In Conversation With: Monica Taylor and Jennifer Gibbons of the UQ Pro Bono Centre

Interviewed by Chloë Bennett

For law students, gaining exposure to the legal industry is an invaluable experience.  The UQ Pro Bono Centre, part of the T.C. Beirne School of Law, recognises this need and helps to bridge the gap between studies and practical experience by promoting the value of pro bono work.  The vast opportunities offered by the centre foster the importance of pro bono whilst simultaneously developing the skills necessary for a legal career. Chloë Bennett caught up with the Centre Director, Monica Taylor, and the Centre's Senior Administration Officer Jennifer Gibbons to discuss the importance of pro bono work. 

Chloë: So tell us a bit about yourselves…

Monica: I did an Arts/Law degree at UQ many years ago and commenced practice in a large firm.  After about three years I side-stepped into community legal work and was the first full-time coordinator for the Homeless Persons’ Legal Clinic at QPILCH. I did a lot of pro bono work when I was a law student.  For me, it was only a matter of time before I tried to find paid work in the legal assistance sector. After QPILCH I went overseas, started a family, did some overseas pro bono work, and ended up coming back to UQ to head up the Centre.

Jennifer: I’ve been in the law school for 12 years. When I started at UQ I administrated the PLT program that UQ used to offer. When PLEAT was cancelled I transferred to administering the law post-grad programs, overseeing LLMs and, initially, the PHDs. I stayed with this for ten years and then was given the opportunity to assist Monica in the Centre part time to support her expansion of the Centre’s activities. I am now in the Centre full-time and I love the work. I enjoy the connection with undergrad students. I’m amazed by what we’re all achieving together and amazed by the students and the work that they do.

Chloë: Can you give us some background about the Centre?

Monica: The Centre started in 2009.  It was a vision of law school academics, in particular Assoc. Prof. Tamara Walsh, who is still actively involved. Tamara did an extraordinary amount of ground work to establish the Centre within the University structure and she also established the Manning St Project. That is where law students attend Caxton Legal Centre and work on law reform and policy research for different agencies, over a full semester.  Paul O’Shea (who has since left the school) started the first clinical law elective, and since that time the Clinical Legal Education (CLE) Program has significantly expanded.  It’s now one of the strongest electives within the law school.

The Pro Bono Roster has always been the Centre’s ‘engine room’ – it is a database where students register their interest. They’re not compelled to do pro bono work or any of the activities posted. It’s only if they have the skills, interest and time that they may choose to apply for the relevant task.

The most recent program within the Centre was established in 2011; the High Schools Program. Assoc. Prof. Peter Billings was the architect of this initiative, where students design and deliver lessons on asylum/refugee law and international humanitarian law to high school students.  Most recently, Dr Francesca Bartlett started a new HSP program focusing on domestic violence and the law.

Chloë: How many students are there on the Roster?

Jennifer: We suspect it’s around 450. We have just migrated over to a StudentHub system which will allow new students to the roster to look at archival opportunities as examples of opportunities that may arise. I’m also finalising a handbook for students on the roster which will act as a guide throughout their pro bono commitments as well as include such mundane things as applying for travel reimbursement, hints and tips for research, publishing, intellectual property and so on.

Monica: Roughly about a third of the entire law cohort is on the roster. 

Chloë: One of the publications the Manning Street Project has produced is the Pro Bono Values Project. One of the interesting findings in that Report was that the moral obligation to perform pro bono was as important as the professional drive to do it. Given the current job market, and the volume of law students in Australia, do you think that going forward the moral or professional drive will be more important? Are we nurturing the professional obligation?

Monica: I think law schools really have a fundamental obligation to socialise students in the direction of public interest law practice, but you can’t mandate morality and you can’t mandate pro bono work. What the Pro Bono Values Project suggests is that if you make people do it, or if you over-coordinate the delivery of pro bono work –– it may impact negatively on the quality of work produced.

