25 July 2017

NZ Geographical Indications

The Geographical Indications (Wine and Spirits) Registration Amendment Bill (NZ), which amends the Geographical Indications (Wine and Spirits) Registration Act 2006 (NZ), and the Geographical Indications (Wine and Spirits) Registration Regulations 2017 come into effect on 27 July 2017.

The GI Bill was introduced to Parliament in November 2015 and received Royal Assent on 25 November 2016 following consultation around an exposure draft of the proposed regulations and fees schedule.

The NZ Government indicates that
In New Zealand, protection for geographical indications is provided by the Fair Trading Act 1986, the common law tort of ‘passing off’ and through trade mark law. The Geographical Indications (Wine and Spirits) Registration Act 2006 establishes a registration system for wine and spirit geographical indications ...
 Section 9 of the Fair Trading Act 1986 provides that "No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive". A product that does not originate from the geographical area indicated, or that does not possess the characteristics for which a geographical indication is known, could be found to breach the Act. ...
The law of passing off prevents one trader from passing their goods or services off as those of another. Passing off has been used in New Zealand by French wine interests to prevent non-French winemakers from labelling their sparkling wine with “Champagne” (a term protected as a geographical indication in the European Community). For a passing off action to succeed:
There must be goodwill attached to the goods or services.
There must be a misrepresentation, whether intentional or not.
There must be damage to the goodwill. ...
A geographical indication may be protected in New Zealand as a trade mark, including as a collective or certification trade mark.
The 2014 Cabinet Paper regarding the reforms states
The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) sets out minimum standards for the protection of GIs . In New Zealand, these standards ar e met through the Fair Trading Act 1986 , the common law tort of passing off, and the Trade Marks Act 2002.
In relation to wine , there is additional protection for GIs under the Wine (Specifications) Notice 2006 ( Notice ) issued by the New Zealand Food Safety Authority under truth in labelling requirements of the Wine Act 2003. The Notice requires that where a label includes information about the origin of wine at least 85% of the wine must be made from grapes grown in the stated area ( 85% rule).
In relation to spirits, additional protection for GIs is provided under standard 2.7.5 of the Australia New Zealand Food Standards Code  Standard 2.7.5 provides that a geographical indication must not be used in relation to a spirit, even where the true origin of the spirit is indicated or the geographical indication is used in translation or accompanied by expressions such as ‘kind’, ‘type’, ‘style’, ‘imitation’ or the like, unless the spirit has been produced in the country, locality or region indicated.
A single regulatory regime specifically designed for GIs (sui generis regime) has never been implemented in New Zealand. The use of GIs by New Zealand producers is largely confined to the wine industry. Foreign producers, and especially foreign wine and spirits producers, also use GIs in the marketing of their products in New Zealand.
Background to the Geographical Indications (Wine and Spirits) Registration Act 2006
In 2004 there was a substantial risk that New Zealand wine exports would be blocked from the EU market because the EU considered they were not using “officially recognised” GIs on their labels. The EU’s regulatory system for wine imports is complex and highly prescriptive, both in terms of technical standards and labelling requirements. Under the EU regime, the use of GIs on wine labels is necessary for other essential information, such as vintage and grape variety, to be able to be used in the marketing of wine.
The ban would have had a catastrophic impact on the New Zealand wine industry. At that time, the EU was the largest and most significant export market for New Zealand wine. Wine exports to the EU were returning around $140 million in export earnings (approximately 46% of the total export earnings for wine).
The Government’s response was to pass the Act. The intention behind the Act was to align our law more closely with our international obligations under the TRIPS Agreement and to protect wine exports to the EU by bringing our registration system for wines and spirits GIs into conformity with EU requirements.
The Act would impose one main restriction in respect of wine labels. A person would only be able to use a registered wine GI in trade (i.e. on a label) if at least 85% of the wine was obtained from grapes harvested within the GI’s registered boundary. This requirement duplicates the 85% rule currently required under the Wines (Specifications) Notice 2006. The Act would be administered by the Intellectual Property Office of New Zealand (IPONZ). ...
Why is implementation being proposed now?
First, TRIPs and EU wine related negotiations are no longer viable; secondly exports have grown significantly, and consequently the value of NZ wine’s reputation and the risk associated with its misuse have grown as well. Finally, a 2011 industry-commissioned review by PricewaterhouseCoopers (PwC) showed that future industry growth would involve Asian markets where misuse of label information generally was recognised to be a major problem in the alcoholic beverages sector.
The PWC review formed the basis for a new export/development strategy for the wine industry, which reaffirmed the central importance of GI development, registration and enforcement. The new strategy involved the use of GIs to give added focus to marketing authentic, distinctive, yet evolving, wine stories, and to protect the geographical aspects of “Brand New Zealand” from misappropriation or obstruction by offshore parties.
The value of wine exports to the EU has grown steadily from $140 million in 2004 to around $408 million in 2014. Over the same period, total export earnings have grown from $303 million to around $1.3 billion. New Zealand produces wine in a cool climate, leading to distinctive flavours that are the foundation for higher quality wines and which also results in lower yields and higher costs. In order to be sustainable, the industry operates in the premium and super-premium segments of the global wine market. New Zealand wine’s reputation is crucial to its success in such markets and GIs enhance this reputation by making it easier for the industry to differentiate its products from those sold at the commodity end of the market.
NZWine favours implementation of the Act as a means of safeguarding market access to the EU. It also sees implementation as useful for protecting and promoting their products in export markets, [Remainder of paragraph 25 withheld under sections 9(2)(b)(ii) and 9(2)(ba) of the Official Information Act 1982.]
