BYTE ME: TECHNOLOGY AND THE LAW
Issue 03 2014 UTS Law Students’ Society
1 EDITORIAL
09
10
16
10 WORDS OR LESS Should pirates be punished?
EDITORS’ QUESTION The “right to be forgotten” – are the laws necessary?
CATCH ME IF YOU CAN Why 3D printing demands greater legal innovation.
25
26
30
BITCOIN What is it, and what are the implications?
HUMAN GENOME PATENTS Balancing innovation and IP rights with access.
STOP. HAMMER TIME. Should Australia reconsider its stance on commercial surrogacy?
tfb 2014
[Issue 03] the full bench EDITORS
Francesca Elias Arciuli Emily Meller Sefakor Dokli Johanna Fisher Guest Editor: Taryn Priadko
DESIGNER Tom Stoddard © UTS Law Students’ Society This publication is copyright. Except where permitted under the Copyright Act, no part of this publication may form or by any means (electronic or otherwise) be reproduced, stored in a retrieval system or transmitted by any process without specific written consent of the UTS Law Students’ Society. Enquiries are to be addressed to the publishers.
COVER ARTIST
Disclaimer All expressions of opinion published in TFB are not the official opinion of the UTS Law Students’ Society unless expressly stated. The UTS Law Students’ Society accepts no responsibility for the accuracy of any opinions or information contained herein and readers should rely on their own enquiries to make decisions in their own interest. . Images and illustrations All images, unless provided to TFB personally for the purposes of this publication, were sourced from the photosharing website ‘Flickr’, with attribution provided within the text to specific publishers.
Ashleigh Barnes, Vice President (Education), and Lloyd Wood, President of the UTS LSS, for their guidance, support and contribution to the third edition of The Full Bench in 2014.
orkomedix, ‘Vintage Technology’ (2011)
MARKETING Olivia Kilponen
WITH SPECIAL THANKS TO
WITH FURTHER THANKS TO
Daniel Mckenzie, Susie McKenzie and Co. Kwik Kopy Neutral Bay 6/129-133 Military Rd, Neutral Bay, NSW 2089 Tel 02 9953 3077 Fax 9953 0530 www.kwikkopy.com.au the full bench (tfb) is published in Sydney annually by: UTS Law Students’ Society PO Box 123, Broadway NSW, 2007 Room CM5A.01.08, City Markets campus, Cnr of Quay Street & Ultimo Road Ph (02) 9514 3448 Fax (02) 9514 3427 Website www.utslss.com
FORWARD FROM PROFESSOR JILL MCKEOUGH
distribution, storage and consumption of copyright works can occur as seamlessly as possible. Where change is recommended, it is controversial and there is disagreement between copyright owners and users of copyright material. Most recently, in July 2014, the Australian government released a discussion paper concerning online copyright infringement, and attempts to prevent copyright piracy. Reforms discussed include making internet service providers (ISPs) responsible for the copyright infringement of their customers, allowing blocking of overseas sites which enable Australians to access copyright material, and extending what is known as a ‘safe harbour’ scheme to service providers which police their users activities, including on occasions terminating accounts. This discussion paper has already provoked a storm of debate and disagreement, with many adverse effects predicted for consumers and business. Reform of copyright law poses a number of challenges. This is true of all areas of law surrounding new and dynamic technologies including bioethics, biotechnology, patents and intellectual property. The law must be relevant to a complex and changing environment, but must also be clear and broadly understood in the community. The law must produce reasonably certain and predictable outcomes, but should be flexible and not inhibit innovation. There are many good ideas around for achieving this, but finding the political will to implement them can prove difficult as technologies continue to evolve. It is thus vital that our law students understand the interconnectedness of technology and the law - so that as they emerge as our new generation of lawyers and professionals they may be tech savvy and aware of the digital and technological minefield that lay before them.
3 FOREWARD
This edition of The Full Bench is about technology and its impact on the shape and breadth of law. However, the most usual point made is that the law is failing to keep up with the issues posed by technology, and that law is becoming increasingly irrelevant. Nowhere is this more noticeable than in the area digital technologies, including copyright law. An analysis of this area of law demonstrates the complex interplay between the exponential rate at which new technologies develop and the frantic efforts of the law to keep pace. Policy makers around the world are actively reconsidering the capacity of copyright law to protect copyright owners and at the same time allow consumers of copyright material to access information, entertainment, education and software in the most efficacious manner. Copyright affects everyone, and in Australia alone, copyright industries employ almost a million people and contribute about 6% of GDP. Every day, copyright material is essential to the way we conduct our lives. The music and movies we enjoy, the books we read, the digital resources we access, the phones, computers and other devices and the software we use, are all enabled by copyright law. However, many countries have failed to grapple with changes that will allow the law to keep pace with technology. In view of the importance of copyright to everything we do, a comprehensive review of copyright law in the United States was announced in April 2013 and is now under way. Recent reviews in the United Kingdom and Ireland have recommended changes to copyright law, and in Australia, the Australian Law Reform Commission has completed a major review of copyright law and the digital economy, which was released by the government in February 2014. A key issue for all of these reviews, and a key component of the various reports already completed, is the relationship between copyright exceptions and innovation, research, and economic growth. Copyright law has a major impact on innovation in the digital environment. Productivity is lifted by innovation where creation of new copyright material, and access,
CONTENTS CONTENTS
6. President and VPE Address 7. Editorial 8. Obiter 6. President and VPE Address 9. 10 Words or Less 7. Editorial 10. Editor’s Question
8.the Obiter 13. Law, Power & Media - Aneesa Kruyer Less 14. Drones9. in10 theWords DigitalorEra - Sage Nemra 10.Me Editor’s 16. Catch If YouQuestion Can - Anghad Keith 13. Law, 20. Power & the Media Kruyer Food Fight - Sylvia- Aneesa Xio 14.Defamation Drones in the Era - Sage Nemra 22. in Digital Cyber Space - David Hazan 16. Catch Me If You Can - Angad- Keith 25. Bitcoin. The Currency of the Future? Ana-Maria Cindric 20. Food Fight - Sylvia Xio 26. Human Genome Patents - Cecilia Ngu 22.28. Defamation Cyber Space - David Hazan Caught oninCamera - Jinan Hammoudi 25. Stop. Bitcoin. The Currency the Future? - Ana-Maria 30. Hammer Time. - of Francesca Elias Arciuli and CatieCindric Moore 26. Human Genome Patents - Cecilia Ngu 31. Verbatim 28. Caught on Camera - Jinan Hammoudi 30. Stop. Hammer Time. - Francesca Elias Arciuli and Catie Moore 31. Verbatim
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FROM THE UTS LSS FROM THE UTS LSS PRESIDENT
PRESIDENT & VPE ADDRESS
6
Welcome back to law school for Spring semester and welcome back to your law school academic journal, The Full Bench. Whether you have picked up a hard copy version or downloaded it online - which would be more appropriate given the theme - the following pages will provide you with an interesting insight into the legal context behind our growing technological world. There is truly nothing that is more current than technology, and as an area that is continually updating, the law is placed in a position whereby it must keep up the pace or risk falling out of line with community practices. This edition canvasses important areas that demonstrate this complex relationship between technology and the law, and such issues will only increase in relevance as we catapult further into the digital age. One need not look further than such mindboggling technological advancements as the ability to print 3D houses, or the exponential growth of Bitcoin as a form of online currency. While we cannot anticipate all legal consequences that will arise out of new technologies, it is crucial for us to be cognisant of the potential difficulties such developments may create in the legal sphere. It is also imperative that we, as members of the legal community, keep the government accountable for their acts or omissions when reform is either enacted or required to respond. First and foremost, I would like to thank our Publications Director, Francesca Elias Arciuli, who coordinated a substantial part of this publication whilst studying overseas. I would also like to thank her support team, The Full Bench Subcommittee, comprising of Emily Meller, Joanna Fisher, Sefakor Dokli and Olivia Kilponen for all their hard work in piecing this together. A special thank you also to Taryn Priadko of the EduPubs Subcommittee, who acted as a guest editor for this edition. I would like to welcome our new designer for this edition, Tom Stoddard, and thank him for the fantastic job he has done. Finally, I thank our incredibly efficient Vice President (Education) Ashleigh Barnes, our sponsors for The
FROM THE UTS LSS VICE PRESIDENT (EDUCATION) Full Bench, specifically the UTS Law Faculty, Henry Davis York and Clayton Utz, and of course, our most valuable resource and the cornerstone of our academic publications, our contributors. Enjoy the read, and while you may no longer marvel at the fact you can read this on an iPad, it is a testament to our changing world and ability of the law to adapt. Kind regards, Lloyd Wood UTS LSS President As technology continues to reshape our lives, and with it our laws, it seemed only fitting to theme Edition Three of The Full Bench titled ‘Byte Me: Technology and the Law’. When having regard to this topic, one thing is certain – change is constant. The digital age and its revolutionary information technology constantly solve and create a host of problems, which the law must react to and respond to appropriately. The following pages will give you insight into the law’s successes and its failings, so sit down and take a byte! I would like to repeat and adopt Lloyd’s words and thank everyone involved in the publication of the third edition of The Full Bench. This journal would not be possible without the dedication and hard work of Francesca Elias Arciuli and her team. All the best, Ashleigh Barnes Vice President (Education)
EDITORIAL T
analysis of the legal status of Bitcoin in Australia. We would like to thank Professor Jill McKeough for her insightful opinions on copyright law in her Foreward, and ongoing support of The Full Bench this year. We would also like to thank our guest editor Tayrn Priadko, for her diligence and enthusiasm. With only one edition left this year, remember to like The Full Bench Facebook page to get our updates and our final call for contributors! As if you didn’t need another reasons to contribute, writing an article for a UTS LSS publication, including The Full Bench, can earn you Brennan points. Contact our Brennan Director and contributor to this edition, Cecilia Ngu, at brennan.program@utslss.com for more information. Now, go ahead and take a “Byte” out of this edition! Francesca, Johanna, Emily and Sefakor.
7 EDITORIAL
echnology is a double-edged sword, both the bearer of humanities greatest advancements and hindrances. We can credit it with making more information available at our fingertips than was contained in the largest libraries throughout human history, combined. Epidemic diseases, like smallpox, that were once death sentences have all but been eradicated. We have Instagram filters that make us good-looking immediately after hitting the gym. Plus, did you know there is an Australian Constitution app? Then there’s the darkside: the atomic bomb, wars of attrition and now combat that operates far away from the front lines, instead taking place over (and through) civilian cities. Technology has arguably also increased inequity, as the Global South struggles to keep up with the technologically advanced Global North. Plus, did you know there is an Australian Constitution app? The dual nature of technology is most evident in the legal context. It is virtually undeniable that the exponential rate at which technology has developed over the last century has left the law scratching it’s proverbial head while muttering about how to work the dang touch screen. Whilst our second edition of The Full Bench this year, which focused on law reform, demonstrated the inherently flexible nature of the law; it is debatable whether the law, with its deliberative nature and need to stay constant, can adapt quickly enough in the technological realm. The ever-changing nature of technology solidifies its status as a true chameleon to the law, which at times struggles to identify how to best approach certain technological advancements. Is the law the best regulator, or should we leave it to the industry and commercial markets? Should the law merely be a technological goal keeper rather than referee? If you think this is confusing, rest assured that the ethical dilemmas surrounding these questions are often that much more of a conundrum. These defining characteristics of technology, including its transient and constantly evolving nature, make discussions of technology essential for law students. We must do our utmost to remain aware and up to date on how technology impacts, interacts with and changes the law and our future professions. Our contributors have explored the nature of technology from all angles, and attempted to address some of the above questions. Sylvia Xiao discusses the role of technology in establishing food security for the world’s future on page 20, demonstrating the potential for new innovations to generate stability and equality. Take a look at ‘10 words or less’ on page 9 to hear what your peers think about copyright and the ethics surrounding online piracy (arr!). And turn to page 25 for Ana-Maria Cindric’s insightful
OBITER By Paige McNamee
‘What you’re viewing on the internet is not what we’re interested in…what the Security Agencies want to know to be retained will be the electronic address of the website that the web-user is visiting…well it tells you the address of the website…when you visit a website, you know, people browse from one website to the next and that browsing history won’t be retained, or there won’t be any capacity to access that.’ Senator George Brandis (struggling to) explain how data-retention will work. ABC 2014. ‘Technology used to be an enabler – it used to help you do your work – and it still does that now but it’s also a disruptor. It’s driving change but at the same time it’s one of the answers to change so it’s a really interesting time for technology in the legal industry. The answer to rising costs [used to be] raising your fees and everyone was happy. Things are obviously different now.’ Nicholas Dunford on the challenges technology is presenting the legal industry. Lawyers Weekly 2014. Law and technology produce, together, a kind of regulation of creativity we’ve not seen before. Lawrence Lessig.