There’s a question of whether law schools ought to simply expose students to public interest legal work through clinical legal education (where they gain academic credit) or in the pro bono tradition? At UQ we have opted for both and there is curricular synergy between the two. The other thing we need to be mindful of when designing pro bono activities is that students already have tremendous demands on their time, particularly if they have jobs or are raising a family.

Jennifer: I think there are also a number of students who lose their way by second year. They’ve become so bogged down in GPAs and competitiveness, and quite often joining the roster helps them re-gain motivation. It can be quite illuminating to realise they do have other options within the profession and can make a difference. I think while the obligations and the moral aspects of the law school and the law profession are important, the feeling of contribution and gaining a new direction in your degree can make true pro bono service really valuable to the individual.

Chloë: It’s the long-running joke in law school that people who started their degrees to make a difference are dissuaded from this idea through their degrees. Commercial law firms also have a monopoly over advertising and sponsorship within the law school, and it can feel like they are the only viable career path for a young lawyer. Do you think there’s more that can be done to actively encourage students to pursue social-justice oriented roles in the profession? Or does that drive to help people come from a more personal place?

Monica: There are many law students and graduates.  The legal assistance sector is underfunded and is set to receive a 30% cut from June 2017, and there’s huge unmet legal need.  As one lawyer has described it, community legal centres are ‘stretched to breaking point’ and ordinary people go without having their legal needs addressed.  What we have then, is market distortion and a problem with few career pathways into the CLC sector despite a strong supply of new lawyers who want to work in the public interest.  Greater funding for the sector would naturally open more pathways into jobs and that would go some way to go towards aligning the job market.  The solution is not about more people doing pro bono work for nothing, it’s about stimulating and sustaining long-term employment in the legal assistance sector.

Jennifer: And that’s about funding.

Monica: Yes, and I see that as a part of the role of government, and also to a lesser extent the role of individual or institutional philanthropy, but fundamentally, government has a responsibility to fund legal assistance services .

Chloë: The PBC is very unique in terms of law schools in Australia. While other universities now offer clinical placement programs, there’s not really another internal driver of pro bono in another law school like the one we have at TCB. Why do you think no one else has adopted this structure and why do you think there’s an advantage to it?

Monica: There are many student-led clubs that focus on pro bono in universities in other parts of the world. Canada has an organisation which facilities student pro bono across the country. Closer to home, Bond University has an on-campus pro bono club. 

Our Head of School has seen the value of student and community engagement and the role of the Centre as a vehicle for the school to partner with the community legal sector.  Prof. Derrington’s vision and also that of her predecessors, has allowed the Centre to come into existence and for it to grow.  There have been numerous leadership champions in the law school who have consistently backed the Centre.

Jennifer: They haven’t just backed it - they have encouraged and fostered it by firstly funding a dedicated director and then later an administrator.  What it all boils down to is that UQ students are lucky to have this unique opportunity in such a structured way.

Chloë: While the Values Report didn’t really go into it in depth, there was some discussion about making pro bono mandatory. Do you think that there’s any benefit in making pro bono mandatory for students? Or, for example, they have to do a certain number of hours, or a placement like in health or education degrees, or do Roster activity before they graduate?

Monica: I don’t believe in mandating pro bono. There are the equity issues you can’t ignore. There’s also the plain fact that not everyone studying a law degree has their sights set on legal practice and we need to have flexibility to accommodate people who are studying law as a general degree. Most students don’t want to close the door to practice but there are some students who have no aspiration to become a lawyer.  

There are overseas examples of mandatory student pro bono – the New York Bar Association has a requirement that students must complete 50 hours of pro bono work before they can be admitted. My other view is that we need to be really careful about promising everything for nothing and using students as unpaid labour – you need to provide opportunities, but not expect it of them. By all means inspire students through clinic and other elective offerings and by creating interesting and meaningful pro bono work – but there’s a line in the sand for me between inspiration and making it mandatory.

