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My paper focused on how Maori cultural and intellectual property issues impact on the LIM profession in New Zealand, particularly in regard to ownership, access, repatriation of cultural artefacts, as well as the digitisation & dissemination of Maori knowledge through electronic media. This was based on research I conducted reviewing collection and preservation policies of major repositories of Māori information in NZ. The conference was invitation only & convened by the American Library Association & included legal and library & information management (LIM) experts from several countries (USA, Canada, UK, Australia and Switzerland). The conference was focused on helping the American Library Association to develop a statement on the care and protection of culturally sensitive indigenous artefacts in American LIM institutions. The paper was delivered as part of an international indigenous panel with the other two panellists being Professors’ Loriene Roy (Anishinabe) & Martin Nakata (Torres Strait Islander).

In this Paper we examine the development and removal of the 1911 Imperial copyright reversion right. We find this right was spuriously removed in the UK, Australia and New Zealand. We then find that criticisms of the right in Canada (it still exists there) can help teach us what a new, effective reversion right might look like.This abstract is from a version of this paper accepted for publication in vol 41(4) of the European Intellectual Property Review (2019). The final version published contains very slight amendments.

Presentation on open educational resources and practices in law and legal studies.Delivered at the Australian Law Librarians' Association (ALLA) PD event on 30th July 2020.Presenters: Steven Chang and Dr Thomas Shafee from La Trobe University Library.This presentation is shareable and reusable: CC BY 4.0

This chapter explores the potential use of 3D printing technology for housing construction. 3D printing or ‘additive manufacturing’ in the construction industry falls within a broader umbrella of ‘rapid prototyping’ technology that has been deployed in the automotive, aerospace and construction industry since the late-1990s. While additive manufacturing technologies have been increasingly utilised across a range of industry, the use of 3D printing in construction is still in its infancy. Despite this early stage in development, the technological opportunities and impending disruption to the status quo are clear. D’Aveni (2018) suggests that the coming adoption of 3D printing in the high-impact industries’ of architecture and construction will harness the advantages of additive manufacturing to improve performance on construction sites to construction buildings with greater speed, complexity and at lower costs (D’Aveni, 2018). Khoshnevis (2012) suggests that the impact of 3D printing ‘as a disruptive technology’ within the construction industry will be observed beyond the construction site, including ‘economic impacts, employment impacts, social impacts, regulatory, environmental, and architectural impacts.’ Given this socio-political dimension to the technology, the authors argue that the exploration of 3D printing in construction should be undertaken from a legal perspective to articulate this socio-political context through intellectual property activities (such as patent disputes) and the interaction of the technology with existing and emerging building regulatory frameworks. Section I examines the types of 3D printing technologies deployed in the construction industry. Section II considers the interplay of intellectual property issues such as copyright, design law, patent law, trademark law and trade secrets around 3D printing in construction. Section III presents a brief survey of 3D printed construction projects globally through an examination of intellectual property activity. As part of this examination, we conducted data analysis of patent families related to 3D printing and, following the example of Shosana Zuboff (2019), evaluated the legal and ethical dimensions of individual, exemplar patents drawn from the field. Section IV proceeds with an analysis of the regulatory landscape around potential 3D printed housing projects. It focuses on the impact of the technology on legal frameworks touching the construction process in Australia. This includes the impact of 3D printing on work health and safety laws applicable during the construction process, the resolution of design errors and non-compliance with the National Construction Code, defect rectification, statutory and contractual warranties, and the advantages offered by the transparency and accuracy provided by technology that will aid in compliance with chain of responsibility legislation and the security of payment framework. A conclusion is presented at the end of this chapter pointing to further research areas in both intellectual property and building regulatory issues presented by the deployment of 3D printing in housing construction.

This Chapter considers whether the 3D printing revolution will disrupt the traditional approaches to intellectual property and technology transfer in higher education. It explores the theoretical and practical implications of the Maker Movement for education, learning, and access to knowledge. This Chapter reviews the patent landscapes in respect of 3D printing, and notes the increasing rise of patent thickets in the technology field. It highlights questions over patent ownership and collaboration in respect of 3D printing, additive manufacturing, and advanced manufacturing. The Chapter explores various comparative approaches to direct and indirect patent infringement – with regard to 3D printing. It also considers the range of available defences to claims of patent infringement in respect of 3D printing – exploring the defence of experimental use; the private use defence; and the possibility of a defence recognizing the right of repair. This Chapter concludes by stressing that the 3D printing revolution can help promote the public interest of universities through models of open access, open data, and open innovation. Moreover, there is an opportunity to modernize patent law, practice, and policy in light of the emergence of disruptive new technologies such as 3D printing.

The kind and extent of exceptions and limitations to copyright monopolies are a major focus of copyright reform discussion worldwide. The debate is often portrayed as pitting the interests of creators against users. Australian copyright law features narrow and limited exceptions. Australian creators benefit from copyright monopolies; but do they suffer any costs for lack of flexible exceptions? A national survey of creators showed that they experience significant costs in time and money in making work; avoid or abandon projects because of copyright problems; and avoid developing ideas for projects that involve use of third-party copyrighted materials. These costs have previously been uncalculated and not included in national policy debate. The results provide information not only for the Australian context but for policy discussion internationally.

Conversations about the Internet in the 2010s tended to go along two distinct tracks. One track pointed to the new affordances of digital and social media. The other focused upon the growing concentration of ownership and control over the Internet by a small number of giant digital corporations. This paper identifies the platformization of the Internet as a key development of this period, which raises new issues for media laws and policy.

Treasury has proposed ‘the design of a mandatory scheme for access to motor vehicle service and repair information’. The intention is that ‘This scheme would provide a level playing field in the sector and allow consumers to have their vehicles safely repaired by the repairer of their choice.’ Treasury argues: ‘The purpose of this consultation is to gauge the suitability of possible elements of a mandatory scheme for the sharing of motor vehicle service and repair information and the establishment of a Service and Repair Information Sharing Advisory Committee’. Treasury maintains: ‘Subject to the outcome of consultation on these elements, the Government intends to implement a scheme in 2019.’ This submission argues that the response of Treasury is inadequate and insufficient. Treasury underestimates the nature of the problem – by merely focusing upon certain parts of motor vehicle service and repair. The problem of the right of repair is a much more fundamental and general problem, which cuts across a wide range of fields of goods and services. Treasury also provides an inadequate solution for the problems in respect of repair. The code of conduct seems a rather nominal response. Treasury need to consider larger questions about the right of repair under consumer law, intellectual property, and sustainable development. It is argued that the Australian Government needs to provide for a stronger recognition of the right of repair across a range of legal disciplines. Recommendation 1 Treasury’s proposed code of conduct in respect of repair information is inadequate because it is limited to parts of the motor vehicle industry. Issues over the right of repair have been raised across a wide range of fields of industry and business – not just parts of the motor vehicle industry. As such, Treasury’s proposed code of conduct in respect of repair information seems only a shadow solution to the problems that it has identified. Recommendation 2 Treasury also proposes the establishment of a Service and Repair Information Sharing Advisory Committee. The membership of the Committee, though, is entirely made up of representatives of different parts of the motor vehicle industry. There is no representative on this Committee, which would represent the larger public interest in respect of consumer rights and competition policy. Recommendation 3 Treasury’s proposed code of conduct in respect of repair information does not resolve the larger questions about consumer rights and competition policy in the motor vehicle industry. In many ways, the code of conduct seems to entrench the status quo – wherein it is difficult to engage in repairs without the permission of the manufacturer. Self-regulatory codes of conduct have not necessarily been effective in other fields of industry. Recommendation 4 Treasury’s proposed code of conduct in respect of repair information is likely to be ineffective because it does not properly include intellectual property. The code of conduct specifically excludes trade secrets, intellectual property of the manufacturer, and commercially sensitive information. Given the broad scope of intellectual property, this means that intellectual property owners can largely ignore the code of conduct in respect of motor vehicle information. Recommendation 5 Australian copyright law would benefit from the introduction a defence of fair use – which would conceivably include a right of repair. Otherwise, there should be a new defence of fair dealing – dealing with the right of repair. Recommendation 6 The technological protection measures regime in Australia needs to have proper exceptions allowing for the right of repair. Recommendation 7 Unlike some of the other Australian intellectual property regimes, Australian designs law has a defence in respect of a right of repair. The scope of this defence has been recently considered in the case of GM Global Technology Operations LLC v S.S.S. Auto Parts Pty Ltd [2019] FCA 97 (11 February 2019). Recommendation 8 Australian patent law recognises a defence of experimental use. However, it is not clear that the defence extends to repairs. The compulsory licensing regime remains unwieldy at the moment – but in exceptional circumstances could be used to provide access to inventions for the purposes of repair on competition grounds. Recommendation 9 Australia provides for civil remedies in respect of trade secrets, as well as criminal offence in respect of violation of trade secrets by foreign principals. However, the nature and scope of defences for trade secrets remains unclear. There has been debate as to whether there is a general interest defence (as espoused by Kirby J) or a narrow defence related to exposing wrongdoing and iniquity (as recommended by Gummow J). In this context, there is currently a lack of clarity as to whether using trade secrets for the purposes of repair would be allowable. Recommendation 10 Australia should reform the Product Stewardship Act 2011 (Cth) in order to promote the right to repair and a circular economy. Recommendation 11 A number of other jurisdictions in the United States, Canada, the United Kingdom, and the European Union have developed much more advanced plans than Australia to address a right of repair. Australia needs to do more to keep up with its contemporaries on the right of repair. Recommendation 12 There is a need to recognise a right of repair in Australia in order to help implement Sustainable Development Goal No. 12, which is focused on responsible production and consumption.

This submission addresses the white paper on Artificial Intelligence: Governance and Leadership produced by the Australian Human Rights Commission. In particular, it focuses upon the dimensions of intellectual property, commercial law, and regulation. • In regards to intellectual property, there has been significant case law, particularly in the United States dealing with the interaction of established IP laws with developments in AI and robots. • Commercial aspects of the development of AI and robots should be governed using either the Competition and Consumer Act 2010 and the Australian Consumer Law or modifications to them to specifically address problems. • There are a number of regulatory responses that can respond to developments in AI and robots including legislative amendments, self-regulation and soft law approaches such as nudging. The significant commercial impact of developments in these new technologies will require a hardened and practiced regulator such as the ACCC to be effective. Recommendation 1. Intellectual property law plays a key role in the regulation of artificial intelligence, and other related fields of technology. Intellectual property holders will hold considerable influence in terms of the use and exploitation of artificial intelligence technologies. Australia has a diverse array of regulators in the field. IP Australia has oversight of industrial forms of property – such as patents, trade marks, and designs. The Department of Communications and the Arts has carriage of copyright law. The Australian Competition and Consumer Commission also plays a role in relation to misleading or deceptive conduct. At an international level, the World Intellectual Property Organization has played a significant role in tracking technology trends in respect of AI, particularly through patent information. There may well need to be reforms to intellectual property law, policy, and practice in light of developments in AI. Recommendation 2 The Australian Competition and Consumer Commission, or a newly created technology subdivision of the ACCC should be the body that overseas and enforces the amended legislation in relation to consumer transactions that involve problems associated with developments in AI. This is for two reasons: Firstly, the ACCC already has expertise in developing, enforcing and educating Australians on regulation built up over 20 years of experience in consumer protection. Secondly, there is already a vast and powerful regulatory enforcement regime in place under the Competition and Consumer Act that could, if need be, be amended to apply to problems associated with developments in AI. Recommendation 3 If a new body such as the proposed Responsible Innovation Organisation is created, its role should be limited to education and coordination between the various regulatory bodies regulating AI. Because the rate and degree of change in AI development is so rapid and deep, and the possible uses to which it might be put is unknowable, no single agency could maintain full vigilance or control over these developments. If that proves to be the case, then any single agency that did take on a governance role would likely fail. Any agency that does take on a governance role and fails, will consequently bear some liability if its governance is lacking, for whatever reason. Setting up an agency that is not able to fulfil its role would merely transfer some, if not all, of the liability for problems caused by AI to the agency, away from the technology companies. We must be careful not to shift the burden from the manufacturer/supplier to authority.

