February 26, 2006

Martial Law law

Posted in Uncategorized at 5:48 pm by thelawthoughts

We had a small discussion a while ago about the new expedited call-out procedures that are to be made into law in the near future.

For anybody who is still interested, the Parliamentary Library has its discussion paper out here. The Schedule 4 provisions, whereby the ADF can be called out in a sudden emergency by the PM alone or two Ministers together still seems like overkill to me.

Why should we allow two Ministers to authorise the implementation of martial law? If there is a terrorist off to blow up the Lucas Heights reactor, why don’t we send the police?

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Stoner Criminal

Posted in Uncategorized at 5:42 pm by thelawthoughts

Criminals like these are always good for a laugh. How could someone be so messed they try to sell drugs to a cop, sitting in a marked cop car?

Can anybody tell I am catching up on my huge backlog of reading today?

Funny Patents for Today

Posted in Uncategorized at 5:38 pm by thelawthoughts

On a lighter note than below, the following couple of patents had me in stitches.

This one reminds me of leather bum pants. Heart shaped holes in the top of your trousers.

Also, this one, which is a combination of a breast pump and a vaccum cleaner. What whacko thought of breast pumps and vacuum cleaners in the same sentence? I guess it would make the housework easier. Not for me, though, just more painful than it already is.

ICC and Aid Withdrawal

Posted in Uncategorized at 5:35 pm by thelawthoughts

I wrote a very interesting essay on Article 98(2) Agreements in International Law last year. Well, interesting for me to write and research, rather than interesting to read.

In any case, you might ask, what is an Art 98(2) Agreement? Essentially, Article 98(2) restricts the jurisdiction of the International Criminal Court, so that where there is an existing agreement between States as to the treatment of their national armed forces accused of war crimes, the Court cannot require extradition of that national. Such extradition is effected by the issue of a Surrender Request to the country of which the accused is a national. The country can then refuse the request under Art 98(2). Put simply, a country is not obliged to act contrary to its existing international obligations, which includes obligations pursuant to treaty.

The problem is, the Article was written to cover Status of Forces Agreements signed before the Court came into existence. Usually, these agreements provide that where a member of the armed forces is accused of criminal behaviour, they are to be brought home and tried in the domestic jurisdiction, or by military tribunals. I am not sure, but think of the Abu Gharib soldiers who were tried in US Courts.

The Article was not intended to allow a State to oust the jurisdiction of the Court in the way the US is now doing. The US is forcing countries to sign agreements that provide that US nationals accused of war crimes will not be handed over to the ICC by the nation signing the agreement. The US threatens a withdrawal of aid and military assistance for countries who refuse to sign.

It is a blunt tool for the US to use and an extreme method of preventing the exposure of US nationals to the ICC. The agreements are actually illegal and invalid at international law, but as we know, the US doesn’t particularly care about international law unless it suits. And now, we have the first manifestation of the implications of this policy. Bolivia will be refused aid, because it had the temerity to tell the US that if an accused war criminal were found on its soil, it would hand the accused over the ICC.

IP and Development

Posted in Uncategorized at 5:10 pm by thelawthoughts

Following our relatively robust discussions about IP law and development, I found John Lambert’s page a good resource.

He is very hard-working and always has a ton of information available.

I still stand by my assertions of last week. This is too big a problem not to be addressed and the WTO, the EC and national authorities are finally beginning to take the interests of developing countries into account.

Good to see.

Burning Books

Posted in Uncategorized at 5:06 pm by thelawthoughts

Every now and then I see something which, though not law-related, makes me want to scream so badly I have to post it. Like this.

Why do people get so worked up about religion? Is it worth burning the works of Aeschylus for?

Iraq and Civil War – A Good Thing?

Posted in Uncategorized at 1:46 pm by thelawthoughts

Always nice to see – the Fox Network asking itself whether all out civil war in I-rak could be a good thing?

On what possible basis?

Is John Anderson an Inside Trader?