OBITER
8
1.2 billion
130
Usernames and passwords hacked by a group of 10 or so Russian hackers, affecting 420,000 websites (Griffith, C 2014, ‘Call to hunt Russian password thieves, The Australian).
$2000
The number of identity fraud cases confirmed by the use of a hand writing analysis trial by Australian Border Officials (Withers, S 2014, ‘Using technology to reduce migration fraud’, CSO).
$1.73 million
The value Bitcoin is predicted to reach by the end of 2014 (Liew, R 2014, ‘Australians turning to bitcoins to boost retirement savings’, SMH).
The revenue generated by the Kim Kardashian app in the first five days after its release (SMH 2014, ‘Meet Kim Kardashian, the new app sensation’).
$100 million The estimated cost of establishing a data-retention scheme according to iiNet (Griffiths, E 2014, ‘Data retention laws: Tony Abbott says government ‘seeking metadata’, not targeting people’s browsing history’, 7News).
10 WORDS OR LESS Piracy - worthy of punishment? By Olivia Kilponen Martin Gillet, Untitled (2012)
A
1.
2.
3.
4.
Ernesto, ‘Game of Thrones Premiere Triggers Piracy Craze’ on TorrentFreak, TorrentFreak (7 April 2014) <https://torrentfreak.com/ game-of-thrones-premiere-triggerspiracy-craze-140407/>. The Hon Malcolm Turnbull MP, Senator the Hon George Brandis QC, ‘Online Copyright Infringement Discussion Paper,’ Australian Government, 2014 <http://www. ag.gov.au/Consultations/Documents/ Onlinecopyrightinfringement/ FINAL%20-%20Online%20 copyright%20infringement%20 discussion%20paper%20-%20PDF. PDF>. Adam Turner, ‘Piracy crackdown misses the real crime’ (28 July 2014) Sydney Morning Herald <http:// www.smh.com.au/digital-life/ computers/gadgets-on-the-go/piracycrackdown-misses-the-real-crime20140728-zxk20.html>. Liam Martin, ‘Online Piracy Punishments dropped in UK’ on Digital Spy, Digital Spy (22 July 2014) <http://www.digitalspy.com. au/gaming/news/a585698/onlinepiracy-punishments-dropped-in-uk. html#~oMobqKijOc7J6f>.
That leads us to our question for this issue – Should pirates be punished? Check out what our readers had to say, in 10 words or less!
‘Yes, until an affordable alternative for Australian consumers is produced.’ - Blake Solomonson ‘No no no no no no noooooooo’ - Jackson Coutts ‘I think they should be PUNISHED.’ - Mathew Byrne ‘If prison – I hope they sort us by genre.’ - Andrew Baker ‘Yes. Because it’s a crime against humanity.’ - Ovy Rodellas ‘Nah.’ - Luke Jacob ‘Arts and culture should be freely accessible, not commodified.’ - Michael Kennedy ‘Targeting the facilitating sites rather than individuals is more realistic.’ - Jam McLeod
9 10 WORDS OR LESS
s I write this, I can almost guarantee there are more than a few UTS law students downloading the newest Suits episode straight from the US - illegally and onto their laptops or mobile devices. So omnipresent has the culture of piracy in Australia become that any government’s attempt to restrict it through law has hardly impacted on its widespread appeal. Media reports convey that Australia is no longer a country of convicts, but a country of pirates. According to statistics released by TorrentFreak, Australians accounted for 11.6 per cent of downloads of torrents for the popular television show premiere Game of Thrones, ahead of the US, the UK and Canada.1 When it comes to consuming media, Australia is hardly the lucky country - with cripplingly limited content providers such as Foxtel and Austar, many popular television shows released overseas will either make it after here after considerable time delay, or not at all. Take Louie, for that matter. While on a recent visit to Australia, comedian Louis CK was met with widespread praise for his US hit comedy show, despite the fact that it has yet to screen here. In attempt to remedy this, Attorney-General George Brandis and Communications Minister Malcolm Turnbull have released an Online Copyright Infringement discussion paper, including a proposal suggesting internet providers take action to stop users downloading illegally, as well as ensuring “content is accessed easily and at a reasonable price.2 This recent plan to remedy our love affair with piracy has received its fair share of criticism. Said by Adam Turner in his recent article for SMH Online, ‘rather than put up laughably ineffective roadblocks to appease its powerful friends, the government would better serve the people by addressing the reasons why we break the law’.3 While the discussion paper indicates harsh penalties for individuals engaging in illegal downloads, changes may follow in the footsteps of the UK, whose government recently scrapped online piracy punishments in favour of a softer approach at the beginning of 2015. The new scheme aims to educate people caught unlawfully sharing content under the Voluntary Copyright Alert Program.4 Perhaps a greater accessibility to content, in combination with education of the consequences of piracy – in particular the destruction of jobs often taken by young creatives in the industry – will allow Aussies to lose their virtual eye patches once and for all.
EDITOR’S QUESTION Are laws upholding the “right to be forgotten” necessary? The “right to be forgotten” was introduced in the 1995 EU Data Directive.1 It upholds the rights of the individual, but only materialised in law in the 2012 decision by the European Court of Justice (the ‘Costeja’ case).2 It was held that search engines must delete personal information, videos or photographs from their indexes upon requests from individuals. Whilst it has been upheld as a valid right in the European Union, Argentina and America, criticisms abound as to its necessity and enforceability, particularly from the House of Lords. We took this to our TFB editors to ask them their thoughts on this new, controversial right.
EDITOR’S QUESTION
10
SEFAKOR SAYS:
FRANCESCA SAYS:
There is an adage that posits that ‘the Internet is written in ink’, meaning everything posted online is forever stored in a virtual vault, waiting to dredge up your past like a jilted ex lover. But even if the Internet is written in ink, have we all so quickly forgotten the ingenious invention known as liquid paper? Well the European Union (EU) legislators certainly have not. The EU’s Court of Justice has established in a test case between Google and Spanish man, Mario Costeja González, that EU data protection laws grant a “right to be forgotten” online.3 One must ask, is this a necessary law? The facts of this case seem to suggest so. Mr. González brought the suit against Google because a search of his name brought up a link from 1998 about an auction notice of his home which was sold to pay off his debts. It was just 36 words that he was asking to be whited out from the Internet’s pages. The irony of the case becoming so high profile did not prevent the ECJ ruling in his favour. Another example necessitating the need for this law is found in instances of “revenge porn” where the aforementioned jilted lover posts a slew of intimate pictures on social media outlets. In an article on the topic, Lillian Edwards has written that websites such as MyEx.com or IsAnybodyUp.com ‘can refuse to take down revenge porn without incurring legal liability and do so as a lucrative business model.’4 The “right to be forgotten” is necessary, but perhaps only in select instances. Herein lies a grave problem with this law: its potential to create a slippery slope of permitting permanent deletion to the point of censorship, not to mention the impracticalities of attempting such a Goliath task.
In a paper printed on 23 July 2014,5 the House of Lords have stated that despite the reasons for introduction of laws supporting the “right to be forgotten”, including the prevention of “revenge porn” circulating, additional laws are unnecessary when there is already a plethora of existing criminal laws. These could include initiating proceedings for negligence, stalking or invasion of privacy, or obtaining civil restraining orders to prevent the images being posted online.6 However, there is and obvious problem with the existing framework which often involves the victim reporting users or content. Action is slow and imposing responsibility on the victim the increases their trauma and does nothing to remove the problem. For this reason, Lilian Edwards has expressed support for the “right to be forgotten”. She suggests that the most effective solution would be to take down images posted without consent (within the UK) and, where this is not possible where the host site is in the US and shielded from liability, to remove the link from a Google Search.7 Whilst there are valid criticisms of these laws, including their tension with freedom of speech, I agree with Sefakor – laws upholding the “right to be forgotten” are necessary, but only in select circumstances and if not in their current form. Specifically, for example, they are arguably necessary in cases of “revenge porn”, and not merely to cover up unsavoury facts about oneself.
KATE SAYS:
We’ve all been plagued by concerns that a potential employer will stumble upon that one incriminating photo which was uploaded to Facebook following a particularly brutal night out. Wouldn’t it be great to be able to wave a magic wand and make these unfortunate memories disappear from the public domain forever? When phrased like this, the “right to be forgotten” sounds like a great idea. And perhaps, for the average person who is concerned about a couple of embarrassing photos being immortalised on the web, such a law might be justifiable. But when it comes to politicians and others whose actions concern the public, it’s a different story. Would we really be comfortable knowing that politicians could remove evidence of prior misconduct from the public eye? Or that murderers and sex offenders could simply sweep their wrongdoing under the carpet? These problems are compounded by the findings of the House of Lords EU Subcommittee8, which declared the 2012 European Court of Justice (ECJ) orders against Google in the Costeja case ‘unworkable,’ noting that it is unreasonable to expect smaller search engines which lack financial and technological resources to process these requests. UK businesses could also face costs of up to £360 million in complying with the decision; an unwelcome prospect given the economic struggles that many European businesses are currently facing.9 This doesn’t include any further precedents that might be set under the “right to be forgotten”. Further, there are dangers in allowing search engines and other private companies to ‘police’ the internet and remove data based on ‘vague, ambiguous and unhelpful criteria,’ 10 which may lead to biased search results and unintentional censorship. So – is the “right to be forgotten” necessary under law? Perhaps, if the EU dedicated the resources to effectively manage requests for data deletion to alleviate some of these concerns. However, in the absence of such an approach, it appears that the potential dangers of the law far outweigh its advantages.
The “right to be forgotten” has its roots in the idea that individuals have the right to autonomy, the right to live their life free of stigma because they did something stupid in the past, or Tweeted something that sounds pretty homophobic. It certainly isn’t like the good ol’ days, when embarrassing tidbits were analogue and highly flammable and politicians didn’t even need these damned social media whatchamacallits. But is this a necessary legal right, with court-mandated remedies? The problems with the ECJ decision11 are already coming to light. Google made available the lengthy, vague and onerous criteria they use when deciding whether to remove a link.12 Smaller search engines are unlikely to be able to comply properly, and the risk is they’ll just take things down whenever a complaint is filed to avoid law suits. Google has been inundated with over 70, 000 requests since May 30 this year.13 There have also been reports of various news outlets writing stories about content that was taken down14, which draws more attention than the original article itself, and renders the whole scheme a costly exercise in futility. Thankfully, it does not exist in Australian law, and seeing it play out in the EU and UK seems to make it an unlikely possibility. But, as with the nature of online regulation, it is likely to have some impact on our shores eventually. The “right to be forgotten” does more than just place a burden on data controllers – it gives them too much power. It gives them the power to shape history, and most don’t have the resources or inclination to do it responsibly. The takeaway? Think before you Tweet, and help educate others about their online footprints.
