Personality Rights, Privacy and Copyright

'Recognition and Protection of Personality Rights: Classification and Typology' by Johann Neethling in (2018) 9(3) Journal of European Tort Law comments

In this article the premise is that personality interests exist in factual reality independently of any legal recognition. This emphasis on the pre-legal existence of individual personality interests is not merely of philosophical interest, but of cardinal jurisprudential and practical significance as it brings to the fore the fact that the qualities of personality interests are not determined by legal principles, but primarily by their nature in the sphere of factual reality. A jurisprudential definition and delineation of personality interests, which is essential to enable protective measures to be properly applied in practice, does not detract from this. This classification and typology therefore take account of factual reality, supplemented on a comparative law approach by the personality rights identified and delimited by jurists, the courts and legislatures, as well as typical examples of infringements of personality sanctioned by the different legal systems. Accordingly, the following classification and typology of personality rights are proposed: the right to life, the right to physical integrity, the right to physical liberty, the right to reputation, the right to dignity, the right to feelings, the right to privacy, and the right to identity.

'Monkey Selfie and Authorship in Copyright Law: The Nigerian and South African Perspectives' by Caroline Ncube and Desmond Oriakhogba in (2018) 21 Potchefstroom Electronic Law Journal comments

A photograph taken by a monkey was in the centre of a copyright claim in the famous monkey selfie case in the United States of America. Suing as next friend of the monkey named as Naruto, the People for the Ethical Treatment of Animals contended that copyright in the photograph belonged to the monkey as author of the photograph since the monkey created the photograph unaided by any person. On the motion of the defendants, the case was dismissed by the US district court on the ground that the concept of authorship under US Copyright Act cannot be defined to include non-human animals. The dismissal order was confirmed by a three-judge panel of the US Court of Appeal of the Ninth Circuit. This paper reviews the case in the light of the concept of authorship and ownership, with specific focus on authorship of photographs, under the Nigerian Copyright Act and South African Copyright Act. In so doing, it examines and relies on Ginsburg’s six principles for testing authorship to the authorship of photograph under the Acts. It also relies on the concepts of subjective rights and legal personality to explain the implication of conferring copyright ownership on non-human animals. It argues that for authorship of, and ownership of the copyright in, a photograph to be established under the Nigerian Copyright Act and South African Copyright Act, a legal person must have created the photograph. Consequently, for purposes of argument, the paper proceeds on the assumption that the monkey selfie case originated from Nigeria or South Africa. After analysing of relevant statutory provisions and case law, the paper finds that the Nigerian Copyright Act and the South African Copyright Act do not envisage conferral of authorship in particular, and copyright protection in general, to a non-human animal. It then concludes that the courts in both countries would not reach a different conclusion from the one made by the US courts.

'Unmasking the Right of Publicity' by Dustin Marlan comments 

In the landmark case of Haelan Laboratories v. Topps Chewing Gum, Judge Jerome Frank articulated the modern right of publicity. The right is now most often seen to protect the strictly commercial value of one’s “persona” — the Latin-derived word originally meaning the mask of an actor. Among other criticisms, the right of publicity is frequently accused of lacking a coherent justification, permitting only economic redress against public harms to the persona, and stripping away individual identity by allowing for an alienable, proprietary right in one’s personality. Why might Judge Frank have been motivated to create a transferable intellectual property right in the monetary value of one’s persona distinct from the psychic harm to feelings, emotions, and dignity protected under the rubric of privacy? 

Judge Frank was a leading figure in the American legal realist movement known for his unique and controversial “psychoanalysis of certain legal positions” through seminal works including Law and the Modern Mind, Why Not a Clinical Lawyer-School?, and Courts on Trial. His work drew heavily on the ideas of psychoanalytic thinkers, like Freud, Piaget and Jung, to describe the distorting effects of infantile and unconscious wishes and fantasies on the decision-making process of legal actors and judges. For Judge Frank, the psychoanalytic interplay between dual parts of the personality supported the realist interpretation of lawmaking as a highly subjective and indeterminate activity. Indeed, though Judge Frank provided little rationale for articulating a personality right separate from privacy in Haelan, he had given a great deal of attention to the personality in his scholarly works. 

In the spirit of Judge Frank’s psychoanalytic jurisprudence, this Article suggests that the right of publicity’s aim, apart from the personal right to privacy, may be understood through the psychoanalytic conception of the personality — divided into public and private spheres. In the psychological sense, the term persona, or “false self,” refers to an individual’s social façade or front that reflects the role in life the individual is playing. That is, as a metaphor for the actor and their mask, the persona is used to indicate the public face of an individual, i.e., the image one presents to others for social or economic advantage, as contrasted with their feelings, emotions, and subjective interpretations of reality anchored in their private “true self.” However, the law’s continued reliance on a dualistic metaphor of the personality — i.e., divided sharply into inner (private) and outer (public) subparts — appears misguided amidst a growing technology, internet, and social media-driven need for interwoven privacy and publicity rights.

Online Intermediaries

'The Liability of Australian Online Intermediaries' by Kylie Pappalardo and Nicolas Suzor in (2018) 40(4) Sydney Law Review 469 comments

This article provides a comprehensive review of the current state of Australian online intermediary liability law across different doctrines. Different aspects of Australian law employ a range of tests for determining when an actor will be liable for the actions of a third party. So far, these tests have primarily been developed in cases brought under the laws of defamation, racial vilification, misleading and deceptive conduct, contempt of court, and copyright. In this article, we look across these bodies of law to highlight common features and doctrinal differences. We show that the basis on which third party intermediaries are liable for the actions of individuals online is confusing and, viewed as a whole, largely incoherent. We show how the main limiting devices of liability across all of these schemes — intention, passivity, and knowledge — are ineffective in articulating a clear distinction for circumstances in which intermediaries will not be held liable. The result is a great deal of uncertainty. We argue that intermediary liability law should develop by focusing on the concept of responsibility, and that existing principles in tort jurisprudence can help to guide and unify the different standards for liability. 

The authors argue

 Online intermediary liability law in Australia is a mess. Internet intermediaries, including telecommunications providers, internet service providers (‘ISPs’), content hosts, search engines, social media platforms, and e-commerce and payment providers all play a major role in enabling (and restricting) the information that people can see and post online.[1] The legal bases on which intermediaries are liable for the actions of individuals online is confusing and, viewed as a whole, largely incoherent. As the internet has grown up, courts and legislatures around the world have struggled to extend the reach of territorial laws to adequately deal with online communications and interactions. As pressure has mounted to find a way to enforce local laws to deal with specific emerging tensions, the legal response has been haphazard. In Australia, liability under separate doctrines has developed out of their particular bodies of common law jurisprudence in almost complete isolation. The result is a great deal of uncertainty; the rules and standards for third-party liability in copyright differ from those in defamation, in other torts, in contract, and in civil content regulation and criminalised speech. Courts, legislatures, lobbyists, and civil society groups are struggling to articulate a coherent basis upon which intermediaries should be required to act to enforce the law against their users in a way that is effective, fair, and does not chill investment in online services. This is an increasingly heated and important debate, but the possibility of reaching any broad consensus remains elusive. 