Comment
From a trade perspective, the Ministry of Foreign Affairs and T rade considers there would be a number of key benefits arising from the implementation of the Act which were absent from or not adequately addressed by the Covec report. Implementation would:
  • support New Zealand’s interests in launching an FTA negotiation with the EU; 
  • facilitate sui generis GI protection in overseas markets which would provide the New Zealand wine industry with an important tool to help protect and enforce its GIs in those markets and, therefore, would support its overall export growth strategy; 
  • assist in safeguarding market access for New Zealand wine in the EU market; and
  • [bullet point withheld under section 6(a) of the Official Information Act 1982]
MBIE considers that from a non-trade perspective, at this point in time there is not a compelling case for implementation to be a priority for the Government. While implementing the Act would impose new regulatory and business compliance costs on the New Zealand wine and spirits industry, there are unlikely to be any significant benefits that would be realised through its implementation. There does not appear to be any significant misuse of wine or spirits GIs in the New Zealand market that the implementation of the Act and registration of regional names as GIs would address. The small number of cases related to the misuse of GIs and regional names that have occurred have been effectively dealt with under the existing regulatory framework.
MBIE commissioned economic consulting firm Covec to analyse the costs and benefits of implementing the Act. Covec concluded that the costs and benefits of implementing the Act are finely balanced, and the costs and benefits would be likely to be small ($1-4 million each, compared to the total export earnings of the New Zealand wine and spirits industries of around $1.3 billion). While Covec could not identify any benefits in the domestic market from implementing the Act, it did identify potential future benefits in relation to export markets but these were uncertain and difficult to model. A copy of Covec’s report is attached to this paper as Appendix A.
Implementing the Act will have resource implications for the Commerce and Consumer Affairs portfolio and MBIE. The Act as currently drafted requires amendment and regulations setting out the regist ration procedures need to be developed. There are likely to be opportunity costs for the Government from prioritising implementation of the Act over other Commerce and Consumer Affairs projects that are more likely to have a net beneficial impact on the economy.
There are also a number of potential risks should the Act not be implemented. These include:
  • not responding in a timely manner to legitimate industry concerns which could undermine industry trade strategies and growth potential; 
  • [bullet point withheld under section 6(a) of the Official Information Act 1982] 
  • [bullet point withheld under sections 6(e ) (vi) and 9(2)((j) of the Official Information Act 1982]
These benefits and risks are discussed in more details in the following sections A to D.
A Implementation would support New Zealand’s interest in securing FTA negotiations with the EU.
New Zealand is currently engaged in a bilateral “reflection process” to explore the trade and economic relationship with the EU, with a view to the possible opening of FTA negotiations. New Zealand is the demandeur in this regard; we are one of only six WTO members who do not have or are negotiating some form of preferential access to the EU market, and securing an FTA is a priority for the government. [Remainder of paragraph 25 withheld under section 6(a) of the Official Information Act 1982.]
[First sentence of paragraph 33 withheld under section 6(a) of the Official Information Act 1982.]. Since the Act was passed, the EU has remained highly interested in when it will be implemented. The issue of the Act’s implementation is a regular item on the agendas of the annual Agricultural Trade and wider Trade Talks with the EU.
New Zealand has previously explained to the EU that the reason the Act has not yet been brought into force is because it is not in New Zealand’s interests to impose additional regulatory and business compliance costs on the New Zealand economy through implementation, when there is no domestic demand or support for its implementation. [Remainder of paragraph 34 withheld under sections 6(a), 6(e)(vi) and 9(2)(j) of the Official Information Act 1982.]
[Paragraph 35 withheld under sections 6(a),6(e)(vi) and 9(2)(j)) of the Official Information Act 1982.] 
[Paragraph 36 withheld under sections 6(a), 6(e)(vi) and 9(2)(j)) of the Official Information Act 1982.]
[Paragraph 36 withheld under sections 6(a),6(e)(vi) and 9(2)(j)) of the Official Information Act 1982.]
Implementation could facilitate sui generis protection in overseas markets
As discussed above, protecting its GIs in export markets is an important element in NZWine’s overall strategy to grow export returns.
Many of New Zealand’s key export markets for wine provide for some form of sui generis system, such as a registration regime, for granting protection to wine GIs. Being able to demonstrate that a New Zealand GI is officially recognised in New Zealand can assist the applicant to gain sui generis protection for its GI in other countries. Both China and the EU’s sui generis systems for granting protection to GIs have this requirement as one of the necessary prerequisites to obtaining registration. Implementation of the Act and registration of New Zealand GIs would therefore facilitate the process of applying for sui generis protection in those markets. Sui generis protection in overseas markets is not the only tool at the industry’s disposal, but without it the wine industry does not have the same range of enforcement tools as are open to its major competitors.
China is the world’s 5th largest wine consumer and the biggest growth market with 67% growth. Post China FTA implementation, annual wine exports to China have grown significantly ($17 million in 2011, around 2% of total export earnings). New Zealand’s share of the imported wine market in China is nearly 1.6%, which makes New Zealand the 8th largest exporter of wine to China. China is one of the projected growth markets for New Zealand wines with a projected increase in wine exports of an additional NZ$184 million per annum. China imports wine at the high or premium end of the spectrum which is where the New Zealand wine i ndustry is pitching its wines. New Zealand wines are seen as premium products fetching high prices similar to wines from France. This makes NZ wines more susceptible to counterfeiting and passing off, and strengthens the case for tools to protect IP rights.