11 EDITOR’S QUESTION
JO SAYS:
digital world to promulgate ‘banned’ information across
TARYN SAYS:
12
Simultaneously lamented as a resounding step in the direction of internet censorship, and lauded as a vindication of individual rights to control personal TARYN SAYS: data online, the concept of a “right to be forgotten” is Simultaneously lamented as a resounding step in undoubtedly a bizarre one. the direction of internet censorship, and lauded as a Arguments at the heart of the debate speak to the vindication of individual rights to control personal necessity of such a right to protect individuals from data online, the concept of a “right to be forgotten” is contemporary forms of discrimination, scaling from undoubtedly a bizarre one. reliance upon inaccurate or out-dated information to Arguments at the heart of the debate speak to the increasingly popular digital purdah’s such as ‘revenge necessity of such a right to protect individuals from porn’.15 Yet carving out a “right to be forgotten” seems t o contemporary forms of discrimination, scaling from be a misguided solution to these issues. ‘Data controllers’ reliance upon inaccurate or out-dated information to already go to pains to remove information that has been increasingly popular digital purdah’s such as ‘revenge deemed illegal by a court, pirated content, personal porn’.15 Yet carving out a “right to be forgotten” seems t o security information, and child sexual abuse imagery. be a misguided solution to these issues. ‘Data controllers’ Arguably, imposing vague thresholds in terms of what already go to pains to remove information that has been is deemed personally ‘offensive’ and ‘relevant’ makes deemed illegal by a court, pirated content, personal the line in the sand a hard one to draw. Proponents of security information, and child sexual abuse imagery. the right also fail to consider that the sheer volume of Arguably, imposing vague thresholds in terms of what removal requests, as well as the unfailing ability of the digital world to promulgate ‘banned’ information across the line in the sand a hard one to draw. Proponents of different sites or in different ways, will make the actual the right also fail to consider that the sheer volume of enforcement of such a right unrealistic. removal requests, as well as the unfailing ability of the It may no longer be hip to be so square, but I would argue that the necessary steps are preventative ones, taken much closer to home. Targeting ‘data controllers’ seems to be an easy way to absolve the individuals who are producing and promulgating this kind of information in the first place; a way for past wrongs, and the wrongs of those who choose to publish them, to be quietly swept under the rug.
enforcement of such a right unrealistic. It may no longer be hip to be so square, but I would argue that the necessary steps are preventative ones, taken much closer to home. Targeting ‘data controllers’ seems to be an easy way to absolve the individuals who are producing and promulgating this kind of information 1.
European Data Protection Directive (Directive 95/46EC) of the European Union of 1995. of 2. thoseGoogle who choose them, to be dequietly swept Spain SL, Googleto Inc.publish v Agencia Española de Protección Datos, Mario Costeja González (European Court Of Justice, C-131/12, 13 May 2014). under the rug. 3. Ibid. 4. Lilian Edwards, ‘Revenge Porn: why the right to be forgotten is the right 1. European The DataGuardian Protection(online), Directive30(Directive 95/46EC) of the European remedy’, July 2014, <www.theguardian.com/ Union of 1995. technology/2014/jul/29/revenge-porn-right-to-be-forgotten-house-of2. Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja lords>. González (European Court Of C-131/12, 13 MayMedia 2014).and Criminal 5. See The Select Committee on Justice, Communications, Social 3. Ibid. Offences, House of Lords, Paper No 37, Session 2014-15 (2014), <http:// 4. Lilian Edwards, ‘Revenge Porn: why the right to be forgotten is the right www.publications.parliament.uk/pa/ld201415/ldselect/ldcomuni/37/37. remedy’, The Guardian (online), 30 July 2014, <www.theguardian.com/ pdf>. technology/2014/jul/29/revenge-porn-right-to-be-forgotten-house-of6. Without My Consent, FAQ , 2011, <http://www.withoutmyconsent.org/ lords>. faq>. 5. See The Select Committee on Communications, Social Media and Criminal 7. Above n 4. 8. 9. 6. 7. 10. 8. 9. 11. 12. 10. 13. 14. 11. 12. 15. 13. 14. 15.
Above n 5. www.publications.parliament.uk/pa/ld201415/ldselect/ldcomuni/37/37. Owen Bowcott, ‘EU ‘Right to be forgotten’ law unenforceable, says justice pdf>. minister’, The Guardian (online), 10 July 2014, <http://www.theguardian. Without My Consent, FAQ , 2011, <http://www.withoutmyconsent.org/ com/technology/2014/jul/09/eu-right-to-be-forgotten-law-unenforceablefaq>. justice-minister-simon-hughes>. AboveHern, n 4. ‘Lords describe Right to be Forgotten as ‘unworkable, Alex Above n 5. unreasonable, and wrong’’, The Guardian (online), 30 July 2014, <http:// Owen Bowcott, ‘EU ‘Right to be forgotten’ law unenforceable, says justice www.theguardian.com/technology/2014/jul/30/lords-right-to-be-forgottenminister’, The Guardian (online), 10 July 2014, <http://www.theguardian. ruling-unworkable>. com/technology/2014/jul/09/eu-right-to-be-forgotten-law-unenforceableAbove n 2. justice-minister-simon-hughes>. ‘Search removal request under data protection law in Europe’, Alex Hern, describe Right to be Forgotten as ‘unworkable, (online), 30 ‘Lords July 2014, <https://support.google.com/legal/contact/lr_ unreasonable, and wrong’’, The Guardian (online), 30 July 2014, <http:// eudpa?product=websearch>. www.theguardian.com/technology/2014/jul/30/lords-right-to-be-forgottenAbove n 2, [32]. ruling-unworkable>. See, e.g., Robert Peston, ‘Why has Google cast me into oblivion?’ BBC News Above n 20 2. July 2014, <http://www.bbc.com/news/business-28130581>. (online), ‘Searchn 5.removal request under data protection law in Europe’, Above (online), 30 July 2014, <https://support.google.com/legal/contact/lr_ eudpa?product=websearch>. Above n 2, [32]. See, e.g., Robert Peston, ‘Why has Google cast me into oblivion?’ BBC News (online), 20 July 2014, <http://www.bbc.com/news/business-28130581>. Above n 5.
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LAW, POWER & THE MEDIA Who is the Real Regulator? Legal regulation of the media is a hotly debated area. How much regulation is too much? Should we leave it to the market and a discerning media consumer to keep the industry accountable? ANEESA KRUGER talks us through media regulation in the modern era, and when it collides with the law.
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The convergence of new media constantly creates new problems, which is why legislators have been hesitant to pass laws that will be too heavy handed. Blumler argues that the media acts as “informational building blocks [used] to structure views of the world.”4 Arguably, corporations, whether directly linked to media or not, have too much power at their disposal without some external regulation.5
“The main fear is that a loss of freedom of expression and access to information will occur if government or corporate bodies regulate current media entities.” It is precisely at this intersection of media and technology that the role of law gets murky. On one hand, there is a rapidly changing landscape of content distribution, media consumption and dissemination of information. On the other, are fundamental principles of law such as the need to appear stable, fair and consistent. It is from this that tensions arise as to things like piracy, Wikileaks and even the use of samples in music tracks. Throughout this discussion, the issue of freedom of speech sits at the centre of the debate. The main fear is that a loss of freedom of expression and access to information will occur if government or corporate bodies regulate current media entities. ‘User-friendly’ digital media makes it easy for individuals, governments and corporations to abuse their communication power. Mac Síthigh proposes, ‘[T]he model, maybe, should be a mixture of moderately protectionist consumer law (commonplace in even the most capitalist and liberalised of economies), which is sensitive to human rights issues, and community-driven solutions— but relying on neither in isolation.’6 1. 2. 3. 4. 5. 6.
Police v Ravshan Usmanov [2011] NSWLC 40 Crimes Act 1900 (No 40) (NSW) s578C Ibid Ibid, 4 Ibid D Mac Síthigh, ‘The Mass Age of Internet Law’ (2008) 17(2) Information and Communications Technology Law 79, 88
13 LAW, POWER & THE MEDIA
hat is it that regulates media in Australia? While the press, television and radio are partially regulated by the Australian Communication and Media Authority (ACMA) it is arguable whether acts of disobedience to the rules are effectively prosecuted, considering the majority of the industry remains selfregulated. The lack of current statutory regulations of the Internet means abuses of power and privacy can easily occur. Copyright and striking the balance between creative freedom and legitimate commercial interests remains a hotly debated area. It has been argued that the future of media regulation will not be by the law, or even by the industry, but by using technology to closely guard content. It’s already happening – The Australian regularly bars non-subscribers, Spotify can limit access to songs not yet released and some Governments can ban entire social networks. Copyright was created to protect ownership of creative works, however new technologies are blurring the line between legal regulation and a new regulation based on the nature of technology itself. Imagining the Internet as being ‘history-less’ is perhaps the best way to look at its regulatory structures (or lack thereof). Since the web is relatively new in a social and cultural sense, abuse of power online is a difficult issue to address. Currently, there are limited cases of legal sanctions for abuses of communication power. The problem is that due to the ubiquitous, global nature of the Internet, establishing a regulatory structure or making something illegal could mean blocking access in one country is an act of censorship in another. The case of Police v Usmanov (2011)1 is one of the only cyber prosecutions to occur in Australia. Usmanov was charged under section 578C of the Crimes Act 1900 (NSW)2 which prohibits the publication of indecent articles. Usmanov uploaded naked pictures of his ex-girlfriend to Facebook without her permission. The magistrate sentenced Usmanov to six months prison claiming the sentence was meant to be a deterrent.3 This type of cyber-bullying is common, and many victims feel as though there is no satisfactory recourse, especially when threats are made online by people outside an Australian jurisdiction. Rather than complex cross-jurisdictional matters, it may be better to deter the behavior with harsh penalties.
DRONES IN THE DIGITAL ERA Lee, ‘Ar Drone 2.0 Carbon - To the sun...’ (2013)
The increased use of drones for military, commercial and personal purposes has sparked concerns that they could pose a threat to privacy laws. SAGE NEMRA explores the proposed legal mechanisms that seek to regulate this new and sophisticated technology.
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DRONES IN THE DIGITAL ERA
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he digital era has seen a significant increase in the ease with which individuals and organisations can collect, store and use information. The drone is one of many technological accomplishments that have become readily available online and in-stores, some of which are sophisticated enough to stay airborne for up to 24 hours and fly as high as 27,000 feet (approximately 8,300 metres). With the capacity to survey, photograph, record and seamlessly transmit information, drones can satisfy the needs of almost every consumer; whether it be the journalist, the farmer, the photographer, the scientist or the police officer. Even Martha Stewart, fascinated by the everyday capabilities of her own drone, was recently inspired to write an article entitled, ‘Why I Love My Drone’.1
‘The quicker we develop new technologies, the faster our responses must be to the challenges they undoubtedly present.’
