06 February 2010

No jam with porridge?

ACMA, the national telecommunications regulator, has released a 40 page discussion paper [PDF] on mobile phone jamming.

At the moment use of devices for the purpose of jamming mobile phones is broadly prohibited. That restriction dates from 1999 when ACMA's predecessor published the Mobile Phone Jammer Prohibition, which formally sought to "prohibit the supply and operation of specified radiocommunications devices commonly known as mobile phone jammers" after criticism that "a small number of retailers were marketing mobile phone jammers" and the regulator "could not identify any legitimate uses for them".

ACMA has come under pressure from other government agencies to loosen or even abandon the prohibition. In particular, correctional agencies (ie the public/private bureaucracies that operate places where you can share a cell or shower with Bubba ... and twenty of his mates) have argued that use of jammers at prisons is a key law enforcement tool.

That argument reflects incidents where visitors or prison staff have been found smuggling mobiles to inmates, or where inmates have been found to have used mobiles, a use that breaches institutional expectations regarding discipline and denies the prison operator the ability to monitor incoming/outgoing calls (a monitoring that's useful if the inmates are threatening witnesses, attempting to commission a 'hit' on a judge or rival, seeking to coordinate drug importation/distribution or to corrupt some of their keepers).

ACMA indicates that it
has formed the preliminary view that a trial of mobile phone jammers, at a suitable correctional facility, would be a useful first step in evaluating the feasibility of making regulatory arrangements to enable ongoing deployment of mobile phone jammers in correctional facilities in Australia.
In particular, [it] is considering the potential for an exemption to the Mobile Phone Jammer Prohibition to facilitate the trial of mobile phone jammers at the Lithgow Correctional Centre, a maximum security correctional facility in regional NSW.
The paper -
# examines the ten year history of the Mobile Phone Jammer Prohibition and its interaction with other provisions of the Radiocommunications Act;

# considers the Mobile Phone Jammer Prohibition within the broader context of relevant regulatory theory;

# identifies problematic aspects of the current regulatory approach;

# explores options for future regulation of mobile phone jammers; and

# invites comment on those options and other matters relating to the regulation of mobile phone jammers; including consideration of the proposed trialling of mobile phone jammers at the Lithgow Correctional Centre.
It concludes that -
The making of exemptions over the past 10 years has brought into question one of the main reasons for the general prohibition of mobile phone jammers — the understanding that no legitimate uses for mobile phone jammers existed. However, the legitimate uses that have emerged are generally sector specific (defence, law enforcement, emergency situation management). That is, while some of the reasons given for making of the Mobile Phone Jammer Prohibition in 1999 would now be qualified, other concerns remain valid (such as the use of jammers for nuisance purposes) and some new issues have arisen (such as the potential use of jammers by terrorists).

iiNet, BitTorrent and the FCA

The Federal Court in the 'iiNet Case', ie Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24 has created fun for intellectual property undergrads with a judgment on whether Australian internet service provider iiNet authorised infringement of the Copyright Act 1968 (Cth) by subscribers who were using BitTorrent to snaffle free copies of feature films.

In his 200 page judgment Cowdroy J notes that -
As far as I am aware, this trial, involving suit against an ISP claiming copyright infringement on its part due to alleged authorisation of the copyright infringement of its users or subscribers, is the first trial of its kind in the world to proceed to hearing and judgment.
He indicates that -
The critical issue in this proceeding was whether iiNet, by failing to take any steps to stop infringing conduct, authorised the copyright infringement of certain iiNet users.

The first step in making a finding of authorisation was to determine whether certain iiNet users infringed copyright. I have found that they have. However, in reaching that finding, I have found that the number of infringements that have occurred are significantly fewer than the number alleged by the applicants. This follows from my finding that, on the evidence and on a proper interpretation of the law, a person makes each film available online only once through the BitTorrent system and electronically transmits each film only once through that system. This excludes the possible case of a person who might repeatedly download the same file, but no evidence was presented of such unusual and unlikely circumstance. Further, I have found, on the evidence before me, that the iiNet users have made one copy of each film and have not made further copies onto physical media such as DVDs.