In Australia, there has been an interest in integrating 3D printing into government policies in respect of education, innovation, and manufacturing. There has been an increasing concern about the need to boost Australia’s national and science technology policy and performance. Of particular concern has been the decline in Australia’s manufacturing industries. Much like the United States, there has been a hope in Australia that 3D printing will revive Australia’s advanced manufacturing capacities. As Guy Rundle observed, there has been much interest in the manufacturing hubs of 3D printing in the United States. The ‘America Makes’ program has involved the creation of advanced manufacturing hubs to stimulate innovation – particularly in regions of the United States, which have suffered from economic depression. There has been an interest in emulating this innovation model in Australia. There has also been a deep problem in terms of the commercialisation of technology in Australia – with many inventions languishing in the so-called ‘Valley of Death’. The Australian Prime Minister Malcolm Turnbull has promoted an innovation agenda as leader of the Conservative coalition of the Liberal Party and the National Party. He has highlighted the role of 3D printing. For instance, Turnbull promoted the work of Stephen Brinks from 3D Brink at Western Sydney University. The education, innovation, and manufacturing initiatives in the United States have certainly attracted interest and attention in Australia. ... This Chapter considers a number of developments in respect of Australian copyright law, 3D Printing, and the Maker Movement. Part 1 focuses upon copyright subsistence about 3D printing. 3D printing raises questions about the nature and scope of the intellectual property commons. There have been issues associated with the protection of art, craft, and designs associated with intellectual property. Part 2 examines concerns about copyright infringement, and 3D printing. It focuses upon questions surrounding the authorisation of copyright infringement. It also looks at the regime of intermediary liability, as well as matters of technological protection measures. There is also consideration of Australia’s new copyright site-blocking laws. Part 3 focuses upon the debate over copyright exceptions in Australia, in light of the work of the Australian Law Reform Commission, and the Productivity Commission. In particular, there is a discussion of the merits of Australia adopting an open-ended, defence of fair use – like the United States. Such an exception would be particularly helpful for 3D printing, the Maker Movement, and crowdfunding.

This article identifies the current global ‘techlash’ towards the major digital and social media platforms as providing the context for a renewed debate about whether these digital platform companies are effectively media companies (publishers and broadcasters of media content), and implications this has for twenty-first-century media policy. It identifies content moderation as a critical site around which such debates are being played out, and considers the challenges arising as national and regionally based regulatory options are considered for digital platforms that are ‘born global’. It considers the shifting balance between the ‘social contract’ of public interest obligations and democratic rights of free speech and freedom of expression.

On 23 November 2017, the European Parliament, published a Working Document titled Three-Dimensional Printing, a Challenge in the fields of Intellectual Property Rights and Civil Liability. The publication went on to state that the European Commission ‘has made 3D printing one of the priority areas of technology’. The technology was also referred to in the European Commission’s recent reflection paper on ‘harnessing globalisation’ stating that 3D printing, amongst other emerging technologies, ‘will revolutionise how we produce, work, move and consume’ (emphasis added). In April 2018, the European Commission demonstrated its commitment to exploring the intellectual property implications of industrial three-dimensional printing by commissioning research in to this area, in a move to shape policy. In a further publication titled, The Next Production Revolution: Implications for Governments and Businesses, it was emphasised that ‘long-term thinking is essential’ for technologies such as 3D printing. The report went on to say that ‘in addition to addressing short-term challenges, leaders in business, education, unions and government must be ready to frame policies’ and reflect on ‘how policy priorities may need to evolve, in fields as diverse as the intellectual property system, competition and trade policies, and the distributional implications of future production’. As such, 3D printing, presents various challenges for the legal, ethical , medical and health and safety sectors. Amongst these various concerns, the report makes reference to the impact of 3D printing on intellectual property rights (IPRs). The imminent change and the need for responsive policy, particularly in the area of IPRs has been acknowledged and echoed in a number of countries, including the United Kingdom (UK), the United States of America (USA) and Australia – the jurisdictions which are the focus of this book. This introductory chapter is set out as follows. It commences with a brief introduction to 3D printing, additive manufacturing and the more recent phenomenon of the maker movement. Thereafter, it moves on to setting out the reasons for selecting UK, USA and Australia as a basis for consideration, before providing a brief synopsis of some of the intellectual property challenges addressed in the book. It concludes with an overview of the layout of the book.

Building upon our recent publication, 3D Printing and Beyond, this paper considers the relationship between intellectual property and trade in the context of 3D printing. This work contends that 3D printing has not only disrupted the discipline of intellectual property, but it has also provided profound challenges for the regulation of trade and globalisation. Part 1 provides a case study of the patent dispute between ClearCorrect and Align Technology as a case study. The ruling of the Court of Appeals for the Federal Circuit will have larger ramifications in respect of the jurisdiction of the International Trade Commission in respect of the digital economy. It considers subsequent patent disputes between the parties before the United States Patent and Trademark Office. Part 2 considers how 3D printing will be affected by the international trade dispute between the United States and China over intellectual property, innovation policy, and advanced manufacturing. It examines whether 3D printing will reverse the pattern of offshoring of manufacturing in the United States. It notes the collateral impact of tariffs upon 3D printing. It also considers the adoption of 3D printing in China, and the issues that may raise in terms of intellectual property ownership, intellectual property infringement, and intellectual property licensing. Part 3 considers larger contextual issues raised by the World Trade Organization, the World Intellectual Property, the OECD, and the World Economic Forum in respect of intellectual property, trade, and 3D printing. It examines some of the different scenarios in relation to the impact of 3D printing on the future of trade.

In a 2006 short story, ‘Printcrime’, Cory Doctorow imagined a dystopian future of contraband 3D printers. In the work, police try to shut down a bootleg operation, which engaged in the 3D printing of intellectual property. In his 2009 novel Makers, Cory Doctorow explored the rise of the maker community, and its do-it-yourself ethic. In an interview about the novel, the author reflected: "There has never been a better time to be a maker because finding the people who know how to fix the thing that's broken has never been easier. Finding someone else who has done 80% of what you want to do, and sharing the things you have done with other people, has never been easier. A maker is someone who is of and in the 21st century." Rather prophetically, he discussed the prospect of intellectual property conflicts around 3D printing (particularly around copyright infringement and trademark infringement), and future controversies over 3D printing guns. In his 2015 short story, ‘The Man Who Sold the Moon’, Cory Doctorow imagined 3D printing in space. This body of creative work has been an important inspiration for the Maker Movement – but it has also shown a critical engagement with the law, ethics, and public policy associated with 3D printing and additive manufacturing. Inspired by such science fiction, there have since been a number of optimistic, utopian manifestos published on the topic of 3D printing and the rise of the Maker Movement. There has been high hopes that the emerging, disruptive technology will be part of a new industrial revolution. The founder and executive chairman of the World Economic Forum, Klaus Schwab, situates 3D printing within the framework of a fourth industrial revolution. He predicted: ‘As current size, cost and speed constraints are progressively overcome, 3D printing will become more pervasive to include integrated electronic components such as circuit boards and even human cells and organs.’ Schwab anticipated that there would be a ‘new generation of self-altering products capable of responding to environmental changes such as heat and humidity.’ Moreover, he expected that ‘this technology could be used in clothing or footwear, as well as in health-related products such as implants designed to adapt to the human body.’ Schwab placed 3D printing alongside autonomous vehicles, advanced robotics, and new material as physical manifestations of larger technological megatrends. In this context, this collection provides a sober, critical evaluation of the legal, ethical, and public policy issues in respect of intellectual property, innovation law, and 3D printing. Building upon Mark Lemley’s chapter, ‘IP in a World Without Scarcity,’ it considers the legal opportunities and challenges of the Maker Revolution. It provides both theoretical and empirical insights in respect of 3D printing, intellectual property, innovation, and regulation.

There are few Australian cases that have had the global attention of Dow Jones & Company v Gutnick. Coming in the early days of online governance, it marked the first time that a country had ‘allowed jurisdiction over extraterritorial parties based solely on content downloaded from the Internet.’ Originating proceedings were filed in 2000, and the case reached the High Court of Australia in 2002, not long after John Perry Barlow had declared that cyberspace was independent of the sovereignty of nations and Johnson and Post had argued that the internet should be considered a separate jurisdiction beyond the regulation of individual countries. In Dow Jones v Gutnick, the High Court stated unequivocally that local courts could – and would – assert jurisdiction over online interactions that affected persons in their territory. With this decision, the High Court of Australia handed down what was to become a landmark case in internet jurisdiction and defamation law. In 2017, we argue that the internet has opened us to a new life that is only partially rooted in the notions of legal responsibility and systems of oversight and control that permeated the Dow Jones v Gutnick decision. The internet is much different fifteen years on, and publishing structures have changed significantly. It is worth asking whether our understandings of defamation liability and defences should be different too. The ‘spectre of global liability’ that was raised in Dow Jones v Gutnick and which has lay dormant for fifteen years is now a real concern once again. We argue that it is finally time to revisit the suggestion made by the plurality judgment in Dow Jones v Gutnick to develop new defences to defamation that are more appropriate to publishers in the internet age.