Posted in Uncategorized at 1:24 pm by thelawthoughts

Why is it that whenever I see a story like this one nowadays, I just think, ‘What a load of rubbish’?

Does John Anderson really expect us to believe that, after Alexander Downer was briefed in September about the Volcker Report, he sold his shares in AWB a month later without being told of any ‘adverse’ information?

February 25, 2006

Just a Little Thank You

Posted in Uncategorized at 1:36 pm by thelawthoughts

I got my weekly site report this morning and found, to my amazement, I am averaging 10 hits a day. They can’t all be me, I’m obsessed with myself but not that much.

So, if you are reading and not letting me know, I hope you are finding the content interesting, informative and stimulating.

If not, well, clearly we is not doing our job.

Cheers

February 23, 2006

Religious copyright

Posted in Uncategorized at 8:53 pm by thelawthoughts

Now here is a BIG question. Should the Pope be able to exploit his copyright? Should it matter that he has taken a vow of poverty? Is it even relevant, given that he has assigned his copyrights to the Vatican’s publishing house?

Something about Vatican lawyers demanding royalties from the writings of the Pope, even those before he was made Pope, strikes me as a bit on the slimy side.

Google’s Noodie Pictures

Posted in Uncategorized at 8:11 pm by thelawthoughts

Sometimes, it is best to swallow your pride and link to somebody who is, quite simply, better than you at this kind of stuff.

See Kim Weatherall at LawFont on Google’s defeat today over displaying copyright images as thumbnails.

Ouch.

Funny of the Day

Posted in Uncategorized at 7:29 pm by thelawthoughts

Should mention I am willing to get one of these at my second round interview at a major law firm this week?

But I am, I am, I am!!!!

Smelly Trade Marks

Posted in Uncategorized at 4:45 pm by thelawthoughts

Interesting case decided a little while ago in the EU. Apparently, the smell of strawberries cannot be trade marked, because it cannot be represented graphically. IPWar’s points us to the Trade Marks Office manual, which describes section 17 of our Trade Marks Act 1995 (Cth), where a TM is a ‘sign’ etc. A sign is defined as including scent.

So, as long as you are using the smell of strawberries, or indeed rotting plant material or other such scent as a badge of origin, smells can in Australia be registered on the Trade Mark Register.

An interesting divergence between our law and that of the EU.

February 21, 2006

The Problems of Perspective

Posted in Uncategorized at 4:37 pm by thelawthoughts

This post has been updated where indicated

It is amazing to me how often I disagree with one Dash Brannigan, as I do in this little to and fro (my first post, Dash’s reply). It occurred to me the other day that probably the reason for this was one of perspective. The Law Thoughts is written by a budding lawyer, who aims to examine, explain and critique law from the perspective of law. As far as I know, under his enigmatic guise, Dash is fairly focused on economics. This presents a diffculty because, from my perspective for example, human rights (yes, including property rights) are at the apex of all law and are universal and inalienable. Their satisfaction should be a primary outcome of lawmaking.

Whilst Dash is not heartless (I recently found cause to call him a smoochie, whatever that may be), he is very focused on economic growth. Dash uses complicated economics and game theory to analyse laws. I don’t. We lawyers, when thinking about law, don’t find it necessary for laws to be made with growth in mind, whereas Dash seems to see growth as a matter of fundamental importance in lawmaking. That is fine, but we are coming from different perspectives. I believe that laws should be made to obtain a particular outcome, rather than to achieve a state or environment in which that outcome might or might not be provided by the decisions made by individuals or, more likely in case of IP, by corporations.

This is a subtle but important distinction and the example we have been using is illustrative. In terms of protecting the right to health, my position is that laws should be made with health protection in mind, rather than creating a state of economic activity in which it becomes profitable for an entity to provide that protection of their own bat. Call me a socialist, call me a commie, whatever. This is my point about perspective and I think that, whilst we both implicitly understand these assumptions, Dash and I don’t ever make them explicit. Discount rates, perfect price discrimination, and other high level economic terms simply do not come into my consideration of what a law should be.