The next question was whether iiNet authorised those infringements. While I find that iiNet had knowledge of infringements occurring, and did not act to stop them, such findings do not necessitate a finding of authorisation. I find that iiNet did not authorise the infringements of copyright of the iiNet users. I have reached that conclusion for three primary reasons.
What were those reasons? Cowdray J indicates that -
Firstly, in the law of authorisation, there is a distinction to be drawn between the provision of the ‘means’ of infringement compared to the provision of a precondition to infringement occurring. The decisions in Moorhouse, Jain, Metro, Cooper and Kazaa are each examples of cases in which the authorisers provided the 'means' of infringement. But, unlike those decisions, I find that the mere provision of access to the internet is not the 'means' of infringement. There does not appear to be any way to infringe the applicants' copyright from the mere use of the internet. Rather, the 'means' by which the applicants' copyright is infringed is an iiNet user's use of the constituent parts of the BitTorrent system. iiNet has no control over the BitTorrent system and is not responsible for the operation of the BitTorrent system.

Secondly, I find that a scheme for notification, suspension and termination of customer accounts is not, in this instance, a relevant power to prevent copyright infringement pursuant to s 101(1A)(a) of the Copyright Act, nor in the circumstances of this case is it a reasonable step pursuant to s 101(1A)(c) of the Copyright Act. The reason for this finding is complicated and lengthy, and is not suitable for reduction to a short summary for present purposes so I shall refrain from attempting to do so.

Thirdly, I find that iiNet simply cannot be seen as sanctioning, approving or countenancing copyright infringement. The requisite element of favouring infringement on the evidence simply does not exist. The evidence establishes that iiNet has done no more than to provide an internet service to its users. This can be clearly contrasted with the respondents in the Cooper and Kazaa proceedings, in which the respondents intended copyright infringements to occur, and in circumstances where the website and software respectively were deliberately structured to achieve this result.
Stay tuned for the next episode.

Spot and Fluffy survive The Rapture

Counting myself as fortunate to be among those miscreants who won't be raptured (spending eternity in what looks like a bed sheet alongside the congregation of Hillsong is not my cup of tea) I was amused by an article in the Guardian about a pet-minding service for those who expect - or hope - to be experiencing a special kind of spiritual uplift in the near future.

The Guardian reports that US company Eternal Earth-Bound Pets (EEBP) is offering to take care of your pets during The Second Coming, ie when the godly folk ascend physically to heaven - one imagines that there will be temporary congestion in the airspace over Baulkam Hills - and the sinners are left behind to enjoy something like The Road, but with added cockroaches, spiders and a Derrida-quoting crit lit student or two (the latter, of course, to be offered to Billy Bob and his fellow cannibals).
What will become of your pets when you are snatched up to heaven? Really bad stuff is predicted to happen during Tribulation. How safe will a small fluffy dog be? Who will look out for the interests of an indoor cat, a tank of fish who actually have quite narrow temperature requirements, or a bird with only a few words of English?

Post-Rapture Tribulationists in the United States have a possible answer. Eternal Earth-Bound Pets, USA, is staffed by avowed atheists, also ineligible for Rapture. For a one-time charge of $110, they pledge to adopt your pet if you are Raptured within the next 10 years. Founded in June 2009, they now cover 22 states. ...

EEBP's market was originally conceived of as post-Rapture Tribulationists; it now appears narrower: post-Rapture Tribulationists who love particular pets, and who can bring themselves to trust atheists.
Can the unrighteous legally take money from the pious in relation to provision of services regarding an event that might just not happen?

The answer to that question is of course yes: it's matter of standard contract law. The person who expects to be raptured and wants someone to take care of Fluffy and Spot must not be under a legal disability (eg cannot be off his/her face or in barking moonbat mode when entering into the transaction) and courts would seek to determine an element of fraud but otherwise the cash registers can cling.