Overview Along with experts from around the world, Mendis, Lemley and Rimmer consider the legal and intellectual property implications relating to 3D printing and emerging technologies in the UK, USA, and Australia. This edited book will consider the legal and intellectual property (IP) implications relating to 3D printing and emerging technologies from the perspective of UK, USA and Australia. The book aims to provide an in-depth consideration of the intellectual property implications of 3D printing, before moving on to a consideration of the legal and intellectual property challenges posed by future and emerging technologies. As such, the book will set out some of the most pressing challenges for intellectual property in the present times, as a result of 3D printing before moving on to a consideration of the future by discussing not only intellectual property, but also other legal challenges (i.e., contractual, privacy, ethical issues) as a result of emerging technologies with the focus kept firmly on the three chosen jurisdictions. Introduction From the Maker Movement to the 3D Printing Era: Opportunities and Challenges - Dinusha Mendis, Mark Lemley and Matthew Rimmer Chapter 1: IP in a world without scarcity – Mark Lemley PART ONE UNITED KINGDOM Chapter 2: ‘Mind the gap’: From engravings to 3D designs and 3D scans – re-evaluating copyright law in a 3D printing world – Dinusha Mendis Chapter 3: Design rights and 3D printing in the UK: Balancing innovation and creativity in a (dis)harmonised and fragmented legal framework – Thomas Margoni Chapter 4: Digital trade mark infringement and 3D printing implications: What does the future hold? – Dukki Hong and Simon Bradshaw Chapter 5: 3D printing and patent law – apt and ready? – Marc Mimler Chapter 6: Transformative technologies and responsive legal scholarship – Roger Brownsword PART TWO UNITED STATES OF AMERICA Chapter 7: 3D printing and US copyright law: implications for software, enforcement and looking ahead to business strategies – Peter Menell and Ryan Vacca Chapter 8: Integrating a classic tool for a modern US challenge: US design patents implications for 3D printing – Elizabeth Ferrill, Robert MacKichan, Christopher McKinley and Kelly Horn Chapter 9: How 3D printing disrupts trade dress protection and resurrects the need for source and quality assurance – Deven Desai Chapter 10: Remedies for digital patent infringement: A perspective from USA – Timothy Holbrook Chapter 11: How democratized production challenges society’s ability to regulate – Deven Desai PART THREE AUSTRALIA Chapter 12: Makers Empire: Australian copyright law, 3D printing and the ‘Ideas Boom’ – Matthew Rimmer Chapter 13: ‘Substantial similarity’ under Australian design law: application to 3D printing – Tyrone Berger Chapter 14: Trade mark controversies in 3D printing: An Australian perspective – Amanda Scardamaglia Chapter 15: The reform challenge: Australian patent law and the emergence of 3D printing – Jane Nielsen and Dianne Nicol Chapter 16: Don’t believe the hype? Recent 3D printing developments for law and society – Angela Daly Conclusion: The future of printcrime: intellectual property, innovation law and 3D printing – Dinusha Mendis, Mark Lemley and Matthew Rimmer

This book on Intellectual Property, Clean Energy, the Paris Agreement and Climate Justice was conceived of on the streets of New York, as I joined the People’s Climate March in 2014. The People’s Climate March on the 21st September 2014 was organised and designed to galvanise popular support for the United Nations Climate Summit being held in New York on the 23rd September 2014. The event was massive, with hundreds of groups, and hundreds of thousands of people, participating in the event. 400,000 people joined the parade in New York. The People’s Climate March was supported by hundreds of other companion events around the world, calling for climate action. I joined the Science Stands contingent at the People’s Climate March. The group marshalled outside the Hayden Planetarium at the American Museum of Natural History. There was a platoon of scientists, wearing white lab coats and carrying placards. The scientists wheeled along a blackboard, depicting the state of climate science. The board declared, ‘The “Debate” is Over. The Facts are In. The Evidence is Clear. Science Stands for Climate Action.’ The group carried a large banner as well entitled, ‘The Debate is Over.’ There were also a bevy of charts — ‘CO2 is rising!’, ‘The Oceans are acidifying!’, ‘Glaciers are melting!’ Citing Bill Murray’s character in Ghostbusters, the scientists also carried a banner, ‘Back off Man, I am a Scientist.’ The event also featured a number of other sections. Frontline groups included those people who were most impacted by climate change – such as Indigenous communities and environmental organizations. Generational groups included labor organisations, families, parents and their children, and elders. Environmental groups covered renewable energy, food activists, and water defenders. There was a section for protest groups. There was an interfaith group. There was also miscellaneous groups – covering various geographical entities from throughout the Uni9ted States. There was also a range of other events in the United States and around the world. Reflecting upon the People’s Climate March, Bill McKibben stressed the importance of the popular demonstration of support of climate action at an international level. He noted: ‘Day to day this resistance is rightly scattered, local and focused on the more mundane: installing a new zoning code, putting in a solar farm, persuading the church board to sell its BP stock’. In his view, the People’s Climate March in New York was a great moment to ‘show the world how big [the climate justice movement had] gotten.’

Lawless is about the power that technology companies have over our lives and how we can develop a new constitutionalism to better protect our rights.Social media platforms, search engines, and other technology companies influence what we can see and say online. These giant companies govern our behavior online without real accountability, and they are at the centre of fierce battles between governments, lobby groups, the media, and grassroots campaigns from activists. Drawing on ten years of research, this book shows how our social lives, our news, and our information environments are shaped by a complex web of legal, technical, and social forces.This is a book about the future of our media and our shared social spaces. We are now at a constitutional moment—a time when we can all demand better from the companies that govern our lives. This book provides a guide to a new constitutionalism: real limits on power that protect human rights in a decentralized environment. Ultimately, it provides a comprehensive argument about how we should expect the governance of online social spaces to be more legitimate – and particularly, how we might develop new forms of due process for the algorithmic and human decision making systems that rule our digital lives.

This submission makes a number of recommendations. It reviews the operation of the Copyright Amendment (Online Infringement) Act 2015 (Cth). It examines the proposals to expand this regime even further, with the Copyright Amendment (Online Infringement) Bill 2018 (Cth). The submission considers the question of safe harbours for intermediaries. While safe harbours have been granted to telecommunication carriers, internet service providers, and educational institutions, Australia’s safe harbours regime does not extend to search engines or cloud computing services or social media. The submission examines the question of copyright exceptions – particularly looking at the proposals of the Australian Law Reform Commission, the Harper Review and the Productivity Commission for the introduction of a defence of fair use. The lack of modern copyright exceptions makes the site-blocking and search filtering power even more troublesome and problematic in Australia. The submission highlights the recommendations of the IT Pricing Inquiry and the Harper Competition Policy Review in respect of copyright law, consumer rights, and competition law. It also makes a number of recommendations in respect of the reform of political lobbying, political donations, and copyright law reform. The submission also calls for a new approach for Internet regulation by the Australian Parliament. The submission also highlights the need for a bill of rights in Australia – particularly in an age of the Internet, search engines, social media, and cloud computing. As Sir Tim Berners-Lee says, we need a Magna Carta to protect an open and accessible Internet — rather than a government web of censorship and surveillance.

Investor-State Dispute Settlement (ISDS) poses significant challenges in respect of tobacco control, public health, human rights, and sustainable development. Two landmark ISDS rulings provide procedural and substantive guidance on the interaction between ISDS and tobacco control. The ISDS action by Philip Morris against Uruguay in respect to graphic health warnings raised important procedural and substantive issues. The ISDS matter between Philip Morris and Australia over the plain packaging of tobacco products highlighted matters in respect of abuse of process. In the Trans-Pacific Partnership (TPP), there was a special exclusion for tobacco control measures in respect of ISDS. There was also a larger discussion about the role of general public health exceptions. In the Comprehensive Economic and Trade Agreement (CETA), there was a debate about the application of ISDS to intellectual property rights. In the European Union, there has been discussion of the creation of an international investment court. In the renegotiation of the North American Free Trade Agreement (NAFTA), there has even been calls to abolish ISDS clauses altogether from both Republicans and Democrats. This article concludes there is a need to protect tobacco control measures implementing the WHO Framework Convention on Tobacco Control 2003 from further investor and trade challenges.

Secretary-General Ban Ki-Moon provided leadership in establishing the 2030 Agenda for Sustainable Development and the United Nations Sustainable Development Goals 2015. He emphasized: ‘This is the people’s agenda, a plan of action for ending poverty in all its dimensions, irreversibly, everywhere, and leaving no one behind.’ Ban Ki-Moon stressed that the adoption of the 2030 Agenda was a ‘towering achievement’: "The Millennium Development Goals made poverty history for hundreds of millions of people. Now we are poised to continue the job while reaching higher, broader and deeper. The new framework does not just add goals. It weaves the goals together, with human rights, the rule of law and women’s empowerment as crucial parts of an integrated whole. The global goals are universal. You, the world’s leaders, have committed to leave no one behind — and to reach those farthest behind, first." Ban Ki-Moon commented: ‘Reaching our sustainable development goals means organizing ourselves better.’ His successor, Antonio Guterres, who took office in 2017, is committed to supporting the implementation of the goals. He has reflected: "We know that globalization has brought extraordinary benefits. Yet it is also clear that it remains fundamentally unequal and ultimately unsustainable. Many people around the world are mired in extreme poverty. Unacceptable inequalities persist. We see the gap between globalisation’s potential and unequal gains reflected in peoples’ fears, anxieties and outright anger. The 2030 Agenda and the Sustainable Development Goals are a blueprint for building an inclusive, sustainable fair globalization and overcoming the resistance that still exists in so many parts of the world." Guterres has stressed that finance is pivotal for the successful achievement of the Sustainable Development Goals. Francis Gurry, the Director-General of the World Intellectual Property Organization (WIPO), has spoken about the intersection between intellectual property and the sustainable development goals (SDGs). Francis Gurry suggested that there is a strong connection between intellectual property and SDG 9 dealing with industry, innovation, and infrastructure. Gurry also observed that innovation has an impact on a number of other SDGs – including SDG 2 Zero Hunger, SDG 3 Good Health and Well-Being, SDG 6 Clean Water and Sanitation, SDG 7 Affordable and Clean Energy, SDG 8 Decent Work and Economic Growth, SDG 11 Sustainable Cities and Communities, and SDG 11 Climate action. He also suggests that innovation as a policy can assist in realizing other SDGs – notably SDG 1 No Poverty, SDG 8 Decent work and economic growth, SDG 14 life below water, and SDG 15 Life on Land. Gurry also observed that certain SDGs are relevant to the settings of an innovation policy framework – SDG 5 – Gender Quality; SDG 8 – Decent work and Economic Growth, SDG – 10 Reduced Inequalities, and SDG 12 – Responsible Consumption and Production. Moreover SDG 17 is a modality in terms of partnerships for the goals. Gurry also commented that there is an important linkage between intellectual property and SDG 4 dealing with quality education. This has a number of dimensions. Gurry commented that copyright law played a role as the principal mechanism for financing cultural production – in terms of the legal framework in treaties, and normative discussions. There was also an important role in terms of partnerships – such as the Accessible Books Consortium, and Enhancing publishing capacity. Gurry also stressed the importance of capacity building – legal and technical advice; collective and individual rights management; and human resource capacity building. Gurry also notes that intellectual property is connected to SDG 3 – Good Health and Well-Being. There are relationships with health and innovation; upstream R&D activities; and the operational use of activities. Notably, access to medicines and tobacco control are significant issues, which raise larger matters about intellectual property, good health, and well-being. There has been debate at WIPO as to whether the 17 Sustainable Development Goals should be considered as a whole, or if WIPO should just focus on its particular expertise and mission. Some academics – such as Associate Professor Sara Bannerman from McMaster University – have called for a more substantive sustainable development agenda for intellectual property – covering all the various Global Goals, and not just concentrating on questions of innovation. The following discussion and recommendations consider the various contextual relationships between intellectual property and sustainable development.