Our theft example is a good one. I see the law from the law’s point of view. For me, theft is ‘dishonestly appropriat[ing] property belonging to another with the intention of permanently depriving the other of it’. I don’t see a failure to enforce IP rights as theft, it is a failure to enforce IP rights. It allows infringment of those rights, but that is not theft. It is best illustrated by those video piracy ads, which say ‘Piracy is stealing’. That, unfortunately, is complete rubbish. Piracy is a copyright infringement and subject to economic damages, not a criminal offence as is made out by the media. Small differences, but important. I am the first to admit I am not one to talk about loose use of language and I have been critisised before. However, it is important to see what my perspective is.

Whilst Dash has a go about my assertion that IP companies do not lose anything where people who cannot buy the product ‘steal’ it, I stand by it. Yes, people derive a benefit from the drug. However, it is the manufacturer making the drug and the government not enforcing the property rights who are the actors here. People do not ‘steal’ these drugs, the model in fact is governments paying manufacturers to produce, because people are too poor to buy the drug. This is, of course, a theory, because nobody has yet taken out a compulsory licence. ***In any case, I stand by my assertion that where a consumer was not going to buy the product in question, the drug company is not losing profits by governments issuing a compulsory licence and paying some small amount to the drug company. In fact, they are gaining money. Everyone has to remember that there are strict terms and conditions on the issuing of these licences. They don’t just happen automatically. One of the conditions under TRIPs is that fair remuneration is paid to the IP holder. The question of ‘fair’ is the pivotal discussion point.***

In terms of law, Dash’s argument about parallel importation is a standard one against allowing developing countries better access to drugs. However, this argument is purely economic and in my opinion has no basis on which to found law. Yes, incentives are created to reimport the drug. Stopping this, however, becomes a matter of criminal and customs law. Why is it not possible to pass laws with tough criminal penalties for those who import drugs on which lower prices have been placed? This is an economic justification for a legal position, which can sometimes cause trouble. The law should have no problem dealing with this kind of argument. In the end, there is a black market in everything and I don’t see why the chance of parallel importation is a justification for blocking poorer countries from making drugs. I guess if you want to use words like utility, then it is at least arguable that there is greater utility in allowing people to have access to medicine as there is in maximising profit by strict enforcement of rights. I am not saying I am right or wrong, I am just saying that the media in particular only present one side of the argument. Is it relevant that the media make much of their profit from copyright material?

My further point in response to Dash’s post is that, whilst I understand the link between growth and IP protection, there is little examination of the proper balance point. Yes, the US Constitution gives the Congress the power to make laws relating to copyright, but it prohibits perpetual copyright terms. IP is important, yes, but it is only mentioned to give the legislature the power to make laws in respect to copyright. Our own Constitution does the same (s51(xviii)). There has to be a sensible balance in drafting these laws, however. Further, when patents were invented, they were a monopoly right over a whole industry. A throwback to this is why it seems playing cards are all the same design. This does not mean there was explosive growth. It was only when a balance began to be struck between what you call dynamic and static rights (I think) that innovation became connected with such protection.

As another side issue, you are right in terms of FDI going elsewhere when countries don’t provide proper legal protection and sound legal institutions. It is interesting that nowadays, least developed countries tend to negotiate at the WTO as a big block, probably for that exact reason.

My point all along is that there must be a balance. IP rights must be protected to SOME extent, but not to every extent. My original post centred upon the question of why Brazil should enforce in its domestic law WTO obligations when more powerful countries were not willing to. However, I understand how these things are interconnected. I don’t know the answer to this question, but I always ask people who use economic growth as a reason to enforce IP rigidly:

“Does the greatest economic growth come in the profit flowing to the IP holder due to high drug prices, or the production created when sick people are made well by drugs which have been manufactured contrary to patent rights?”