What if EEBP didn't perform, eg the Rapture happened and the cats n dogs were not properly looked after? Assuming that the secular legal system was still in place after the End of Time (a somewhat heroic assumption) disgruntled patrons could presumably demand their money back. Of course the wicked atheists, if not condemned to perpetual torment in a pit of fire listening to Dolly Parton or Beyonce, might plead that they had the best of intentions but were thwarted by an Act of God. We would need to look at the specific expressions in the contract, which might be akin to one of those amusing insurance contracts that promise to pay out if the Martians freeze-dry New Jersey or fritz Manhattan.

What if the godless pet minders had engaged in villainy, by for example eating said moggies and dogs? I do not purport to answer on behalf of the all highest, who might well think that eating a cat (nasty, sly, indolent creatures) was better than eating a child. In South Australia, subject to the defence of necessity, turning cats into casseroles is specifically prohibited by s 10 of the Summary Offences Act 1953 (SA), with a penalty of $1250. That Act does not make it an offence to eat babies or members of the clergy, elsewhere penalised as interference with a corpse.

03 February 2010

What a difference a day makes

What a difference a day makes, twenty four little hours. You can go to bed wondering whether the parliamentary draftspeople in South Australia are asleep (or merely monstered by an unwise Minister) and at breakfast next morning the state Attorney-General is busy recanting the Government's past enthusiasm for law restricting electoral comment.

Yesterday I questioned the appropriateness - and constitutional viability - of changes to the Electoral Act 1985 (SA) which came into effect last month, were supported by the Opposition in the SA Parliament and were criticised by the Adelaide Advertiser.

This morning SA Attorney-General Atkinson, who's previously been bruised - albeit arguably not enough, given comments that he'll take the SA bikie law to the High Court after rejection by the SA Supreme Court - is busy distancing himself from the Electoral Act changes. The Opposition appears to be trying to outpace him with disavowals.

Mr Atkinson is reported by the ABC as saying that he has listened to the community (presumably including the denizens of the newspaper he lambasted as a sewer of identity theft) and will repeal the changes. He reportedly explained that he 'misjudged South Australian public opinion'.

Howls from the sewer rats (or merely raised eyebrows in the Adelaide Club) should be less important than policy based on whether legislation can be effectively implemented, whether it is constitutionally viable (implied right of political communication, anyone?) and whether it is just. Oops, let's not think about principle when an election beckons and a media release is on hand.

The SA Opposition, fierce bad rabbits all, have very bravely "branded the law an attack on freedom of speech" and called on Mr Atkinson to resign. Queried about their flipflop, the Opposition has announced it was tricked! Oh dear. The ABC reports Shadow Attorney-General Vickie Chapman as admitting that the party was 'misled'. Never fear, the rabbits are ever vigilant it seems and now ready to denounce Mr Atkinson: "He clearly wanted to use this legislation to hunt down any of those who criticised him or the Government and that was made absolutely clear yesterday by his statements and behaviour".

The Advertiser's site features a late night statement by Mr Atkinson, alas not available as a media release on the Government sites, in which he indicated that -
I will immediately after the election move to repeal the law retrospectively. ... It may be humiliating for me, but that's politics in a democracy and I'll take my lumps.

This way, no one need fear now that they are being censored on the net or in blogs, whether they blog under their own name or anonymously. The law will be repealed retrospectively.

I call upon all the other political parties who supported this review to also review their position.
Repeal, Minister, is necessarily retrospective: you can't repeal legislation that hasn't been enacted. Time to refresh the notes you took when studying law at ANU?

02 February 2010

'a sewer of identity theft and fraud'

The website of the Adelaide Advertiser (ie the South Australian equivalent of the Age or SMH) notes comments by the South Australian Attorney-General regarding reporting by that newspaper and restrictions on comment in relation to elections.

Mr Atkinson's reported comments are interesting as an expression of hostility or fear: he reportedly "expected The Advertiser and AdelaideNow to 'publish false stories about me, invent things about me to punish me'".