The pressure to find a way to enforce local laws to deal with specific emerging tensions is reflected across a number of separate ongoing legal debates in Australia. The High Court of Australia’s decision in Roadshow Films Pty Ltd v iiNet Ltd[2] that iiNet, an ISP, was not liable for copyright infringement by users of its service has led successive governments to respond with a confusing range of policy options. This has included first mooting a substantial legislative reversal of the decision,[3] then a failed attempt to require ISPs to negotiate with rightsholders in the shadow of a threat to introduce more burdensome regulation,[4] and new laws requiring ISPs to block access to websites that infringe copyright in certain circumstances.[5] In defamation law, first instance courts are struggling to articulate the appropriate reach of defamation law beyond website operators and on to search engines.[6] In 2014, the Australian Law Reform Commission (‘ALRC’) recommended the introduction of a civil action for serious breaches of privacy,[7] which it suggested should probably also apply to intermediaries who fail to remove private information from their networks after they have been notified of a serious invasion of privacy.[8] A separate 2011 report by the ALRC into content regulation recommended that internet intermediaries ought to be required to block or remove ‘prohibited’ content available on or through their networks.[9] This recommendation follows a failed attempt from 2008 through 2012 to empower the Australian Communications and Media Authority to designate prohibited content to which ISPs must block access.[10] The Australian Government has also created the role of ‘eSafety Commissioner’,[11] with the power to request that large social network sites remove ‘cyberbullying’ content targeted at Australian children.[12] The eSafety Commissioner’s remit has recently been extended beyond children to include identifying and removing illegal online content and tackling image-based abuse.[13] A 2017 review considered how federal law may require intermediaries to remove sexual images posted without the consent of the subject[14] — a phenomenon colloquially known as ‘revenge porn’.[15] This is an issue that the Australian Government is still determining how to resolve.[16] 

None of these initiatives express a coherent or consistent articulation of when, exactly, an online intermediary will be liable for the actions of their users. There are conflicting authorities both within and between separate bodies of law that impose different standards of responsibility on online intermediaries. Courts are struggling to adapt the law to apply to new technological contexts in a way that adequately balances competing interests from within the confines of existing doctrines. The legislative process is alternately heated and stalled; policymakers too are struggling to articulate balances that are acceptable to all stakeholders. 

In this article, we provide an overview of the current state of Australian intermediary liability law, and argue that a greater focus on responsibility can help to guide and unify the different standards for liability. In Part II, we explain the struggle to regulate the internet, the competing tensions, and the growing pressure for intermediaries to take a more active role in upholding the law and enforcing social norms. In Part III, we provide a comprehensive review of online intermediary liability case law in Australia. We show that there is a common struggle to articulate the boundaries of intermediary liability law within and among different doctrines. This struggle is manifesting in a body of case law that relies on apparent intent and actual or imputed knowledge of wrongdoing to found liability in ways that distort the historical bounds of liability in each doctrine. In Part IV, we examine the main devices that delineate the scope of intermediary liability across different doctrines: the classification of ‘active’ versus ‘passive’ actors; the role of intent; and the role of knowledge. These concepts, we argue, are ineffective in clearly articulating the circumstances in which intermediaries will not be held liable. Accordingly, they fail to provide intermediaries with legal certainty or adequate guidance for acceptable conduct. We conclude by suggesting that intermediary liability law should develop by focusing on the concept of responsibility to ground liability. 

Existing, long-established principles in tort jurisprudence have long helped courts to work through and articulate the boundaries of liability. The legal inquiry that looks to the role that intermediaries play in the wrongful acts of others is not unique to online regulation, or to defamation, content regulation or copyright law. In tort law, too, courts occasionally look beyond immediate injurers to background actors ‘whose carelessness is alleged to have set the stage for the injury’.[17] The task of distinguishing actors who are liable for wrongdoing from those who are not goes to the heart of tort law and theory.[18] In imposing liability for causing harm, tort law ‘is only secondarily about who pays; the primary focus is on how people are allowed to treat each other’.[19] 

Tort law has largely dealt with the issue of secondary liability by closely examining the actual role that the secondary actor has played in causing the relevant harm. While courts engaged in this inquiry have used different terms over the years, including ‘proximity’, ‘closeness’ and ‘directness’, the question is fundamentally the same: was the intermediary’s conduct causally significant in bringing about the harm suffered by the plaintiff?[20] The principles that have emerged from this jurisprudence focus on the imposition of negative duties (that is, duties not to harm) and the reluctance to impose affirmative duties to proactively protect another from harm caused by a third party (except in discrete circumstances).[21] It is only where the intermediary has played a causally significant role in establishing the circumstances that are likely to lead directly to the harm that the intermediary will be held responsible. These established principles, we suggest, are likely to be more effective at identifying when an intermediary will have a responsibility to act than the more common distinctions based on intention, passivity, or knowledge. We suspect that it might be possible for these existing principles of responsibility to inform the development of different areas of online intermediary liability law without wholesale doctrinal shifts, but we leave this work for a future article.

Ehealth

'When digital health meets digital capitalism, how many common goods are at stake?' by Tamar Sharon in (2018) Big Data and Society 1–12 comments

In recent years, all major consumer technology corporations have moved into the domain of health research. This ‘Googlization of health research’ (‘GHR’) begs the question of how the common good will be served in this research. As critical data scholars contend, such phenomena must be situated within the political economy of digital capitalism in order to foreground the question of public interest and the common good. Here, trends like GHR are framed within a double, incommensurable logic, where private gain and economic value are pitted against public good and societal value. While helpful for highlighting the exploitative potential of digital capitalism, this framing is limiting, insofar as it acknowledges only one conception of the common good. This article uses the analytical framework of modes of justification developed by Boltanksi and Thevenot to identify a plurality of orders of worth and conceptualizations of the common good at work in GHR. Not just the ‘civic’ (doing good for society) and ‘market’ (enhancing wealth creation) orders, but also an ‘industrial’ (increasing efficiency), a ‘project’ (innovation and experimentation), and what I call a ‘vitalist’ (proliferating life) order. Using promotional material of GHR initiatives and preliminary interviews with participants in GHR projects, I ask what moral orientations guide different actors in GHR. Engaging seriously with these different conceptions of the common good is paramount. First, in order to critically evaluate them and explicate what is at stake in the move towards GHR, and ultimately, in order to develop viable governance solutions that ensure strong ‘civic’ components.

Sharon argues

In the last few years, every major consumer technology corporation, from Google to Apple, to Facebook, Amazon, Microsoft and IBM, has moved decisively into the health and biomedical sector. These are companies that, for the most part, have had little interest in health in the past, but that by virtue of their data expertise and the large amounts of data they already have access to, are becoming important facilitators, if not initiators, of data-driven health research and healthcare. 

This ‘Googlization of health research’ (GHR), as I have called this process elsewhere (Sharon, 2016), promises to advance health research by providing the technological means for collecting, managing and analysing the vast and heterogeneous types of data required for data-intensive personalized and precision medicine. Apple’s ResearchKit software, for example, which turns the iPhone into a platform for conducting medical studies, allows researchers to access diverse types of data (sleeping patterns, food consumption, gait), to recruit larger numbers of participants than average in clinical trials, and to monitor participants in real time (Savage, 2015). Similarly, the new analytics techniques and data repositories offered by consumer technology companies seek to overcome limitations in traditional medical analytics methods and infrastructure. DeepMind, for example, Google’s London-based artificial intelligence offshoot, is applying deep learning for the prediction of cardiovascular risk, eye disease, breast cancer and patient outcomes, in collaboration with several hospitals (Poplin et al., 2018; Ram, 2018). Verily, Alphabet’s life science branch, is developing new tools to capture and organize unstructured health data, for example in its ‘Project Baseline’ in partnership with Stanford and Duke University. The study will collect and analyse a wide range of genetic, clinical and lifestyle data on 10,000 healthy volunteers, with the aim of comprehensively ‘mapping human health’ (Verily, 2018). Google, Microsoft, Amazon and IBM have also begun packaging their clouds as centralized genomic databases where researchers can store and run queries on genomic data. 

Many of these techniques still have not delivered on their promises, all the while introducing a host of new challenges and limitations, such as new selection and other types of biases (Agniel et al., 2018; Hemkens et al., 2016; Jardine et al., 2015). Yet their potential, if not over-hyped, remains promising (Fogel et al., 2018), and places these corporations in a privileged position in the move towards personalized medicine and Big Data analytics – and broader healthcare vistas. Indeed, most recently a number of these companies have begun moving into the domains of electronic health record management, employee healthcare and health insurance (Farr, 2017; Farr, 2018; Wingfield et al., 2018). 

