CMCL and IPRIA seminar on Human Rights and Intellectual Property

June 2, 2011

By Rebecca Mouy

In a seminar on Wednesday 11 May at the Melbourne Law School, Professors Larry Helfer and Graeme Austin discussed their recently published book Human Rights and Intellectual Property: Mapping the Global Interface (Cambridge University Press, New York, 2011).

The book explores the conflation of two areas of law that have been historically isolated – human rights and IP. The authors note that governments, policymakers and activist communities often raise human rights concerns such as freedom of expression, public health, education, privacy, agriculture and the rights of indigenous people to oppose the expansion of IP rights. On the other hand, creators and owners of intellectual property argue that there are human rights justifications for expanding legal protections.

Helfer and Austin drew our attention to the Universal Declaration of Human Rights as a textual basis for the intersection of human rights and IP. Article 27 reads:

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Helfer outlined factors that have led to increased engagement between the two traditionally distinct legal regimes:

●        expansion in IP law;

●        increased attention to indigenous IP rights;

●        inclusion of IP rights in the TRIPS Agreement and implementation of treaties that exceed TRIPS standards;

●        growing recognition of human rights obligations of multinational corporations; and

●        multinational corporations’ attempts to invoke IP rights.

Helfer stated that increased engagement between the two legal regimes is inevitable. Areas where we already see conflation are: patents and the right to life; plant breeders’ rights and the obligation to provide adequate food; and trade marks and freedom of expression. It follows, in the authors’ opinion, that the more pressing concern is how the two legal regimes ought to interact.

The authors set out to develop a normative framework in which to approach the interface. Helfer discussed two emerging approaches. The approach asserted by the UN is that of ‘fundamental conflict’. This approach conceives of the two regimes as fundamentally incompatible, and asserts that human rights should take primacy over IP. It has been applied in the context of the global fight against HIV aids to argue that patent rights must be abrogated in order to prevent the deaths of millions of people. Helfer argues that the two drawbacks of this approach are that it is static rather than flexible, and that it lessens incentives to innovate.

Another approach is that of ‘co-existence’. The primary concern under this approach is how to strike the appropriate balance in order to encourage innovation as well as protect human rights. Under this approach, certain policy levers are enacted that favour access to scientific innovations, such as the Doha Declaration 2001 and compulsory licensing in Thailand and Brazil.

Helfer and Austin advocate a normative framework that moves beyond ‘conflict’ and ‘co-existence’ to a pragmatic approach based on regulatory reform. Under this approach, policymakers would ideally identify basic human rights and work backwards to develop government policies to achieve these outcomes. Such government policies would aim to harness the market (ie protect IP rights) in order to achieve human rights outcomes.

Austin spoke about the circumstances that sparked his interest in the interface of human rights and IP including a growing sense in the community that the IP regime was too strong, lasted too long and inappropriately restricted human rights. However, he felt that suggestions to constrain the IP regime were crude, impractical and inconsistent with public international law obligations. Austin sought to develop a legal and normative basis for constraining IP that was rooted in sources of international law, for example international humanitarian law.

Austin also discussed some of the complexities of engaging with human rights and IP. In particular he wanted to resist viewing the two regimes as separate. Human rights, he said, should not be regarded as ‘pushing back’ against IP. He raised the example of copyright in educational textbooks and the right to education. Austin thinks that it is ‘facile’ to say that copyright rights should give way to the right to education, and that there needs to be a very careful balance between incentives and access. Austin pointed out that there is nothing in theory in the copyright regime that prevents the creation of substitute education materials. However, if other people do not have the capacity to take advantage of the structural regime of copyright law then the copyright regime is much stronger in practice than in theory.

Associate Professor Shaun McVeigh provided commentary at the end of the seminar. He commended the authors’ treatment of international law as separate bodies and institutions, rather than an overarching or singular regime. He noted that the authors had avoided the assumption that human rights and IP are necessarily reconcilable. Finally he made reference to the pragmatic approach taken in the book, where emphasis was placed on jurists’ and students’ duties to engage with the interface of human rights and IP. Professor McVeigh also put forward three provocations:

●        How do the authors account for multiplicity of international laws, and in particular the treatment of international law by indigenous communities as opposed to the traditional European conception of international law?

●        What are the responsibilities of office of a person wishing to combine the areas of human rights and IP? Are diplomacy and policy the only ways to approach the interface?

●        Are the authors motivated by a desire to bring some of the technicality and drafting of IP law to human rights law?