Executive Summary This submission reconsiders the Trans-Pacific Partnership in light of the departure of the United States from the negotiations under the Trump Administration. This submission considers further amendments, revisions, suspensions, and side-letters which have been made as part of the ‘Comprehensive and Progressive Trans-Pacific Partnership’ – better known as the Trans-Pacific Partnership-11. The footprint of the agreement has been significantly diminished with the absence of the United States. The potential market benefits of the Trans-Pacific Partnership-11 have been accordingly reduced. Likewise, the ability of United States-based companies to deploy certain measures – like investor-state dispute settlement – will be hampered. This submission focuses upon the relationship between intellectual property, investment, and trade under the Trans-Pacific Partnership-11. In particular, it examines copyright law, electronic commerce, and the digital economy; trade mark law; tobacco control; patent law, biologics, and access to medicines; trade secrets; agriculture; the environment; Indigenous rights; and investor-state dispute settlement. This submission is based upon research in respect of intellectual property and trade – particularly focusing on the Trans-Pacific Partnership. This submission highlights that there remain a number of significant issues and problems with the Trans-Pacific Partnership-11, notwithstanding the suspensions and side-letters. In particular, there remains major ambiguity about the status of suspended provisions in the Intellectual Property Chapter, and whether they could be revived at a future date. Moreover, the Investment Chapter – with the investor-state dispute settlement mechanism – remains the subject of controversy. There is also concern that the Trans-Pacific Partnership-11 is neither progressive or comprehensive when it comes to regulatory issues such as public health, the protection of the environment, and labor rights. The Trans-Pacific Partnership-11 is increasingly being overshadowed by President Donald Trump’s ‘America First’ Trade Policy. Trump has withdrawn from the Trans-Pacific Partnership-11. He has emphasized that he would only reconsider the Trans-Pacific Partnership-11 if it was renegotiated on much better terms for the United States. Trump has also demanded revisions of the North American Free Trade Agreement 1994. He has threatened to withdraw altogether from the regional agreement if it is not modernised and improved. After engaging in Special 301 investigation, Trump’s United States Trade Representative has also brought a trade action against China in the World Trade Organization. Trump has alleged that China has engaged in acquisitions, appropriations, and infringements of flagship United States companies. President Donald Trump’s ‘America First’ Trade Policy will certainly have both direct and indirect implications for the operation of the Trans-Pacific Partnership-11.

Executive Summary This submission reconsiders the Trans-Pacific Partnership in light of the departure of the United States from the negotiations under the Trump Administration. This submission considers further amendments, revisions, suspensions, and side-letters which have been made as part of the ‘Comprehensive and Progressive Trans-Pacific Partnership’ – better known as the Trans-Pacific Partnership-11. The footprint of the agreement has been significantly diminished with the absence of the United States. The potential market benefits of the Trans-Pacific Partnership-11 have been accordingly reduced. Likewise, the ability of United States-based companies to deploy certain measures – like investor-state dispute settlement – will be hampered. This submission focuses upon the relationship between intellectual property, investment, and trade under the Trans-Pacific Partnership-11. In particular, it examines copyright law, electronic commerce, and the digital economy; trade mark law; tobacco control; patent law, biologics, and access to medicines; trade secrets; agriculture; the environment; Indigenous rights; and investor-state dispute settlement. This submission is based upon research in respect of intellectual property and trade – particularly focusing on the Trans-Pacific Partnership. This submission highlights that there remain a number of significant issues and problems with the Trans-Pacific Partnership-11, notwithstanding the suspensions and side-letters. In particular, there remains major ambiguity about the status of suspended provisions in the Intellectual Property Chapter, and whether they could be revived at a future date. Moreover, the Investment Chapter – with the investor-state dispute settlement mechanism – remains the subject of controversy. There is also concern that the Trans-Pacific Partnership-11 is neither progressive or comprehensive when it comes to regulatory issues such as public health, the protection of the environment, and labor rights. The Trans-Pacific Partnership-11 is increasingly being overshadowed by President Donald Trump’s ‘America First’ Trade Policy. Trump has withdrawn from the Trans-Pacific Partnership-11. He has emphasized that he would only reconsider the Trans-Pacific Partnership-11 if it was renegotiated on much better terms for the United States. Trump has also demanded revisions of the North American Free Trade Agreement 1994. He has threatened to withdraw altogether from the regional agreement if it is not modernised and improved. After engaging in Special 301 investigation, Trump’s United States Trade Representative has also brought a trade action against China in the World Trade Organization. Trump has alleged that China has engaged in acquisitions, appropriations, and infringements of flagship United States companies. President Donald Trump’s ‘America First’ Trade Policy will certainly have both direct and indirect implications for the operation of the Trans-Pacific Partnership-11.

As well as outlining the structure and organisation of the collection, this introduction seeks to contextualise the debate over intellectual property and climate change. As a foundation to the collection, it provides an overview of the negotiation, agreement, and implementation of the Paris Agreement 2015. It offers a literature review in respect of international climate law, human rights, and technology transfer. The introduction highlights key research and scholarship on intellectual property and environmentally sound technologies. It outlines the relevance of various disciplines of intellectual property to the debate over climate change. In particular, it looks at the role and function of patent law, trademark law, consumer law, design law, copyright law, trade secrets, open licensing, as well as plant breeders’ rights, access to genetic resources, and Indigenous knowledge. It examines climate litigation in the field of intellectual property. The introduction considers the scope for law reform to ensure that intellectual property laws are better adapted to promote substantial and meaningful action in respect of climate change. It also explores how innovation law and policy may best promote climate justice and human rights.

In the lead up to the Paris Agreement 2015, the United Nations Secretary-General Ban Ki-Moon has commented: ‘Intellectual property, technology transfer, and financing are among a wide range of topics that must be addressed in the context of climate change and sustainable development’. The Paris Climate Talks considered a number of issues related to intellectual property, technology transfer, and finance. Draft Article 56.3 laid down a number of options. The first option suggested a number of possibilities to facilitate technology transfer. Item A suggested that developed countries ‘provide financial resources to address barriers caused by intellectual property rights (IPRs) and facilitate access to and the deployment of technology, including inter alia, by utilizing the Financial Mechanism and/or the establishment of a funding window under the Green Climate Fund / the operating entities of the Financial Mechanism.’ Item B called for ‘an international mechanism on IPRs to be established to facilitate access to and the deployment of technology to [developing country Parties].’ Item C asked for other arrangements to be established to address intellectual property rights – such as ‘collaborative research and development, shareware, commitments related to humanitarian or preferential licensing, fully paid-up or joint licensing schemes, preferential rates and patent pools.’ Item D suggested that ‘funds from the Green Climate Fund will be utilized to meet the full costs of intellectual property rights (IPRs) of environmentally sound technologies and know-how and such technologies will be provided to developing country Parties free of cost in order to enhance their actions to address climate change and its adverse impacts.’ The second option was that ‘Parties recognize that IPRs create an enabling environment for the promotion of technology innovation in environmentally sound technologies.’ The third option favoured by developed countries is that ‘IPRs are not to be addressed in this agreement.’ The fourth option was for ‘Developed country Parties to make available Intellectual Property (IP) through multilateral institutions as public good, through purchase of intellectual property.’ The Paris Climate Talks saw a number of announcements on innovation – including Mission Innovation, and the International Solar Alliance. At the Paris talks, Indian Prime Minister Narendra Modi contended that: ‘Our innovation initiative should be driven by public purpose, not just market incentives, including on IP.’ He emphasized that: ‘We need to scale up the Green Climate Fund that will improve access to technology and intellectual property.’ For his part, US President Barack Obama flagged that he was willing to engage in a dialogue over matters of technology transfer. In the end, there was text on technology transfer in the Paris Agreement 2015 – but no substantive text on intellectual property and climate change.

In a narrow sense, innovation is the invention and commercialisation of a new product or service in the marketplace. The literature suggests places that support knowledge exchange and social interaction, e.g. coffee shops, to nurture innovative ideas. With the widespread success of Internet, interpersonal communication and interaction changed. Online platforms complement physical places for idea exchange and innovation – the rise of hybrid, ‘net localities.’ Further, since its introduction in 2003 by Chesbrough, the concept of open innovation received increased attention as a topic in academic research as well as an innovation strategy applied by companies. Open innovation allows companies to seek and release intellectual property and new ideas from outside of their own company. As a consequence, the innovation process is no longer only managed within the company, but it is pursued in a co-creation process with customers, suppliers, and other stakeholders. Quirky.com (Quirky), a company founded by Ben Kaufman in 2009, recognised the opportunity given by the Internet for knowledge exchange and open innovation. Quirky developed an online platform that makes innovation available to everyone. This paper reports on a study that analysed Quirky’s business process in an extended event-driven process chain (eEPC). The aim was to determine how the platform enabled crowdsourced innovation for physical products on the Internet. The analysis reveals that key elements of the business model are based on open innovation. Quirky is an example of how open innovation can support crowdsourced and crowdfunded product ideation, development and selling. The company opened up various stages in the innovation process to its members to contribute in the product development, e.g. product ideation, design, and market research. Throughout the process, members earn influence through participating in the product development. Based on the influence they receive shares on the product’s turnover. The outcomes of the study’s analysis highlighted certain benefits of open innovation for product development. The paper concludes with recommendations for future research to look into opportunities of open innovation approaches to be adopted by tertiary institutions as a novel way to commercialise research intellectual property.

This chapter considers the role of patent law in respect of geoengineering. Intellectual Ventures has developed a large portfolio of patents in this area. A number of other private and public entities have also filed patents in the field of geoengineering. In light of the recent precedents of the Supreme Court of the United States in respect of Bilski, Prometheus, Myriad, and Alice, it is worth exploring the question, Should patents on geoengineering be allowed? Defenders of geoengineering would maintain that such technology is legitimate, much like traditional forms of engineering. Critics, such as the ETC Group, have called for a ban on patents in respect of geoengineering. There have been fierce debates over the ethics of geoengineering. Philosophers and policy-makers such as Stephen Gardiner, Clive Hamilton, Bill McKibben, Al Gore, and Naomi Klein have argued over the merits over such technologies. It is useful to situate such a discussion in the context of previous debates over intellectual property and emerging technologies - such as biotechnology, nanotechnology, synthetic biology, and clean technologies. Moreover, this chapter explores the potential for patent thickets in respect of geoengineering. What will be the impact of such patents on research, clean technologies, the environment, the climate? There has also been much concern about the possibility of overzealous enforcement of patents in respect of geoengineering. As such, it is worthwhile considering what policy options for patent abuse will be useful or effective in this field. There is a larger international debate over the governance and regulation of geoengineering – particularly in light of the Paris Agreement 2015.

This chapter considers the legal issues arising from the creation, use and handling of big data. It focuses on legal issues regarding data security; privacy of information; copyright and moral rights obligations; and contractual matters. It encourages the reader to engage with big data, whether created or collected by them, in an mindful (and legal) manner.