Beyond these promises, GHR also raises a number of challenges and risks. First amongst these are concerns of privacy and informed consent. GHR is an instance of data-intensive research characterized by the use of large digital datasets and Big Data analytics, where traditional mechanisms put in place to protect research participants are increasingly under strain. These issues may be exacerbated in situations where consumer technology companies, whose data-sharing practices often are not subject to the same privacy-protecting regulations and codes of conduct as those of medical researchers, are involved (Zang et al., 2015). The potential for ‘context transgressions’ (Nissenbaum, 2010), whereby data may flow between medical, social and commercial contexts governed by different privacy norms, is greater here. Furthermore, broader questions about the value of personal health data and publicly generated datasets, and what market advantage is conferred to commercial entities who can access them and develop treatments and services based on this access, will emerge. In other words, in GHR initiatives, concerns that are common in the practices of digital capitalism are imported into the health realm (Sharon, 2016). 

A recent controversy surrounding a data sharing partnership between Google DeepMind and the NHS illustrates how some of these issues are already playing out. Announced in 2016, the collaboration between DeepMind and the Royal Free London, a NHS Foundation Trust, granted DeepMind access to identifiable information on 1.6 million of its patients in order to develop an app to help medical professionals identify patients at risk of acute kidney injury (AKI). The terms of this agreement have been analysed in depth by Powles and Hodson (2017, 2018), who argue that it lacked transparency and suffered from an inadequate legal and ethical basis. Indeed, following an investigation, the Information Commissioner’s Office (ICO, 2017) ruled that this transfer of data and its use for testing the app breached data protection law. Namely, patients were not at all aware that their data was being used. Under UK common law, patient data can be used without consent if it is for the treatment of the patient, a principle known as ‘direct care’, which the Trust invoked in its defence. But as critics argue, insofar as only a small minority of the patients whose data was transferred to DeepMind had ever been tested or treated for AKI, appealing to direct care could not justify the breadth of the data transfer. 

Of course, GHR collaborations taking place in different jurisdictions will be provided with different opportunities and face different legal challenges. And despite the global profile of the corporations in question, national and regional guidelines for the management of AI and Big Data in health will impact what GHR collaborations can and cannot do. But the DeepMind case also raises questions beyond data protection, privacy and informed consent, which have to do with the newfound role that tech corporations will play in health research and healthcare, and new power asymmetries between corporations, public health institutions and citizens that may ensue. For example, will these corporations become the gatekeepers of valuable health datasets? What new biases may be introduced into research using technologies, such as iPhones, that only certain socio-economic segments of the population use? What role will these companies, already dominant in other important domains of our lives, begin to play in setting healthcare agendas? These are questions that concern collective and societal benefit – broadly  speaking, the common good. They point to the need to situate the analysis of GHR in the wider context of the political economy of data sharing and use, and they foreground a number of concerns that move beyond (just) privacy and informed consent, including social justice, accountability, democratic control and the public interest. 

These values are the focus of the growing body of literature in critical data studies that draws on a political economy critique to address the development of new power asymmetries and discriminations emerging in Big Data infrastructures (Taylor, 2017; van Dijk, 2014; Zuboff, 2015). In this context, new Big Data divides can be expected based on access to and ownership of data, technological infrastructures and technical expertise, with important repercussions for who shapes the future of (health) research (boyd and Crawford, 2012). However, by focusing on the new power asymmetries emerging between data subjects and corporations, critical data studies tend to frame data sharing in terms of two incommensurable logics: public benefit and private, corporate gain. In this article, I argue that this dichotomy is limiting, insofar as it only allows for one vision of the common good, while a plurality of conceptualizations of the common good are at work in GHR. In the following, I use the interpretive framework of economies of worth developed by the sociologists Luc Boltanski and Laurent Thevenot (2006 [1991]) to identify a number of moral repertoires that each draw upon different conceptualizations of the common good and that are mobilized by actors in GHR-type initiatives. Doing so depicts a much richer ethical terrain of GHR than is accounted for in most critical analyses of digital capitalism. 

This is valuable for several reasons. First, it is paramount that the moral orientations of actors in GHR be taken seriously, insofar as they influence and guide decision-making processes that are currently taking place. Here I draw on the constructivist tradition that views the discourses, repertoires and logics that convey moral orientations as performative; as contributing to the enactment of technological futures (Foucault, 1965; Latour and Woolgar, 1979). Critical research on GHR must engage with these competing moral orientations and conceptualizations of the common good. Second, this type of mapping is a necessary first step towards critically evaluating different moral repertoires, insofar as it contributes to rendering explicit the trade-offs that will be involved in the enactment of different repertoires. In the current situation, where no comprehensive ethical and policy guidance for GHR exists, this is required if we are to have serious public deliberation about what is at stake in the move towards GHR. Finally, while Boltanski and The´venot’s framework was developed as a descriptive project, I argue that it can be used to help develop normative guidelines for governance of GHR-type projects, and that this should be further developed into a research programme. Here, solutions can be thought of as combinations of repertoires, where different repertoires can check and balance each other. Such solutions will have a good chance of adoption insofar as they will appeal to a wide range of actors. Further, if what Boltanski and The´venot call the ‘civic’ order of worth embodies the most publicly legitimate conception of the common good, we can design solutions that ensure the presence of strong civic components. For this, however, the civic repertoire must be ‘updated’, so to speak: it must first engage seriously with competing conceptions of the common good that are mobilized in the empirical reality of GHR. The article thus seeks to map and analyse the different orders of worth invoked by actors involved in GHR as a first step towards this endeavour.

Media Ownership, Competition and the FAANGs

The report by the Expert Panel of its Inquiry into the Competitive Neutrality of the National Broadcasters released earlier this month features the following 'Key points'-

• This Inquiry is about whether the National Broadcasters—the Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service (SBS)—are competing fairly with the private sector. The National Broadcasters have pursued new opportunities in changing media markets and new competitive circumstances have emerged. 

• Most significant competitive pressures for news, entertainment and advertising are coming from giant international companies. Nonetheless, the National Broadcasters are forces in Australian markets, with their competitive weight enhanced by secure funding at a time of higher commercial risk, supported by relatively high productivity growth. 

• Competitive neutrality seeks to ensure that competition is not distorted by public entities taking inappropriate advantage of government ownership. It is not intended to prevent public entities from competing, nor to relieve discomfort from competitive processes which are bringing benefits to consumers as they rapidly adopt and enjoy new services. 

• The Commonwealth’s Competitive Neutrality Policy (CNP) is focussed on government trading corporations and its relevance to the National Broadcasters is more limited. Nevertheless, the National Broadcasters operate under a best endeavours approach to competitive neutrality. 

• With respect to their business activities (with user-charging), the National Broadcasters are abiding by a best endeavours approach to competitive neutrality. It is unlikely to be front of mind but mostly conforms to good internal business organisation. There is no evidence that costs are not appropriately allocated. And prices are generally set to market rates. 

• Different regulatory circumstances facing the National Broadcasters, compared to the private sector, represent Parliamentary decisions which are difficult to bring to financial account. 

• Some improvements in transparency and internal procedures are possible. The separate Treasury review of the CNP may clarify improvements arising from the recommendations of the Harper Review of Competition Policy. 

• Beyond the application of the competitive neutrality management guidelines to business activities, the question arises as to how competitive neutrality principles about competing fairly without distortion might apply to the free services delivered by the ABC and SBS. 

• Free ABC and SBS services are having some competitive impact. Submissions included complaints about the ABC’s online news service and SBS’ multi-channel and streaming services. But the National Broadcasters are established and funded to provide free services. So long as they operate within their statutory Charters they are operating in the public interest. 