Rebecca Mouy is an LLB candidate at the University of Melbourne

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Victorian Law Reform Commission Releases Recommendations on Privacy Rights

October 14, 2010

By Rebecca Mouy

The VLRC has responded to concerns about increasingly invasive surveillance technologies in public places, recommending a number of changes to the Surveillance Devices Act 1999 and creation of two new statutory causes of action for serious invasions of privacy. Further changes include prohibiting surveillance in toilets and change rooms, and the introduction of a new offence for ‘happy slapping’. Dr Anthony Bendall, standing in for the current Victorian Privacy Commissioner, welcomed recommendations including a broader role for the Commissioner to include regulation of public place surveillance.

The suggested change most likely to affect the media is the introduction of a new statutory cause of action for serious invasions of privacy caused by ‘misuse of private information’ [7.127]-[7.129]. The new statutory cause of action is not limited to public places or use of surveillance device. Thus it potentially has wide-ranging effects on the media. In a submission to the VLRC, ‘Australia’s Right to Know’ argued that media organisations should be exempt from any new cause of action [7.190]. Despite recognising that dissemination of information by the media is of great benefit to the public, the Commission disagreed with this submission. The Commission recommended that the elements (Recommendation 25) of the action should be:

(1)    The defendant misused, by publication or otherwise, information about the plaintiff in respect of which he/she had a reasonable expectation of privacy; and

(2)    A reasonable person would consider the defendant’s misuse of that information highly offensive

In comparison with reports by the ALRC Part K, Recommendation 74-2 and NSWLRC [5.2] where public interest forms part of the cause of action, the Victorian report recommends that the onus should be on the defendant to demonstrate that it was in the public interest to engage in conduct that would otherwise be unlawful [7.180]. In defining ‘public interest’, the Commission stressed that “not all matters of interest to the public are matters of public interest that ought to deprive a person of their right to privacy” [7.187], however “informing the public on a matter of public importance” [7.170]  was considered to be in the public interest. Media organisations would be able to argue consent [7.151]-[7.154] as a defence, and also traditional defamation defences of privilege7.165]-[7.166] and fair comment [7.167]-[7.169].

The report has been tabled in Parliament and is calling for public submissions.

Rebecca Mouy is an LLB candidate at the University of Melbourne.

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Who Owns the News?

August 12, 2010

By Rebecca Mouy and Jake Goldenfein

News Corporation recently announced that it was about to start charging for online access to its news. It says the future of old media in the digital age is that consumers will pay for online news content in a similar way as for hard copy ‘newspapers’ – and it seems to be far from alone in its plans. But is this a sound approach in legal and business terms?

On 8 July, IPRIA in association with the CMCL and Melbourne Business School (MBS) presented a seminar entitled ‘Who Owns the News’ chaired by Sam Ricketson. Mark Davison and Stephen King (respectively of the Monash Law Faculty and Faculty of Business and Economics) presented on legal and economic perspectives of the future of ‘the news’, and discussant Kwanghui Lim (from the MBS) offered a brief recap of each of the presentations along with some suggested business solutions available to news publishers. Speakers’ slides as well as the podcast for the seminar is now available here so the details will not be canvassed in depth here.

Ownership rights over news

Mark Davison outlined the legal framework for news ‘ownership’ in Australia, concluding there is little copyright protection available for news, especially in the wake of the High Court decision in IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14 and its application of the Federal Court’s decision in Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44 (see Michael Crawford’s article in an earlier edition of Fortnightly Review for analysis of this case). However, he argued that in the current climate Australia should not follow the US approach of ‘hot-news’ laws or the European database protection in an effort to protect ‘news’.

The ‘hot-news’ doctrine in the US provides a quasi property right in “breaking news” and posits that such news can be misappropriated, eg by other news services. Davison argued that the hot news tort followed in various US States (including New York) relies on vague criteria leading to substantial uncertainty. The European Union database protection laws, on the other hand, have provoked a great deal of discussion on the distinction between ‘collecting’ and ‘creating’ a database. After grappling with this issue for sometime, in 2005 an EC Commission report on database protection stated the net benefit of the law was unproven.

Given the unsuccessful legislative attempts to protect news abroad and the current state of flux in Australia, Davison suggests that the best course of action is not to rush hastily into legislative reform and in the meantime consider whether exclusive rights over information are desirable.

Can the iPad do for news what the iPod did for music?

A vital question facing current news services is how to survive in the age of digital publication and distribution. Economist Stephen King examined the drastic changes the Internet has effected upon the business model for news media organisations.

King discussed the changes digital distribution has brought to news production, mostly in relation to ‘convergence’. He raised the topic of news aggregators such as Google News, which allow users to search by topic and access articles from multiple sources. This gives users an effective tool for sidestepping on-line news providers who limit access to subscribers, and raised the ire of incumbent media outlets such as News Corporation. These aggregators demonstrate the quantity of professional and amateur content produced on-line, and liberate users from relying on established sources of information.