They are also of interest for apparent hyperbole, with a reported characterisation of the newspaper's site as "not just a sewer of criminal defamation" but also "a sewer of identity theft and fraud". Strong words from a leading politician in condemning the state's leading newspaper. It is unclear whether Mr Atkinson is invoking the 'identity theft' provisions in sections 144A through 144F of the Criminal Law Consolidation Act 1935 (SA) in dealing with the "sewer".

The fracas reflects disagreement about restrictions on anonymous/pseudonymous comment on elections, with a state election due to take place next month.

Changes via the Electoral (Miscellaneous) Amendment Act 2009 (SA) [here] to the Electoral Act 1985 (SA), in effect from 6 January this year, require anyone publishing a comment on the election to include their real name and postcode as part of the publication.

The requirement has been construed by some critics as covering bloggers, people whose letters are published by the editors of print publications such as the Advertiser (and a newspaper's online presence such as the AdelaideNow site), the ABC's The Drum site, Facebook and Twitter.

Media organisations are obliged to retain a person's real name and full address on file for six months, with a potential penalty of $5000 if they do not provide that information to the state Electoral Commissioner.

The requirement is a significant extension of the identification requirements in party political advertising - for example s 328 of the Commonwealth Electoral Act 1918 (Cth) - and in the words of one contact has the potential to be misused for political blacklists. Should we allow anonymous and pseudonymous political comment? Is the legislation going to be effective, given the ease with which South Australians - irresponsible, malicious, conscientious or otherwise - can establish online publications offshore with faux identities?

Section 116(1) of the amended Act specifies that -
A person must not, during an election period, publish material consisting of, or containing a commentary on, any candidate or political party, or the issues being submitted to electors, in written form, in a journal published in electronic form on the Internet or by radio or television or broadcast on the Internet, unless the material or the programme in which the material is presented contains a statement of the name and address (not being a post office box) of a person who takes responsibility for the publication of the material.
A "journal" is defined by that section as being "a newspaper, magazine or other periodical", a characterisation that arguably excludes tweets, blogs and frenetic SMS.

Section 116(2) provides that the obligation does not apply to -
(c) the publication in a journal (including a journal published in electronic form on the Internet) of an article, letter, report or other matter if
(i) the name and address (not being a post office box) of a person who takes responsibility for the publication of the material is provided to the publisher of the journal and retained by the publisher for a period of 6 months after the end of the election period; and

(ii) the journal contains a statement of the name and postcode of the person who takes responsibility for the publication of the material
The South Australian Government has so far been discomforted by responses to gesture-based lawmaking such as the anti-bikie statute recently overturned by the state Supreme Court. As with much gesture legislation, typically announced in the lead-up to an election and often redundant, it will be interesting to see whether the Government takes action against any breach of the Act and whether that action is upheld by the High Court.

Hairdresser hermeneutic

Woody Allen, in 'The Schmeed Memoirs', made fun of the disingenous accounts by technocrats such as Albert Speer and Werner von Braun or artists such as Leni Riefenstahl. Allen notes that -
The seemingly inexhaustible spate of literature on the Third Reich continues unabated with the soon to be published Memoirs of Friedrich Schmeed. Schmeed, the best-known barber in wartime Germany, provided tonsorial services for Hitler and many highly placed government and military officials. As was noted during the Nuremberg Trials, Schmeed not only seemed to be always at the right place at the right time but possessed "more than total recall" and was thus uniquely qualified to write this incisive guide to innermost Nazi Germany.
Schmeed explains that -
I have been asked if I was aware of the moral implications of what I was doing. As I told the tribunal at Nuremberg, I did not know that Hitler was a Nazi. The truth was that for years I thought he worked for the phone company. When I finally did find out what a monster he was, it was too late to do anything, as I had made a down payment on some furniture. Once, toward the end of the war, I did contemplate loosening the Fuhrer's neck-napkin and allowing some tiny hairs to get down his back, but at the last minute my nerve failed me.
After reading 7 Annual Review of Critical Psychology, devoted to Lacan, I wonder whether we need a hairdresser hermeneutic, just the thing for devotees of Zizek and other pomo provocateurs.