At its simplest, the term ‘drone’ may be used to describe any object that flies remotely, with or without human control. They are frequently used for military operations - unarmed drones have been used by the Royal Australian Air Force in Afghanistan since 2009, so far costing the Australian Defence Force around $50 million. Other nations, such as the USA, have opted to arm their drones, causing experts in the industry to shy away from using the so-called ‘D’ word, preferring names such as ‘unmanned aerial vehicles’ (UAV), and ‘remotely operated aircrafts’ (ROA).
of invasions of privacy. In July 2014, the House of Representatives Standing Committee on Social Policy and Legal Affairs (“the Committee”) conducted a parliamentary inquiry into the use of drones, aptly titled ‘Eyes in the Sky: Inquiry into Drones and the Regulation of Air Safety and Privacy’.2 The Committee conducted roundtable discussions to compile the report, which provides a series of recommendations for changes to Australia’s privacy regime. The Committee noted that the current regulatory framework for privacy has been described as a ‘fractured landscape’ and a ‘patchwork of laws,’3 owing to its complexity and failure to provide Australians with adequate protections for their privacy. Of particular significance, concerns were raised to the Committee during consultations as to whether or not our current privacy legislation can cope with evolving changes in technology and the expanding capabilities of devices such as RPAs. Thanks to microtechnology, we now have cheaper, more efficient and more capable RPAs, which may deliberately, or inadvertently, record private behavior for which no appropriate defence mechanism exists.
But what’s in a name? Armed or unarmed, remotely piloted aircrafts (RPAs), have sparked a number of significant issues, including the regulation and prevention
Lack of consistency among state regulation undermines the effectiveness of the provisions and more simply, there are certain gaps in the law which subvert
‘With the capacity to survey, photograph, record and seamlessly transmit information, drones can satisfy the needs of almost every consumer, whether it be the journalist, the farmer, the photographer, the scientist or the police officer.’
Lima Pix, ‘Drone vs Cow’ (2014)
The quicker we develop new technologies, the faster our responses must be to the challenges they undoubtedly present. The lack of clarity in the law with respect to the use of drones inherently inhibits the effectiveness and certainty of the law. It remains to be seen whether Parliament will implement the various recommendations provided by the Committee and the ALRC to better protect your right to privacy.
1. 2.
3. 4.
Martha Stewart, “Why I Love My Drone”, TIME Magazine, July 29, 2014. House of Representatives Standing Committee on Social Policy and Legal Affairs, Eyes in the Sky: Inquiry into drones and the regulation of air safety and privacy, July 2014. Committee Hansard, 21 March 2014, p 4; Committee Hansard, 28 February 2014, p 37. Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era: Discussion Paper, March 2014, pp 9-10.
15 DRONES IN THE DIGITAL ERA
the complaints process and make it difficult for people to obtain a suitable remedy. The Committee’s report reveals that some of Australia’s largest commercial users of RPAs, such as Insitu Pacific, have taken matters into their own hands and have sought to implement their own privacy policies. However, the Committee strongly recommends the implementation of a tort of privacy. In 2013, the Australian Law Reform Commission (ALRC) was also referred to inquire into the preventative measures and remedies for serious invasions of privacy in the contemporary technological context. The ALRC’s Discussion Paper, following submissions from interested parties, suggests that a new tort of privacy established by federal legislation would distinguish between two types of breach: ‘intrusion upon a person’s seclusion or private affairs, and misuse or disclosure of private information’.4 Moreover, any cause of action on these terms must be a serious invasion of privacy limited to intentional or reckless acts and where a person would reasonably expect their privacy to be respected. The Committee’s approach, however, is somewhat more covert, proposing that RPA users and manufacturers should be better informed as to the circumstances in which the use of a RPA may constitute a breach of privacy.
The increased accessibility of 3D printing technologies to individuals demands a reassessment of current intellectual property and privacy laws. ANGAD KEITH considers the means by which this revolutionary new technology can be regulated by the law.
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CATCH ME IF YOU CAN
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n recent years, 3D printing technology has gained popularity as a convenient means of manufacturing a wide range of products. Like its name suggests, this technology allows users to create or ‘print’ three dimensional objects, provided they have access to a Computer-Aided Design (CAD) file for the object, a 3D printer and the necessary base materials. However, the use of 3D printing technology, especially in Australia, is problematic and incongruent with intellectual property laws. The issue has now reached a crossroads – current Australian laws must catch up to the increasing popularity of this innovative technology or risk letting it have a free reign and erode intellectual property rights.
THE CHALLENGE
3D printing, also known as additive manufacturing, has futuristic connotations - it is the kind of technology that sounds like it belongs in science fiction.However, it is not a new technological advent – in fact, the technology has been used by manufacturers since the 1980’s to create prototypes for products for testing purposes.1 Rather, the current issue is the introduction of the ‘desktop 3D printer’ that personalises this technologyand makes it more accessible to the ordinary person. The start-up of initiatives such as the RepRap Project in 2004, MakerBot in 2009 and online CAD repositories such as Thingiverse have only accelerated this process.2 This has resulted in the gradual commercialisation and economic use of 3D printing. In their 2013 report, Credit Suisse provided an indication of the exponential growth in popularity of 3D printing when they predicted a 100% growth from 2012 in the 3D printing consumer market.3 In a submission to the Australian Law Reform Commission, Dr. Rimmer labelled 3D printing as a ‘disruptive’ technology akin to personal computers and peer-to-peer networks due to the complex challenges it
presents to IP principles and norms.4 He further asserted that there are strong parallels to be drawn between the impact of this technology on the manufacturing industry with the impact of the personal computer on the world of computing.5 This sentiment is shared by many professionals including Goldman Sachs, which has labelled 3D printing as a technology that is ‘creatively destroying’ the way businesses operate. Alarmingly, it also raises legal dilemmas in relation to copyrights and designs, and even ethical predicaments as to the responsible use of this technology. For example, it is entirely possible, and indeed has even been achieved, to ‘print’ a gun using the appropriate CAD file and 3D printer.7 Incidents such as these make it easy to understand why this technology can cause moral panic and why it necessitates regulation.6 Currently, the Australian legal system is not equipped to deal with the disparity between IP law and 3D printing.8 A paradigm shift is necessary to protect IP rights owners and their works from being exploited by those that are able to, without permission, manufacture products using 3D printers. However, a reassessment of current policy must be reconciled with the responsible use of 3D printing in order to encourage sustainable innovation and draw the best out of this remarkable technology.
THE LAW MUST REFLECT INNOVATION
The personalisation of 3D printing is the next great battle between technology and the law, and there are
‘A reassessment of current policy must be reconciled with the responsible use of 3D printing in order to encourage sustainable innovation.’
Keith Kissel, ‘3D Printer at the Fab Lab’ (2011)
CATCH ME IF YOU CAN
Creative Tools, ‘Makerbot Industries - Replicator 2 -3D-printer 09’ (2012)
‘Australian laws must catch up to the increasing popularity of this innovative technology or risk letting it have a free reign and erode intellectual property rights.’ lessons to be learnt from the regulation of digital media.
A SOCIETAL ISSUE
Historically, society has adapted to technological change faster than lawmakers.18 Given the rapid personalisation of 3D printing, the time is ripe for the Government to reassess current policy fit in order to
17 CATCH ME IF YOU CAN
First and foremost, a review of current Australian IP legislation is necessary in order to maintain pace with emerging technology. 3D printing affects four fields of IP law – copyright, designs, trademarks and patents;9 however copyright and designs are under greater scrutiny. Infringements arise not only from the reproduction of 3D objects, but also from the use of CAD files to ‘print’ those objects.10 A pressing concern to be addressed is the overlap of Australian copyright and design laws. Specifically, the overlap between ss 74-77A of the Copyright Act 11 and s 18 of the Designs Act 12 is onerous on rights owners to the extent that it has been labelled as outdated and inconsistent with similar laws in other jurisdictions.13 Presently, the Copyright Act 14 does not provide protection to designs that have been ‘industrially applied’, which is relevant to designs that have been applied to more than 50 articles. This reflects the Australian policy of encouraging the use of registered designs 15 although a consequence of this is that rights owners are powerless to prevent copyright infringement of their work through 3D printing. The powers that be would do well to emulate the models that exist in New Zealand and the USA, where protection is provided for at least some industrially applied designs.16 This will not only promote the international harmonisation of laws regarding industrially applied designs, which will lead to better protection from 3D printing,17 but it will also allow Australia to account for the current technological environment.
avoid an ‘intellectual property nightmare.’19 The rationale for changing policy as a response to technological advancement is that science and technology are very much a part of the social and political sphere. The social impact of 3D printing is tangible given that it can lead to weapons proliferation amongst users and even reproduction of body parts using stem cells;20 thus the moral concerns it induces are merited. Indeed, this is evidence that no longer can technological progressivism be divorced from social theory and policy judgements. Action must be taken to ensure that society only ever benefits, in an ethical and responsible manner, from this incredible technology. Supplementary to legal reform, those that enable the use of 3D printing must also work collaboratively with rights owners. Working co-operatively with the ‘gatekeepers’ of this technology will ensure that only approved designs and works are available for use.21 This approach would require rights owners to work with online CAD repositories such as Thingiverse and 3D printer manufacturers in order to promote the ethical use of this technology. An example of collaborative regulation is provided by Create It REAL, a Danish company specialising in 3D printing technologies. By developing a software that recognises CAD files relating to firearms, the company has been able to stop users from accessing those files and consequently printing a gun. It is imperative that rights owners engage in dialogue with the so-called gatekeepers of 3D technology. The personalisation of 3D printing has added a social dimension to the problem, thereby necessitating the consideration of ethical and social issues. Doing so will result in a participatory process that should yield a mutually beneficial result. By engaging in open dialogue, the ‘actors’ will be able to undertake a constructive
Creative Tools, Makerbot Industries - Replicator 2 -3D-printer 03 (2012)
CATCH ME IF YOU CAN
18
assessment of 3D printing technology. The purpose of these changes is not to halt the mainstream integration of 3D printing technology; rather it is to regulate the potentially limitless exploitation of a remarkable evolution in manufacturing, for obvious ethical and legal reasons. That 3D printing has valuable advantages is not in contention; yet this must be balanced with a controlled framework for usage at it risks being overwhelmed with imminent IP litigation. This problem is truly at a social and legal crossroads and requires a very fine balancing act; aggressive litigation will stifle its vast potential whilst a blasé approach will ensure that previous mistakes in regulating digital content will be repeated.
1. 2. 3. 4.
5. 6.
7. 8.
9. 10. 11. 12. 13. 14. 15.
16. 17. 18.
19. 20. 21.
Simon Bradshaw, Adrian Bowyer and Patrick Haufe, ‘The intellectual property implications of low-cost 3D printing’ (2010) 7(1) ScriptEd 5 <http://www2. law.ed.ac.uk/ahrc/script-ed/vol7-1/bradshaw.asp#sdfootnote1sym>. Ibid. Credit Suisse, 3D printing is going to be way bigger than what the 3D printing companies are saying (September 2013) Business Insider <http://www. businessinsider.com.au/the-3-d-printing-market-will-be-huge-2013-9>. Matthew Rimmer, ‘Inventing the future: Intellectual Property and 3D printing’ on Edward Elgar, Elgarblog (18 October 2012) <http://elgarblog. wordpress.com/2012/10/18/inventing-the-future-intellectual-property-and3d-printing-by-matthew-rimmer/>. Ibid. Goldman Sachs, The 8 extraordinary technologies forcing businesses to adapt or die (August 2013) Business Insider <http://www.businessinsider. com.au/goldman-sachs-creative-destruction-2013-8#creative-destroyer-7-3dprinting-17>. Angela Daly, ‘Legal and regulatory issues for 3D printing’ (Speech delivered Zt Deakin Law School, 26 July 2013) <https://www.academia.edu/4106809/ Legal_and_regulatory_issues_for_3D_printing>. Arts Law Centre of Australia, Submissions (November 2013) <http:// www.artslaw.com.au.ezproxy.lib.uts.edu.au/images/uploads/ACIP%20 Review%20of%20Design%20System_Arts%20Law%20submission%20 on%20Issues%20Paper%20FINAL.pdf>. Bradshaw, Bowyer and Haufe, above n 1. Brian Rideout, ‘Printing the impossible triangle: The copyright implications of three-dimensional printing’ (2011) 5(1) Journal of Business, Entrepreneurship and Law 161, 161-178. Copyright Act 1968 (Cth) ss 74-77A. Designs Act 2003 (Cth) s 18. Arts Law Centre of Australia, above n 8. Copyright Act 1968 (Cth). Lisa Lennon, Lauren Eade and Anna Smyth, 3D printing: Design revolution or intellectual property nightmare? (October 2013) Gilbert + Tobin Lawyers <http://www.gtlaw.com.au/wp-content/uploads/3D-Printing-Designrevolution-or-intellectual-property-nightmare.pdf>. Ibid. Arts Law Centre of Australia, above n 8. Joseph Storch, ‘3D printing your way down the garden path: 3D printers, the copyrightisation of patents, and a method for manufacturers to avoid the entertainment industry’s fate’ (2014) 34(2) Journal of Intellectual Property and Entertainment Law 249, 249-309. Lennon, Eade and Smyth, above n 15. 3DPrint, News (29 May 2014) 3DPrint.com <http://3dprint.com/4627/3dprinting-stem-cells/>. Daly, above n 7.