• Submissions questioned whether the ABC and SBS were operating within their Charters. The Charters are written very broadly, and reporting against the Charters is not detailed or robust enough to settle doubts. Accountability is difficult, especially as there is no opportunity for Charter complaints to be addressed. 

• Given their market shares, and other factors, this Inquiry considers the National Broadcasters are not causing significant competitive distortions beyond the public interest. 

• While the National Broadcasters are not prohibited from competing, some improvements in the way they interact with markets should be contemplated.  

The  Terms of Reference were contextualised as

Government businesses compete with the private sector in a number of markets. The Commonwealth Competitive Neutrality Policy requires that government business activities should not enjoy net competitive advantages simply by virtue of their public sector ownership. At the same time, competitive neutrality principles do not imply that government businesses cannot be successful in competition with private businesses. Both National Broadcasters provide important services for the benefit of the Australian community in line with a legislated Charter. Some aspects of this they undertake or deliver in competition with private sector operators. It is timely to consider how the national broadcasters operate in modern media context and whether the ways they compete with the private sector are appropriate. These policy issues have not been reviewed in depth since the 1997 report by Bob Mansfield considered the way in which the national broadcasters conduct business activities within the confines of competitive neutrality principles. It is also timely to conduct this Inquiry in concert with the wider review of Competitive Neutrality Policy being undertaken by the Treasury.

The specific Terms were

This Inquiry will explore the practices of the national broadcasters and advise the Government on whether they are operating in a manner consistent with the general principles of competitive neutrality. The Inquiry will consider how Australian Broadcasting Corporation (ABC) and Special Broadcasting Service (SBS) operate within the markets of which they are part and the basis on which they are competing with the private sector. This should focus on:

• the application of competitive neutrality principles to the business activities of the ABC and SBS, including in operational decision making and risk management 

• the cost structures of business activities 

• the regulatory obligations for ABC and SBS compared to those for private sector operators, insofar as this these relate to competitive neutrality principles 

• the adequacy of current compliance and reporting arrangements, and 

• complaints and accountability mechanisms operated by the broadcasters, insofar as they relate to competitive neutrality principles.

The panel will also make observations on the role of national broadcasters in the modern media environment.

The Executive summary states

This Inquiry ... was launched by the Minister for Communications in March 2018 following concerns raised with the Government by Members of Parliament and Australia’s commercial media industry focussing on whether the National Broadcasters are operating appropriately in the modern media environment. The National Broadcasters provide important services for the benefit of the Australian community in line with their legislated Charters. Some aspects of this they deliver in competition with private sector operators. In rapidly changing media markets the National Broadcasters have pursued new opportunities and so new competitive circumstances have emerged.   Most significant competitive pressures for news, entertainment and advertising are coming from giant international companies, the so-called FAANGs (Facebook, Apple, Amazon, Netflix and Google) placing advertising revenues of Australian media companies under pressure. (The FAANGs’ participation in Australian markets is part of a separate inquiry by the ACCC into digital platforms). Nonetheless the National Broadcasters are appreciable forces in the Australian market, with their competitive weight enhanced by secure government funding at a time of higher commercial risks and low returns. Their capacity to compete has been supported by a relatively high rate of labour productivity growth. 

This Inquiry is asked to look at the National Broadcasters’ operations through the lens of competitive neutrality. Competitive Neutrality Policy stems from COAG agreements on competition policies and seeks to ensure that competition is not distorted by public entities taking inappropriate advantage of public ownership. According to the 1995 Competition Policy Agreement: The objective of competitive neutrality policy is the elimination of resource allocation distortions arising out of the public ownership of entities engaged in significant business activities: Government businesses should not enjoy any net competitive advantage simply as a result of their public sector ownership. These principles only apply to the business activities of publicly owned entities, not to the non-business, non-profit activities of these entities. The 1996 Commonwealth Competitive Neutrality Policy (CNP)—which details the application of competitive neutrality principles within the Commonwealth sector—notes that: Competitive neutrality does not imply that government businesses cannot be successful in competition with private businesses. Government businesses can achieve success as a result of their own merits and intrinsic strengths, but not as a consequence of unfair advantages flowing from government ownership. Competitive neutrality is not intended to prevent public entities from competing, nor to relieve discomfort from competitive processes which bring benefits to consumers. 

Australian media consumers have rapidly adopted and enjoyed new services brought forward by competition. The CNP is focussed on government trading corporations and its relevance to the National Broadcasters is more limited. Nevertheless, the National Broadcasters operate under a best endeavours approach to competitive neutrality. Here competitive neutrality is intended to cover the business activities of the ABC and SBS.  ... The Panel drew on these investigations in assessing the detailed responses provided by the National Broadcasters to a range of specific and general questions about their competitive neutrality practices. Submissions from other stakeholders were also relevant. 

The Panel referred to four tests: 1. Have there been complaints to the Australian Government Competitive Neutrality Complaints Office (AGCNCO)? 2. Are there specific examples of significant pricing or other market distortions? 3. Do the average market shares of the National Broadcasters signal material competitive impact, and have there been significant changes? 4. Do the National Broadcasters have internal processes for proper cost allocation and market entry? 

With respect to their business activities, the Panel concluded that the National Broadcasters are abiding by a best endeavours approach to the CNP. These matters seem unlikely to be front of mind for the National Broadcasters, but the requirements mostly seem to correspond to good internal business organisation. Thus costs are separately identified and allocated, and prices are mostly set to market rates. Tax and debt neutrality have little relevance. Regulatory neutrality presents a more complex picture. There are strongly divergent views around the relative weight of the different regulatory arrangements faced by the National Broadcasters, compared to private sector businesses. But the Panel concluded that these have been set by Parliament and therefore represent decisions in the public interest. 

The cost burdens of these different regulations are difficult to bring to useful financial account. Moreover, there have been no competitive neutrality complaints about the National Broadcasters put this century to the Government’s complaints agency, the AGCNCO, and market shares of the National Broadcasters do not show significant change (although this may change in a rapidly changing market with new services). Some improvements in competitive neutrality transparency and internal processes are possible and warranted. The separate Treasury review of the CNP arising from the Harper Review of Competition Policy may clarify competitive neutrality reporting requirements. The Panel considers that the National Broadcasters should continue to abide by the CNP on a best endeavours basis. 

A wider relevance of competitive neutrality principles? 

Beyond the application of the CNP to business activities, the Inquiry’s Terms of Reference invite the question as to how competitive neutrality principles might relate to the whole of the services (free services) provided by the ABC and SBS. The Harper Review called for a potential broadening of the competitive neutrality principles stating: Government business activities that compete with private provision, whether for-profit or not-for-profit, should comply with competitive neutrality principles to ensure they do not enjoy a net competitive advantage simply as a result of government ownership. The Treasury Review of the CNP may throw further light on this but in the meanwhile the Panel has been asked to make an assessment with respect to the National Broadcasters. The National Broadcasters questioned the relevance of a wider application of competitive neutrality principles. They have received no guidance as to a wider application. (Indeed, the Panel can find no evidence that they received the guidance about the best endeavours requirement foreshadowed by COAG in November 2000 for just their business activities). But in any case, in relation to the general principles of competitive neutrality, the ABC points to the requirement in its Charter to take account of the services provided by the commercial and community broadcasting sectors. Similarly, SBS refers to the requirement in its Charter to contribute to ‘the overall diversity of Australian television and radio services’ and to take into account the contribution of the ABC and the community broadcasting sector. Free services offered by the ABC and SBS are having some competitive impact.    

The Panel's finding are

Competitive neutrality principles (Chapter 2) 

1. A best endeavours approach by the National Broadcasters to the application of the Competitive Neutrality Policy to their business activities continues to be appropriate. 

2. More generally, the general principles of competitive neutrality are relevant to the other forms of market participation by the National Broadcasters. 

