Editorial

In this Edition

Tania Su Li Cheng: A Brave New World for Intellectual Property Rights

Professor Don Chalmers: Privacy and Biobank Research: Weighing Private and Public Interests

Constance Zhang: Regulation of the Internet – New Laws & New Paradigms

Laura Thomas: Nothing to Hide, Something to Fear? : The Use of Partial DNA Matching in Criminal Investigations

Connell O’Neill: The Battle over BlackBerry: Patent Trolls and Information Technology

The Research or Scholarly Article Competition which the journal ran to celebrate its relaunch as the Journal of Law and information Science has been an outstanding success. We received six articles of a publishable standard on a diverse range of topics. Four of them are being published in this issue and the other two will be published in the next issue.

We are pleased to announce that the winner is Tania Su Li Cheng, Lecturer in Intellectual Property Law at the University of Glamorgan Wales, and offer her our congratulations. Her highly original article, ‘A Brave New World for Intellectual Property Rights’, is the first article published in this issue. The article examines the intellectual property rights which users of virtual worlds, such as Second Life and There, should possess in the objects and works of art which they create in those worlds. Most, but not all licence agreements between virtual world developers and players give the right to any IP created by the players to the developers. The article assumes that players deserve IP rights in their virtual world creations, but questions whether real world IP rules should apply in the virtual world. The application of real world IP rights to virtual worlds ignores the significance of virtual worlds to their players, who tend to view them as alternative realities. For example, a car in a virtual world is looked on as a means of transport in that world rather than an image or representation of a car or a piece of computer code underlying the image. To give virtual world creators real world IP rights in their creations fails to recognise the role of their creations in the virtual world and creates inequality between real world and virtual world creators. Ironically, virtual world creators are treated better in some respects, in that they may be able to obtain copyright protection for their design which is superior in many ways to the protection available to real world designers. To ensure parity of rights between real world and virtual world creators and designers, the article argues that it may be necessary to create special bespoke laws for virtual worlds.

The second article in this issue, ‘Privacy and Biobank Research: Weighing Public and Private Interests’ by Prof Don Chalmers, examines privacy concerns arising from the electronic linking of personal medical records and health information, especially genetic information. A feature of the genome era is the creation and use of massive genetic data sets to develop new diagnostic and therapeutic products. The development of biobanks, which are stores of human tissues and genetic information for research purposes, facilitates genetic research. However, the advantages for genetic research must be balanced against the privacy and welfare of the biobank sample contributors. The article examines privacy in the light of the development of biobanks, which because of their long term storage of data, provide significant privacy and data protection challenges. The article focuses particularly on the Australian Information Privacy Principles introduced by the Privacy Act 1988 (Cth) and the section 95 and 95A guidelines issued in 1991 and 2001 under the same Act. The 1991 guidelines are guidelines ‘for the protection of privacy in the conduct of medical research’ involving federal agencies, while the 2001 guidelines extended the privacy principles to non-government researchers. The article then considers relevant principles and reform proposals for the governance of biobanks, before concluding with an analysis of the need to balance the individual right to privacy with the community’s interest in and right to share in the benefits of genetic research, concluding that, in order to gain the full benefits of genetic research, it is important to maintain public trust in biobanks in a time of increasing commercialisation of science and research. The Internet has revolutionised all aspects of life, including commercial life. Inevitably, its use for commercial transactions has led to the development of new types of fraud and other crimes. It has also been used for the dissemination of pornography. Those operating in cyberspace are often beyond the reach of national and regional law enforcement agencies.

Constance Zhang’s article, ‘Regulation of the Internet – New Laws and New Paradigms’, considers how we can regulate the internet when a netizen can be simultaneously present in multiple jurisdictions while there are neither uniform rules nor agreements among those jurisdictions, when new technologies enabling new forms of interaction are being developed every day while a new law may take years to enact. The article argues that while many technologies pose great challenges to Internet regulators, they may also be of assistance to them. While new paradigms and methods of control will be necessary to adapt to governance of cyberspace, the rule of law still plays a crucial role in achieving the ultimate regulatory objective of utilising technology to provide a fair, safe and efficient space for social and commercial interactions while maintaining a balance between various competing interest and values. Partial DNA matching is a forensic technique that compares DNA profiles to determine whether it is likely that they belong to people who are close genetic relatives. Where DNA is left at a crime scene by a posited offender the technique can be used in combination with a DNA database or a mass screening to ‘track down’ that person when more traditional investigative techniques have failed. In the United Kingdom and the United States the technique has been used in criminal investigations since 2002 and has led to some spectacular successes in solving violent crimes, including in cold cases that would otherwise have remained unsolved. Publicity of the successful use of partial DNA matching overseas will inevitably lead to calls for its use in Australia. This is most likely to occur when the community is faced with particularly horrific crimes or threatened by a serial offender. Despite its encroachment on privacy and civil liberties, the use of partial DNA matching is clearly justified in such cases, but consideration of how to regulate the technique should occur before a situation where there is pressure to use it arises. Because partial DNA matching is used to find suspected criminals through their genetic links to family members, it raises privacy and civil liberties concerns in addition to those that have surrounded the ‘ordinary’ use of DNA in criminal investigations, a practice that has become entrenched over the last 20 years.