19 EDITORIAL
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FOOD FIGHT Biotechnology and Human Security
Parker Knight 2008.
The inherently dual nature of technology is explicit when considered in context of human rights. SYLVIA XIAO discusses how biotechnology has the potential to alleviate food insecurity, if only global legal frameworks and resource sharing were embraced.
Introduction to Food Security and Human Security
FOOD FIGHT
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The food security goal is to ensure “all people at all times have access to sufficient, safe, nutritious food to maintain a healthy and active life”. 1 While food insecurity is labelled as a global problem, the belief that developed countries have the technological means and responsibility to solve this issue2 only recently became relevant following the Millennium Development Goals; the first of which was to halve extreme poverty and hunger by 2015.3 The agricultural limitations and associated food insufficiency in the African region, which have been exacerbated in the last few decades by the effects of climate change, population growth and the inappropriate adoption of policies,4 must be strategically addressed. The changing spectre of the food security crisis has commanded the re-confrontation of the longstanding debate about the potential contribution that can be extracted by integrating agricultural biotechnology into the existing agricultural paradigms.5 Attention must be paid to the multi-disciplinary issues associated with the necessary considerations of how science and technology demands increasing emphasise predominant economic, political and social discourses in the context of resolving the food crisis. Introducing international political and legal frameworks to order to regulate these developments has become a moral imperative.
GENETIC MODIFICATION (“GM”) AND FOOD SECURITY
The concept of food security is comprised of four main elements: food availability, access, utilisation and stability. 6 GM technology has the potential to not only increase crop yields and provide greater food availability, but also increase food access by facilitating a greater variety of crops in volatile or developing nations. This is especially profound in the newest developments in genome engineering such as “Talens” and “Crispr,” which increase exactitude and are thus more predictable and effective. 7 However, there is a recognisable danger in prematurely transferring this technology to a context of application, where that context is under-regulated and lacks adequate education.
REGULATORY ISSUES
European regulatory systems rather than substantive scientific progress currently drive the biotechnological agricultural movement. At a global level, there is no convention that deals with biotechnology regulation. The developing markets thus have no overriding standards by which the viability and safety of such radical technologies are monitored. Without resources of knowledge from
which they may develop these protocols, the use of such technologies in the African region has been deemed by many countries as dangerous. Further, European nations refuse to allow GM products into their supply chain. The only global instrument to govern GM crops is the Catagena Biosafety Protocol, which fails to address the socio-economic concerns of the moralistic global North. By focusing only on biosafety, it neglects the socioeconomic assessments that are arguably as significant to the GM debate as the scientific argument. Failing to conduct an evaluation of the two separate arms of the GM concerns in parallel leads to a separation of what should pragmatically be viewed as a single discourse requiring unified global conduct.
FRAMING THE DEBATE Critical Approach
The critical approach to human security 8 facilitates an analysis of neglected socio-economic concerns. There is a strong body of academia that proposes arguments questioning the appropriateness of using artificial intervention to combat problems associated with global food production. European regulations9 are classic examples of this approach as they focus on utilising gene technology in ‘ethically acceptable and socially justifiable ways’.10 In such a regime, there is little uniformity in required assessment methods and ‘societal utility’ is a complicated concept without objective criteria.11 As a result, there is little merit to the weight given to public perceptions, social values and the risk management that is assessed as a requirement under under this framework. Perpetuating this approach is the idea that transgenic technology is risky and its detriments may not have been fully realised. The Norwegian Gene Technology Act 1993 allows the release of GM products only where their community, health and environmental safety are proven. This positive duty renders proportionate human security benefits secondary to perceived societal and moral implications by overzealously protecting against potential detriment to the social welfare paradigm. It is argued that a highly volatile farming culture such as Africa, already crippled by inadequate access to credit and rural infrastructure,12 is an even more inappropriate setting in which to disseminate risky agricultural technologies. Problem Solving Approach 13
The socio-political risks associated with the implementation of GM into existing food supply chains are far greater than those inherent to the biotechnology itself. The codification of biosafety regulations is insufficient and the state needs the political discourse to prioritise the development and formulation of practicable and beneficial GM regulation. Ironically, the extreme
social opposition to genetic modification has led to hyperregulation, which has raised the cost of bringing GM crops to market. Currently, only multinationals and large entities, public or private, can afford to comply with these rules.14 This has prompted criticism that this promotes the global trade phenomenon and the neoliberalism of the food security solution, bringing profit to conglomerates at the detriment of small-scale, localised agricultural institutions. The problem-solving agenda would call for distinguishing between the endogenous risks of the technology from those related to the implementation of the technology in different socio-political contexts. The bulk of research suggests that GM crops are genetically stable and the consumption of GM crops poses no risk to human safety.15
is born of the idea of the absolute right of each affected region to determine its own food system. The goal to transform the food system must look beyond simply making more food or make it more accessible. Essentially this can be framed as a power issue. GM technology advocacy is not necessarily about whether or not people or societies should use it to the detriment of other aspects of human security. Instead, it is the recognition that there should be greater body of research and resources for the development and informed regulation of the technology which recognises the right of societies to access the knowledge and resources. This allows them to exercise their choice to maximize the potential benefits that can be realized in the implementation of these new technologies.
TOWARDS A PRACTICAL SOLUTION – A DIRECTION, NOT A GOAL
The economic, political and social debates on the potential negative impacts of GM technology do not reflect the scientific and technological viability of the technology to increasing food security. Many of the solutions to contemporary social problems must recognise that inaction and delay are as much a threat to the livelihoods of humankind as the risks associated with artificially altering genomes in food grown for human consumption. The absence of global biotechnology legal frameworks in relation to GM crops is thus a major hindrance to the success of the movement and contributing to global food security. GM is not a technological panacea for meeting the varied and complex challenges of food security.16 However, biotechnological advancement should not be excluded a priori on socially constructed ethical or moral grounds without legitimate scientific basis. In light of the severity of the food crisis issue, it is necessary for privileged developed nations to meet their ethical obligations and be be open to undertaking further research into biotechnology, for the benefit of the global community. Delay and inaction caused by holding on to romantic notions and ethical and moralistic ideals are luxuries that even the developed nations can no longer afford. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.
13.
14. 15.
16.
World Health Organisation, Strategies for assessing the safety of foods produced by biotechnology, Report of a Joint FAO/WHO Consultation, Geneva (1991) C.F. Jordan, “Genetic Engineering, the Farm Crisis, and World Hunger”, June 2002 BioScience Vol. 52 No. 6. P. McMichael and M. Schneider, “Food Security Politics and the Millennium Development Goals” (2011), Third World Quarterly, Vol 32, No 1, 119. P Pinstrup-Anderson, “Food Security: definition and measurement” (2009) 1 Food Security 5. D. Rotman, “Biotech crops will have an essential role in ensuring that there’s enough to eat” (2013) viewed at http://www.technologyreview.com/featuredstory/522596 on 5 July 2014. The critical approach to human security issues encourages analysis of the structural and root causes of insecurity, including question power relations and existing social norms. Norwegian Gene Technology Act 1993; EC Directive 90/220/EEC. S. Chaturvedi, “Approval of GM Crops- Socio-economic Considerations in Developing Countries’ (2012) Vol XLVII No 23. Economic & Political Weekly 53. K. Rosendal, “GMO Assessment in Norway: Societal Utility and Sustainable Development” (2009) 10(9) EMBO Reports 939. C.F. Jordan, “Genetic Engineering, the Farm Crisis, and World Hunger”, June 2002 BioScience Vol. 52 No. 6 523 at 526. The problem solving approach to human security aims to improve human welfare within the context of existing policy and social frameworks. M. Van Montagu, “Can a Hungry World Say No to GM Crops and Still Have Food Security?” Forbes India (online), 7 January 2014 on < http://forbesindia.com/article/ the-big-questions-for-2014/can-a-hungry-world-say-no-to-gm-crops-and-still-have-foodsecurity/36833/1> M.T.S Porto and B. Urick, “Can Genetically Modified (GM) crops help to improve food security in India?” (2013), Oxford India Policy Blog (online), 8 April 2013 on < http:// policyblog.oxfordindiasociety.org.uk/2013/04/08/can-genetically-modified-gm-crops-helpto-improve-food-security-in-india/> DEFRA “UK Food Security Assessment: Our Approach” (2009) available at http://archive. defra.gov.gov.uk/foodfarm/food/pdf/food-assess-approach-0908.pdf accessed on 5 July 2014. M.T.S Porto and B. Urick, “Can Genetically Modified (GM) crops help to improve food security in India?” (2013), Oxford India Policy Blog (online), 8 April 2013 on < http:// policyblog.oxfordindiasociety.org.uk/2013/04/08/can-genetically-modified-gm-crops-helpto-improve-food-security-in-india/> DEFRA “UK Food Security Assessment: Our Approach” (2009) available at http://archive. defra.gov.gov.uk/foodfarm/food/pdf/food-assess-approach-0908.pdf accessed on 5 July 2014.
21 FOOD FIGHT
Currently, the GM movement is predominately associated with the neoliberal mainstream, private enterprise dominated structures of agri-business. This, however, is not a characteristic of the fundamental technological and scientific movement. This is an intrinsic element that engenders the existing food crisis in which food access and utilisation is a greater threat to food security than food availability. Many criticisms of the GM business are therefore criticisms of an existing system of economic and political discourse rather than a legitimate body of research. This apparently suggests that biotechnological advancements are the root causes of these problems; or that they do not provide a viable solution. There is recognition that there is a need to radically reform the system of food distribution and provision at international, national, local and individual levels. This can only be achieved through stable and consistent legal mechanisms, applied internationally. The value of GM is that it has the potential to be a tool through which existing food rubric can be radically reformed. It allows a mitigation of the natural drawbacks that cause the systemic problems that permeate the existing agricultural and food market in existence. For this reason it can potentially shift the existing paradigms expectations that are the inherent reasons for the failure of current policies and procedures that aim to alleviate the food crisis. Food availability and production has never been the true problem and it never will be the only dimension that we must address with a great sense of urgency. The biotechnological advances must come with accompanying legal and political reforms that will promote the safe utilisation of these new technologies. The resistant political factions of the global North must subvert their misconception of reform as being a choice, instigated by comparative privileges enjoyed by these societies. Instead, they must recognise that their combined scientific capacities could foster increased food and thus human security. A great global social cost is wrought by their arguably the baseless moralistic resistance to the benefits potentially brought through shared technological change. In recognition of the need for a radical change in the food system comes the newest major tenet in the food security movement – Food Sovereignty. Food Sovereignty
CONCLUSION
DEFAMATION IN CYBERSPACE Attempting to Extend Australian Law into the New Frontier In light of the global communicative challenges posed by the age of the Internet, many have questioned whether the efficacy of Australian defamation law has been undermined. Through examining the current approach being taken by the courts, DAVID HAZAN reveals how the law is already adapting to meet the challenges of this new frontier, although there is still work to be done.