Once New Zealand has domestic GI legislation in place, there would be various options on how to proceed in order to gain increased protection for New Zealand GIs in the Chinese market. One option would be to register products with the General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ)  on a product-by-product basis; another is to sign a Memorandum of Understanding with China; and a third is to negotiate a “package framework” such as the China-EU Agreement. AQSIQ has recently confirmed that the absence of domestic GI legislation in New Zealand currently precludes New Zealand from taking any of the above options for GI protection in China. The OMAR list approach is not considered a satisfactory substitute to having relevant domestic legislation in place.   AQSIQ is a ministerial administrative organ directly under the State Council of the People's Republic of China in charge of national quality, metrology, entry-exit commodity inspection, entry-exit health quarantine, entry-exit animal and plant quarantine, import-export food safety, certification and accreditation, standardization, as well as administrative law-enforcement.
Sui generis protection of GIs in export markets should provide for more cost effective protection for New Zealand GIs than relying on consumer protection or unfair competition laws. The fact of GI registration can deter unauthorised traders from using a GI without permission, and can encourage them to cease use with out further enforcement action. Recourse to general consumer and unfair competition laws to protect and enforce an unregistered GI in an overseas jurisdiction is complex, difficult, and comes with a degree of uncertainty. Further, in some markets, like China, government agencies may take actions to enf orce GIs on behalf of GI owners.
The current winegrowers that have GIs registered as trade marks (Gimblett Gravels and Waiheke Island) have stated a preference for registration under the Act and confirmed they had only used trade mark registration procedures in the absence of the GI Act.
The process of obtaining sui generis protection in export markets can, however, be costly, time consuming and uncertain due to a lack of international harmonisation.
C Implementation would assist in safeguarding market access for New Zealand wine in the EU market
In the EU, wines need to bear a “legitimate” GI on the label if they are to receive preferential treatment such as being able to use certain geographical names on the label. [Remainder of paragraph 45 withheld under sections 6(a), 9(2)(d) and 9(2)(g)(i) of the Official Information Act 1982.]
This issue is currently dealt with through the use of an OMAR, which includes a list of GIs prepared by the wine industry, but this was put in place as an interim measure until the Act could be implemented. [Remainder of paragraph 46 withheld under section s 6(a), 9(2)(d) and 9(2)(g)(i) of the Official Information Act 1982.]
In the EU, a number of compositional parameters and labelling terms are conditional upon a wine bearing a GI registered under the EU system. An example is the case of minimum alcohol levels which affects sweet and lower alcohol wine categories. New Zealand wines with less than 8.5% actual alcohol by volume are currently not permitted for export into the EU market. NZWine is currently engaged in a Primary Growth Partnership programme aimed at developing unique low alcohol or “lifestyle” wine to satisfy a growing demand in premium markets such as the EU. It is estimated that by 2023 this programme will see NZ$263 million of increased export earnings. Without the ability to seek GI registration in the EU, New Zealand lifestyle wines would be locked out of a lucrative market.
In 2007-8, draft EU wine regulations specified that the only geographical information that could appear on a label was a GI registered in the EU. This represented a very real threat to the New Zealand industry’s interests [Withheld under sections 6(a), 9(2)(d) and 9(2)(g) (i) of the Official Information Act 1982.]. The EU reforms its wine regulation system approximately every 10 years and a major review is currently under way, including the rules for GIs. All New Zealand’s major non-EU competitors have established pathways for GIs in the EU market via either bilateral agreements or registration and would not be affected by such a rule change; New Zealand lies outside either of those pathways.
If the New Zealand wine industry could not use geographical information on its wines in the EU, this would result in major damage to New Zealand’s wine exports. Even if the Act were implemented under urgency, it could take up to 3 years for the register to be set up and for producers’ GI registration applications to be prepared and approved in New Zealand and the EU. NZWine indicates that being unable to use geographical information on New Zealand wine in the EU for that length of time would cause major and potentially irreversible damage in that export market. A New Zealand registration regime could reduce or eliminate the above market access risks. No other form of GI protection (such as trade mark registration) would do so.
D [Heading withheld under section 6(a) of the Official Information Act 1982.]
[Paragraph 50 withheld under section 6(a) of the Official Information Act 1982.]
The Act requires amendment before implementation
MBIE has identified a number of deficiencies with the drafting of the current Act that will require attention before the Act can be implemented. The need to amend the Act before implication has been discussed with NZWine and DSANZ.
The Act is no longer consistent with New Zealand’s international obligations, and in particular does not meet our commitments under the Agreement between New Zealand and the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu on Economic Cooperation. Amendment is required to provide for the cancellation of registered GIs that are confusingly similar to prior existing trade mark rights.
The Act does not provide any sustainable source of funding for IPONZ to operate and maintain the register of GIs. At present, the Act only provides for a single application fee to be paid at the time the initial application is made. Once registered, a GI would remain on the register in perpetuity or until action is taken by the Registrar in response to a third party application to cancel the registration (for example, because the GI has fallen into disuse).
The funding issue is made more acute because of the small number of potential applications to register GIs. NZWine has identified a list of 29 regional names for which registration is likely to be sought and these applications will be made within the first two years of operation of the register. Officials estimate that a small number of applications (up to 10) from foreign parties will also be made with in the period. In outlying years few, if any, further applications are anticipated from either New Zealand or foreign parties.
MBIE has also identified a range of desirable amendments that could be made to the Act to improve its overall workability. NZWine has been active in providing input to officials on potential changes aimed at improving the Act’s workability