Laura Thomas’s article, ‘Nothing to Hide, Something to Fear? The Use of Partial DNA Matching in Criminal Investigations’ outlines the legislation that governs the use of DNA in criminal investigations in Australia and examines concerns about the impact of partial DNA matching upon the efficiency of criminal investigations, individuals and families investigated and society at large. In keeping with the emphasis on civil liberties that is evident in the Australian legislation, this article proposes that partial DNA matching should only be used in the investigation of serious violent crimes. The article proposes a method of judicial oversight to ensure that the public can benefit from the use of partial DNA matching while minimizing its negative consequences. Judicial oversight should allow for a balancing of the public’s interest in the obtaining of evidence that might assist in the investigation of violent crime against the public’s interest in upholding the privacy rights of families. Amendments to the DNA database legislation to explicitly allow for partial DNA matching, the proper training of police to ensure that they understand and can communicate the meaning of partial DNA matches and the provision of genetic counselors could also contribute to minimizing negative impacts on the efficiency of criminal investigations, individuals and families investigated and the community at large.

In 2008, the patent litigation over whether the BlackBerry email device infringed a number of NTP patents was finally settled. NTP sought damages and injunctive relief, threatening the shutdown of the extremely popular BlackBerry relay. The dispute was closely followed it raised issues of patent protection for information technology dependent on underlying prior art. Most in the IT business supported RIM, the makers of Blackberry, because of concerns about ’patent trolls’ in the information technology sector. The litigation reveals the inability of the United States patent system to accommodate emerging convergent technologies like the BlackBerry device. The case highlighted failings in the United States Patent and Trademarks Office, misapplication of patent law by the Federal Court and the reluctance of the Supreme Court to intervene. Connell O’Neill’s article, ‘The Battle Over BlackBerry: Patent Trolls and Information Technology’, highlights doctrinal errors made by the United States Federal Court in the BlackBerry dispute. These relate to the standard of obviousness, the availability of injunctive relief, and the interpretation of the extraterritorial scope of infringement provisions. The article addresses the growing concern over the impact of ‘patent trolls’ on innovation especially in the IT industry.

 

 

Abstracts

A Brave New World for Intellectual Property Rights

Tania Su Li Cheng

Imagine you have just won the Euro lottery jackpot (in a rollover week). You can design and build a mansion, own a wardrobe consisting exclusively of Prada bags, Hermes scarves and Gucci shoes and own a fleet of Ferraris, Porsches and other luxury sports cars. You can drive downtown (or indeed have a chauffeur drive you) in your Lamborghini Gallardo Spyder to meet your pals at an exclusive club, where you puff on your collection of Cohiba cigars and savour Remy Martin from a Baccarat glass. These days, even if you are not the lucky recipient of a lottery win, these branded luxuries (and chauffeur) can be virtually yours if you simply take up ‘residence’ in a virtual world, the latest Internet spawned runaway phenomenon.

Access full article via [HeinOnline]|| [Austlii/WORLDLII]

Privacy and Biobank Research: Weighing Private and Public Interests

Professor Don Chalmers

Research efforts in the computer industry, in general, and bio-informatics, in particular have concentrated on developing specific privacy enhancement technologies (PETs) to protect personal privacy, prevent unauthorised access to this information and, most importantly, to enable authorised access to information. In the 1970s and 1980s, the informatics era was accompanied by public concerns about telecommunications and the security of personal information held by governments, banks and other credit organisations. These concerns were to the forefront in the introduction of the Commonwealth Privacy Act in 1988.