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he advent of the Internet in the twenty-first century has dramatically altered the media landscape, with many arguing that Australian defamation law is ill equipped to meet the challenges of this new communicative paradigm. Yet, examining how the judiciary responds to challenges posed to this area of law in recent years reveals that there may be scope for the existing law to adapt to new media, just as it did with the genesis of radio and television media over the past century.1 Nevertheless, this examination reveals that whilst there have been instances where the law has adapted to contemporary issues of defamation, there remain areas which are yet to be addressed.
I.
WHO IS THE PUBLISHER?
The veil of anonymity imposed by the Internet presents the first and most obvious challenge to Australian defamation law. This shields and protects users, who can make posts anonymously from anywhere in the world, or under pseudonyms. The resulting effect is that the rights of a plaintiff to seek vindication and damages are substantially diminished. Arguably, there are measures in existence that may be able to effectively address this problem. Jennifer Ireland, author of the article ‘Defamation 2.0: Facebook and Twitter’, has noted that the court can make orders of discovery to identify the identities of defendants.2 Under the Uniform Civil Procedure Rules,3 an order of preliminary discovery is available to a party ‘where necessary and after reasonable
enquiries have been made to identify the defendant’.4 Yet, in reality, there are rafts of limitations in meeting this threshold and to obtaining preliminary discovery. Seeking an order for discovery can be costly, for example, and the granting of such an order is not guaranteed.5 Thus, while it is possible under the current law to identify a potential defendant to a defamation action, it places ‘additional hurdles in the path of a would-be plaintiff in cases involving a “masked’ defamer.”6 Nevertheless, it seems that if the factors that hamper a plaintiff in such a situation can be overcome or diminished, the existing law is equipped to deal with the anonymity that the Internet bestows on its users.
II.
GEOGRAPHICAL INDETERMINACY
The global nature of the Internet begets some complex jurisdictional conundrums, a consequence of the fact that the Internet is ‘at the fingertips of any person with a computer or other Internet-enabled device and a connection to the Internet, anywhere in the world…’,7 This affects whether or not a court has the jurisdiction to hear a defamation action that may have been published in another jurisdiction.8 This was considered in the seminal Australian Internet defamation case, Dow Jones and Company Inc v Gutnick.9 This case appeal to the High Court of an earlier decision, where Joseph Gutnick had sued Dow Jones and Company Inc in defamation for the publication of an article suggesting that Mr. Gutnick was involved in criminal activities, including money laundering and tax evasion.10 Notably, while the statement of claim was served on the defendant in another jurisdiction, Gutnick claimed that the defamation occurred in the state of Victoria.11 The defendants’ counter assertion that the publication took place in New Jersey and was thus the jurisdiction of the American defamation law was, at first instance, rejected in the Victorian Supreme court. On appeal, the High Court unanimously upheld the decision of the Victorian Supreme Court, with the majority judgment identifying that defamatory publication only occurs in full once a reader comprehends
III. PUBLICATION, REPUBLICATION AND INNOCENT DISSEMINATION Under the general law, re-publication of material may in itself give rise to an action in defamation.15 Further, the original publisher may be held liable in circumstances where they expressly authorised, knew of, or intended the material to be re-published, or if the re-publication was a natural consequence of the original publication.16
‘Posts can be made anonymously from anywhere in the world, or under pseudonyms, which substantially diminishes the rights of a plaintiff to seek vindication and damages.’
23
DEFAMATION IN CYBERSPACE
the imputed defamatory statements: The tort of defamation, at least as it is understood in Australia, focuses on publications causing damage to reputation…Harm to reputation is done when a defamatory publication is comprehended by the reader... Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone.12 While concerns were raised about the potential of the decision to open up innumerable suits in multiple jurisdictions,13 Gaudron J specifically targeted these concern in obiter, stating that: If…an issue arises as to whether an Australian court is a clearly appropriate forum, a very significant consideration will be whether that court can determine the whole controversy and, if it cannot, whether the whole controversy can be determined by a court of another jurisdiction.14 This decision thus provides evidence of the strength and clarity of the current law in relation to the jurisdictional issues posed by the Internet. Not only is Australian law suited to answer the question of extra-jurisdictional publication, it also answers the consequential question of multiple actions.
This raises questions about what constitutes republication on the Internet, as well as what constitutes innocent dissemination. While it has been held that a simple hyperlink cannot bring about an action in defamation because, as in the case above, publication occurs when a reader or observer comprehends the defamatory material; it has also been held that “linking”, “liking”, “sharing” and “retweeting” all constitute positive conduct, to some extent.17 “Sharing”, for example, constitutes a hyperlink, but can be posted with a summary or some form of preview of the linked page attached. Ireland refers to these as ‘deep links’ and notes that pursuant the Canadian authority of Crookes v Newton18, they could still be considered defamatory publications, and could open social media users up to potential liability.19 Liability for defamatory material is also not limited to positive conduct.20 This concept has ramifications for Internet Service Providers (ISPs) and other sites that simply host content, because ‘failure to prevent the dissemination of defamatory matter can lead to the imposition of liability on a defendant as a publisher’.21 While they are likely to be able to rely on the defence of ‘innocent dissemination’ contained in s 32 of the Defamation Act 2005 (NSW), the case of Trkulja v Google Inc LLC & Anor (No 5)22 reveals that this will not always be the case. In that instance, snippets from a search engine were held to be defamatory, as Google could not rely on the defence of innocent dissemination because it was notified and failed to remove or alter the defamatory search results.23
‘While it has been held that a simple hyperlink cannot bring about an action in defamation… it has been held that ‘linking’, ‘likes’, ‘shares’ and ‘re-tweets’ all constitute positive conduct.’
Liability for re-publication thus remains an issue that is not wholly settled. However, this does not mean that the current law is ill equipped; merely that it remains unelucidated. Despite this, it seems to provide the plaintiff with avenues for recourse where they have notified the defendants of their imputed defamatory conduct.
CONCLUSION That Australian defamation law provides imperfect solutions to the novel and ever-changing challenges posed by the Internet is not sufficient to show that the aforementioned body of law is ill suited to the demands of contemporary society. It is unreasonable and unrealistic to expect perfect solutions to emerging and rapidly evolving technological frontiers. Ultimately, the issue is exemplified by Gleeson CJ, McHugh, Gummow and Hayne JJ in Dow Jones v Gutnick 24:
DEFAMATION IN CYBERSPACE
24
In the course of argument much emphasis was given to the fact that the advent of the World Wide Web is a considerable technological advance. So it is. But the problem of widely disseminated communications is much older than the Internet and the World Wide Web. The law has had to grapple with such cases ever since newspapers and magazines came to be distributed to large numbers of people over wide geographic areas. Radio and television presented the same kind of problem… although international transmission of material was made easier by the advent of electronic means of communication…It is no more or less ubiquitous than some television services. Ultimately, despite the challenges that it has faced in the past, the Australian law of defamation has adapted. The challenges of identity, geographical indeterminacy, jurisdiction, and republication are no different. Modern challenges have been overcome in some areas and will be overcome in others, just as the challenges of the century that preceded it.
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.
Dow Jones and Company Inc v Gutnick (2002) 210 CLR 57, [38]-[39]. Jennifer Ireland, ‘Defamation 2.0: Facebook and Twitter’ (2012) 17(1) Media and Arts Law Review 53-81, 65. Uniform Civil Procedure Rules 2005 (NSW) r 5.2. Ireland, above n 3, 65. Ibid. Ibid. Matthew Collins, The Law of Defamation and the Internet (Oxford University Press, 3rd ed, 2010) 36. Ibid. Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575 (‘Dow Jones v Gutnick’). Ibid [1] – [8]; David Rolph, ‘Publication, Innocent Dissemination and the Internet after Dow Jones & Company Inc v Gutnick’ (2010) 33(2) UNSW Law Journal 562, 564. Ibid. Dow Jones and Company Inc v Gutnick (2002) 210 CLR 57, [25] – [26]. Ibid [57]. Ibid [64]. Des Butler & Sharon Rodrick, Australian Media Law (Thomson Reuters, 4th ed, 2012) 52. Ibid. Collins, above n 9, 42; Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575. Crookes v Newton [2009] BCCA 392. Ibid 71. David Rolph, ‘Publication, Innocent Dissemination and the Internet after Dow Jones & Company Inc v Gutnick’ (2010) 33(2) UNSW Law Journal 562, 569. Ibid. Tikulja v Google Inc LLC & Anor (No 5) [2012] VSC 533. Ibid [41]. Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575, [38] – [39].
Jason Benjamin, ‘Bitcoin Wallpaper’ (2013)
BITCOIN: THE CURRENCY OF THE FUTURE? The emergence of digital currencies such as Bitcoin have transformed traditional monetary dealings, allowing users to engage in transactions without the involvement of a bank. However, while the United States has been quick to clarify the legal status of electronic currencies, there is uncertainty regarding its status in Australia. ANA-MARIA CINDIC explores the legal considerations behind this radical new currency.
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BITCOIN IN AMERICA
According to the Internal Revenue Service, Bitcoin has been afforded property status in the United States. The consequence of such a development is that Bitcoin will be likened to that of other intangible property, such as shares.4 Therefore, if Bitcoin is to be held as investment property and is sold at a profit, capital gains tax will apply at a lower rate. This also means that the virtual currency would be subject to thorough recordkeeping requirements. With regards to the Securities Exchange Commission, considerations are still underway to determine whether Bitcoin will need to comply with requirements of registration and disclosure.5
BITCOIN IN AUSTRALIA
It appears that there is no significant difficulty for Bitcoin to satisfy the common law indicia of property. It is definable, identifiable by third parties, capable in its nature of assumption and has a degree of stability (questionably).6 As a result, qualifying as property, it will enable proprietary rights for Bitcoin users and clarity in the application of Capital Gains Tax implications.7 On the other hand, the broad definition of ‘money’ under s 195.1 of the Goods and Services Tax Act 1999 (Cth) also has sufficient scope to include Bitcoin within its realm.
The consequences of such a classification is namely to avoid any GST anomalies, compliance obligations for taxpayers and administrative processes for the Australian Taxation Office.8 Despite the current uncertainty surrounding Bitcoin, a recent Queensland criminal law case may be the decisive break in clarifying its status. In that case, the accused had been charged, amongst other things, with possessing $110,000 worth of Bitcoin as tainted property. The fact that the accused was charged with tainted ‘property’ as opposed to ‘money’ is significant and it may possibly be the test case that breaks the ice on officially confirming its legal status.9 Until then, Bitcoin according to the Treasury is not formally recognised as a legal tender, however in the absence of any prohibiting law, it can still be used.10 In conclusion, the broader acceptability of Bitcoin as a standard form of payment method will lie in the integrity of its regulation. It can be seen that the loosely regulated form of payment exposes vulnerabilities of the system which criminals have and will exploit. The 2013 hacking incident involving an Australian Bitcoin bank and an excess of $1 million stolen is a testament to the need for greater regulatory oversight.11 Although Bitcoin has the potential to encourage efficient global commerce, without adequate regulation, it runs the risk of inhibiting such a possibility. 1. 2. 3. 4.
5. 6. 7. 8.
9. 10. 11.