Jennifer: If a student is trying to support themselves or a family you can’t expect them to do pro bono. One shoe doesn’t fit all. Further, we don’t want reluctant help – perhaps putting at issue the quality of the help that people are giving? The beauty of the Centre is that UQ has about 450 willing students who have volunteered for this work. That’s a very different thing to offer than just ‘UQ students are available to you.’ 

Chloë: Do you think there is enough emphasis given to the professional responsibility of pro bono in regular course work at UQ? It is emphasised really strongly in subjects like Legal Profession, but that’s usually in the later years of the degree, and a few years after they qualify to sign up for the roster.

Monica: I think we could all do a better job of integrating the message throughout the degree from start to finish.  The problem is partly a product of the Priestly 11 and what you have to study to be admitted – we’re hamstrung a bit by those requirements. But then I think we could do more. The Centre has been working with Dr Burdon who coordinates Law and Society to have a session in that course about access to justice, and students who are engaged in pro bono work come and speak about what they’re involved in. I do think we need to make it a more continuous message.

Chloë: But that’s up to everyone.

Monica: Yes. You can possibly teach every course with some social justice flavour – for example you could have a really interesting critique of corporations law, and administrative law is just ripe for it, with judicial review. But then I do have sympathy for wanting to efficiently run a course, especially with large numbers of students.

Chloë: And now that they have cut the cohort size, do you think there’s more of an opportunity to encourage people to think about these issues because of a more tight-knit community?

Monica: Yes, quite possibly. We don’t really know what a smaller cohort will be like yet, but there will hopefully be more opportunities to have conversations about access to justice and pro bono.

Jennifer: Hopefully it will also mean there’s a higher ratio of students who can take up opportunities on the Roster and in the Clinical Placements.

Chloë: What is your vision for the Centre over the next few years?

Monica: Quality; not quantity. I don’t necessarily want to see us measure our impact just through numbers of tasks and students. I am focused on making sure those tasks have been done as well as possible; that students have had a really positive experience; and the ‘value add’ for the CLC or law firm is clear. The second thing is we have identified through our strategic plan is growth in international pro bono and CLE opportunities.  A lot of that work is now in process. The MoU we signed with the Supreme and National Courts of PNG has seen opportunities slowly trickle through to students, but that, again, is something that we have to be really respectful about: it is not about self-promotion. At the end of the day it is about service.

Jennifer: It is about service. In a law relationship, confidentiality is so important and there are times where you can’t shout your achievements from the rooftops. That is something that the Centre respects and so do our students. It’s about maintaining the trust between the Centre, the students, and individual Centre Partners. It’s about being able to trust that if partners seek Centre assistance they get that quality support.

Chloë: Finally, what would you say to students who want to get involved?

Jennifer: Come on down!

Monica: Absolutely, sign up. You’re not committing to anything by registering on the pro bono roster. I’d like to think that we are approachable: we have an open door policy and we will happily speak to students about the opportunities.

Jennifer: I think that’s the major message, particularly to students who are on the roster, have applied for opportunities and haven’t received a role. We try to give every student a fair go. It isn’t all about GPA, it really is about who is the best fit for the opportunity available at the time.

Monica: I would also say that we always try to be responsive to student ideas, and a lot of initiatives now exist because of an idea that a student had.  

UQ Law students who have completed sixteen units of LLB Laws courses are welcome to register online for the The UQ Pro Bono Centre Roster. All positions are advertised via StudentHub. Applications for LAWS5180 - Clinical Legal Education Program are also open until 4 November 2016. The list of clinics available, as well as the application form, can be found here.  JATL sincerely thanks Monica and Jennifer for their time!