Paramedics

'Live tweeting by ambulance services: a growing concern' by Aidan Baron and Ruth Townsend in (2017) 9(7) Journal of Paramedic Practice 282 comments
Despite advances in technology being a driver of paramedic professional development, particularly over the past decade, the introduction of new forms of technology appears to have presented paramedics with some professional challenges. Paramedics, pre-hospital clinicians, and ambulance service providers in both the United Kingdom and Australia, have begun using social media technology to communicate what they do to the general public. Unfortunately some of the material that has been communicated appears to breach professional standards of practice, and therefore has the potential to cause harm to the patient, the individual paramedic, and the paramedic profession more broadly. This article will present the rationale behind why this behaviour is unprofessional, ethically and legally unsound, and why it must cease. We offer a tool that will assist paramedics, and other healthcare professionals, to practise safe and professional social media use in their workplace. 
 The authors state
As registered health professionals, paramedics in the United Kingdom are required to conduct themselves in a manner that aligns with their professional code of conduct (Health and Care Professions Council, 2016). This code speci es ethical and legal standards, which must be upheld in paramedic practice. These codes sit alongside various other legal and policy instruments that regulate paramedic practice such as the Health and Social Work Professions Order 2001 (UK Parliament, 2001); HCPC Standards of Pro ciency (Health and Care Professions Council, 2014), and local social media policies (London Ambulance Service, 2013).
Together these regulations provide guidance for practitioners about how to practise as a professional, and thus provide competent and safe care that maintains the protection of the patient, the individual paramedic, and the paramedic profession more broadly. However, recent examples have demonstrated that some paramedics appear to be unclear about how to professionally engage the use of social media in their practice and in so doing put patients, themselves, and the profession more broadly at risk.
Healthcare professionals are among many communities to have embraced the power of social media as a medium for rapid communication, learning, and establishing relationships both within peer groups and with the broader public. There is a well-established evidence to support the use of social media as a powerful peer-to-peer tool for education. For example, in Free Open Access Medical Education (FOAM) groups (Casey and Wells, 2015), as well as the use of social media platforms by public agencies to communicate and disseminate information to the pubic during a crisis (Palenchar and Freberg, 2013). It can also be used effectively to engage the wider community in both broad and speci c public health promotion programmes (Gold et al, 2012). Indeed ‘live tweeting’ — the contemporaneous sharing on Twitter of an event within a short time of its occurrence — has been validated in its usefulness during emergencies, educational activities, and public events. Recent terrorist events and public disasters have demonstrated the value of live-tweeting as a tool for multi-directional crisis communication (Simon et al, 2014; Eriksson and Olsson, 2016).
Despite its demonstrated usefulness in these discrete areas, there are limits to the ways in which social media, including ‘live tweeting’ can be used by health practitioners. The most worrisome example is the misuse of this technology to inappropriately publicly publish individual patient information.

23 July 2017

Publicity and Group Privacy

'Publicity Right, Personality Right, or Just Confusion?' by Graeme B. Dinwoodie and Megan Richardson in Richardson and Ricketson (eds), Research Handbook on Intellectual Property in Media and Entertainment (Elgar, 2017) comments
There is little consensus internationally as to whether and how the law should respond when celebrities find themselves subjected to unwanted public discussions of their private lives in the media (increasingly on a global basis online), and when their personal attributes are referenced without their consent in certain kinds of advertising and trade. A number of commentators have characterized such intrusions on a celebrity’s personal dignity or autonomy as simply falling among the minor inconveniences of being a celebrity, insufficient to warrant legal protection given important social values such as freedom of speech and cultural pluralism. The lack of consensus is reflected in the uncertain shifting legal lines drawn around celebrity protection, especially in common law jurisdictions which, unlike many civil law jurisdictions, do not adhere to the idea of a full-scale personality right. In this chapter, we canvass the diverse devices that the common law courts have deployed to deal with the grant of celebrity rights. We note and support the messy multivalence we find recognised in common law approaches given the range of dynamic interests that are at play. Such heterogeneity of values might also be relevant to the curtailment of celebrity rights. Thus, we equally support a flexible approach to the limitations, defences and other points at which discretion may be exercised by judges to find a balance between the interests/rights that may be claimed for celebrities (human and otherwise) in controlling the uses of their personal attributes in advertising and trade, and the countervailing interests/rights that others may seek to maintain including in freedom of speech and cultural pluralism.
'Group Privacy: a Defence and an Interpretation' by Luciano Floridi in Linnet Taylor, Luciano Floridi and Bart van der Sloot (eds), Group Privacy: New Challenges of Data Technologies (Springer, 2017) comments
In this chapter I identify three problems affecting the plausibility of group privacy and argue in favour of their resolution. The first problem concerns the nature of the groups in question. I shall argue that groups are neither discovered nor invented, but designed by the level of abstraction (LoA) at which a specific analysis of a social system is developed. Their design is therefore justified insofar as the purpose, guiding the choice of the LoA, is justified. This should remove the objection that groups cannot have a right to privacy because groups are mere artefacts (there are no groups, only individuals) or that, even if there are groups, it is too difficult to deal with them. The second problem concerns the possibility of attributing rights to groups. I shall argue that the same logic of attribution of a right to individuals may be used to attribute a right to a group, provided one modifies the LoA and now treats the whole group itself as an individual. This should remove the objection that, even if groups exist and are manageable, they cannot be treated as holders of rights. The third problem concerns the possibility of attributing a right to privacy to groups. I shall argue that sometimes it is the group and only the group, not its members, that is correctly identified as the correct holder of a right to privacy. This should remove the objection that privacy, as a group right, is a right held not by a group as a group but rather by the group’s members severally. The solutions of the three problems supports the thesis that an interpretation of privacy in terms of a protection of the information that constitutes an individual—both in terms of a single person and in terms of a group—is better suited than other interpretations to make sense of group privacy.