Satoshi Nakamoto, Bitcoin: A Peer-to-Peer Electronic Cash System, (2014) Bitcoin: Open source P2P <http://bitcoin.org/bitcoin.pdf.> Valerie Duskin, Virtual Currency and the Bitcoin Revolution (Nova Publishers, 2014) 23. Ibid, 162. John D. McKinnon, ‘Bitcoin to be taxed as property in the US,’ The Australian (via the Wall Street Journal) (online) 26 March 2014 <http://www. theaustralian.com.au/business/wall-street-journal/bitcoin-to-be-taxed-asproperty-in-the-us/story-fnay3ubk-1226864889825> Ibid Ainsworth [1965] AC 1175 at 1247-8 confirmed in R v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 342-3 (Mason J). Tristan Winters, ‘Tax and Bitcoin in Australia,’ Bitcoin Magazine (online) 2 June 2014 <http://bitcoinmagazine.com/13618/tax-bitcoin-australia/> Reuben Bramanathan, ‘Defining the Digital: Why Bitcoin Should Be Treated As Property Under The GST Act,’ (30 June 2014) The Law Lab < http:// www.thelawlab.com.au/defining-the-digital-why-bitcoin-should-be-treatedas-money-under-the-gst-act/> Sam Burgess, ‘Bitcoin court case sparks questions about digital currency’s legal status’, the ABC (online), 27 June 2014 http://www.abc.net.au/news/201406-27/bitcoin-court-case-sparks-questions-about-digital/5554406 Ursula Hogben, ‘The Legalities of Bitcoin’, The Sydney Morning Herald (online), 14 February 2014 http://www.smh.com.au/small-business/finance/ the-legalities-of-bitcoin-20140214-32qu5.html#ixzz39JKfjybn Ibid.
25 BITCOIN: THE CURRENCY OF THE FUTURE?
o longer will the humble gold coin exist exclusively as the chief source of payment for individuals and businesses. Instead, it must now coexist with the emergence of virtual currencies. Enter: BITCOIN. Traditionally, consumers and businesses have performed payment transactions through a bank. Bitcoin, on the other hand, is revolutionary as it is a decentralised digital currency, completely eliminating the role of the intermediary. It is a peer-to-peer payment system for online transactions.1 Due to the absence of a central banking authority, Bitcoin users benefit from lower transaction fees, anonymity and global accessibility.3 However, this lack of regulation has invoked speculation as to its viability as a global currency. Moreover, the uncertainty of Bitcoin’s legal status as a virtual currency has policymakers and lawmakers hastily revising the regulatory scope of current legislation.
HUMAN GEONOME PATENTS Playing God or Protecting Research? In an exploration of patent law and medicine, CECILIA NGU traverses the fine line between research and pharmaceutical monopoly in a bid to determine whether human cells can in fact be invented and owned.
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HUMAN GEONOME PATENTS
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atents provide modern day protection of ideas, products and innovation. They allow inventors, be they individuals or corporations, to safeguard their creations from counterfeiters or copiers. However, in the realm of biotechnology and the human body, what is considered “patentable” is causing increasing controversy. Medical research and pharmaceutical company, Myriad Genetics Incorporated, created a great divide in opinion when they patented elements of the human genome. In doing so, the lines between nature and technology have been blurred, raising ethical questions in both the legal and medical professions. At the crux of the issue is the distinction between discovery and invention, and where genetic sequences are considered a man-made construct, rather than naturally occurring in the human body. Myriad patented two specific germline mutations, Breast Cancer gene 1 (BRCA1) and Breast Cancer gene 2 (BRCA2). These hereditary genetic mutations are indicative of a predisposition to breast and ovarian cancer.1 A woman who is found to have one of these genes has a ‘lifetime risk of 40-85% of developing breast cancer.’2 Myriad has patented these genes in countries across Europe, North America and Oceania. In Australia, under Section 18 of the Patents Act 1990 (Cth) (‘the Act’), criteria exist for what is considered patentable. A patentable invention is determined by the manner of manufacture, novelty, inventiveness, and the utility of the invention.3 The greatest contention in this part of the legislation is whether genes (DNA and RNA) and/or isolated genes (complementary DNA or ‘cDNA’) fall within section 18 of the Act. The Federal Court case of Cancer Voices Australia v Myriad Genetics in 2013 highlighted this very issue.4 On appeal, the Applicants questioned whether the composition of BRCA1 and BRCA2, complementary DNA, was considered a manner of manufacture for the purposes of section 18(1)(a) of the Act. Justice Nicholas, the sole judge hearing the case, found that while DNA and RNA as cells inside the human body cannot be patented, ‘the disputed claims extend only to naturally occurring DNA and RNA which have been extracted from cells…and purged of other biological materials.’5 In outlining this distinction, His Honour draws a line that current legislation fails to do. In his learned opinion,
complementary DNA constitutes an invention, despite its origins in the human body. Essentially, rather than being “discovered” by Myriad, the Federal Court found that it was, in fact, invented by them. This highlights an important distinction between the Australian and United States cases against Myriad.6 The Australian applicants only challenged Myriad’s composition claims over BRCA1 and BRCA2, whereas the applicants in the United States challenged Myriad on a number of grounds including their diagnostic methods.
‘…in the realm of biotechnology and the human body, what is considered “patentable” is causing increasing controversy.’ In the United States, the distinction between discovery and invention cannot be applied, because under the applicable head of power, the US Constitution ‘expressly refers to “discovery” and not “invention”’.7 The US applicants were thus successful in their claim against Myriad’s BRC Analysis testing, however not in their claim against the patented composition of the mutations.8 The question thus remains, would the Australian findings have differed had the applicants’ challenge been extended to include more than just composition claims? Naturally, the limitations of the argument in the Australian case leaves scope for future claims against patented diagnostic methods. Ideally by that time however, enough policy action would have been garnered to effect change in legislation that would remove the ambiguity in the current law. Due to these differences in the US and Australian cases, Justice Nicholas relied on the case of National Research Development Corp v Commissioner of Patents.9 The judgment in this case allowed for a broad interpretation of “manner of manufacture”, to include ‘expressions that bring into play principles and concepts which have been developed over many years to ensure that patent law keeps up with advances in industry and technology.’10 At the Federal Court level, this wide scope included the modern genetics technology of cDNA genetic sequences. With a High Court Appeal by the Applicants still pending, the future of patenting human genomes in Australia is unclear. However, if corporations are able to claim ownership over
genetic sequences and their diagnostic methods, this will have serious ramifications for equal access to healthcare within and between countries around the world.
‘At the crux of the issue is the distinction between discovery and invention, and where genetic sequences are considered a man-made construct, rather than naturally occurring in the human body.’
‘With a High Court Appeal by the Applicants still pending, the future of patenting human genomes in Australia is unclear. However, if corporations are able to claim ownership over genetic sequences and their diagnostic methods, this will have serious ramifications for equal access to healthcare within and between countries around the world.’ It must be noted, however, that conducting medical research and development is often a long, arduous and expensive process. Former Justice, Michael Kirby, has remarked that without the protection of intellectual property, ‘it [is] commonly assumed that huge investments needed to develop such products would not be forthcoming.’15 Although, on the opposing end
27
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15.
Ashok Venkitarama, ‘Cancer Susceptibility and the Functions of BRCA1 and BRCA2’ (2002) 108 Cell 171, 178. Bryn Williams-Jones, ‘History of a Gene Patent: Tracing the Development and Application of Commercial BRCA Testing’ (2002) 10 Health Law Journal 123, 128. Patents Act 1990 (Cth) s 18(1). Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65. Ibid, 136. Association for Molecular Pathology v Myriad Genetics (2013) 569 US. Michael Kirby, ‘Intellectual Property and the Human Genome’ (2001) 12 Australian Intellectual Property Journal 61, 70. Association for Molecular Pathology v Myriad Genetics (2013) 569 US, 17-18. National Research Development Corp v Commissioner of Patents (1959) 102 CLR 252. Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65, 79. Williams-Jones, above n 2, 123. Thomas Faunce, ‘Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65: Should Gene Patent Monopolies Trump Public Health?’ (2013) 20 Journal of Law and Medicine 747, 748-9. Angelina Jolie, ‘My Medical Choice’ The New York Times (online), 14 May 2013 < http://www.nytimes.com/2013/05/14/opinion/my-medical-choice. html?_r=0>. Ibid. Kirby, above n 7, 66.
HUMAN GEONOME PATENTS
In patenting genetic sequences, pharmaceutical companies can be granted ‘monopolies on the development, marketing, and provision of genetic tests and therapeutics.’11 This has astronomical potential impacts on the standard of healthcare available to people of differing socioeconomic backgrounds. Law Professor Thomas Faunce has stated that by having total control over the genetic sequences and their diagnostic tests, human genome patents impede the ‘ability of doctors and their…patients to access accurate and affordable genetic testing.’12 In the case of BRCA1 and BRCA2, genetic sequences directly correlated to the increased chance of breast and ovarian cancer, patents only become a bar to treatment because many women cannot afford the costs of testing in the first instance. Actress and activist, Angelina Jolie, brought this issue to the world stage in May 2013, after publically announcing she was a carrier of the BRCA1 gene and had undergone a preventative double mastectomy.13 Jolie was able to take this preventative measure, as she could afford the $3000 cost of testing in the United States, which is, as she so aptly puts it, ‘an obstacle for many women.’14 These genes are blind to status, wealth and education. However, with an economic value now placed on them, the ability to take action against these mutations diminishes based on an individual’s economic status.
of the spectrum, by restricting patents too extensively, there exists the risk that high costs and low security could become unsustainable for companies and crippling for the industry. In the context of breast and ovarian cancer, where testing is the difference between life and death, pharmaceutical companies must think beyond “economic significance”. With a plethora of perspectives on the issue, there is little scope for a simple and unanimous solution. However, in terms of the human genome, it is perhaps apt for corporations to diverge from claiming ownership of matter that is so innately part of our human composition. If genes, complementary or not, form part of everyone, surely they should not be owned by anyone.
CAUGHT ON CAMERA Do we really have a right to privacy? In an age where photography punctuates so much of our culture, JINAN HAMMOUDI delves into the rights of those on either side of the lens to answer the question – does our right to privacy protect us from unauthorised photography?
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y initial interest in the right to privacy from an unwanted camera lens was sparked by an episode from the popular television crime series ‘Law and Order.’1 As the credits roll we are met with a classic brawl behind school gates as an old man, and alleged paedophile, photographs a playground full of children. The shock factor came in this: his response that it was perfectly legal for him to be engaged in that activity. For me, this was a cause of great concern, especially if this ‘right’ also existed in Australia. So as law students do, I ploughed the online libraries for so me answers. I was not comforted by what I found. The short answer is this: we are generally not entitled to a right to privacy from photography.2
PHOTOGRAPHY IN PUBLIC: THE GENERAL RULE
The absence of a right to privacy from being photographed was first established in the High Court decision of Victoria Park Racing v Taylor in 1937,3 and then reaffirmed again by the High Court in the case of ABC v Lenah Game Meats Pty Ltd in 2001. 4 The fact that there exists no right to privacy from being photographed lies in the very definition of ‘privacy’. The Macquarie Dictionary defines privacy as ‘the state of being private; retirement or seclusion’. By being in a public place, individuals have essentially given up their right to seclusion,5 and consequently their right to ‘privacy.’6 In his article ‘Privacy’, which examines over 300 privacy tort cases, Law Professor Dean William Prosser describes the act of photographing a person in public as merely ‘making a record, not differing essentially from a full written description, of a public sight which any one present would be free to see’7. Prosser posits that as long as you are seen in public you cannot stop others from making you a part of the public record. While there is clear logic in Prosser’s argument, the problem therein, especially in the age of rapid technological advancement, lies in the permanency of a photograph, which can be distinguished from the
temporary memory of a person’s image, or even the accurateness of a written description. The danger in an enduring image is further heightened by the use of portable digital cameras and the ability for widespread dissemination of images, accessible to all. Today’s social media outlets are striking examples of these dangers. In a time where photography has become embedded in the culture of the millennials, thousands of photographs and video clips are uploaded to the Internet each day containing images of complete strangers. Although often unwanted, restrictions on unauthorised photography could create more problems than not, particularly for the purposes of journalism and security surveillance.