Global Food Security: Genetically Modified Organisms, Environmental Policy and Intellectual Property Rights

Written By Reid Barry

Awarded 2nd Place in JATL's Law and Technology Essay Competition

Introduction

Food is not only a basic necessity of life, but a time capsule of a region’s cultural past and present. One only needs to briefly set foot in a foreign country before another exclaims that the national dish must be sampled. Indeed, food is so much more than energy used to fuel our bodies. It transcends deep into our global society to identify cultures, and has the amazing ability to be shared throughout the world. However, with the availability of agricultural land coming at a premium,[1] the global population set to exponentially increase,[2] and food production yields beginning to peak at their maximums,[3] the future of humanity’s food security is under threat. Further worsening the situation are the effects of global climate change, water scarcity, and the increased regulation of agricultural chemicals used to aid crop production. Will we be looking at a future where food loses its cultural value and is simply regarded as mere human fuel?

While this outcome may seem bleak, humanity has risen to tackle this challenge once before. From 1965-1980, a significant push in scientific research provided relief for global food security. Crop yields were maximised following advancements in plant breeding, improved fertilisers, more effective pesticides, and better farm management practices and irrigation.[4] Termed the Green Revolution, this surge in scientific innovation had struck at the heart of the fight for securing global food dependence. Society was not able to rest long however, following criticisms of the use of particular pesticides and chemicals on the environment, and with agricultural yields slowing to a steady equilibrium, policy makers and scientists had to rethink the battle for global food security.[5]

This period during the 1980’s and 1990’s coincided with great advancements in genetic technologies. The combination of a system to isolate and amplify genetic material created in 1983,[6] combined with the first automated genetic sequencing technique in 1986[7] lead to a race to sequence the first whole genomes of viruses, bacteria, fungi, plants and animals. The era of genetic science had arrived.[8] With it came a solution to securing global food production. The genetic sequencing of prize crops such as rice and wheat, and the isolation of their functional genes, led the way for the genetic modification of these commodities. These so called ‘genetically modified organism’ (GMOs) have revolutionised the biotechnology and agricultural industries. Scientists have been able to isolate genes in agrarian commodities and enhance advantageous traits. An example of this being the amplification of the growth hormone gene in salmon, giving them the ability to grow to a mature size three times faster and with significantly less resource expenditure than their wildtype counterparts.[9] Beneficial characteristics from foreign organisms are also able to be incorporated into commodities. This means that theoretically the frost tolerate gene of the Atlantic salmon can be inserted into a tomato plant to produce a frost resistance tomato variety.[10] Another real world example is the creation of GoldenRice™, a rice variety with a gene expressing the production of vitamin A. Such technology has allowed the vitamin A deficient nations (mainly within South-East Asia) to supply their population with a scientific solution to address their hunger and nutrition issues.[11]

Of course, behind most world-changing scientific inventions, is a complex network of intellectual property rights. Indeed, it is difficult to pick up an environmental text without some discussion concerning the interplay and ramifications of intellectual property on environmental policy.[12] Take for instance the scientific development that created the transgenic GoldenRice™ variety. Approximately 70 patents were used in its research alone.[13] Thus, to combat environmental issues, it also seems that scientists need to also battle a maze of legal formalities. This may all seem well for wealthy and research intensive nations. However, how do the less prosperous nations fair in this battle? Africa, the poorest continent in the world, remains trapped in this dilemma. Heavily reliant on agriculture to provide an export revenue stream, African nations face the toughest challenges posed by GMO intellectual property rights.[14] While their agricultural industry provides upwards of 50% of some African nation’s export revenue, they are still faced with widespread food insecurity. Crippling poverty and weak trade relations play a part in this predicament.[15] Scientific advancement in agribusiness and a strengthening of internal markets and trade associations may help these nations break free from this cycle.

Therefore, GMOs are expected to be the new wave of technology to sweep in and address the issue of global food insecurity. It is expected that GMOs will produce disease resistant crops, require less pesticide and chemical treatment, lessen the environmental footprint of agriculture, require less resource input (such as fertiliser, feed and land), boost agricultural yield, enhance nutritional value and produce less waste.[16] Such scientific techniques have however come under significant scrutiny. The public, governments, jurists, economists and fellow scientists have joined the debate regarding GMOs and their effect on the environment, public health, and economic development of nations.[17] The discussion of genetic engineering has thus become a tainted topic.