Access full article via [HeinOnline]|| [Austlii/WORLDLII]

Regulation of the Internet – New Laws & New Paradigms

Constance Zhang

Rapid development of the Internet has brought revolutionary impacts upon all aspects of life. Many are benefiting from the communication superhighway and the myriad commercial opportunities it brings. However, at the same time new conflicts have arisen and new crimes have emerged. Some have turned the Internet into profitable commercial enterprises, but at the expense of fair and open access to information by the public. Others have gone even further – exploiting the medium to commit acts of fraud and disseminate obscenity that is both immoral and criminal. What is more, those operating in cyberspace seem to be beyond the reach of national governments and regional law enforcers. How can we regulate the Internet when a netizen can be simultaneously present in multiple jurisdictions while there are neither uniform rules nor agreements among these jurisdictions, when new technologies enabling new means of interaction emerge everyday while a piece of legislation may take years to be enacted? This paper endeavours to explore the question of if and how cyberspace may be effectively regulated as well as the role of law in this process. It will be shown that while many technologies pose great challenges to Internet regulators, they may also turn out to be of assistance to them. The central argument put forward is that while new paradigms and mechanisms of control will be necessary to adapt to governance of cyberspace, the rule of law still plays a crucial role in achieving the ultimate regulatory objective: to utilise technology to facilitate a fair, safe and efficient space for social and commercial interactions while maintaining a balance between various competing interests and values.

Access full article via [HeinOnline]|| [Austlii/WORLDLII]

Nothing to Hide, Something to Fear? : The Use of Partial DNA Matching in Criminal Investigations

Laura Thomas

Rapid development of the Internet has brought revolutionary impacts upon all aspects of life. Many are benefiting from the communication superhighway and the myriad commercial opportunities it brings. However, at the same time new conflicts have arisen and new crimes have emerged. Some have turned the Internet into profitable commercial enterprises, but at the expense of fair and open access to information by the public. Others have gone even further – exploiting the medium to commit acts of fraud and disseminate obscenity that is both immoral and criminal. What is more, those operating in cyberspace seem to be beyond the reach of national governments and regional law enforcers. How can we regulate the Internet when a netizen can be simultaneously present in multiple jurisdictions while there are neither uniform rules nor agreements among these jurisdictions, when new technologies enabling new means of interaction emerge everyday while a piece of legislation may take years to be enacted? This paper endeavours to explore the question of if and how cyberspace may be effectively regulated as well as the role of law in this process. It will be shown that while many technologies pose great challenges to Internet regulators, they may also turn out to be of assistance to them. The central argument put forward is that while new paradigms and mechanisms of control will be necessary to adapt to governance of cyberspace, the rule of law still plays a crucial role in achieving the ultimate regulatory objective: to utilise technology to facilitate a fair, safe and efficient space for social and commercial interactions while maintaining a balance between various competing interests and values.

Access full article via [HeinOnline]|| [Austlii/WORLDLII]

The Battle over BlackBerry: Patent Trolls and Information Technology

Connell O’Neill

The year 2006 marked the end of over five years of patent litigation between NTP Incorporated (NTP) and Research In Motion Limited (RIM). The dispute centred on alleged infringement of a number of NTP’s patents by RIM, makers of the BlackBerry electronic mail (email) device. It created a major stir in the legal and business worlds since NTP sought damages and injunctive relief, with threatened shutdown of the extremely popular BlackBerry relay. In the dispute, RIM was the favourite of both public and private business, largely because of growing concern about ‘patent trolls’ in the information technology sector. The dispute concerned the BlackBerry email system, which has an ever-expanding user base, comprising many powerful and influential business and government figures. The dispute was closely followed over a long period by devotees and industry analysts since it raised issues of patent protection for information technology dependent on underlying prior art. The litigation revealed the inability of the United States patent system to accommodate emerging convergent technologies like the BlackBerry handheld device. This paper highlights several doctrinal errors made in the BlackBerry dispute by the United States Federal Court. These relate to the standard of obviousness, the availability of injunctive relief, and the interpretation of the extraterritorial scope of infringement provisions. The BlackBerry litigation is now recognised in terms of qualitative failure by the United States Patent and Trademarks Office (PTO), misapplication of United States patent law at the Federal Court level, and lack of Supreme Court intervention. This paper addresses the growing concern over the impact of ‘patent trolls’ on innovation, particularly in the information technology industry. The United States Congress needs to consider reform within the patent system to encourage the convergence and integration of useful inventions by innovation and to allay intervention by ‘patent trolls’. The dispute represents an illuminating case study of the machinations of the United States patent system, highlighting failure at all levels to promote innovation in convergent information technology.

Access full article via [HeinOnline]|| [Austlii/WORLDLII]