I don’t know the answer, but I sure as hell would like to find out.

February 17, 2006

Cricket Bats

Posted in Uncategorized at 9:30 am by thelawthoughts

Was there any sense of politics in the MCC’s decision (the real MCC) to ban Ricky Ponting’s cricket bat?

Why should a graphite bat not be allowed? We should go back to the days of wooden tennis rackets.

Maybe they think they can retain the Ashes this way.

RU486 Follow Up

Posted in Uncategorized at 8:59 am by thelawthoughts

Further to our discussion yesterday, I almost choked over my brekkie this morning, when I opened up my Herald Sun and found this article. Apparently, Victorian MPs were instrumental in swinging the vote to lift the ‘ban’ on abortion. This reporting is misleading, innocently at best and downright wilfully at worst.

Firstly, who gives a rat’s bum if Victorian MPs voted 3 to 1 in favour? The quote is ‘Federal Victorian MPs cleared the way for drug to hit shelves.’ Rubbish.

Secondly, the ‘ban’ on abortion has nothing to do with this drug. In Victoria, abortion is illegal (s65 Crimes Act). So is unlawfully supplying or procuring anything which will cause an abortion (s66 Crimes Act). Therefore, where a drug like RU486 is banned, it is illegal for a doctor to supply it. Where the drug is not banned, it becomes lawful to prescribe it, but the fact of abortion remains illegal. The fact it is almost never prosecuted does not mean it is legal.

The ‘ban’ is the ban on the importation of a drug. The ban is only a ban because we have a fruitcake Catholic Health Minister. Ministers of any stripe should not be able to make a decision on the safety of a drug, whether they are raging evangelicals or raging small ‘l’ liberals. These decisions are for competent authorities.

So, what ‘Victorian MPs’ have done is remove the power of any Minsiter to restrict access to a drug, as long as it is deemed safe and effective in the treatment of abortion. What they have not done is remove the ban on abortion. Given abortion is a crime under State law, and the States have responsibility for crime, Victorian MPs need to be proper Victorian MPs before they can lift any ban on abortion itself.

I really shouldn’t read the Herald Sun (or look at the pictures as it were) in the morning, it makes my blood pressure way too high when I get to work.

February 16, 2006

RU486

Posted in Uncategorized at 2:49 pm by thelawthoughts

People commentating on the RU486 debate (except me) are missing the point. Much is being made of Peter Costello’s forced choice to abort his wife’s baby or lose them both, the doctor who had to perform them every day, Lyn Allison who actually had one herself. THIS DEBATE IS NOT ABOUT ABORTION.

From the outset, my position is anti-abortion but pro-choice. I hate the idea of abortion but believe in peoples’ right to choose. I am especially upset about situations like this, where rape victims can’t get the morning after pill because some pharmacists won’t stock it on moral grounds. If we keep this debate going on about abortion, that is what will happen in Australia.

What the debate is really about is WHO gets to choose whether to import the drug. Both sides of Parliament in general are anti-abortion. We all agree. The debate in Parliament centred on how competent the Minister for Health (any one, not just this one) was to make a decision as to the desirability of import of a drug. In the media, all we get is ABORTION! ABORTION! Sides of the debate, for convenience, I will call side 1 and side 2.

Side 1 says that abortion is bad but the best way for women to be treated safely is to let the Theraputic Drugs Administration choose whether drugs are safe for use. If we leave the decisions in their hands, then the drug will be imported only when competent authorities choose to allow it.

Side 2 says that abortion is bad and therefore the best way to make sure only safe drugs are used is by making the Minister tell Parliament when he or she decides to import a drug.

Everybody is going on and on about how bad abortion is, but I REPEAT, this is the wrongdebate. The Bill is not about whether we are for or against abortion, it is whether the best way to ensure safe treatment with new drugs is by letting an unaccountable but theoretically independent and competent body make import decisions, or whether to make those decisions subject to the more intense Parliamentary scrutiny.