This essay will outline the concerns regarding the rise of genetic engineering to combat food security in developing nations. This will focus on the socio-economic impacts encountered by genetic intellectual property rights. A discussion regarding the environmental impact and human health risks that GMOs pose will be left out of this debate. The essay will then investigate the regulations and conventions that govern GMOs at the international and regional levels of the European Union and African Union. Concluding the analysis of these structures, a discussion will be conducted detailing possible solutions concerning GMO regulation in the fight to combat global food insecurity. The author hopes that this article is able to highlight the significance of the problem of global food insecurity, and possible action that should be taken to help resolve some of its issues.

It must be noted that this essay is limited to a North-South perspective on trade between the European Union and African Union. It has focussed on this two regions as a whole, and attempts not to dissect national policies or agendas. It also does not delve into any issues regarding GMO labelling, co-existence of GM and conventional crops, or the release of transgenic products within territories.

As for the materials utilised during its research and construction, this essay relies primarily on published academic literature, mostly legal textbooks and articles. Reference is also made to the websites and reports of relevant international and regional organisations and conventions, in an attempt to keep the research material as up to date as possible. Some scientific papers have also been reviewed, to provide the appropriate background knowledge that comes with an area as perplexing as genetic science.

The Debate Regarding GMOs

Genetically modified organisms within the realm of agricultural production present a number of challenging issues. These issues can be distilled into three primary headings; environmental impacts, human health impacts, and socio-economic impacts. While there is great concern as to the environmental and health impacts of GM agriculture and food, they will not be detailed in this article. Instead, the socio-economic challenges of GMOs on developing nations will be pursued.

Socio-Economic Impacts:

This area of concern arose following the ideation of a possible corporate takeover of the food production chain. Through the use of patent law and intellectual property protection, “[t]here is growing fear of the use (or abuse) of intellectual property rights by biotech companies. This fear emanates from the possible monopolisation of genetic resources, which might lead to market monopolisation and creation of dependency on these few companies.”[18] Such a scenario greatly affects developing countries. In fact, the Agreement on Trade-Related Aspects of Intellectual Property Rights (discussed below) “has been criticised as being favouring [toward] developed nations and disadvantaging developing nations. This is because it encourages strong IP protection, an issue that benefits developed nations since the majority of patents are produced in these countries.”[19]

Therefore, IP innovation and its link to GMOs has the potential to cause concern for developing African nations. Dependence on the GM products, the increased cost of having to manage a GM farm, inflation of licensing fees, and ‘terminator technologies’ that require a farmer to purchase seed from GM suppliers annually have the potential to drive small scale farmers out of the game.[20]

This has lead Professor Olivier De Schutter to state that “the current intellectual property rights regime is suboptimal to ensure global food security today. It is unfit to promote the kind of innovation we need to cope with climate change”. [21] He added that the “United Nations General Assembly needs to develop seed policies that encourage innovation, promote food security, and enhance agro-biodiversity at the same time. He also recommended that there is need to ensure that seed policies respect, protect, and fulfil the right to food of the most vulnerable groups.”

Current Environmental Policy Regarding GMOs

International Agreements:

There is a minefield of international regulatory structure that governs the production, trade and intellectual property protection of genetically modified products. Distilled below are the most applicable regimes. They cover a broad range from international treaties, specific organisational structures and soft law principles.