This chapter considers the atmospheric trust litigation in the case of Nelson Kanuk v. State of Alaska over the climate inaction of the State of the Alaska. The dispute is a compelling case study in respect of constitutional law, the public trust doctrine, climate change, intergenerational justice, Indigenous rights, and Indigenous intellectual property. The new litigation between Esau Sinnok and the State of Alaska promises to further refine and clarify issues in respect of climate change, human rights, and Indigenous interests. Such climate litigation highlights larger international legal issues in respect of Indigenous peoples and climate change. There has been debate over Indigenous rights and climate change during the discussions in respect of the United Nations Declaration on the Rights of Indigenous Peoples 2007, the Anchorage Declaration 2009, the Paris Agreement 2015, and the Bonn climate talks in 2017. In the future, no doubt Indigenous communities will seek to engage in climate litigation against governments and corporations in order to seek redress for climate injustice, as well as loss and damage.

This chapter considers Elon Musk and his company Tesla, and evaluates their statements in respect of intellectual property, open innovation, and climate change. It is worth situating the story in the context of the growing literature on intellectual property and clean technologies. This paper considers Tesla Motors’ shifting strategies in respect of patent law, policy, and practice. The work explores Tesla Motors’ embrace of an open source philosophy, and the motivations behind this business strategy. The chapter analyses the larger issues about business development relating to electric vehicles and clean technologies. It examines how Tesla’s rivals have responded – particularly looking at Toyota Motors. This paper concludes by considering Tesla Motors in light of larger initiatives in respect of clean technologies, renewable energy and climate change. Of particular note is sustainable transportation; the development of a Gigafactory; Elon Musk’s complementary work at SolarCity in promoting solar technologies; and the big battery project in South Australia. The chapter concludes with a consideration of Elon Musk’s advocacy for the adoption and implementation of the Paris Agreement 2015.

This article provides a comprehensive review of the current state of Australian online intermediary liability law across different doctrines. Different doctrines in Australian law employ a range of different tests for determining when an actor will be liable for the actions of a third party. So far, these primarily include cases brought under the laws of defamation, racial vilification, misleading and deceptive conduct, contempt of court, and copyright. These bodies of law are conceptually different and derive from different historical contexts, and the courts have generally applied them in isolation. We show that the basis on which third parties are liable for the actions of individuals online is confusing and, viewed as a whole, largely incoherent. We show how the principle limiting devices of liability across all of these schemes – intention, passivity, and knowledge – are ineffective in articulating a clear distinction for circumstances in which intermediaries will not be held liable. The result is a great deal of uncertainty. We argue that intermediary liability law should develop by focusing on the concept of responsibility, and that existing principles in tort jurisprudence and theory can help to guide and unify the different standards for liability.

In response to complaints by Ukraine, Honduras, the Dominican Republic, Cuba, and Indonesia, the Government of Australia has defended the introduction of plain packaging of tobacco products in the World Trade Organization. This article focuses upon the legal defence of Australia before the WTO Panel. A key part of its defence has been the strong empirical evidence for the efficacy of plain packaging of tobacco products as a legitimate health measure designed to combat the global tobacco epidemic. Australia has provided a convincing case that plain packaging of tobacco products is compatible with the TRIPS Agreement 1994 – particularly the clauses relating to the aims and objectives of the agreement; the requirements in respect of trade mark law; and the parallel measures in relation to access to essential medicines. Australia has also defended the consistency of plain packaging of tobacco products with the TBT Agreement 1994. Moreover, Australia has provided clear reasons for why the plain packaging of tobacco products is compatible with GATT. The position of Australia has been reinforced by a number of third parties – such as New Zealand, the United Kingdom, Ireland, Norway, Canada, and others - which have also been pioneers in tobacco control and public health. Australia’s leadership in respect of tobacco control and plain packaging of tobacco products is further supported by larger considerations in respect of international public health law, human rights, and sustainable development. NOTE: Matthew Rimmer was an Editor of this special issue.

This special edition of the QUT Law Review considers the international debate over the introduction of Australia's pioneering plain packaging of tobacco products. This collection explores the various legal issues raised by tobacco control under public health law, constitutional law, intellectual property, international law, international trade, investor-state dispute settlement, human rights, and sustainable development. Australian scholars consider Australia's legal defence of plain packaging of tobacco products in an array of arenas - including the High Court of Australia, an investor-state dispute settlement tribunal, and the World Trade Organization. International experts consider the introduction of plain packaging of tobacco products in New Zealand, Ireland, the United Kingdom, Canada, and other pioneering public health countries. This collection also considers the adoption of new complementary tobacco control measures - such as tobacco divestment initiatives. Foreword The Hon. Nicola Roxon (Victoria University) It gives me great pleasure to write a forward on this topic at a time when there is such a groundswell of international support for plain packaging of tobacco products. World No Tobacco today in 2016 had as its tag line “Get ready for plain packaging” and the world’s health ministers are doing just that. When Australia became the first country in the world to remove all colours and logos on tobacco packs in 2011 – recognising their allure to young new smokers – the tobacco industry tried every move in their book to stop us. Lobbying, donations, advertising campaigns, threats, dodgy research, front groups, overblown claims and legal action dominated our political debate for two years. When all these local manoeuvres failed, the industry switched its effort to ensuring we were the only country to take this step. Writing in November 2016, it is clear that those efforts, both local and international, have manifestly failed. Country after country – France, the UK, Ireland, Canada, Norway, New Zealand – are implementing plain packaging, passing their laws or consulting with the community before introduction and many more countries will move this way in the coming months and years. Plain packaging of tobacco products is now truly an international movement. It is an epidemic of the best sort, as countries catch on to its value, purpose and ease of implementation. We will now see its introduction spread like wildfire around the world. When we announced the introduction of plain packaging in Australia, it was a world first. The Government I was part of has received much praise for our resolve and foresight to see this through, from smooth implementation to the great early results already showing significant impact in the reduction of smoking rates across the country. Table of Contents (1) 'Tobacco Plain Packaging in Australia: JT International v Commonwealth and Beyond' Dr Catherine Bond (UNSW) (2) 'Regulatory Chill: Learnings from New Zealand's Plain Packaging Tobacco Law' Professor Jane Kelsey (University of Auckland) (3) 'Property and Proportionality: Evaluating Ireland's Tobacco Packaging Legislation' Dr Eoin O’Dell (Trinity College Dublin) (4) 'The Tobacco Industry's Challenge to the United Kingdom's Standardised Packaging Legislation - Global Lessons for Tobacco Control Policy?' Professor Jonathan Griffiths (Queen Mary, University of London) (5) 'Making the Case for Canada to Join the Tobacco Plain Packaging Revolution' Dr Becky Freeman (University of Sydney) (6) 'Investor-State Dispute Settlement and Tobacco Control: Implications for Non-Communicable Diseases Prevention and Consumption-Control Measures' Dr Hope Johnson (QUT) (7) 'The Global Tobacco Epidemic, The Plain Packaging of Tobacco Products, and the World Trade Organization' Professor Matthew Rimmer (QUT) (8) 'Tobacco-Free Investment: Harnessing the Power of the Finance Industry in Comprehensive Tobacco Control' Dr Bronwyn King, Clare Payne, and Emily Stone (Tobacco-Free Futures)