Brazil and the WTO again

Posted in Uncategorized at 2:14 pm by thelawthoughts

Promote the Progress has a very interesting post on Brazil’s IP policy here. J. Matthew Buchanan, always insightful, discusses the distinction between a country enforcing IP rights positively in foregin policy and Brazil, which is threatening to ignore IP rights, or use them negatively, as it were.

People have a go at developing countries for ignoring IP rights, but there is a very good reason they do so. After a recent decision against the US, in which the WTO found their cotton subsidies illegal, the US for a time refused to comply. If you were Brazil, wouldn’t you be asking yourself why you should comply with your WTO obligations when others were not?

What connection, then, does this refusal on the part of the United States have with IP? The ability to IGNORE positive rights is one of the only weapons that developing countries have. Whereas a country like the US uses ENFORCEMENT as a weapon and negotiation tool, developing countries of course do not, because US corporations have lots of IP and Brazilian ones do not. They instead use non-compliance as that negotiating weapon.

People seem to think that ignoring the rules is more reprehensible when a developing country does it. Usually they threaten on drug patents and those sorts of public health issues, and usually for good reason as well as there being some political grandstanding. However, it is just as bad for the US to whinge about a failure to enforce obligations when it refuses to comply with its own. Why shouldn’t a developing country use every weapon it has, when developed countries won’t respect the rules either?

February 15, 2006

Three interesting questions

Posted in Uncategorized at 8:09 pm by thelawthoughts

These are completely unrelated, but food for thought nonetheless:

1. Should the man Dick Cheney shot subsequently die, what should happen to Dick Cheney? The guy had a heart attack today and is apparently recovering. Is it relevant that Cheney didn’t have a permit? If it happened in Victoria, could he/should he be prosecuted for reckless murder? Would he be prosecuted at all?

2. What should happen to the rogue Chaser writer who sent Leunig’s cartoon to the Iranian paper? Is he just so stupid he should be sacked? Should he be prosecuted for something? Or my favourite – could Leunig bring an action for copyright infringement?

3. Politically not legally – what the hell is John Howard doing sending letters to the Iraqi government pleading with them to ‘think of individual Australian wheat farmers’ who have lost business because of the Iraqis’ decision to stop importing wheat. Do you think he will get a letter back? How about – ‘piss off you moron, think of individual Iraqis who are having their legs blown off (1) by your allies and (2) by people who hate you so much they are willing to blow up all sorts of stuff so they make you look bad’. Or – ‘think of the individual Iraqis who were tortured by the regime your individual wheat farmers funded illegally’.

That’s what I would say, anyway.

Bali Death Penalties

Posted in Uncategorized at 8:04 pm by thelawthoughts

With all the rara about the Bali Nine, I found myself having a strange reaction reading the paper today.

I just don’t care.

I’m not sure whether I am busy, or tired, or what, but I can’t be bothered even getting indignant or upset about the fact these people are going to be executed.

The death penalty is unacceptable in all cases and it is so sad that people are stupid enough to try their hand at these things in countries which are never going to let them escape.

Ask those two blokes – ‘is the money really worth it’?

However, the way the media blows these things up periodically leads to a feeling of vengeance and righteousness in those who want them shot, and despair for those fighting to defend peoples’ right not to be executed. On this one, I am just not interested.

February 13, 2006

Maybe He Was a Terrorist

Posted in Uncategorized at 11:14 am by thelawthoughts

Dick Cheney shoots a man he was hunting with.

What a tool.

And to think he has his fingers wrapped around much bigger triggers than his little shot gun.