ARCP ("an international peer-reviewed online open-access journal") features an interview with Lacan's hairdresser (347-354).

Prior to the Enlightenment, that sadly under-appreciated development, people reverenced sacred trinkets such as the prepuce of Christ (at least five prepuces, all no doubt authentic and of course fully equipped with miraculous powers, were available in 1500), holy nails from The Cross, bits of Noah's Ark, knucklebones of saints and so forth. (I confess to enjoying the tale of the virtuous woman who demonstrated her piety and concern for her community during a pilgrimage by bending to kiss the preserved paw of a saint, biting off one of his digits and triumphantly taking that pirated bit of bone back to her local church where it became a local treasure). In 2010 we like our relics nicely disinfected and disembodied: come worship, true believers, at the virtual shrine of Jacques Lacan rather than worrying that your cleaner will throw out a clipping of St Jack's hair - blue rinse and all - acquired on eBay or that the cat will turn said relic into a furball.

'Lacan's hairdresser: an encounter with Karolos Kambelopoulos' by Stavros Psaroudakis, Ian Parker & Erica Burman notes that parts of the text "may not correspond to other published accounts that are grounded in empirical truth claims".

Ah, academia. Let's enjoy the tale and not worry about dusty "empirical truth claims" or boring facticity.

Kambelopoulos recounts that -
He was never a one to wait in the salon, he never wanted to wait. I would arrange everything, because every day I did 30 clients and so when he had the appointment I knew I had to arrange everything. And then one time he came and I couldn’t arrange everything. I had four clients and so he goes up to have his shampoo and his blue rinse, and he says to me 'What time will you see me', and I told him I'm not free so you have to wait a bit, go and sit down. Anyway he had a pink bib on, and the blue rinse was going down on it, and he was annoyed, and then he got up and then went out and went home, with the blue rinse still on and the pink bib. The owner of Carita told me that he'd gone home with all of the blue rinse on him, and she told me that I have to go and to see him at home. So, I had to go to his house. She was very furious, and she was the one who insisted that I follow him to his house and cut his hair. So I went there and he was in his bathroom, sitting there waiting, and he told me 'I like Greek people'. So then I cut his hair, and then I when I was finished I took the tip of hundred francs and I said to him 'Now Doctor Lacan I don't any more want to cut your hair anymore'. ...

That was the last time I cut his hair. He never came back, and the owner of Carita said to me 'It was because of you that Lacan came here, but now we have lost him'. I used to see him in exhibitions and in the theatre and he used to say to me ‘I like you very much, but you don’t want to cut my hair'. It wasn't pride, my pride that made me say 'No', and refuse to cut his hair again, it was just that he was such a spoilt man. ...

I used to meet him many times outside an exhibition, and he used to speak to me and I would speak to him, but I was clear that I never was going to cut his hair again. You know, he was furious because I wouldn’t cut his hair. I only went to his house that one time to cut his hair that was the last time, as I said. When he came to the Carita salon he just had his hair done, he never had a massage or a shave or anything like that.
With that in mind I'm wondering about rediscovering the memoirs of Carl Schmitt's pedicurist, an interview with the girl who sold Roland Freisler a cream cake in 1932 or the guy who fixed a flat tyre on Vyshinsky's limo in 1946.

01 February 2010

PBR report

The Advisory Council on Intellectual Property (ACIP), a national entity that advises IP Australia (the Australian equivalent of the USPTO), has released a 138 page report [PDF] on Enforcement of Plant Breeder's Rights.

The report was commissioned by the Government in 2005, with ACIP to -
inquire, report and make recommendations to the Australian Government on issues relating to the enforcement of plant breeder's rights in Australia and to consider possible strategies to assist Australian plant breeder's rights holders to effectively enforce valid rights. The review should include a consideration of whether any practices and procedures relating to the enforcement of plant breeder's rights are appropriate to be referred to the Federal Magistrates Court.
The current document reflects feedback on an initial report, ie an exposure draft. It relates to the Plant Breeder's Rights Act 1994 (Cth), an industrial property statute that gives monopoly rights - subject to some infringement defences and restrictions - regarding plant varieties (eg breeds of corn that have been tailored for rapid growth or drought resistance).