Executive Summary There is a long history of legal, political, and ethical debate in respect of the problem of misappropriation of Indigenous intellectual property in Australia. There has been perennial public policy inquiries into the topic of Indigenous intellectual property – although there has been only a partial and mixed array of responses. I would comment that the Australian experience has been a mixed one. It is true that von Doussa J of the Federal Court of Australia has shown judicial innovation in a number of cases – most notably, the “Carpets” case, and the “Bulun Bulun” decision. However, there have been limits to the extent of judicial innovation in Australia – as illustrated by the refusal of the High Court of Australia to recognise the linkage between native title rights and traditional knowledge in the case of Ward v Western Australia. The case law has demonstrated that there is a need for a more fundamental legislative reform of laws with respect to traditional knowledge in Australia. Unfortunately, the Australian Parliament has thus far failed to heed many of the recommendations of Terri Janke’s landmark report, Our Culture, Our Future from the 1990s. The Howard Conservative Government did not fully realise its policy plans in respect of the protection of traditional knowledge. A Federal bill on the recognition of communal moral rights in respect of copyright works created by Indigenous communities has not been implemented. Thus far, there have only been piecemeal reforms. The authenticity trade marks scheme, which was set up in 2000, has collapsed. The Federal access to genetic resources scheme does make reference to native title rights; but only provides limited remedies for non-compliance with the regime. The Queensland access to genetic resources regime fails to adequately address the issue of the protection of traditional knowledge. The Rudd Labor Federal Government passed a right of resale – which would have the potential to benefit Indigenous artists and communities. However, instead of taking legislative action, it instead passed a code of conduct in respect of Indigenous art. The Gillard Labor Federal Government passed plain packaging of tobacco products – which incidentally has been of benefit in addressing tobacco consumption in Indigenous communities. The Andrews Victorian Government has passed some innovative Indigenous cultural heritage laws – which are designed to address some of the gaps and limitations in respect of Australian Indigenous intellectual property. There are certainly policy opportunities for the Turnbull Government and the current Australian Parliament to provide further protection in respect of Indigenous intellectual property. The Prime Minister Malcolm Turnbull has certainly shown an interest in boosting Indigenous entrepreneurship and business during his tenure. A number of his Ministers have grappled with the issue of Indigenous intellectual property and fake art. Australian Aboriginal and Torres Strait Islander communities have been promoting the need for greater legislative protection of Indigenous Intellectual Property. There has been international recognition of Indigenous intellectual property as part of the United Nations Declaration on the Rights of Indigenous Peoples 2007. In 2017, there have been a number of contemporary debates over Indigenous intellectual property. There has thankfully been a resolution of long-standing debate over the copyright ownership of the work of Albert Namatjira. There has also been controversy over Driller Jet Armstrong using Wandjina images without permission of the cultural custodians. There has been debate over high-end fashion company Chanel releasing boomerangs. The House of Representatives Standing Committee on Indigenous Affairs has called an inquiry into the persistent problem of fake art. Internationally, the Supreme Court of the United States ruling on trade mark law and the First Amendment has had flow on consequences for the treatment of derogatory trade marks about Indigenous communities in the United States. Recommendation 1 International Law It is the tenth anniversary of the UN Declaration on the Rights of Indigenous Peoples 2007. Nation states – including Australia – could do more to implement the articles relating to the protection of Indigenous intellectual property. Moreover, at an international level, there is a need to progress stalled discussions on an international agreement on Indigenous intellectual property in WIPO. The WTO could play a more significant role in the protection of Indigenous Intellectual Property. Moreover, the language on the protection of Traditional Knowledge under the Convention on Biological Diversity 1992 needs to be translated into effective action. Recommendation 2 Copyright Law Building upon the ‘Bulun Bulun’ decision, Australian copyright law should recognise communal ownership of Indigenous cultural works. Recommendation 3 Moral Rights During the debate over the introduction of moral rights in 2000, there was discussion about the need for better protection of Indigenous cultural works, and recognition of communal ownership. Further reforms of moral rights should consider dealing with such matters. Recommendation 4 Performers’ Rights As a result of implementing international WIPO agreements, Australia provides some protection of performers’ rights under copyright law. There is a need to review whether Australia’s regime provides adequate and sufficient protection of Indigenous performers. Recommendation 5 Right of Resale for Visual Artists There is a need to review the conservative model for the right of resale for visual artists in Australia to determine whether the regime is meeting its aims and objectives. In particular, it should be evaluated whether the scheme has provided adequate benefits for Indigenous artists and their families. There could be further scope to strengthen the right of resale for visual artists in Australia – particularly in light of the High Court of Australia rulings on constitutional law and intellectual property. Recommendation 6 Consumer Law The ACCC has taken action under Australian consumer law in respect of misleading and deceptive conduct and representations made about Indigenous art and craft. In the cases that it has intervened in, the ACCC has been effective. However, there has been concerns whether the regulator has been able to cope with the systematic nature of the problem. The Hon. Bob Katter has proposed the Competition and Consumer Amendment (Exploitation of Indigenous Culture) Bill 2017 (Cth). Thought should be given to giving the ACCC further resources in order to engage in comprehensive action in respect of misleading and deceptive conduct relating to Indigenous art and craft. Recommendation 7 Trade Mark Law Australia’s authenticity marks scheme was a failure. Nonetheless, trade mark law can play a useful role particularly in respect of protecting Indigenous businesses and entrepreneurs. There is a need for IP Australia to play an active role in policing the trade marks register for any deceptive marks relating to Indigenous culture. Recommendation 8 Plain Packaging of Tobacco Products Plain packaging of tobacco measures has proven to be an effective tobacco control measure – including for Indigenous communities. The Federal Minister Ken Wyatt has been pursuing various public health measures in order to close the gaps in respect of Indigenous healthcare, and to reduce tobacco consumption. Recommendation 9 Geographical Indications There has been an academic discussion about how geographical indications may be employed to protect Indigenous linkages between place and culture. Recommendation 10 Designs Law The work of Professor Maree Sainsbury has highlighted that there has been instances of misleading design registrations relating to Indigenous culture. IP Australia needs to take action in respect of the designs register in such matters. Recommendation 11 Patent Law The recent High Court of Australia decision in Myriad is an important precedent in respect of patentable subject matter in Australia. There is a need for IP Australia to take into account Indigenous knowledge as prior art when making determinations in respect of patent threshold standards – such as novelty, inventive step, and utility. There has been considerable policy discussion about the relationship between patent law, disclosure, informed consent and benefit-sharing in relation to Indigenous genetic resources. Recommendation 12 Plant Breeders’ Rights Much like in the patent regime, IP Australia needs to take into account Indigenous knowledge in respect of determinations of distinctiveness, uniformity, and stability, when assessing plant breeders’ rights applications. Recommendation 13 Access to Genetic Resources Australia has a fragmented federal and state system of regimes in respect of access to genetic resources. There is a lack of consistency and harmony between the systems – particularly in respect of the treatment of Traditional Knowledge and Indigenous intellectual property. There should be a review to determine whether there has been benefits passed onto Indigenous communities through the biodiscovery regimes – both Federal and State. Recommendation 14 Confidential Information Confidential information and trade secrets have been employed successfully in the past by Indigenous communities in Australia in disputes over Indigenous intellectual property. Recommendation 15 Privacy In one of its inquiries into privacy, the Australian Law Reform Commission recommended that ‘The Office of the Privacy Commissioner should encourage and assist agencies and organisations to develop and publish protocols, in consultation with Indigenous groups and representatives, to address the particular privacy needs of Indigenous groups. The Australian Government should undertake an inquiry to consider whether legal recognition and protection of Indigenous cultural rights is required and, if so, the form such recognition and protection should take.’ The Australian Law Reform Commission has also recommended the creation of a statutory cause of action in respect of serious invasions of privacy. That could be useful for Indigenous communities. Recommendation 16 Cultural Heritage In 2016, Victoria passed the Aboriginal Heritage Amendment Act 2016 (Vic) to provide protection for tangible and intangible cultural heritage. Under the new provisions in the act, a group of traditional owners or native title holders can apply to have a piece of intangible heritage included on the Aboriginal heritage register. Aboriginal Intangible Heritage means any knowledge of/or expression of Aboriginal tradition, including: oral and expressions (including language, songs and stories); performing arts (vocal and instrumental music, dance and performance); social practices, rituals and festive events; knowledge and practices concerning nature and the universe (including environmental and ecological knowledge) and/or visual arts and craftsmanship (skills and knowledge involved in their production). The legislation then makes it an offence to knowingly use any registered Aboriginal intangible heritage for commercial purposes without consent from the ownership group, with penalties of up to $280,000 for an individual or $1.5m for a corporation. It will be worthwhile monitoring this regime in operation. If this system is effective, it could be a useful model to emulate by other Australian Governments. Recommendation 17 Native Title The Connection to Country: Review of the Native Title Act 1993 (Cth) [2015] ALRC 126 (p 262-270) reconsidered the relationship between intellectual property and native title: “The decision in Ward HCA, and its approach to cultural knowledge, predates key international developments, including UNDRIP. Contemporary understanding of connection to country is being shaped by a growing body of academic and anthropological literature which is not reflected in the current state of the law. Terri Janke has pointed to a ‘paradox’ where cultural material is used in native title claims as evidence of continuing connection, but where cultural knowledge is not recognised as a native title right. In summary, the ALRC has raised the potential for a native title right to protect cultural knowledge and for cultural knowledge to be considered in relation to rights to be exercised for any purpose, including commercial purposes. The ALRC does not have a concluded view on whether this would be a desirable development, but has identified the need for an in-depth inquiry that can assess the legal and policy issues.” Recommendation 18 Indigenous Cultural Authority Terri Janke has called for the establishment of an Indigenous Cultural Authority in order to provide a co-ordinated institutional response to the protection, enforcement, and exploitation of Indigenous intellectual property. Such a regime would provide institutional support for the array of codes and protocols for the protection of Indigenous intellectual property in Australia.

Journal Article: Matthew Rimmer, 'Back to the Future: The Digital Millennium Copyright Act and the Trans-Pacific Partnership' (2017) 6 (3) Laws http://www.mdpi.com/2075-471X/6/3/11/htmThe Trans-Pacific Partnership (TPP) is a trade agreement, which seeks to regulate copyright law, intermediary liability, and technological protection measures. The United States Government under President Barack Obama sought to export key features of the Digital Millennium Copyright Act 1998 (US) (DMCA). Drawing upon the work of Joseph Stiglitz, this paper expresses concerns that the TPP would entrench DMCA measures into the laws of a dozen Pacific Rim countries. This study examines four key jurisdictions—the United States, Canada, Australia, and New Zealand—participating in the TPP. This paper has three main parts. Part 2 focuses upon the takedown-and-notice scheme, safe harbours, and intermediary liability under the TPP. Elements of the safe harbours regime in the DMCA have been embedded into the international agreement. Part 3 examines technological protection measures—especially in light of a constitutional challenge to the DMCA. Part 4 looks briefly at electronic rights management. This paper concludes that the model of the DMCA is unsuitable for a template for copyright protection in the Pacific Rim in international trade agreements. It contends that our future copyright laws need to be responsive to new technological developments in the digital age—such as Big Data, cloud computing, search engines, and social media. There is also a need to resolve the complex interactions between intellectual property, electronic commerce, and investor-state dispute settlement in trade agreements.

"It's not the size of the dog in the fight, it's the size of the fight in the dog. And I'm only a little person, but I fight." --Yvonne D’Arcy Introduction In 2015, the High Court of Australia handed down a landmark ruling in respect of Myriad Genetics Inc. and its patents in respect of genetic testing for breast cancer and ovarian cancer. This brought to a conclusion a long-running legal and political controversy over gene patents in Australia. The dispute – a ‘dog-fight’ according to its protagonist, Yvonne D’Arcy - has a long genesis. In June 2010, Cancer Voices Australia and Yvonne D’Arcy launched an action in the Federal Court of Australia against the validity of a BRCA1 patent – held by Myriad Genetics Inc., the Centre de Recherche du Chul, the Cancer Institute of Japan and Genetic Technologies Limited. Yvonne D’Arcy – a Brisbane woman who has had treatment for breast cancer – maintained: ‘I believe that what they are doing is morally and ethically corrupt and that big companies should not control any parts of the human body.’ She observed: ‘For my daughter, I've her have mammograms, etc, because of me but I would still like her to be able to have the test to see if the mutation gene is in there from me.’ The applicants argued: ‘The isolation of the BRCA1 gene mutation from the human body constitutes no more than a medical or scientific discovery of a naturally occurring phenomenon and does not give rise to a patentable invention’. The applicants also argued that ‘the alleged invention is not a patentable invention in that, so far as claimed in claims 1–3, it is not a manner of manufacture within the meaning of s 6 of the Statute of Monopolies 1624’. The applicants argued that ‘the alleged invention is a mere discovery’. Moreover, the applicants contended that ‘the alleged invention of each of claims 1–3 is not a patentable invention because they are claims for biological processes for the generation of human beings’. The applicants, though, later dropped the argument that the patent claims related to biological processes for the generation of human beings. In February 2013, Nicholas J of the Federal Court of Australia considered the case brought by Cancer Voices Australia and Yvonne D’Arcy against Myriad Genetics. The judge presented the issues in the case, as follows: The issue that arises in this case is of considerable importance. It relates to the patentability of genes, or gene sequences, and the practice of ‘gene patenting’. Briefly stated, the issue to be decided is whether under the Patents Act 1990 (Cth) (the Act), a valid patent may be granted for a claim that covers naturally occurring nucleic acid – either deoxyribonucleic acid (DNA) or ribonucleic acid (RNA) – that has been “isolated”. In this context, the word “isolated” implies that naturally occurring nucleic acid found in the cells of the human body, whether it be DNA or RNA, has been removed from the cellular environment in which it naturally exists and separated from other cellular components also found there. The genes found in the human body are made of nucleic acid. The particular gene with which the patent in suit is concerned (BRCA1) is a human breast and ovarian cancer disposing gene. Various mutations that may be present in this gene have been linked to various forms of cancer including breast cancer and ovarian cancer. The judge held that Myriad Genetics’ patent claims were a ‘manner of manufacture’ under s 6 of the Statute of Monopolies and s 18 (1)(a) of the Patents Act 1990 (Cth). The matter was appealed to the Full Court of the Federal Court of Australia. In September 2014, five judges of the Full Court of the Federal Court of Australia dismissed the appeal by Yvonne D’Arcy in favour of Myriad Genetics Inc. The joint judgment by Allsop CJ, Dowsett, Kenny, Bennett, and Middleton JJ provided several justifications for their position. First, the judges held ‘the boundaries of the conception of patentability are not dictated only by deductive logic from the linguistic premises formulated in the scientific knowledge of a particular age; rather, the boundaries must be such as to be apt to encompass the development of science and technology, and human ingenuity’. The judges emphasized: ‘This explains the broadening concept of patentability since the first quarter of the 17th century.’ Second, the judges maintained that ‘human intervention that creates an artificial state of affairs that has some discernible effect is essential.’ Third, the judges commented that ‘whilst notions of utility, ingenuity and invention have their place after one concludes that the claim is within the field of s 6, such notions also inform the context of analysis of patentability by assisting in describing the claims to processes or products that are claimed new results of principles carried into practice through human intervention and that create some claimed useful result by involving an artificial state of affairs’. Fourth, judges insisted that ‘expressions such as “the work of nature” or “the laws of nature” are not found in the statute; nor are they useful tools of analysis’. Fifth, the judges held that ‘the distinction between discovery of a scientific principle or fact and a deployment of such to a useful end by a procedure is real.’ The Full Court of the Federal Court of Australia concluded: ‘The isolated nucleic acid, including cDNA, has resulted in an artificially created state of affairs for economic benefit’. The judges insisted: ‘The claimed product is properly the subject of letters patent.’ The Full Court of the Federal Court of Australia observed: ‘The claim is to an invention within the meaning of s 18(1) of the Act’. The decision generated public discussion and debate. Yvonne D’Arcy appealed to the High Court of Australia. Myriad Genetics Inc. sought to defend the decisions of the Federal Court of Australia and the Full Federal Court of Australia. The Institute of Patent and Trademark Attorneys of Australia sought to intervene in the matter as an amicus curiae. The Attorney-General of the Commonwealth, George Brandis, also sought to intervene in the matter. In contrast to the Supreme Court of the United States, the High Court of Australia was reluctant to accept a wide range of submissions about the policy implications in respect of gene patents. The High Court of Australia heard oral argument over the matter in June 2015. There were epic, high-quality battles between leading intellectual property barristers, David Catterns QC and David Shavin QC. There was significant media coverage of the case – including by the flagship current affairs programme, the 7:30 Report. The matter was well-attended in the High Court of Australia in Canberra. I was an eyewitness to the oral argument, along with Professor Ann Monotti from Monash Law School. In October 2015, the High Court of Australia handed down a landmark decision in respect of gene patents held by the Utah biotechnology firm, Myriad Genetics Inc. The ruling was an unanimous decision – supported by French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ. The High Court of Australia’s Registry sought to summarise the decision thus: ‘The High Court held that an isolated nucleic acid, coding for a BRCA1 protein, with specific variations from the norm that are indicative of susceptibility to breast cancer and ovarian cancer, was not a "patentable invention" within the meaning of s 18(1) (of the Patents Act 1990 (Cth).’ The ruling attracted significant media attention. Drawing upon the framework of human rights, this chapter provides a systematic analysis of the debate over gene patents in Australia. In particular, this chapter focuses upon the landmark decision by the High Court of Australia in D’Arcy v. Myriad Genetics Inc. in respect of gene patents. This Chapter focuses upon three key themes. First, it explores the debate between Australian jurists over the history of patent law, the meaning of such key terms as a ‘manner of manufacture’, ‘products of nature’, and ‘an artificial state of affairs.’ Such a discussion has taken place against the backdrop of a long history of intellectual property and biotechnology. Second, this Chapter examines the discussion over the respective roles of the patent administration, the judiciary and the Australian Parliament in resolving disputes in respect of gene patents. It critically analyses the aftermath of the High Court of Australia decision – with the debate over IP Australia’s proposed examination guidelines. Third, this piece investigates how the High Court of Australia considered the international context of the debate over gene patents – and the comparative approaches to the topic. The conclusion foreshadows future developments – such as the push for higher standards of intellectual property protection under the Trans-Pacific Partnership.