The media landscape (Chapter 3) 

3. The media landscape is likely to continue to change rapidly, creating new forms and points of competition, which may continue to impact adversely on some commercial organisations. It is worth noting the proposed merger of Fairfax and Nine Entertainment is a response to these pressures and may be indicative of further market consolidation. 

4. Rapid market changes are resulting in an increase in the instances in which the National Broadcasters are ‘rubbing up’ against a range of domestic private sector competitors. 

5. Major sources of competition in media markets are likely to continue to be international companies with resulting impact on all domestic media organisations. 

The role of the National Broadcasters (Chapter 4) 

6. The National Broadcasters have adapted to the challenge of change by extending the range and type of their services, taking full advantage of market developments and technological innovation, to the benefit of the public. 

7. In order to comply with their Charters, the National Broadcasters seek to maximise their reach by being significant providers of content across all platforms. Their capacity to do so is limited by their budgets. 

Application of the Competitive Neutrality Policy to business activities 

Cost allocation and pricing 

8. The Panel notes that the National Broadcasters generally price to market and there is no evidence that they are not appropriately allocating costs. 

Regulatory neutrality 

9. The Panel notes the differences in the regulatory arrangements for the National Broadcasters and the private sector. However, the Panel is unable to bring regulatory comparison to useful financial account. 

10. The Panel notes that the Australian and Children’s Screen Content Review, currently with Government, is considering the content elements of the regulatory regime as it applies to commercial broadcasters and any decisions will follow from that review. 

Taxation neutrality 

11. The Panel notes that to the extent that taxation issues are relevant to Competitive Neutrality Policy relating to the National Broadcasters, the evidence is that the National Broadcasters in effect comply with competitive neutrality requirements. 

Debt neutrality 

12. The Panel notes that to the extent that issues relating to debt are relevant to competitive neutrality, there is no evidence that the National Broadcasters do not comply with competitive neutrality requirements. 

Operational decision-making and risk management 

13. The Panel notes that the evidence is that operational decision-making and risk management are appropriate, deriving from conventional business practices, and therefore conforming to competitive neutrality requirements. 

Competitive neutrality complaints and accountability mechanisms 

14. The Panel notes that there is an independent complaints process in place for competitive neutrality that has not been used this century with regard to the National Broadcasters. 

Conclusions regarding the application of the Competitive Neutrality Policy to business activities 

15. The National Broadcasters are meeting the best endeavours approach to the Competitive Neutrality Policy (which applies to their business activities), insofar as best endeavours has been defined. 

16. With respect to the cost allocation methods used by the National Broadcasters for their business activities, there is no evidence that they do not conform with the Competitive Neutrality Policy. Pricing to market is evidence of no significant competitive distortion. This has been confirmed by independent consultants. 

17. The average market share of commercial activities of the National Broadcasters are not large, have not increased markedly over time, and do not give rise to concerns. Nonetheless, competitive impacts may still occur in particular sub-markets. 

Competitive neutrality principles relating to other market distortions 

Online news 

18. The Panel finds that in relation to the provision of online news services, the ABC and SBS are behaving in accordance with their Charters. These services also comply with the general principles of competitive neutrality. 

Terms of trade with content providers 

19. The Panel notes that the issues raised in relation to ‘terms of trade’ are essentially contract issues and do not relate to competitive neutrality. However, there may be scope for the National Broadcasters to improve the way they interact with market participants to ensure transparency and good business practice (see Chapter 8). 

Advertising and marketing of own services 

20. The Panel notes the National Broadcasters are able to promote their services online. This is consistent with the way they have always promoted their radio and television services to ensure the widest possible audience reach. The Panel considers normal competitive interactions are occurring, and there are no concerns for competitive neutrality principles. 

21. The Panel notes there is nothing in the National Broadcasters’ Charters, nor in the general principles of competitive neutrality, that prevents them from promoting their own services. The Panel notes that in the context of the Competitive Neutrality Policy, competitive advantages arising from size are not considered a concern.  

‘Commercialisation’ of SBS 

22. The Panel notes that what has been exhibited by private sector organisations is competitive discomfort. As long as the National Broadcasters’ decisions are endorsed by their Boards and are subject to parliamentary review then, by definition, the activity is in the public interest. 

Conclusions regarding competitive neutrality principles relating to other market distortions 

23. The issues raised reflect increased competition generally in the digital space whether streaming services or online news services. 

24. They also reflect a context of increased viewer demands and expectation along with the rapid take-up of new technologies. 

25. As stated above, as long as the National Broadcasters are within their Charters then, by definition, the activity is in the public interest. 

26. However, the Charters of both National Broadcasters are broad and open to interpretation by the Boards. 

27. In relation to the matters under review by this Inquiry, both National Broadcasters would benefit from more public transparency around how they approach the issues of fair competition. 

28. Accountability is difficult, especially as there is no opportunity for Charter complaints to be addressed. 

Observations on the role of the National Broadcasters in the modern media environment (Chapter 8) 

Capacity to compete 

29. The Panel considers that the National Broadcasters should be able to adapt to new market opportunities in the public interest. However, choice will be limited by a finite budget. 

30. The Panel notes that the amount of money being generated by SBS through advertising revenue represents a small percentage of total television advertising, and therefore, is not considered material. 

31. Furthermore, following the Efficiency Review of 2014 the SBS budget was cut and the Government stated that SBS should make up part of the shortfall through advertising.

The associated recommendations are

Competitive neutrality principles (Chapter 2) 

1. If decisions on the Review of the Commonwealth’s Competitive Neutrality Policy by the Treasury enhance competitive neutrality management guidelines or extend competitive neutrality principles more generally, then the National Broadcasters should conform to these requirements on a best endeavours basis. 

2. At the same time, the National Broadcasters should be provided with guidance (as previously foreshadowed by COAG) as to how they should comply. 

Issues raised by stakeholders (Chapter 6) 

Radio broadcasters 

3. The Panel notes that issues to do with technical regulation, especially licence areas, have not been fundamentally reviewed since their inception in the 1930s. The Panel has referred these issues to the Department for further policy consideration. 

Application of the Competitive Neutrality Policy to business activities 

Regulatory neutrality 

4. The Panel notes that neither the Content Review, nor this Inquiry, address the content issues raised by commercial radio, and draws this to the attention of the Department for future policy consideration. 

5. The Panel considers that a fresh approach to regulatory impact statements should be applied to decisions in prospect, to ensure regulations remain relevant, are consistent with competitive neutrality and are not causing market distortions beyond the public interest. 

6. In relation to those matters that do not fall within the scope of this Inquiry, or other reviews currently underway, those matters should be referred to the Department for further policy consideration. 

General recommendations regarding the application of the Competitive Neutrality Policy to business activities 

7. As identified by the Ernst & Young Report, there are a number of areas where the ABC could improve its approach to cost allocation and pricing to enhance transparency and give greater confidence that its costing and pricing practices are aligned with competitive neutrality principles. 

8. The National Broadcasters’ processes for commercial business activities appear adequate. However, changes should be made to ensure that there are processes in place for improved transparency, accountability and reporting. Competitive neutrality principles relating to other market distortions 

Dealings with smaller providers 

9. The Panel notes that ABC Commercial, in collaborating with smaller companies, must observe best practice business negotiations to avoid appearance of unfair competition (see also Chapter 8). 

Observations on the role of the National Broadcasters in the modern media environment (Chapter 8) 

Transparency 

10. The Panel supports the ABC’s commitment to improve transparency and accountability through its corporate plan and invites SBS to do likewise. 

11. The Panel notes that the National Broadcasters’ annual reports are of necessity ‘backward looking’ documents. The Panel considers that the National Broadcasters should provide a statement of intentions covering how they intend to spend their funds in the future which would provide Parliament and the public with greater transparency and accountability of the expenditure of funds. 