Section 11 of that Act thus characterises PBR in a plant variety - no, contrary to alarums and soothsaying among the alfoil beanie demographic you cannot get PBR in a human - as the exclusive right, subject to that Act, to -
do, or to license another person to do, the following acts in relation to propagating material of the variety: (a) produce or reproduce the material; (b) condition the material for the purpose of propagation; (c) offer the material for sale; (d) sell the material; (e) import the material; (f) export the material;(g) stock the material for the purposes described in paragraph (a) through (f).
The Act gives effect to the International Convention for the Protection of New Varieties of Plants (UPOV Convention), with protection typically being for 20 to 25 years and covering 'plants' such as trees, vines, grains and vegetables. The regime is similar to that under the Patents Act 1990 (Cth), with for example a registration requirement.

The report makes recommendations about the enforcement of the rights meant to be enjoyed under PBR. They include -
1 A new “purchase” right be added to s.11. This new right would only apply to those taxa that are specifically declared in the regulations. Industry sectors such as wheat breeders would apply to the PBR Office to have particular taxa so declared.

2 The PBR Act be amended to clarify that harvested material that is also propagating material is to be considered as propagating material for the purposes of s.11, even if it is not being used for that purpose.

3 No changes be made to extended rights under s.14 and 15.

4 There be no change to the operation of farmer’s privilege under s.17. However, s.17 should be amended to state in easily understood terms that s.17 does not provide the farmer with the right to perform the acts listed in s.11(a) to (g). For example, the farmer will still require the PBR owner’s authorisation to sell the reproduced propagating material, the harvested material or the product of the harvested material.

5. As part of IP Australia’s education and awareness programs, raise industry awareness of the opportunity under s.17(2) to have specific taxa excluded from the farmer’s privilege exemption.

6. Encourage PBR owners to make clear to growers the conditions of sale of propagating material and their obligations in relation to future generations of it. This includes making clear that growers require the authorisation of the PBR owner to sell crops grown from farm-saved seed.

7. No changes be made to s.17 in relation to asexual propagation at this time.

8. Enable Essentially Derived Variety (EDV) declarations to be made in respect of any variety.

9. Amend s.4(c) by replacing the test for important features with a test for essential characteristics.

10. Retain responsibility for EDV declarations with the PBRO and ensure the PBRO has the ability to assess such applications. This may involve the PBRO seeking advice from an external body or expert. If, in the future, a Patent Tribunal is established and proves successful, consideration should be given to expanding its remit to include declarations of EDV.

11. In relation to s.23 and exhaustion: A. No changes be made to s.23 as it applies to the current acts referred to in s.11. B. Section 23 be amended to provide that PBR does not extend to an act of purchase of the material referred to in s.11 that takes place after the propagating material has been sold by the PBR owner unless that act involves any production or reproduction of the propagating material. This includes growing the first generation crop comprising propagating material that is grown from purchased propagating material. C. Clarify in the PBR Act that the mere sale of propagating material G0 for purposes of growing and selling G1 does not necessarily imply a licence to purchase crop G1.

12 An on-going Expert Panel be established to provide guidance and opinions on general issues or specific cases concerning the PBR Act and related law. The Panel should comprise appropriate people with expertise in relevant areas who provide their services as required. Upon request from any person and for a moderate fee, the Panel may provide detailed guidance and opinions on general issues or specific cases concerning the PBR Act and related law. The Panel should focus on the enforcement of granted rights and not provide advice on the registrability of individual applications for PBR. The Panel’s opinions should be made publicly available in a manner that respects commercially sensitive material. The Panel may refer matters to the Government or ACIP as it sees fit.

13. No changes be made to the pre-grant enforcement provisions.

14. The jurisdiction of the second tier of the Federal Court of Australia to include PBR matters. Appropriately qualified magistrates must be made available and there should be appropriate measures taken to ensure the processes of the second tier are faster and cheaper than in the first tier. Examples include simplifying and standardising procedures for expert evidence and DNA testing through the issuing practice notes, use of alternate dispute resolution where appropriate, and curtailing of the discovery phase.