In the past year, there has been push by academics, scholars and policy-makers alike to re-situate the debate over access to medicines from the spheres of intellectual property, trade, and innovation policy to the context of human rights and public health. In 2015, Joo-Young Lee published A Human Rights Framework for Intellectual Property, Innovation and Access to Medicines with Ashgate. The work is concerned with addressing barriers to access to medicines: A vast number of people remain without access to life-saving and other essential medicines. The cost of medicines is one major factor that affects access to medicines. Another significant problem is the lack of medicines particularly relevant to health needs of people in developing countries. Both issues are associated with an intellectual property system that has been used as a dominant tool to provides incentives for innovation (p. 1). The book seeks to analyse intellectual property and human rights in the context of disputes over patent law and pharmaceutical drugs. It provides a survey of a number of the key areas in the debate over access to essential medicines.

While the Australian Parliament has been inquiring into social issues relating to land-based driverless vehicles in Australia since February 2017, intellectual property litigation has erupted in the courts between Waymo (Google’s Self-Driving Car Project) and Uber in the United States. The case has attracted much public attention. Alex Davies has reflected: "Until today, the race to build a self-driving car seemed to hinge on who had the best technology. Now it’s become a case of full-blown corporate intrigue. Alphabet’s self-driving startup, Waymo, is suing Uber, accusing the ridesharing giant of stealing critical autonomous driving technology. If the suit goes to trial, Apple’s legal battle with Samsung could wind up looking tame by comparison." The intellectual property dispute could have significant implications for competition in respect of self-driving cars and autonomous vehicles. The New York Times has noted that ‘companies in Silicon Valley and Detroit are betting big on self-driving car technology’ and ‘the intense interest has spawned a string of expensive investments and lawsuits.’

Copyright exceptions and limitations in the United States have experienced dynamic evolution in light of new technological developments. There has been significant legal debate in the courts and in the United States Congress about the scope of the defense of fair use. The copyright litigation over Google Books has been a landmark development in the modern history of copyright law. The victory by Google, Inc., over the Authors Guild in the decade-long copyright dispute is an important milestone for copyright law. The ruling of Leval J emphasizes that the defense of fair use in the United States plays a critical role in promoting transformative creativity, freedom of speech, and innovation. The Supreme Court of the United States was decisive in its rejection of the Authors Guild’s efforts to challenge the decision of Leval J. There has been significant debate in the United States Copyright Office and United States Congress over the development of “the Next Great Copyright Act.” Hearings have taken place within the United States Congressional system about the history, nature, and future of the defense of fair use under United States copyright law. There remains much debate about the internationalization of the defense of fair use, and the need for the trading partners of the United States to enjoy similar flexibilities with respect to copyright exceptions. There has been concern about the impact of mega-regional trade agreements—such as the Trans-Pacific Partnership—upon copyright exceptions, such as the defense of fair use.

For emerging technologies such as autonomous vehicles, it is important that the patent system promote high-quality innovation and competition policy. Academic researchers such as Professor Michael Heller and Professor Rebecca Eisenberg have discussed the problem of the ‘tragedy of the anticommons’ and the ‘gridlock economy’. There are also a number of policy responses to trying to address the problem of patent thickets, generally, and, perhaps specifically, in respect of autonomous vehicles. The option of patent pools have been used to resolve the problem of fragmented, overlapping patent rights in certain crowded markets. Cross-licensing can be used in certain circumstances. Public licensing is helpful in respect of inventions, in which there has been public funding. Compulsory licensing can be used to provide access to key inventions – in return for compensation to the patent holder. Competition law and antitrust law can also be invoked in certain exceptional circumstances in which there has been an abuse of intellectual property rights.

There has been a long history of copyright litigation in respect of musical works and sound recordings. Over the last decade there has been a new battlefield. In the wake of legal action against peer-to-peer networks such as Napster, Kazaa and Grokster, and torrent services such as The Pirate Bay, copyright owners targeted internet video sites, which provided access to copyright works such as music, television and film. There has been significant conflict in respect of internet videos between creators, the music industry, online intermediaries and consumers. The internet video sharing site YouTube has been a focal point of copyright litigation and public policy debate.

Lecture given by Doctor Peter R. Hart, Managing Director, Luminis Pty Ltd., at the Waite Campus, University of Adelaide, 20.3.1992This lecture is part of the Campus Seminars and Distinguished Lecturer Series, Waite Campus, University of Adelaide, 1991 – 1997. https://figshare.com/projects/Campus_Seminars_and_Distinguished_Lecturer_Series_Waite_Campus_University_of_Adelaide/17756

In this chapter, we provide an account of the burgeoning trend in Australian copyright case law towards a more sympathetic treatment of copyright users. Traditionally, Australian cases involving internet intermediaries have disregarded the interests of copyright users, treating the fundamental balance as being between protecting creative authors, on the one hand, and promoting technological innovation on the other. Users’ interests were therefore relegated to the sidelines. However, hints of judicial dissatisfaction with the copyright status quo have begun to appear in the case law. In this chapter, we discuss the subtle shifts in the Federal Court’s approach to copyright users as people rather than pirates, beginning around the turn of this last decade in EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 47 and Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2) [2012] FCA 34. We then turn to consider the recent Dallas Buyer Club litigation in Australia. We argue that the Dallas Buyers Club decisions are a significant development in the concept of user rights under Australian copyright law, and that the discretionary way in which the court drafted its order is an important foil against dubious rightsholder practices like speculative invoicing.

The mega-regional agreement, the Trans-Pacific Partnership, put forward a radical model for the regulation of intellectual property and access to medicines across the Pacific Rim. The trade agreement makes reference to the framework established by the TRIPS Agreement 1994, the Doha Declaration on the TRIPS Agreement and Public Health 2001, and the WTO General Council Decision 2003 (which has been incorporated into the TRIPS Agreement 1994 as an amendment in 2017). Nonetheless, it does little to positively advance public health and access to medicines. The Trans-Pacific Partnership seeks to maximise the intellectual property rights of pharmaceutical drug companies. The agreement has extensive provisions on patentable subject matter, patent standards, patent term extensions and evergreening, patent registration linkages, and border measures. There has also been controversy over measures related to data protection, the protection of biologics, and trade secrets. The World Health Organization and the United Nations Secretary-General’s High Level Panel on Access to Medicines have highlighted the need to ensure public health and access to medicines are not undercut by regional trade agreements, such as Trans-Pacific Partnership.

This report examines the major differences between digital media markets in Australia and the US. We created a list of the most popular media titles over the last five years and checked their availability and price with Australian and American digital content providers over one month in early 2017. For all four media types considered in the study (games, music, television, and movies) Australians were disadvantaged compared to American consumers in some way. Australians either cannot access a large portion of content that is available to American consumers, or they have to pay more for the same level of access. In film and TV, Australians pay the same as American consumers, but have limited access to titles. In our sample, only about 65 percent of movie titles and 75 percent of TV titles available in the US could be accessed by Australian consumers. For film and TV streaming, Australian services fare very poorly compared to US markets. Nearly two thirds of films available to stream in the US are not available to stream in Australia, and more than half of the television seasons available to stream in the US are not available in Australia. In TV and film, the Australian market also consists of a much smaller number of distributors, both for streaming and retail. This means less competition and more limited choices available to Australians. Australian distributors do, however, focus on providing the most popular titles. Of the Top 50 most popular films available in the US, Australians could access about 90% of our sample. For games and music, Australians have much the same access to titles, but pay around 25 percent more for them. The only case where Australian consumers are not at a disadvantage is music streaming, where consumers have access to approximately the same number of titles for slightly cheaper subscription fees. This report is the first snapshot of a longer term project to monitor changes in digital media markets over time. With funding provided by ACCAN, we have been able to develop the infrastructure to allow ongoing monitoring into the future. Future analysis will be able to provide additional detail about other concerns of Australians – including, for example, the lag between release dates for content in Australia compared to the US.