The potential pitfalls of such services are that consumers become more capable of choosing the news sources that support or reinforce individual prejudices. However, once the pretence that official news services provide more ‘objective’ information is jettisoned, it is difficult to maintain that access to more information is not beneficial to consumers. The more raw the source, arguably the less adulterated the information. Personal biases may be more prevalent, but articles can eschew the political or editorial line of an established media outlet. Arguably, numerous amateur sources provide a clearer picture than a single incumbent news service.

The net effect of the Internet upon news production, in King’s view, is thus a benefit to the consumer through increased access. Competition ultimately drives the cost consumers pay for news to nothing. King proposed that in future, consumers might only pay for ancillary services or specialist commentary (perhaps something along the lines of The Economist) rather than factual news.

In this context, he referenced the position of Rupert Murdoch that the ipad will save the newspaper. However he pointed out that this raises the question of whether a specific interaction between a device and content can provide an experience a user is willing to pay for. Arguably, the comparison between the ipad and news with the ipod and music is flawed.

Prior to the ipod and itunes, obtaining music digitally was predominantly illegal, and users knew it. Itunes subsequently provided a service that adequately competed with piracy so that the financial detriment of sating one’s conscience was in-step with user expectations. While the ipad will offer attractive paid news services through specific subscription ‘apps’, there is no moral problem in obtaining free news from other services (also accessible form the ipad). Further, findings demonstrate that paid subscriptions or walls on online news are generally unsuccessful in raising revenue unless very niche. This leaves the difficult conundrum of what kind of business model may succeed for news publishers, and a discussion of the role of public broadcasters.

In discussion, it was suggested that public broadcasters (such as the BBC and ABC) are capable of providing quality journalism with the advantage of government endowment rather than relying on traditional revenue streams such as advertising. However, in response King argued there is little justification for investing taxpayer dollars in a service that is essentially equivalent to services provided by commercial broadcasters. He suggested it also raises questions of editorial independence, especially in reference to investigative journalism. However it was noted the independence of certain commercial publishers is equally questionable, and government endowments continue to produce quality investigative journalism.

Where to from here?

Kwanghui Lim suggested the following business options for news producers.

Close down: Lim suggested that the market is saturated and the only way forward for some newspapers will be to close down. He cited statistics from the Unites States that 42% of people say that they would not miss their newspaper much, and would find it easy to access their news in other ways.

Build complimentary services: This approach requires news producers to further develop current sources of revenue, namely advertising. Lim emphasised that in the current atmosphere, the majority of revenue is made through advertising and not subscriptions.

Fight back: Here news producers would fight against the challenge of the Internet by erecting pay walls or calling for subscriptions. Only a small number of publications have managed to do this successfully, including The Wall Street Journal, The Financial Times and The Economist.

Diversify: News producers could expand to become ‘media supergiants’ following the example of News Corporation. This would allow the substantial benefit of cross-marketing.

Reconfigure: follow example of the radio to create a new market for itself, for example recasting as a local newspaper.

For more from Kwang have a look at his post on the Core Economics website. There is also a good discussion of the issues on ipwars.com.

Concluding thoughts

The seminar provided excellent food for thought. As shifts occur in the market for news production, there is no doubt that legal and economic questions will be raised. What the seminar did not provide is answers – for the simple reason that there are no clear answers yet. Nobody knows which business model might be the most successful or which new technologies will shape the changes to come. If no business model emerges as the prominent or successful way to provide news online we will eventually face the question of whether copyright law is flexible enough to deal with the continuously changing conditions of online media.

Historically the price of news has always shaped the tone of content. When the first cheap newspapers emerged in the early 19th century, the consumer’s predisposition for ideological discussions, commentary on principles, and articles with political flavour were replaced by a developing interest in information and current events. With competition driving the cost to zero, this may equally drive professionally produced content away from in-depth investigation and commentary. As such, business models have been postulated where current events and information are free services, while niche commentary attracts subscription fees. However it is difficult to avoid the trend of competition pushing prices to nil.

Several audience members referenced the maxim that ‘good journalism has to be paid for’. While clearly there is a case for professional journalism, arguably the Internet has also provided a habitat for digital communities dedicated to exposing truths and bringing incumbent powers to account. While the form of content may be changing and the influence of established media dwindling, writers will always write and the modern obsession with sharing information will only grow.

Rebecca Mouy is an LLB candidate at the University of Melbourne.

Jake Goldenfein is an LLB graduate from the University of Melbourne.

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