15. IP Australia facilitates ADR for parties in dispute by establishing, maintaining and making publicly available basic information on the ADR options available to PBR owners and a register of ADR service providers with PBR and plant breeding experience. As part of its review of post-grant patent enforcement strategies, ACIP is currently considering the establishment of an IP dispute resolution centre. The centre envisaged by ACIP would provide mediation, appraisal, and validity and infringement opinion services, delivered by experts drawn from a panel on a case-by-case basis. If such an IP dispute resolution centre is established for patents and proves successful, consideration should be given to extending its services to PBR matters. The IP dispute resolution centre envisaged by ACIP would also provide non-binding determinative service though a Patent Tribunal. If a Patent Tribunal is established and proves successful, consideration should be given to extending its jurisdiction to PBR matters.

16. IP Australia to liaise with the AFP and CDPP with a view to increasing the number of investigations and prosecutions of PBR cases due to the special circumstances (including the marginal profitability of some sectors and an apparent widespread lack of compliance) that exist in the plant breeding industry.

17. Introduce an Information Notice system into the PBR Act based on the UK Information Notice system. This would enable PBR owners to obtain information from suspected infringers on the source of plant material. Where this is not supplied within a reasonable time, legal proceedings may be commenced in which the presumption is made that the plant material was obtained through unauthorised use of propagating material and that the PBR owner did not have a reasonable opportunity to exercise its rights in relation to the material.

18 Introduce into the PBR Act PBR seizure powers for Customs which incorporates features of the Australian notice system for trade marks and the European system. The system should minimise the resources and skills required of Customs, enable the PBR owner to identify the imported material and allow cases where there has been
infringement to be resolved quickly and without legal action.

19. Introduce exemplary damages provisions for PBR based on s.122 of the Patents Act.

20. The Government take no action in establishing an industry peak body or collecting agency at this time. The Government should reconsider this approach should sectors of the plant breeding industry come to an agreement on the structure and function of a central body and seek the Government’s assistance.

21. IP Australia focus its PBR educational and awareness efforts on the tertiary sector. This should involve increasing its involvement in facilitating PBR education curricula and other information fora. IP Australia should investigate facilitating the inclusion of PBR curricula in university science and science-related courses and at agricultural colleges.

22. The Government take no action in relation to the development of standard contracts and licence agreements at this time.

23. It is not clear whether sections 52 and 53 of the Trade Practices Act 1974 and various State and Territory Fair Trading Acts provide sufficient protection against mendacious variety declaration. If existing legislation does not make it illegal for a corporation or person to knowingly and falsely represent a PBR protected variety, the PBR Act should be amended to make such an act an infringement of PBR.

31 January 2010

Inclusion and inequality

I've been looking at the 113 page Social Inclusion in Australia: How Australia Is Faring report [PDF] by the Australian government's Social Inclusion Board and the 476 page An Anatomy of Economic Inequality in the UK: [PDF] report by the UK National Equality Board.

Both documents are of interest for the data they provide, for questions about data collection/analysis, and for insights about how governments (and academia and NGOs) see the world.

The Australian Board is a national government agency established as part of the social inclusion agenda. Its report provides a justification for government initiatives that aim to address sectoral and/or regional disadvantage (including disadvantage in terms of infrastructure and employment opportunities.

The report reinforces challenges highlighted by Tony Vinson's Dropping off the edge report, which indicated that different kinds of disadvantage such as relatively lower educational attainment, higher unemployment, lower incomes, higher crime rates, poorer health, poorer housing and 'social connectedness' tend to coincide for individuals/families and locations.

It comments that -
Social inclusion is about ensuring that everyone is able to participate fully in Australian society. It is about people having the necessary opportunities, capabilities and resources to enable them both to contribute to and share in the benefits of Australia's success as a nation. Including everyone is important because, as a nation, we strongly value fairness.