Entertainment industries are among the largest in the world. The legal environment in which entertainment operates involves a confluence of eclectic laws such as those concerning free expression and its limits, those concerning intellectual property and their relationship with promoting, limiting and capitalising creativity, and the laws governing the contractual relationships between parties involved in entertainment productions.In this book, the authors analyse the major legal issues confronting those involved in entertainment in Australia, and provide clear, accessible statements of the current legal principles involved. They enable readers to understand what the law is and how it is likely to apply in particular situations.The book uses an accessible, reader-friendly style making it suitable for those involved in entertainment industries, legal practitioners and students of entertainment law. [book description]

The world is slowly but inexorably moving towards adopting an integrated global patent system. It is inevitable that the present inefficient and splintered system in which patents must be separately obtained and enforced in each nation state must evolve to make obtaining global patent protection an achievable proposition for those other than just the wealthiest multinational corporations. The global patent system proposed in this article allows a patent applicant to file a single patent application in an international patent office, have that patent application examined in accordance with a uniform patentability standard, and results in the grant of a unitary patent that is enforceable in all member states. The proposed system differs significantly from previous proposals for a global patent system because it calls for matters of patent enforcement to remain the exclusive domain of member states and their courts rather than calling for the creation of an international patent court to hear infringement suits. This aspect of the proposal makes it a viable alternative to the current system because it allows nation states to retain a degree of sovereignty and control over the patents that are enforced in their territories, while embracing the substantive and procedural efficiencies concomitant with a truly integrated global patent system.

The multidisciplinary field of climate law and justice needs to address the topic of intellectual property, climate finance, and technology transfer to ensure effective global action on climate change. The United Nations Framework Convention on Climate Change 1992 (UNFCCC) established a foundation for the development, application and diffusion of low-carbon technologies. Against this background, it is useful to analyse how the Paris Agreement 2015 deals with the subject of intellectual property, technology transfer, and climate change. While there was discussion of a number of options for intellectual property and climate change, the final Paris Agreement 2015 contains no text on intellectual property. There is text, though, on technology transfer. The Paris Agreement 2015 relies upon technology networks and alliances in order to promote the diffusion and dissemination of green technologies. In order to achieve technology transfer, there has been an effort to rely on a number of formal technology networks, alliances, and public&ndash, private partnerships&mdash, including the UNFCCC Climate Technology Centre and Network (CTCN), the World Intellectual Property Organization&rsquo, s WIPO GREEN, Mission Innovation, the Breakthrough Energy Coalition, and the International Solar Alliance. There have been grand hopes and ambitions in respect of these collaborative and co-operative ventures. However, there have also been significant challenges in terms of funding, support, and operation. In a case of innovation policy pluralism, there also seems to be a significant level of overlap and duplication between the diverse international initiatives. There have been concerns about whether such technology networks are effective, efficient, adaptable, and accountable. There is a need to better align intellectual property, innovation policy, and technology transfer in order to achieve access to clean energy and climate justice under the framework of the Paris Agreement 2015. At a conceptual level, philosophical discussions about climate justice should be grounded in pragmatic considerations about intellectual property and technology transfer. An intellectual property mechanism is necessary to provide for research, development, and deployment of clean technologies. There is a need to ensure that the technology mechanism of the Paris Agreement 2015 can enable the research, development, and diffusion of clean technologies at a scale to address the global challenges of climate change.

The Joint Standing Committee on Treaties is inquiring into the Paris Agreement of the United Nations Framework Convention on Climate Change 2015 [2016] ATNIF 31. The Australian Government has produced a National Interest Analysis [2016] ATNIA 10. Amongst other things, the Paris Agreement 2015 featured significant debate over the role of technology in respect of addressing climate change. - The United Nations Secretary-General Ban Ki-Moon has commented: ‘Intellectual property, technology transfer, and financing are among a wide range of topics that must be addressed in the context of climate change and sustainable development’. The Paris Climate Talks considered a number of issues related to intellectual property, technology transfer, finance, and climate change. - Draft Article 56.3 laid down a number of options. The first option suggests a number of possibilities to facilitate technology transfer. Item A suggests that developed countries ‘provide financial resources to address barriers caused by intellectual property rights (IPRs) and facilitate access to and the deployment of technology, including inter alia, by utilizing the Financial Mechanism and/or the establishment of a funding window under the Green Climate Fund / the operating entities of the Financial Mechanism.’ Item B calls for ‘an international mechanism on IPRs to be established to facilitate access to and the deployment of technology to [developing country Parties].’ Item C calls for other arrangements to be established to address intellectual property rights – such as ‘collaborative research and development, shareware, commitments related to humanitarian or preferential licensing, fully paid-up or joint licensing schemes, preferential rates and patent pools.’ Item D suggests that ‘funds from the Green Climate Fund will be utilized to meet the full costs of intellectual property rights (IPRs) of environmentally sound technologies and know-how and such technologies will be provided to developing country Parties free of cost in order to enhance their actions to address climate change and its adverse impacts.’ The second option is that ‘Parties recognize that IPRs create an enabling environment for the promotion of technology innovation in environmentally sound technologies.’ The third option favoured by developed countries is that ‘IPRs are not to be addressed in this agreement.’ The fourth option is for ‘Developed country Parties to make available Intellectual Property (IP) through multilateral institutions as public good, through purchase of intellectual property.’ - The final text of the Paris Agreement 2015 avoids dealing with intellectual property and climate change directly. Nonetheless, there are glancing references to traditional knowledge in the context of a larger debate about Indigenous Knowledge. There is some extensive text, more generally, about technology research, development, and dissemination in the Paris Agreement 2015. At the Paris talks, Indian Prime Minister Narendra Modi contended that: ‘Our innovation initiative should be driven by public purpose, not just market incentives, including on IP.’ He emphasized that: ‘We need to scale up the Green Climate Fund that will improve access to technology and intellectual property.’ For his part, US President Barack Obama flagged that he was willing to engage in a dialogue over matters of technology transfer. The Paris Climate Talks also saw a number of announcements on innovation – including Mission Innovation, the Breakthrough Energy Coalition, and the International Solar Alliance. Recommendations This submission focuses upon issues relating to intellectual property, technology transfer, and innovation in respect of the Paris Agreement 2015. Recommendation 1 Australia should seek to ratify and implement the Paris Agreement 2015. Recommendation 2 There is a need to harmonise the international regimes in respect of intellectual property and climate change, with a joint declaration by key international organisations, such as the UNFCCC, the World Trade Organization, and the World Intellectual Property Organization. Recommendation 3 The Paris Agreement 2015 further consolidates the Technology Mechanism and the Finance Mechanism in the International Climate Framework. Above and beyond the Paris Agreement 2015, there is a need to address intellectual property and climate change in future international climate agreements. An Intellectual Property Mechanism could be a useful addition. Australia should seek to play a stronger role in the Technology Mechanism – the UNFCCC Climate Technology Centre and Network. Recommendation 4 The TRIPS Council has been holding ongoing debates over intellectual property and climate change. There is a need to update the TRIPS Agreement 1994 to better address intellectual property and climate change. Recommendation 5 The World Intellectual Property Organization has considered intellectual property and climate change as part of its agenda to tackle global issues. WIPO GREEN has played a useful technical role. There is a need for the World Intellectual Property Organization to address substantive and procedural issues in respect of intellectual property and clean technologies. Recommendation 6 There is a need for patent regimes to ensure the quality of patent applications, generally. Green patent fast-track systems have been put into place around the world in a variety of patent offices. Professor Eric Lane has recommended the establishment of a Green Patent Highway. Recommendation 7 There has been significant patent litigation in respect of clean technologies. There have been concerns about both infringement of patent rights of innovative clean technology companies; and abuse of the intellectual property rights by patent trolls. There are larger questions about the interaction between patent law and competition policy in the context of clean technologies. Recommendation 8 As a net importer of patented technologies (including clean technologies), there is a need for Australia to make strategic use of patent flexibilities – such as experimental use, public licensing, patent pools, compulsory licensing, and state use. The Productivity Commission has made useful recommendations on how to modernise Australia’s patent regime. Recommendation 9 The Paris Agreement 2015 further builds upon the Technology Mechanism of the UNFCCC Climate Technology Centre and Network. Australia currently does not play a key role in the Technology Mechanism. Given Australia’s ‘Ideas Boom’ innovation policy, it is important that Australia plays a leadership role in this clean technology network. Australia should also participate in other technology networks announced at the Paris International Climate Talks – including Mission Innovation, the Breakthrough Energy Coalition, and the International Solar Alliance. Recommendation 10 There is a need to further experiment with models of Open Innovation in respect of clean technologies. The Eco-Patent Commons, the Green Xchange, and Elon Musk’s Open Innovation should be emulated in Australia. Recommendation 11 Innovation prizes – such as the L-Prize, the H-Prize and X Prizes – have been a useful means of encouraging research and development in respect of clean technologies. Recommendation 12 From the perspective of Australia, it is daunting that other nations – including the United States, Germany, Nordic countries, Japan, Korea, and China - dominate the patent filings in respect of clean technologies. Australia needs to improve its performance in regard to the research, development, and deployment of renewable energy. The ‘Ideas Boom’ Innovation Policy should address this problem. Recommendation 13 There has been a proliferation of green trade marks and eco-labels. There is a need for transparency, accountability, and legitimacy in terms of the assessment of such marks and labels. Recommendation 14 There is a need for competition and consumer regulators to take action in respect of misleading and deceptive conduct – such as greenwashing, astroturfing, and climate deception. The dispute over VW’s ‘Dieselgate’ is a useful case study in this context. Recommendation 15 Green buildings and designs could be encouraged under the copyright regime and the designs regime. Recommendation 16 The United States and the European Union have been concerned about trade secrets theft in respect of confidential information relating to clean technologies. Recommendation 17 The Obama Administration encouraged scientific agencies like NASA and NOAA to make climate data open and accessible. Recommendation 18 There have been significant interactions in respect of intellectual property, food security, and climate change. Plant breeder’s rights, patents on climate ready-crops, and farmers’ rights have raised interesting questions about ownership and access to clean technologies. Norway’ Svalbard Global Seed Vault – the ‘Doomsday Vault’ – is a Big Science Project designed to provide insurance for plant genetic resources against climate change, natural disasters, and other emergencies. Recommendation 19 There is a need to better align biodiversity conservation efforts and climate action. The principles of access to genetic resources, informed consent, and benefit-sharing could certainly play a role in achieving better outcomes in this field. Recommendation 20 There is a need for better recognition of Indigenous Intellectual Property – including in respect of Indigenous environmental and climate knowledge. Recommendation 21 The Paris Agreement 2015 could be undermined by the use of investor-state dispute settlement against climate action measures (such as for instance, the action by TransCanada against President Barack Obama’s decision to block the Keystone XL Pipeline). Some commentators such as Gus van Harten and Maude Barlow argued that the Paris Agreement 2015 include language to prevent use of investor-state dispute settlement clauses against climate measures. Recommendation 22 There has been concern that the Paris Agreement 2015 could be undermined by the passage of the Trans-Pacific Partnership – the Pacific Rim regional trade agreement.