‘The short answer is this: we are generally not entitled to a right to privacy from photography.’ EXCEPTIONS TO THE RULE
The solution then lies not in completely prohibiting unauthorised photographs, but instead in creating situations that restrict its use. Various protections exist to limit the circumstances where unauthorised photography is permissible.8 Laws can be found in areas of defamation, offensive-behaviour, obscenity, nuisance and trespass.9 There are also a number of other measures in place, which will presently be explored.
PRIVATE ACTS AND PRIVATE LAND
The activities of Australians in private settings have been found to be protected under privacy laws. The definition of a private act was expanded by Justice Laws in the case of Hellewell v Chief Constable Derbyshire10 to extend to more than just acts taking place on private property. He identified that the taking of a photograph from a ‘distance’ of a person engaged in a ‘private act’ also breached confidence and privacy.11 The Chief Justice further suggested a test of what was private, encompassing
‘Despite common belief, children are not afforded additional protection against unauthorised photography. They are in fact treated equally to adults in this regard.’
‘By being in a public place, individuals have essentially given up their right to seclusion, and consequently their right to ‘privacy’.’
any disclosure that would be ‘highly offensive to a reasonable person of ordinary sensibilities’.12 This extension of the definition acts as an important safeguard and protection for Australians. An interesting point to note is that owners of private land have complete power to prohibit actions on their property, including photography. This is especially common in the case of shopping centres, which are notorious for prohibiting photography on their premises, as set out in the 1937 case of Victoria Park.13 There are also a number of publically owned spaces that are treated as private land, in terms of rights of control. These include land used for nursing homes, schools, hospitals and childcare facilities. This area of law is governed under the Inclosed Lands Protection Act 1901 (NSW).14 These restrictions only apply when taking the photograph, however. Once the photographs are in use, no restrictions can be placed unless the photographs are defamatory, or otherwise unlawful. This follows the general rule that there is no “right to privacy”15. Limitations are also placed on photography that is used for a commercial purpose. This involves using images to ‘endorse some product’16 or ‘to entice others to buy something’.17 In order for identifiable images of people to be used in commercial settings, it is essential that the individual or organisation is provided with a signed release from the person whose image is used.18 This adequately provides authority to the photographer as well as legal protection in the event of a dispute.
PHOTOGRAPHS OF CHILDREN
Despite common belief, children are not afforded additional protection against unauthorised photography. They are in fact treated equally to adults in this regard. 19 A grave concern with this fact is the greater vulnerability of children, and the magnified impact of any misused image of a child. The ease with which paedophiles can access such public images on the Internet is of alarming concern, raising a need for reform in this area of law. This issue has seen widespread awareness since the reporting of a website in 2002, containing unauthorised photographs of teenage school boys involved in sporting activities.20
Restrictions imposed are not only limited to the actual photography, but also the publication of the images. There are a number of situations in which the publication of photographs may result in a breach of law. Such examples include where the photographs result in defamation, are related to court proceedings or infringe copyrights and trademarks.21 In effect, the subject may seek an injunction to prevent the publication of these images.22 So what does this mean for the future of photography? The verdict is clear: all of you technophiles are free to continue uploading your amusing selfies with unknowing strangers to Facebook and Instagram. Perhaps some time in the future, greater protection may be afforded to unconsenting subjects of photographs. But for the present moment, we may need to concede that we are not entitled to a right to privacy regarding photography. After all photography has formed an integral part of this generation’s identity, punctuating our social interactions and popular culture – it would be neither a fight wanted or won. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.
21. 22.
Law and order (Directed by Jim McKay, NBC, 2012), Season 14 Episode 6. Samuel Warren and Louis Brandeis, ‘Privacy, Photography, and the Press’ (1998) 111(4), Harvard Law Review 1086. Victoria Park Racing v Taylor (1937) 58 CLR 479, 496. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. The Macquarie Library Pty Ltd, The Macquarie Dictionary (The Macquarie Library Pty Ltd, 2002) 624. Samuel Warren and Louis Brandeis, Privacy, Photography and the Press, above n 2. Ibid. Samuel Warren and Louis Brandeis, Privacy, Photography and the Press, above n 2. Photographic Society of Queensland (PSQ), Your right to take photographs (25 October 2008) Photographic Society of Queensland (PSQ) <http://www. psq.org.au/Legalities.pdf>. Hellewell v Chief Constable of Derbyshire (1995) 1 WLR 804 and 807. Ibid at 12 . Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 42 cited in Christa Ludlow, ‘The gentlest of predations: Photography and privacy law’ (2006) 10 Law Text Culture 135. Victoria Park Racing v Taylor (1937) 58 CLR 479 Inclosed Lands Protection Act 1901 (NSW) Above n 9, <http://www.psq.org.au/Legalities.pdf>. Ibid. Ibid. Ibid. Ibid. Standing Committee of Attorneys-General, Unauthorised Photographs on the Internet and Ancillary Privacy Issues (2005) Queensland Government < http://www.justice.qld.gov.au/__data/assets/pdf_file/0019/21619/internetphotos-privacy.pdf> Arts Law Centre of Australia, Street Photographer’s Rights, Arts Law Centre of Australia <http://www.artslaw.com.au/info-sheets/info-sheet/streetphotographers-rights/#headingh21> Lincoln Hunt Australia v Willesee (1986) 4 NSWLR 456
29 CAUGHT ON CAMERA
COMMERCIAL USE
LIMITED USE OF PHOTOGRAPHS
STOP. HAMMER TIME. Should commercial surrogacy be legal? With the scandal surrounding baby Gammy, the legal and ethical questions surrounding commercial surrogacy have come to the forefront of the Australian consciousness. The practice is currently prohibited in all states pursuant to their respective surrogacy legislation, although altruistic arrangements are permitted. We asked CATIE MOORE and FRANCESCA ELIAS ARCIULI face off in a discussion of whether this practice should be legal.
STOP. HAMMER TIME.
30
YES :
NO :
The baby Gammy scandal proves that the legalisation of commercial surrogacy in Australia is necessary and overdue. The fact that many Australians are venturing offshore to find commercial surrogates indicates that there is something very wrong with our current system, which must face redress. Legalising the practice would allow for its regulation, and regulating the industry would serve to hinder exploitation, contrary to the “exploitation argument” put forth by opponents of commercial surrogacy. Jenni Millibank suggests that this will encourage Australians to stay within Australia to meet their fertility needs, rather than exporting them to foregin nations. In doing so minimum standards of treatment can be set. Further, the framework put in place can address many concerns that get swept to the side by a blanket prohibition, such as adequate counseling and support services – both of which are not widely available to many overseas surrogates. Millibank goes on to suggest that ‘commercial surrogacy could be contained within the existing successful framework of health regulation in Australia’, which already maintains high ethical and professional standards. This will prevent any ambiguity surrounding the legal parentage and nationality of babies born via surrogate offshore, an issue which often arises as the result of current arrangements. There is arguably not anything inherently wrong in secular society with donating fertility or personal services, with people free to donate sperm or eggs. An issue arises where the practice is unregulated, which engenders inequity and exploitation. It is for this reason Australia needs to legalise and carefully regulate this practice, so as to ensure the ethical treatment of all parties involved.
The core argument for prohibiting commercial surrogacy centres on the “exploitation argument” – that commercial surrogacy reinforces and perpetuates the exploitation of vulnerable women. This is because commercializing surrogacy is thought to commodify female surrogates. The effect of this commodification is two-fold. First, it reinforces established power relations where wealthier individuals pay women of lower socioeconomic means, often located in developing nations where Australians are concerned, for their “services”. According to Professor Sheila Jeffreys, this results in the ‘trafficking in women for the use of their wombs’, in the most extreme cases resulting in the imprisonment of women in slave camps. Second, if the treatment of females as commodities enters the mainstream discourse, there are also concerns that it could reinforce the ‘woman-as-the-babymaker stereotype,’ as well as the ill-treatment of surrogate women. Commercial surrogacy is further considered a form of human trafficking, with babies being trafficked from one nation to another and becoming a commodity themselves. This is arguably a contravention of Australia’s commitment under international law to work against the sale and trafficking of children. The laws prohibiting commercial surrogacy are currently listed in the Australian government’s reports to the United Nations as evidence of this commitment. A social danger is thus posited by the practice, as it could potentially impede upon the dignity of children who are born pursuant to such a commercial bargain. It must be remembered that continuing to prohibit commercial surrogacy does not preclude the use of surrogates entirely. It merely precludes the exchange of money for a human life.
1. 2. 3.
Jenni Millibank, ‘Paying for birth: the case for (cautious) commercial surrogacy’ The Guardian (online) 2 September 2013 <http://www.theguardian.com/ commentisfree/2013/sep/02/australia-commercial-surrogacy>. Ibid. Sheila Jeffreys, ‘Reject commercial surrogacy as another form of human trafficking’ on Andrew Jaspan, The Conversation (5 August 2014) <http:// theconversation.com/reject-commercial-surrogacy-as-another-form-ofhuman-trafficking-30314>.
4.
5. 6.
Thunder_Fox, ‘Commercial Surrogacy: Feminist Perspectives – feminist debates: gwss 3004’ on GWSS, Feminist debates (22 February 2010) < http:// blog.lib.umn.edu/puot0002/3004/2010/02/commercial-surrogacy-feministperspectives.html>. Above n 3. Sonia Allen, ‘Baby Gammy case reveals murky side of commercial surrogacy’ on Andrew Jaspan, The Conversation (5 August 2014) < http:// theconversation.com/baby-gammy-case-reveals-murky-side-of-commercialsurrogacy-30081>.
VERBATIM Techno-Logic Meet the Judges embracing the Technological Revolution
Who says law and technology are doomed to be at odds with each other? Full Bench editor EMILY MELLER gives us her favourite examples of the court dealing with some of the advanced (and not so advanced) new technologies of the 21st Century.
‘Power corrupts, Power Point corrupts absolutely.’
- Dev Singh v U.T. Chandigarh (2012) Punjab and Haryana High Court, per Justice A.N. Jindal
COWDROY J:
-Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 2
KIRBY J: We
had a Playstation shown to us in Sony and it was very exciting. Why did you not try that? MR GAGELER: This
is more fun.
KIRBY J: It is one of the most exciting things that has happened in my time here. -Betfair Pty Limited & Anor v State of Western Australia [2007] HCATrans 634.
KIRBY J: Sounds MR GAGELER: That
like the argument at the time about the new forms of cricket. is right.
KIRBY J: When
new international approaches came which were linked to the new technology of television everybody said this is the end of civilisation as we know it but, in fact -
MR GAGELER: That
is a very good analogy, your Honour...
KIRBY J: In
fact, it really increased the world audiences. I mean, even people in South America watch cricket now. -Betfair Pty Limited & Anor v State of Western Australia [2007] HCATrans 634.
31 VERBATIM
‘To use the rather colourful imagery that internet piracy conjures up in a highly imperfect analogy, the file being shared in the swarm is the treasure, the BitTorrent client is the ship, the .torrent file is the treasure map, The Pirate Bay provides treasure maps free of charge and the tracker is the wise old man that needs to be consulted to understand the treasure map.’