Fairness has the potential to improve the well-being of everyone by: eliminating the threats to security and harmony that arise from excluding groups in our society; improving economic performance by allowing everyone to make a contribution; and enhancing pride in being a society which not only values fair treatment and opportunity, but actually works hard to achieve it.
No mention of justice or dignity in the Australian social inclusion idiom, and - understandably - no reference to the 'sexual citizenship' characterised by David Evans in 2003.

The report notes that -
Despite a period of prolonged economic growth, and by world standards considerable resilience in the face of the Global Financial Crisis, we remain a nation where achievement in education and individual health bear a strong relationship to socioeconomic status:
+ Only 47% of people aged 20–24 years from the bottom 10% of the socio-economic ladder attain year 12, compared with 83% from the top 10%.
+ 35% of people in the lowest income quintile report fair or poor health compared to only 7% in the highest income quintile ...

Segments of our society can suffer more from economic downturns, for example between June 2008 and June 2009, the proportion of the population aged 15 to 64 years who have paid work fell from 73.4 to 71.8%, a fall of 1.6 percentage points, whereas for lone parents, the fall was close to 5 percentage points, and for lone parents with their youngest child under 5 years, the fall was 8 points.
The UK report considers six 'strands' of inequality: gender, age, ethnicity, religion, disability and sexuality. In principle discrimination regarding those strands has been addressed by human rights legislation over the past decade. Critics currently appear to be having fun picking apart the report, for example arguing that data in the report provides a basis for quite different conclusions (eg uptake of higher education by some 'ethnic' groups) and questioning assertions that increased inequality is attributable to discrimination rather than to an (ostensibly neutral) meritocratic system.

The UK report states that -
For many readers, the sheer scale of the inequalities in outcomes which we present will be shocking. Whether or not people’s positions reflect some form of 'merit' or 'desert', the sheer degree of difference in wealth, for instance, may imply that it is impossible to create as cohesive a society as they would like. Wide inequalities erode the bonds of common citizenship and recognition of human dignity across economic divides. A number of analysts have pointed to the ways in which large inequalities in the kinds of economic outcome we look at are associated with societies having lower levels of happiness or well-being in other respects, and to the social problems and economic costs resulting from these.

When considering whether the degree of inequality is 'justified' or not, an important distinction lies in how people judge inequalities between groups such as those between women and men or between ethnic groups, and inequalities within those groups. Where differentials in, say earnings, reflect differences in work experience, creating differences by age, this might be seen as reasonable. But systematic differences between groups – for instance, by gender, ethnicity or religion – unrelated to experience or qualifications, constitute what would be seen by some as being the most central issue, violating fundamental principles of social justice, rooted in recognition of equal worth and respect. At the same time, even if such differences were eliminated completely so that, for instance, men and women enjoyed equal incomes, but there remained large gaps between low and high income men and low and high income women respectively, many would still not regard the resulting distribution as fair, as society as a whole would remain more unequal than they thought was just.

This is, in part, because a crucial test of whether inequalities in outcomes are seen as fair or unfair will depend on whether they reflect choices made against a background where the opportunities open to people were equal to start with, or whether they stem from aspects of their lives over which they have manifestly little control. Most people and all the main political parties in Britain subscribe to the ideal of ‘equality of opportunity’. The systematic nature of many of the differentials we present, and the ways in which advantages and disadvantages are reinforced across the life cycle ... make it hard, however, to sustain an argument that what we show is the result of personal choices against a background of equality of opportunity, however defined. Inequality in turn then acts as a barrier to social mobility.
Christopher Caldwell in the Financial Times responded dismissively, commenting that -
The class problems that progressive governments make it their business to manage have mostly been solved.

The problems that remain are problems of meritocracy, of which inequality is a natural result. As long as economies are growing, people are content to see others get a bit more relative income. When economies stagnate, there is more political agitation for redistributing the goods that remain, and society grows less meritocratic. Ms Harman [in releasing the UK report] makes an unconvincing argument for more equal distribution of income and wealth among citizens. In the present climate, however, the public is unlikely to require any convincing at all.