Convicted Practitioners

'Doctoring with conviction: criminal records and the medical profession' by John Martyn Chamberlain in (2017) British Journal of Criminology comments that
The General Medical Council decides if, when they are convicted of a crime, a doctor in the United Kingdom should be allowed to continue in their employment. This article is the first to detail these decisions for the period 2005–15. No doctor was barred from practising medicine for serious violent and sex offences, including rape, possession of images of child sexual abuse, manslaughter and domestic violence. These findings are placed in the context of contemporary developments in criminal record reform and criminological analysis of the relationship between employment and desistance. It is concluded that the high degree of devolved discretion allowed to elite professional occupations must be subjected to further critical scrutiny and policy reform. 
 Chamberlain goes on to state
 It has been argued that much of contemporary ‘crime talk’ is dominated by highly punitive and frequently short-sighted populist crime discourses, which prioritize economic prosperity and security over human rights and social equality (Carlen 2010). A preoccupation with public protection has certainly become a ubiquitous feature of the modern governmental crime control project (e.g. see Frost 2006; Simon 2007; Wacquant 2009; Barry et al. 2013; Farrall et al. 2016). Two key penological trends are bound up with this state of affairs (Simon 2007; Garland 2012; 2013). First is the emergence of systems of punishment within western neoliberal nation-states, which rely heavily on mass penal incarceration and increased community-based sentencing, arguably without adequate consideration of the negative consequences for long-term social cohesion and equality of opportunity (Maruna 2011; Wacquant 2011; Jacobs 2015). 
Second is the proactive promotion by law enforcement agencies of risk identification and management technologies and strategies, targeted at identifying and managing possible future threats to public safety (Barry et al. 2013; Mythen 2014). This, in turn, has led to a growing emphasis on maximizing crime detection and prevention data resources, including the development of CCTV and surveillance technologies, ‘Big Data’, artificial intelligence and predictive policing techniques (McCulloch and Wilson 2015; Chan and Moses 2016; Williams et al. 2016). Within this context, politicians and criminal justice service leaders, particularly the police, have argued that electronic criminal record databases, including DNA databases, are important crime prevention measures for ensuring the security of all and the personal safety of the most vulnerable (Brame et al. 2015; Uggen 2016). 
Focusing on the second of these international trends, this article critically examines for the first time data pertaining to doctors in the United Kingdom who possess a criminal record. In doing so, it contributes to contemporary criminological debate surrounding the role of criminal records in promoting public safety. There are an estimated 10 and a half million people who possess a criminal record in the United Kingdom, which is 16 per cent of the current 64 million population (Unlock 2015). One government study for England and Wales revealed that 33 per cent of males born in 1953 had a conviction for at least one offence by the age of 53, that in 50 per cent of cases they had offended just once and that in 85 per cent of cases the offence had occurred before they were 30 years old (Ministry of Justice Statistics Bulletin 2010). It has been argued, as a result, that it is not only a matter of public safety to ensure that ex-offenders have job opportunities, it is also critical to a successful economy and the promotion of civil society (Hubbard 2014). However, in common with many other countries, ex-offenders in the United Kingdom find it difficult to find paid employment or access to training and educational opportunities. 
A key reason why this is the case, is that under the criminal records system relatively minor offences, such as theft, frequently engender the same social stigma and civic bars as their more serious counterparts (Rukus et al. 2016). Disbarring candidates from entry into certain workplaces or education and training, regardless of their age, the time expired since an offence or the offence type, has been increasingly subject to academic and public scrutiny in the United Kingdom over the last two decades, and furthermore, has been subject to successful legal challenge under the Human Rights Act 1998. On the 22 January 2016, the UK Court of Appeal ruled that it was contrary to article eight of the Human Rights Act 1998 for a person to be required by law to disclose multiple minor convictions regardless of the time elapsed or the personal circumstances within which an offence occurred (Rose 2016).This followed an earlier 2013 Court of Appeal ruling, which led to a number of minor convictions being deemed ‘protected’ from disclosure after 11 years for adult offenders and 5.5 years for youth offenders (Liberty 2013). 
Although regarded by some as being progressive reforms to the UK criminal record system (e.g. see Jackson 2014; Rose 2016), human rights advocates and penal reform activists have argued that they do not go far enough to ameliorate the long-term collateral damage to ex-offenders lives caused by officially sanctioned sentences imposed by courts, particularly if an offence occurs early in a person’s life (e.g. see Sands 2016; Unlock 2016). Nonetheless, this article contends that the UK High Court rulings underscore the need for action to be taken to ensure adequate security-based checks and balances are in place, which prioritize public safety, particularly in relation to the degree of devolved discretion permitted to some types of employers. 
Focusing on the medical profession as a case study to investigate how this discretion is currently applied in practice, this article contributes to the evidenced-based promotion of a more nuanced rights-based view of criminal record reform. In doing so, it seeks to develop a broader criminological conception of the relationship between work and desistance from offending behaviour, through exploring more fully the diversity of the stratified forms of employment sought by ex-offenders (Hunter 2015). Moreover, its arguments are germane to international jurisdictions, such as the United States, Canada and Australia, all of whom are currently debating similar progressive reforms to their criminal records systems (Fox 2016).

