be wrong, where the direct victim and wrongdoer are both alive — and where the trustworthiness of the wrong-doer is very much in question. We can identify these as contemporary public apologies. Contemporary public apologies concern wrongs and harms that damage broader forms of civic trust. This is true both in the case of apologies by democratic governments, and also in many instances of apologies by nongovernmental organizations. The wrongs in question damage our trust in specific institutions, and also shake our trust in government oversight and regulation of those institutions — pushed further, they undermine our trust in the authority and legitimacy of democratically determined legislation, and the civic society that it structures. What shakes our trust is not just a demonstrated lack of trustworthiness by the specific wrongdoer in question (indeed, in many cases, the official or institution in question was not trusted be-fore this particular harm) but also — more broadly and more subtly—public faith that systems of protection and regulation have been put in place by democratically determined legislation, that ruling persons and parties have the public’s interests at heart, and that we share a commitment to the norms and values that make up public culture. Apologies emerge as a performative (rather than legal or structural) model for accountability, and thus for reinspired public trust, in each of these targets.This, I argue, is where the ongoing demand for public apologies emerges. Whatever the vagaries of individual apologies, the practice of apologizing—as an official, publicly performed, speech act—reasserts norms and contributes to a culture of accountability, even when the accountability in question is imposed through public pressure or legal coercion and does not represent a spontaneous change of heart. Apologies give us reasons to trust the system, if not the speaker. The paradox dissolves when we recognize that even apologies by untrustworthy apologizers may nevertheless establish conditions for greater (though not necessarily warranted) civic trust.My argument takes the following form: first, I outline the characteristics of and success conditions for interpersonal apologies, contrasting these with public apologies in order to demonstrate the limits of the latter, when it comes to expressing and establishing trustworthiness. In the second half of the paper, I turn to the relationship between institutional wrongdoing and public trust. I discuss the significance of “default” civic trust for democracy, and propose three ways in which official apologies contribute to its renewal other than by establishing the trustworthiness of the offending institution and its representatives. I conclude by noting that this analysis reveals two significant risks associated with them: a moral risk that direct victims are over-looked in the desire to reassure the broader public, and a political risk that democratic models of accountability are being replaced by interpersonal ones, in contemporary political culture.

Lawyerbots

'Can Robots Be Lawyers? Computers, Lawyers, and the Practice of Law' by Dana Remus and Frank S. Levy states 

 We assess frequently-advanced arguments that automation will soon replace much of the work currently performed by lawyers. Our assessment addresses three core weaknesses in the existing literature: (i) a failure to engage with technical details to appreciate the capacities and limits of existing and emerging software; (ii) an absence of data on how lawyers divide their time among various tasks, only some of which can be automated; and (iii) inadequate consideration of whether algorithmic performance of a task conforms to the values, ideals and challenges of the legal profession.

Combining a detailed technical analysis with a unique data set on time allocation in large law firms, we estimate that automation has an impact on the demand for lawyers’ time that while measureable, is far less significant than popular accounts suggest. We then argue that the existing literature’s narrow focus on employment effects should be broadened to include the many ways in which computers are changing (as opposed to replacing) the work of lawyers. We show that the relevant evaluative and normative inquiries must begin with the ways in which computers perform various lawyering tasks differently than humans. These differences inform the desirability of automating various aspects of legal practice, while also shedding light on the core values of legal professionalism.

Workers

'Limitless Worker Surveillance' by Ifeoma Ajunwa, Kate Crawford and Jason Schultz in (2017) 105(3) California Law Review comments

From the Pinkerton private detectives of the 1850s, to the closed-circuit cameras and email monitoring of the 1990s, to contemporary apps that quantify the productivity of workers, American employers have increasingly sought to track the activities of their employees. Along with economic and technological limits, the law has always been presumed as a constraint on these surveillance activities. Recently, technological advancements in several fields – data analytics, communications capture, mobile device design, DNA testing, and biometrics – have dramatically expanded capacities for worker surveillance both on and off the job. At the same time, the cost of many forms of surveillance has dropped significantly, while new technologies make the surveillance of workers even more convenient and accessible. This leaves the law as the last meaningful avenue to delineate boundaries for worker surveillance. 

In this Article, we examine the effectiveness of the law as a check on worker surveillance, given recent technological innovations. In particular, we focus on two popular trends in worker tracking – productivity apps and worker wellness programs – to argue that current legal constraints are insufficient and may leave American workers at the mercy of 24/7 employer monitoring. We then propose a new comprehensive framework for worker privacy protections that should withstand current and future trends.

'The Flexible Cyborg: Work-Life Balance in Legal Practice' by Margaret Thornton in (2016) 38(1) Sydney Law Review 1-21 comments

 ‘Work/life balance’ (WLB) emerged as the catchcry of workers everywhere in the late 20th century. It was particularly appealing to women lawyers as it was thought that if a balance could be effected between work and life, satisfying careers and the raising of children could be combined. The key to effecting this balance, it was believed, was flexible work. Technology has facilitated this flexibility as all that is required is a computer, or other device with internet connection, and a mobile phone. Provided that the firm is agreeable, the lawyer would have a degree of autonomy in determining when and where the work is carried out. However, flexible work has not always proved to be the boon that was hoped, for the shift from face-time to virtual time has blurred the boundary between work and life, insidiously extending the hours of work and impinging on the realm of intimacy. Drawing on a web-based survey and interviews with lawyers Australia-wide, this article considers the ramifications of perpetual connectivity for lawyers in private practice, with particular regard to its gender significance.

The ABC reports that  Jennifer Anne Reed faces a maximum penalty of 10 years' jail after passing herself off as a registered nurse for five years. Prosecutors said Reed's deception involved producing fake documents to secure work, including a false CV and references.

Reed  was reportedly exposed as an imposter after she poorly handled a patient who had suffered a fall. She has pleaded guilty to seven counts of deception by using the identity of a registered nurse to work at several aged care homes in South Australia between 2009 and 2014.

After the incident  at the aged care facility Trevu House at Willaston, near Gawler (SA) the facility's acting manager notified the Australian Health Practitioner Regulation Agency (AHPRA) which later uncovered Reed's "elaborate and persistent charade". Documents reportedly demonstrated a "lengthy history of remarkably similar behaviour".

Reed was the director of nursing for Moonta Health and Aged Care in 2014 and was responsible for administering "drugs of dependence" at Trevu House that year . She received wages of almost $350,000 over the five years.