Charters 

12. The Panel considers that the National Broadcasters should improve their reporting of Charter performance in the context of the general principles of competitive neutrality. If this enhanced reporting does not occur, the government should consider a way of managing complaints about Charter performance in this area. 

Market entry and participation 

13. The Panel is of the view that appropriate guidance from the Board would give some substance to the ABC's Charter obligation to take account of commercial broadcasters. 

14. While SBS has no equivalent Charter obligation, there seems no reason why the SBS Board should not pursue similar benefits for the market. 

Longer term funding framework  

15. The Panel recommends that government considers options, drawing on the UK example, to give a longer term framework for the funding of the National Broadcasters, accompanied by increased transparency and accountability to the benefit of consumers and competition more broadly.

Fake Indigenous Cultural Expression

The Commonwealth House of Reps Standing Committee on Indigenous Affairs has released its report on The impact of inauthentic art and craft in the style of First Nations peoples

The title is an innovation; The Committee states

The words ‘First Nations’, ‘Indigenous’ and ‘Aboriginal and Torres Strait Islander’ are used interchangeably in this report to refer to the Aboriginal and Torres Strait Islander peoples of Australia and their art and cultures. 

While the committee understands that some Aboriginal and Torres Strait Islander peoples may not feel comfortable with some of these words, we only mean to convey respect through the use of these words. 

The Committee was to

Inquire into and report on the growing presence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise for sale across Australia, including:

• the definition of authentic art and craft products and merchandise; 

• current laws and licensing arrangements for the production, distribution, selling and reselling of authentic Aboriginal and Torres Strait Islander art and craft products and merchandise; 

• an examination of the prevalence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise in the market;  

• options to promote the authentic products for the benefit of artists and consumers; and 

• options to restrict the prevalence of inauthentic Aboriginal and Torres Strait Islander ‘style’ art and craft products and merchandise in the market.

The Chair's Forward states

Our First Nations peoples have been the guardians of their country and culture for thousands of years. It is an ethical and moral demand that we assist this process into the future.

First Nations art and craft is not simply a collection of design elements in some artistic media presentation. They are in fact a representation of cultural songlines. Art is therefore integral to the cultural identity, stories and history of First Nations peoples. It is about a continuous celebration and preservation of that history and cultures, which underpins all of the issues raised.

An extraordinary statistic that emerged from the evidence received is that 80% of the souvenirs sold in Australia purporting to represent First Nations cultures are in fact imitation products. These inauthentic items have no connection to First Nations peoples and are often cheaply made imports.

The committee’s own observations during several visits to gift shops in popular tourist areas of Sydney were consistent with this overwhelming statistic. What also became clear during this inquiry is that most buyers of these souvenirtype products are likely unaware that they are predominantly inauthentic. Indeed most non-Indigenous Australians and visiting tourists cannot readily distinguish authentic First Nations art and craft from imitation products.

There are two key elements that contribute to this situation. The first is that there is no accepted industry standard for authenticity, which is largely reflected by the confusing and sometime deliberately misleading presentation and labelling of these products. The second is that there is a clear lack of effective education about authenticity throughout the supply chain for First Nations art and craft, from the manufacturer to the point of sale.

First Nations artists and their communities feel completely disrespected and cheated by what is going on at the moment, particularly in the souvenir trade. They feel that their cultures are being stolen through the supply of these imitation products. In addition, they are being denied the opportunity to make a living from the obvious interest and market demand for First Nations art and craft.

This unacceptable misappropriation of First Nations cultures cannot be allowed to continue unchecked. These imitation products exist solely to make money. They demean the rich and ancient history of Australia’s Indigenous peoples. These items have a profound and harmful effect on First Nations peoples. They do not teach or inform the buyer about Indigenous heritage as they have no connection to it. Beyond the immediate consequences mentioned above, this situation has a negative impact on Australia’s image abroad.

Four fundamental points must be stressed:

• First Nations art, craft and cultural expressions belong to First Nations peoples. Non-Indigenous artists and artisans should not appropriate or copy this expression in any way, even with good intentions. 

• Whilst producing and selling imitation First Nations art and craft is not unlawful, it has a negative impact on the integrity of the ancient cultural heritage of First Nations peoples.  

• Any inauthentic piece of Indigenous art, craft or artefact such as a boomerang or didjeridu not made by a First Nations artist is by its very nature and existence purporting to be culturally authentic when it is not. 

• First Nations cultures are an intrinsic part of Australian culture and allowing it to be compromised damages the identity of our nation as a whole.

First Nations fine art does not appear to be affected by authenticity issues to the same extent as the souvenir trade. This is due in part to the buyers being more discerning and the need for galleries to protect their reputation by ensuring the provenance of more expensive artworks. There are still troubling issues in this part of the market however such as alleged carpetbagging by unscrupulous dealers and unethical practices by some galleries.

There are of course other examples of individuals and businesses making outstanding contributions to safeguarding Indigenous cultural expressions. Among these are the First Nations art centres which provide opportunities for Indigenous artists, fostering and preserving their heritage. The Indigenous Art Code does an impressive job of trying to get businesses to adopt its voluntary code of practice, and thus behave ethically and responsibly in the sale of Indigenous art and craft.

They need more help however. Many art centres struggle to retain qualified staff due to lack of infrastructure and housing. This has a hugely negative impact on them as a business. They also need greater access to business development expertise. As many of these centres operate in very remote areas, there are obvious social and economic benefits to growing these businesses.

The Indigenous Art Code has only one staff member and cannot fulfil its mandate with such little resourcing, although it has done a remarkable job to date in spite of this.

There is huge potential for great outcomes in First Nations communities with the right assistance to these key entities and the right policies in place. Another policy area of particular interest was the effectiveness of existing copyright and consumer laws to provide protections for First Nations cultural expressions, including art and craft. Current copyright laws are designed to protect the artistic and intellectual output of an individual over a period of several decades, but not ancient and typically communal ownership of cultural expressions.

In terms of consumer law, the ACCC can take action against a company for intentionally misleading its customers about authenticity through the use of information such as labels. It cannot take action however for imitation products that are not explicitly claiming to be authentic.

First Nations cultural expressions will likely need a new and separate framework to be protected under law. The committee understands that this would be a long and complex task but believes that it is achievable and that a consultation process should be started next year.

The issue of labelling was one that came up often during the inquiry. There is currently no consistent labelling used for any type of art or craft product, whether Indigenous or not, and no legal requirement to indicate whether something is authentic. 

This lack of any consistency or coherency in how First Nations art and craft items such as souvenirs are marked at the point of sale contributes greatly to the current lack of awareness about authenticity. 

The committee welcomes the new digital labelling trial for First Nations artworks to be administered by Desart with government funding support, and awaits the results with interest.

Also of great interest to the committee will be the outcomes of the current Australia Council inquiry into the feasibility of a National Indigenous Art and Cultural Authority. The committee would welcome the establishment of this body and believes that it would play an important future role in deliberating and advising on the issues raised in this inquiry.

Solutions

The committee has made eight recommendations to the Government that it believes will severely curtail the prevalence of imitation Indigenous art and create economic opportunities for First Nations artists and communities. The intention is to chart a path forward to foster and preserve authentic First Nations cultural expressions for the benefit of all Australians.

These recommendations are also intended to start an earnest conversation among Federal, State and Territory policymakers about the harm caused by inauthentic First Nations art and craft.

The committee recommends the following:

• That the Productivity Commission conducts a comprehensive structural analysis of the entire market for First Nations art and craft. It will be difficult for policymakers to be effective in the future without this information.  

• That the Indigenous Art Code be properly funded and a review take place after two years to determine whether this voluntary code of conduct is being effective or whether a mandatory system should be considered. 

• That a separate arm of the existing Indigenous Business Sector Strategy be created for First Nations art centres to build their capacity. 

• That an Information Standard be developed for authentic First Nations art and crafts. 