February 12, 2006

Complementarity and the ICC

Posted in Uncategorized at 1:58 pm by thelawthoughts

‘Complemenarity’ is a fundamental principle on which the functioning of the International Criminal Court is based. Under the Rome Statute, which established the Court, the ICC can only exercise its jurisdiction where the State Party of which the accused is a national, is unable or unwilling to prosecute. Hence the term ‘complemenatarity’, which makes the ICC a Court of last resort. Where a national of, say Sudan, is accused, then the ICC will only have jurisdiction over the crime where there is an unwillingness or incompetence of Sudanese judicial institutions to prosecute. The reason this principle came into existence was the fear on the part of many prospective States party that the ICC would become a supra-national criminal court and would result in countries losing domestic control of criminal prosecutions.

There are Sudanese nationals who have been accused of war crimes over the recent alleged genocides which occurred there. There was no possibility that these crimes could be prosecuted domestically until only recently. Now, judicial institutions have been set up to try those accused of war crimes. Opinio Juris has a good potted commentary and link.

My philosophical objection to this principle is that the countries in which war crimes are committed are exactly those which require a court like the ICC. For example, there is little chance that a French national will be accused of war crimes, but if they were, I would expect French judicial processes were sufficient to prosecute a war criminal.

However, countries like Sudan set up kangaroo courts which are designed so that the government does not have to hand over its officials to the ICC. So, exactly those who the ICC is most required to punish are those who avoid the court’s jurisdiction by having fake trials.

The best illustration of this is a hypothetical example. If John Howard were accused of war crimes, it is unlikely that DFAT would hand him over to the ICC. This is because Australia has sufficient and suitable processes by which Howard would be prosecuted. However, countries like Sudan, with no judicial oversight, have no chance of dispensing the correct justice where somebody is convicted of war crimes. Indeed, it is difficult for those processes to even obtain a conviction.

In my view, the job of the ICC is to be that supranational institution. No country should ‘have a choice’ whether criminals should be prosecuted. Indeed, the principle of complementarity allows a shield to be placed in front of those accused of the gravest crimes against humanity, by allowing their governments (of which they are usually officials or friends) to ‘prosecute’ them for their alleged offences.

February 7, 2006

How Did This One Pass Me By?

Posted in Uncategorized at 4:10 pm by thelawthoughts

This case must have had them rolling in the aisles.

According to the report, a man’s ex-lover invited him over to ‘rekindle the relationship’, waited until he was asleep, then glued his penis to his stomach, his testicle to his leg and his bum cheeks together. Then when he woke up he found himself drenched in nail polish.

She was convicted of assault, but her defence was that it was all part of the normal, and agreed, sexual activity between the parties.

The money quote:

“Slaby said his injuries included severe burning on parts of his body, impingement of normal bodily functions and discoloration of his hair.”

Deary me.

British Library and Online Rare Works

Posted in Uncategorized at 1:32 pm by thelawthoughts

For book lovers: this is uber cool (with a capital UB).

The British Library has developed flash technology which allows one to virtually turn pages of some of the rarest books known to man.

Well worth a peek at the future of reading.

Contract Drafting

Posted in Uncategorized at 1:23 pm by thelawthoughts

For all you lucky people who don’t need to draft contracts, look away now. For those who do, this little post is a great resource.

Let’s all be good concise lawyers. That way we will all know what each other means.

And, for the love of God, DON’T use ‘reasonable’ in a contract!!! There is no ‘man on the Clapham omnibus’ (although I did, on a trip to London once, take a photo of said bus amongst gales of laughter with my girlfriend.)

Or is that not the point?

February 6, 2006

Internet Law Subject Page

Posted in Uncategorized at 9:15 am by thelawthoughts

This link is a gem.

Kim Weatherall taught Internet Law last semester, a subject which I could not take. However, her ‘Useful Links’ page is worth a look, as it contains a lot more than just links.

The set out of commentary and links on each issue considered in the course is extensive and a great beginning point for anybody studying internet issues.

February 2, 2006

Instructions from the boss

Posted in Uncategorized at 4:55 pm by thelawthoughts

I am very keen on being a legal research assistant, and anybody who feels likewise should read Anupam Chander’s instructions for his research assistants.

Really, these are good instructions for anybody who has a boss and writes things for them!!