05 July 2017

Copyright and the Dead Hand

'IP, RIP' by Andrew Gilden in Washington University Law Review (Forthcoming) comments 
Death is an inevitably disruptive event. When a famous artist or public figure dies, the fallout can be particularly complex and contentious. An artist’s surviving family and close friends frequently seek privacy and solitude as they process a deeply personal loss, while millions of fans, by contrast, seek to widely share, rework, and celebrate the decedent’s archive of work. When these very different mourning processes intersect, intellectual property laws play a pivotal role in deciding how an artist is mourned, commemorated, and remembered.
This Article reexamines the interests of an artist’s families, friends, and other heirs (“IP estates”) within the IP system. Previous scholarship has been nearly uniformly critical of IP estates: IP estates “jealously guard” their ancestor’s legacy, “sit back and collect rent,” and put a “stranglehold” on the public domain. This Article, by contrast, reveals a more diverse and sympathetic set of motivations. Although IP estates do often try to restrict fair use and free speech, they also seek to vindicate interests otherwise celebrated in our legal culture: remedying exploitation, protecting family privacy, and maintaining the dignity of the deceased. For the families and friends of individuals in creative fields, IP can serve as a valuable tool in managing the messy tasks of mourning and moving forward.
This Article excavates the role of IP in mediating the diverse interests of families and fans as they process the death of an artist. Even if the conduct of IP estates can be highly questionable from a social welfare perspective, recognizing the interests that animate their disputes nonetheless can lead to (1) greater common ground among the various stakeholders negotiating an artist’s cultural legacy and (2) improved use of estate planning to reduce the likelihood of conflict.

CIS Security

A report by the Australian Parliamentary Joint Committee on Intelligence and Security has endorsed the Telecommunications and Other Legislation Amendment Bill 2016 (Cth), concerned with the management of "national security risks of espionage, sabotage and foreign interference to Australia’s telecommunications networks and facilities".

The Committee recommends that the Bill be passed by the Parliament, and makes 12 further recommendations for improvements to the proposed framework.

 The Committee’s recommendations include:
  • providing further clarity in guidelines to industry on the extent of the framework’s application in areas such as cloud computing and over-the-top services, 
  • ensuring effective and regular information-sharing between government and industry, in particular in relation to threat information, 
  • introducing a specific obligation for industry to notify government of any new or amended offshoring arrangements in relation to retained telecommunications data, and
  •  specifying annual reporting requirements in the legislation. 
The Committee has also recommended that the framework be reviewed after three years to ensure it is operating effectively.