• That an information guide on authentic art and crafts be developed as a short video presentation to all passengers arriving into Australia. 

• That a Certification Trade Mark scheme for authentic First Nations art and crafts be developed by IP Australia in consultation with all relevant stakeholders. 

• That funding be made available through the Indigenous Visual Arts Industry Support program to assist artists and art centres affected by carpetbagging. 

• That a consultation process be initiated to develop stand-alone legislation protecting Indigenous Cultural Intellectual Property, including traditional knowledge and cultural expressions

Tech Future

The national Industry Department has released Australia's Tech Future: Delivering A Strong, Safe And Inclusive Digital Economy, a strategy document that was expected at the beginning of the year and arguably hasn't been greatly improved by months in the policy blender.

It is an echo of the past twenty years' of internet-centred strategy documents that enthuse about futures for health, education, business, research, public administration and community inclusion but don't result in sustained action, in part because the minister/department of the day doesnt have heft and longevity.

In articulating 'vision' the document states

Vision: That Australians enjoy an enhanced quality of life and share in the opportunities of a growing, globally competitive modern economy, enabled by technology.

Countries around the world are investing heavily to take advantage of the significant economic and social opportunities that a digital economy can bring. Australia’s ongoing economic success depends on our ability to harness technological advances to improve existing businesses, create new products and markets, and enhance daily life.

A report by Data61 estimates that improvements to existing industries and growth of new ones could be worth $315 billion to the Australian economy over the next decade.

Australia’s Tech Future details how Australia can maximise the opportunities of technological change by focusing on four key areas:

• People: developing Australia’s digital skills and leaving no one behind 

• Services: how government can better deliver digital services 

• Digital assets: building infrastructure and providing secure access to high-quality data 

• The enabling environment: maintaining our cyber security and reviewing our regulatory systems

Under each of these elements, the agenda sets clear outcomes, identifies opportunities and areas that need further focus, and outlines corresponding Government plans of action.

By working together we can ensure Australians can share in the opportunities of a growing, globally competitive modern economy, enabled by technology. Digital technologies will deliver benefits across the economy and society

The opportunities afforded by digital technologies are not constrained to technology-based companies and start-ups – they can add value across all parts of the economy.

For businesses, these technologies have the potential to help develop new products, access new markets, work more efficiently and improve the bottom-line, better target consumer preferences through use of data, and deliver safer working environments.

The document goes on ...

Agriculture

While agriculture is one of the world’s oldest industries, farmers are some of our best leaders in the uptake of new technologies. Self-steering, GPS-guided tractors and other high-tech farming equipment have already become a normal part of farming in Australia, helping our farmers be more efficient and save on chemicals and other high-cost inputs. Into the future, the combination of satellite technologies, drones and better use of data will deliver even more support for farmers making decisions on planting, fertilising and watering crops (see Yield Technology case study). Blockchain also holds the potential to transform supply chain management and biosecurity outcomes (see AgriDigital case study).

Manufacturing

Australian manufacturers are using digital technologies to modernise their systems and processes (see Astor Industries case study). From robotics and artificial intelligence to advanced modelling software and 3D printing, technology has become an integral part of doing business. Digital technologies will help Australian manufacturers thrive into the future, as they use 3D printers for rapid prototyping, collaborate with cloud-based tools on component design and production and implement sensors connected using Internet of Things (IoT) technology to monitor production processes. These technologies help to ensure only the highest quality products leave the factory, while better use of data, including from customers about their experience, will be used to anticipate demand and inform new product development.

Mining

The resources and mining sector is undergoing an intense period of change as mining companies embrace digital technologies to drive productivity and improve safety. It is already commonplace to see driverless trains and trucks moving large volumes of iron ore around the clock in mines across Western Australia. Looking ahead, emerging technologies will become further embedded in mine operations. Technology such as 3D printing can be used to quickly deliver critical spare parts in remote locations reducing delays in production. Drones and sensors will be used to collect real time data, particularly in dangerous or inaccessible locations, and this will be used to support better planning and management of mining operations which will reduce the cost of extraction and improve the safety of mine workers.

Tourism

Australia is now a top 10 global destination and digital technologies are increasingly used by both travel operators and consumers at all stages of the travel experience. Tourist operators have invested in cutting edge virtual reality and 360 degree mobile technologies- there is nothing like a life-like experience of snorkelling the Great Barrier Reef to attract tourists to our shores. Consumers are increasingly planning and booking travel online and then rating their experiences. In the near future, greater use of data combined with machine learning will enable travel companies to predict when and where travellers may want to travel allowing them to better target travel experiences and to generate personalised offers for the travelling public.

Services

The services sector makes up a large part of the Australian economy, employing four out of five Australians. Advances in technology such as artificial intelligence, data, analytics, machine learning and robotics are driving competitiveness and productivity. Digital commerce continues to grow in use and popularity, technology is enabling frontline engagement with customers in stores and businesses are realising increased sales through online sales and creating digitally connected stores. In financial services credit card companies are using data to detect fraudulent transactions, and insurance companies are using data to set fairer and more accurate policy premiums. For the Australian community, digital technologies are improving health and education outcomes and, making services, particularly government services more accessible. Advances in technology are also improving how we manage emergency situations and making our cities more liveable including through better transport.

Health

The opportunities to use digital technologies to improve health outcomes are continually expanding (see case studies on Helimods and iOrthotics). Hospitals are using software developed by CSIRO to better manage patient flows and reduce waiting times and some remote communities are gaining increased access to specialised services via digital channels. Healthcare professionals are using robotics to improve surgery outcomes, radiographers are using computers that are trained to recognise patterns in images to identify irregularities in scans. But consumers are also being empowered to better manage their own health. As well as accessing health information online, devices that monitor blood pressure and heart rate are saving lives and those that track activity and diet are also improving health and wellbeing. In the future, our ability to tailor healthcare solutions to individual needs will see further improvements in health outcomes. Increased use of sensors will enable greater use of devices that can monitor the health of older Australians within their homes, notifying medical authorities if required. This will increase independence and quality of life while providing peace of mind.

Education

We all know that a good education provides a great start in life. Digital technologies are not only changing what we need to teach our children (see case studies on Swinburne University and the esmart library Program), they are changing how we teach them. The pace of change in technology also means that we have to keep learning throughout our lives, keeping up-to-date with how technology can help us at home and at work. Students are increasingly using digital tools to access information and educational resources, many are completing qualifications largely online. As well as increasing access, particularly for people in regional and remote locations (see Mobile Black Spot Program case study), digital tools can provide all students with more tailored educational solutions that meet their particular needs.

Everyday services

A whole range of services that people use every day, including banking, shopping and entertainment are available online. Access to goods and services online is particularly important for Australians living in rural and remote areas. Data about the availability, cost and customer experience of services is helping us choose a restaurant for dinner, an energy provider or where to holiday. Government services are also increasingly available online with the aim to deliver seamless, painless and efficient services that protect people’s privacy and security. Services including myGov and myTax are good examples of how the government is transforming the way Australians deal with government.

Emergency services

Better management of emergency response situations through the use of digital technologies including accidents, floods and bushfires is helping save our environment, people’s homes and lives. Emergency services including Police, Fire and Ambulance and are using digital tools to improve data collection and sharing of intelligence in complex situations. Authorities are also using mobile phones to alert people of local emergency situations to keep people informed and safe. In the future, people calling 000 on a mobile phone will automatically relay locational details. This will allow emergency services to be immediately despatched saving time and potentially lives, particularly in places where the caller may find it hard to identify the specific location, for example on a country road. CSIRO’s bushfire prediction tool ‘Spark’ (see Spark Platform case study) is a great example of how digital technologies are being used to predict the behaviour of bushfires thereby making communities safer, stronger and more resilient.