The specific recommendations are
R1 -  The Committee recommends that the administrative guidelines to the Telecommunications and Other Legislation Amendment Bill 2016 be revised to provide comprehensive information, clarity and certainty to industry in a greater range of circumstances. In particular, the revised administrative guidelines should provide further clarity regarding a company’s security obligation in circumstances where:
  • a company is providing or reselling an over the top service, 
  • telecommunications infrastructure is used (but not necessarily owned or operated) by the company, 
  • a company’s infrastructure is located in a foreign country, and used to provide services and carry and/or store information from Australian customers, and 
  • a company provides cloud computing and cloud storage solutions.
The Committee considers that inclusion of this additional information should be finalised prior to the conclusion of the 12 month implementation period.
R2 - The Committee recommends the Telecommunications and Other Legislation Amendment Bill 2016 be amended to clarify that, in circumstances where a broadcaster is exempt from being treated as a carriage service provider under the Telecommunications Act 1997, they are also not intended to be subject to the obligations set out in the Bill.
R3 - The Committee recommends that the Attorney-General’s Department works collaboratively with industry to ensure effective and regular information sharing, in particular sharing threat information with industry, leveraging existing mechanisms where possible. These information-sharing mechanisms should ensure industry receives timely and tailored threat information to aid industry compliance. The Committee considers that these processes should be finalised prior to the conclusion of the 12 month implementation period.
R4 -  The Committee recommends that the administrative guidelines to the Telecommunications and Other Legislation Amendment Bill 2016 be expanded to provide greater detail about the existing list of notifiable items. This could be achieved, for example, by listing the sorts of changes that are envisaged to not require notification to the Communications Access Co ordinator (CAC), as well as providing more detailed information about the sorts of changes that do require notification to the CAC. The Committee considers that inclusion of this additional information should be finalised prior to the conclusion of the 12 month implementation period.
R5 - The Committee recommends that the Telecommunications and Other Legislation Amendment Bill 2016 be amended to outline the application process for exemptions from notification requirements.
The Bill should clarify that:
  • carriers and nominated carriage service providers may request the Communications Access Co-ordinator (CAC) to provide either a partial or complete exemption from the notification requirement in relation to certain types of changes, and 
  • the CAC may vary or revoke exemptions.
R6 - The Committee recommends that the Telecommunications and Other Legislation Amendment Bill 2016 be amended to make clear that the Bill does not affect the operation of existing legislated privacy obligations.
R7 - The Committee recommends that section 315J of the Telecommunications and Other Legislation Amendment Bill 2016 be amended to specify that the annual report presented to Parliament must include:
  • the number of occasions the information-gathering powers have been exercised, 
  • the number of notifications and security capability plans received, 
  • regulatory performance measures, including the average response timeframes of the Communications Access Co-ordinator to notifications and the proportion of responses made within the statutory timeframes, 
  • details of the Government’s information-sharing arrangements with industry, 
  • a summary of any feedback or complaints received from stakeholders, and 
  • the number of occasions the directions-powers have been exercised. The annual report should indicate if trends or issues have emerged in relation to any of the above.
R8 - The Committee recommends the Explanatory Memorandum for the Telecommunications and Other Legislation Amendment Bill 2016 be amended to clarify that negotiating in ‘good faith’, as set out in proposed subsection 315B(5), includes whether the Communications Access Co-ordinator has complied with the applicable statutory timeframes. This would make it clear that the Attorney-General will take into account whether the Communications Access Co-ordinator responded to any relevant notifications or security capability plans received from industry within the applicable statutory timeframe, prior to issuing a direction.
R9 - The Committee recommends that the Explanatory Memorandum to the Telecommunications and Other Legislation Amendment Bill 2016 be amended to outline the avenues available for industry to recover reasonable costs in circumstances where:
  • the Communications Access Co-ordinator has not responded within the statutory timeframe to the carrier or nominated carriage service provider (C/NCSP)’s notification of a proposed change, and 
  • the C/NCSP has proceeded with the proposed change on the basis of no response having been received, and 
  • the Attorney-General has subsequently issued a direction relating to the change.
R10 - The Committee recommends that, at the time of the review required to be undertaken by the Parliamentary Joint Committee on Intelligence and Security under section 187N of the Telecommunications (Interception and Access) Act 1979, the scope of the review be expanded to include consideration of the security of off-shored telecommunications data that is retained by a service provider for the purpose of the data retention regime.
R11 - The Committee recommends that the Telecommunications and Other Legislation Amendment Bill 2016 be amended to include, in relation to data retained under Part 5-1A of the Telecommunications (Interception and Access) Act 1979, a specific obligation within the notification requirement in proposed section 314A to require C/NCSPs to notify the CAC of any new or amended offshoring arrangements.
R12 - The Committee recommends that the Telecommunications and Other Legislation Amendment Bill 2016 be amended to require the Parliamentary Joint Committee on Intelligence and Security to review the operation, effectiveness and implications of the reforms, commencing within three years of the Bill receiving Royal Assent.
The scope of the review should include:
  • the security of critical and sensitive data, 
  • the adequacy of information-sharing arrangements between government and industry, and 
  • the adequacy and effectiveness of the administrative guidelines in providing clarity to industry on how it can demonstrate compliance with the requirements set out in the Bill.
R13 - The Committee recommends that, subject to the above recommendations being accepted, the Telecommunications and Other Legislation Amendment Bill 2016 be passed.
In discussing Information sharing and confidentiality at paras 5.51 through 5.61 the report states
roposed section 315H authorises the further use or disclosure of information or documents obtained under certain sections of the Bill (314A, 314B, 314C, 314D, 315C and 315H) to persons other than the Secretary of the Attorney-General’s Department, or his or her delegate.
Proposed section 315H is intended to protect commercially sensitive information by ensuring: § disclosures are limited to the purpose of security (as defined by the ASIO Act), and § identifying information must not be disclosed to a person who is not a Commonwealth officer.
The Explanatory Memorandum contains information about the circumstances in which information is likely to be shared, including for providing threat information and intelligence to foreign partners in support of reciprocal information sharing arrangements.
The Explanatory Memorandum also notes that disciplinary action would be available under existing legislation in circumstances where Australian Government employees breach the provisions. For example, section 70 of the Crimes Act 1914 applies criminal sanctions to unauthorised disclosure of information by current or former Commonwealth officers.
The Australian Information Commissioner noted that proposed sub section 315H(2) restricts the disclosure of ‘identifying information’ to a person who is not a Commonwealth officer. The Information Commissioner further noted that identifying information ‘means information that identifies the C/CSP or intermediary concerned’, and suggested that, as an additional protection, this restriction on the disclosure of identifying information be extended beyond commercial information to apply to ‘personal information’ as defined in the Privacy Act 1988.
In response, the Attorney-General’s Department stated: Extending subsection 315H(2) to ‘personal information’ is unnecessary as there are already strong protections in place for the protection of personal information. The Attorney-General’s Department, the Department of Communications and the Arts and other government departments, are subject to the Privacy Act 1988, which sets out how personal information is handled. ASIO’s handling of personal information is governed by the ASIO Act and the Attorney-General’s Guidelines (made under the Act) and is also subject to the oversight of the Inspector-General of Intelligence and Security. Section 315H of the Bill is intended to cover other information, such as commercially sensitive information, that would not necessarily be captured under existing personal information protections (e.g. company names).
The Explanatory Memorandum notes that the protections in the Bill for commercial information would operate to complement the high standard for protecting information which government agencies already operate under including compliance with requirements under the Privacy Act regarding use, disclosure and destruction of personal information and secrecy obligations in the Crimes Act 1914.
The Committee notes that proposed section 315H authorises the use or disclosure of information obtained under the Bill, and provides measures to protect commercially sensitive information, such as requiring the removal of identifying information and placing limitations on disclosures.
The Committee acknowledges the Information Commissioner’s suggestion that, as an additional protection, the restriction on the disclosure of ‘identifying information’ in proposed section 315H be extended beyond commercial information to apply to ‘personal information’, as defined in the Privacy Act 1988.
However, the Committee notes that there are already suitable protections in place for personal information, including the Privacy Act 1988, the Australian Security Intelligence Organisation Act 1979 and the Attorney General’s Guidelines (made under the ASIO Act). ASIO’s handling of personal information is also subject to the oversight of the Inspector General of Intelligence and Security.
Nevertheless, the Committee considers that the existing protections for personal information are not readily apparent on the face of the Bill. The Committee recommends that the Bill be amended to make it clear that subsection 315H(2) is intended to complement existing requirements, including those under the Privacy Act 1988, regarding use, disclosure and destruction of personal information