Transport

Many Australians travel to and from home, work, the shops or school each day. Not only are digital technologies making our cars, trains and buses safer and more efficient, but improved collection and use of data is helping manage our transport systems and traffic flows in our cities. In the future, increasing automation of vehicles will support people to become or stay independently mobile while potentially reducing the number of cars on the road and sitting in car parks. Widespread implementation of improved safety features such as automatic emergency braking and sensors to detect driver alertness will lead to fewer accidents on our roads. Better management of public transport, based on detailed analysis of data about how and when we move around the city, will reduce commuting time and make our cities more liveable.

To secure these benefits requires a strategy for Australia‘s technology future which embraces emerging technologies, and creates the environment for Australian’s to have their quality of life improved by a modern digital economy.

Understanding emerging technologies

A range of emerging technologies are forecast to change and improve many fundamental tasks and interactions in the coming years, including how we work, travel, and communicate with each other. Technologies such as artificial intelligence, blockchain and quantum computing present significant opportunities for people, businesses and the broader economy.

Artificial Intelligence

Artificial intelligence (AI) is a broad term used to describe a collection of technologies that can solve problems and perform tasks to achieve defined objectives without explicit human guidance.

Central to AI are automation and machine learning that underpin applications such as natural language processing (Apple Siri or Amazon Alexa), computer vision (Tesla Autopilot), and optimisation and decision support (Google Maps).

AI has the potential to automate repetitive or dangerous tasks, increase productivity and allow the development of innovative consumer products. It is forecast to add trillions of dollars to the global economy in the coming decades. Examples include:

• Using advanced data analytics techniques to diagnose diseases at earlier and more treatable stages 

• Using automated machines for hauling and drilling on mine sites, increasing productivity and reducing risks to workers 

• Enabling greater use of smart forms that can tailor legal information to assist individuals to draft a will or settle financial arrangements following a break-up 

• Tailoring content on entertainment platforms to meet user preferences

There is considerable effort, both in Australia and internationally, focused on ensuring that AI is applied ethically and delivers broad societal benefits. 

Blockchain 

Blockchain is a digital platform that records, verifies and stores transactions shared across a network of computers according to an agreed set of rules. This removes the need for verification by a central authority, such as a bank.

Cryptography is used to keep transactions secure, and costs are shared among network participants. The fact the transaction history is viewable and verifiable by all network participants allows for much higher levels of transparency and auditability than is otherwise possible. Although blockchain is still an emerging technology, it can be applied across a wide range of industries and to almost any transaction that involves a value, including:

• Financial transactions 

• Faster clearing and settlement times could reduce credit risk and capital requirements, lowering transaction costs across the board. This could have practical benefits for real estate transactions 

• Significantly reduced contracting, compliance and enforcement costs can make low-value transactions economically viable through use of auto-executed ‘smart contracts’. This would allow for faster and easier transfer of royalties from digital platforms to digital content creators, such as musicians, writers and vloggers. 

• Government services 

• Validating the identity of a person without revealing personal information 

• Allowing for government to reduce fraud, corruption, errors and the cost of paper-intensive processes. 

• Tracing the history of a product 

• Tracking the provenance and trade of digital and physical goods. This would help ensure consumers are receiving genuine items that are otherwise susceptible to fraud, such as ethically sourced diamonds and luxury food items.

Internet of Things (IoT) T 

he Internet of Things (IoT) refers to the increasing use of sensors that record thing such as sounds, touch, movement, temperature and even chemical composition that are being used to automatically collect data about people, the environment and objects and transmit this information over the Internet.

The increasing application of this technology has been made possible by the availability of cheaper and better sensors, the wide availability of internet connectivity and increased computing power.

Examples of how IoT is delivering benefits to the community include:

• Smart health care devices that can monitor patients and alert medical authorities if required 

• Sensors in energy and water infrastructure that enable providers to better track and manage maintenance 

• Sensors in the soil that can measure moisture levels and help farmers better manage water use and improve harvest.

Quantum computing

Quantum computing is an emerging technology that would exponentially increase available computing power to help us solve problems that we cannot tackle with existing computers. Quantum computers, will be able to crack codes easily and they have the potential to disrupt existing security methods that use encrypted data, such as in banking and other industries. Quantum computers also have applications in scientific fields and could help answer questions that have baffled scientists for generations.

Australia is recognised as a world leader in silicon-based quantum computing research, which is one of the most promising pathways to developing a commercially viable quantum computer.

As part of the National Innovation and Science Agenda, the Government invested $25 million in the Silicon Quantum Computing Pty Ltd venture, in partnership with leading academic institutions and businesses.

Medical Devices

In Mount Isa Mines v Pusey Windeyer J famously referred to law as "marching with medicine but at the rear and limping a little". Yesterday's announcement by the TGA, Australia's pharmaceuticals and medical devices, regarding an end-of-the-year consultation about 'cyber security' of medical devices is another instance of the very inward-looking regulator marching a long way behind both technology and medicine while recurrently - as with failures relating to various implants - recurrently tripping over its own feet.

The TGA states

The TGA is seeking comments from interested parties on the applicability and usefulness of the content contained in the draft regulatory guidance and information materials. The guidance is intended to assist industry understand and comply with their responsibilities to ensure that medical devices are cyber secure. 

The guidance will also contain information to assist users (including those in health care settings) with managing cyber security matters related to the use of medical devices. ... The purpose of the consultation is to seek stakeholder feedback on the proposed guidance and information materials which have been prepared to assist industry understand and comply with their responsibilities to ensure that medical devices are cyber secure under the Therapeutic Goods Act 1989 as well as in accordance with the ‘Essential Principles’, as set out in Schedule 1 of the Therapeutic Goods (Medical Devices) Regulations 2002. 

Feedback from the medical device cyber security public consultation and webinar, and targeted stakeholder interviews has informed the development of this guidance. 

Connectivity and digitisation of medical device technologies may help improve or increase device functionality. However, the connection of devices to networks or the internet exposes devices to increased cyber vulnerabilities that can potentially lead to unacceptable risk of harm to patients. A large number of Class II, Class III and Active Implantable medical devices on the ARTG include electronic components with embedded software, have a software accessory or are a software device. This is a growing area of interest as more health care systems and patients rely on medical devices that are 'connectable'. There is also significant innovation and fast moving technological advancements in software development underpinning more personalised medical devices.

The announcement coincides with the TGA's strange response to problems with breast implants, ie they are apparently fine to use if they are 'in stock' - something that raises concerns about potential harms and the TGA's disregard of public communication.

The ABC yesterday reported

Breast implants deemed unsafe in Europe will continued to be used in Australia, according to local health authorities. "From now on, these medical devices can no longer be marketed in France and in Europe and [we have asked] Allergan to recall products in stock at all health facilities," a statement from the National Security Agency of Medicines and Health Products said. 

In response, the Australian regulator, the Therapeutic Goods Administration (TGA), said no new textured implants made by Allergan would be allowed to be used here, but that would NOT stop existing implants on shelves from being used. 

As a law academic I do wonder why there isn't a comprehensive recall of what's on the 'shelf' if concerns are so serious that imports are prohibited.

The ABC report goes on

The French announcement came in the wake of a probe by the International Consortium of Investigative Journalists (ICIJ), including the ABC, which highlighted significant flaws with the way medical devices were approved for use in patients and monitored once on the market. 

Textured implants are used in about 90 per cent of Australian breast augmentations and the Allergan brand is the most popular among surgeons. An estimated 40,000 breast surgeries take place in Australia each year. 

A spokesman for the TGA said it was working with Allergan and French regulators to determine the "most appropriate course of action in Australia".

We should expect the TGA to proactively 'work with' the community rather than merely the vendor of a health product that - on the face of it - is sufficiently problematical to incur a ban. Regulatory scholars will recall the belated TGA response to substantive problems with pelvic mesh and PIP (Poly Implant Prosthese) implants.