30 June 2017

Inked

'Tattoos and IP Norms' by Aaron Perzanowski in (2013) 98 Minnesota Law Review 511 comments
Twenty-one percent of adults in the United States — more than sixty-five million Americans — have at least one tattoo. For those under age forty, that percentage nearly doubles. Not surprisingly, the tattoo business is booming. By some estimates, the U.S. tattoo industry generates $2.3 billion in annual revenue. Once the mark of sailors, convicts, and circus performers, the tattoo has infiltrated mainstream society.
Despite its countercultural origins, the tattoo industry shares much in common with other, more familiar creative industries. Fundamentally, it capitalizes on market demand for original creative works. Yet as public goods, the value of those works is readily appropriable through copying. Predictably, copying is both a practical reality and a source of concern within the industry. But unlike their counterparts in most other creative industries, tattooers nearly uniformly reject formal legal mechanisms for adjudicating claims over ownership and copying. Although tattoos fall squarely within the protections of the Copyright Act, copyright law plays virtually no part in the day-to-day operation of the tattoo industry. Instead, tattooers rely on a set of informal social norms to structure creative production and mediate relationships within their industry.  
Following in the tradition of earlier scholarship exploring the intersection of intellectual property law and social norms, But this Article differs from much of the prior work on intellectual property and social norms in two ways. First, the tattoo industry norms reported here represent the first example of market-driven informal alternatives to intellectual property law that emerged despite fully applicable formal protections. Unlike norms that emerge in the shadow of some barrier to meaningful intellectual property protection,this Article sets out with three objectives: to provide a descriptive account of the norms related to creative production within the tattoo industry; to explain both the industry’s choice to forego formal assertions of legal rights and the particular content of the norms it has embraced; and to consider the implications of this case study for intellectual property law and policy more generally.
But this Article differs from much of the prior work on intellectual property and social norms in two ways. First, the tattoo industry norms reported here represent the first example of market-driven informal alternatives to intellectual property law that emerged despite fully applicable formal protections. Unlike norms that emerge in the shadow of some barrier to meaningful intellectual property protection tattoo industry norms function as an informal system of community governance that developed despite an applicable body of formal law. And unlike norms governing nonmarket behavior, tattoo industry norms prevail despite the same profit motive characteristic of many creative fields. 
Second, tattoo industry norms are unique because they must account for a more complex set of relationships than those observed in earlier case studies. Tattooers must establish norms that govern not only their interactions with each other, but with clients who play an important role in the creation and use of their works as well. Further complicating matters, aside from copying within their industry, tattooers are faced with the question of the propriety of copying outside of it. This overlapping complex of relationships between tattooers, clients, and the broader art world yields a correspondingly rich, nuanced, and perhaps contradictory set of creative norms. 
Part I of this Article offers a brief history of the practice of tattooing — beginning with its widespread use in early civilizations, then turning to its colonial reincorporation into the West, and the recent emergence of the “tattoo renaissance. This Part will also introduce the basic structure and vocabulary of the contemporary tattoo industry.
After establishing the doctrinal applicability and practical irrelevance of formal copyright law to tattoos, Part II catalogs the norms that structure the tattoo industry. To develop this descriptive account, I conducted fourteen in-person qualitative interviews in early 2012 with tattooers throughout the United States, identified through snowball sampling relying on existing industry contacts. In terms of geography, gender, experience level, work environment, style, and clientele, these interviews capture a diverse, if not necessarily representative, cross section of perspectives within the tattoo community.
These interviews revealed five core norms. First, tattooers as a rule recognize the autonomy interests of their clients both in the design of custom tattoos and their subsequent display and use. Second, tattooers collectively refrain from reusing custom designs — that is, a tattooer who designs an image for a client will not apply that same image on another client. Third, tattooers discourage the copying of custom designs — that is, a tattooer generally will not apply another tattooer’s custom images to a willing client. Fourth, tattooers create and use pre-designed tattoo imagery, or “flash,” with the understanding that it will be freely reproduced. Finally, tattooers generally embrace the copying of works that originate outside of the tattoo industry, suchas paintings, photos, or illustrations. In some ways, these norms unintentionally echo familiar concepts from copyright law, but they differ from formal law in important respects as well.
Part III offers a number of complementary explanations for the content of tattoo industry norms and the industry’s reliance upon them. Both the culture and economics of the tattoo industry gave rise to its particular set of norms. Tattooers share a disdain for authority and a history of harsh legal regulation that renders them generally hostile to the legal system. Perhaps more importantly, as a deeply client-driven enterprise, the tattoo industry is sensitive to consumer expectations. Those expectations provide strong incentives for the development of norms in order to preserve the industry’s collective interest in the continued viability of the market for custom tattoos. Finally, tattoo norms also erect barriers to entry to the increasingly crowded field of tattooers, revealing the guild-like nature of the industry.
Part IV concludes by considering the broader lessons the tattoo industry offers for intellectual property law and policy. The tattoo industry’s success reveals the importance of customizing creative goods to deter widespread copying and of bundling easily copied creative goods with difficult-to-copy personal services.