The leading international agreement on biotechnology is currently the Cartagena Protocol.[23] The agreement was adopted in 2000 following discussions within the framework of the Convention of Biological Diversity.[24] It regards the protection of biological diversity from the potential risks posed by genetically modified organisms and modern biotechnology, particularly through the movement of GMOs between nations.[25] The core of the agreement gives government agencies access to information necessary to make informed decisions regarding the importation of living modified organisms. To assist in the exchange of information between nations, the ‘Biosafety Clearing-House’ was created. This structure allows members to add to a database the latest scientific research and information relevant to genetically modified organisms, biotechnology and the protection of the environment.[26] There is a reflection of the ‘precautionary approach’, as seen within Principle 15 of the Rio Declaration on Environment and Development, echoed within the protocol as well.[27] Importantly, the Cartagena Protocol provides in Article 26 the right for nations to take into account socio-economic considerations arising from the impact of living modified organisms on the conservation and sustainable use of biodiversity. This is important for developing nations, as will be discussed below. This position on socio-economic consideration draws similarities to the ‘sustainable development’ goals negotiated within the Rio Declaration.[28] This exemplifies the interconnected and harmonised nature of the current international agreements regarding environmental protection. Compliance with the protocol is handled through a compliance committee that meets annually to monitor government activity within the confines of the protocol. While the compliance procedures are quite comprehensive, there is limited enforcement power within the Cartagena Protocol.[29]

The World Trade Organisation (WTO) also has a hand in regulating the flow of transgenic material across borders. Specific regulations affecting GMOs include; the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement),[30] which has been seen as a step forward in the autonomy of States allowing them to restrict imports of modified organisms based on health reasons; the General Agreement on Tariffs and Trade (GATT) that apply to the trade of goods that fundamentally affect national transgenic policies and implementation; and the Agreement on Technical Barriers to Trade (TBT Agreement) that deals with technical regulations, standards (such as labelling requirements), and conformity assessment of trade related goods.[31] Given the inherent commercial nature of GMOs, they are regulated strictly by the WTO. An important trade related document affecting intellectual property, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), handles the patentability of trade related GM products under the auspices of the WTO and World Intellectual Property Organisation (WIPO).[32]

The Food and Agriculture Organisation (FAO) administers the International Treaty on Plant Genetic Resources for Food and Agriculture (The Seed Treaty), which has important implications on seed exchange and the conservation of genetic diversity of plants, whilst also promoting the research and development of climate-smart agriculture to combat climate change and global food security. There are also provisions detailing principles of sustainable use and farmer’s rights, which have a positive influence on developing nations.[33]

The World Health Organisation (WHO) has an indirect and soft effect on GMO regulation.[34] They are frequently invited to write reports and recommendations on the regulation of GMOs, thus implementing policy controlling the use and trade of such substances. The Aarhus Convention[35] further holds that when assessing the risk and regulation of GMOs, there must be consideration for the public access to information, procedures in public participation in decision-making, and access to justice.[36] While their influence is not the paramount concern regulating transgenic products, their impact is not significant, and is worthy of mention.

Therefore, when you step back to look at the various conventions and organisations that control genetically modified products, their international trade and their intellectual property protection, it is apparent that the area is governed by main specific bodies, with smaller supplementary agreements and guidance interspersed to link them.

European Union Regulation:

The European Union (EU) has grappled with the concept of GMOs for some time. In an attempt to harmonise and control the regulation of GMOs (and to remove it from the auspices of nationalistic policies and debate) the EU has taken most of the power away from States to regulate and restrict the import of GMOs into their territory.[37] A recent EU legislative push to grant member States the right to regulate the import of GM products was recently quashed in 2015.[38] States have however retained the ability to implement nation law regarding the adoption and cultivation of crops within their territories.[39] Thus, a conclusion can be drawn that the EU is more concerned with the import of GM products, rather than their export.

To move to the intellectual property component of GMOs, the EU has implemented the European Patent Convention. This committee largely has adopted the international regimes on intellectual property rights regarding GMOs. They include the TRIPS Agreement and FAO Seed Treaty. This is not surprising, as a core principle within the World Intellectual Property Organisation states that they have an obligation to ensure international patent and intellectual property harmonisation.[40] Thus, the EU adoption of these international frameworks check the box of the WIPO obligation.

African Union Regulation:

Much the same as the EU, the African Union (AU) have also implemented policies within the framework of the international agreements. Thus, the Cartagena Protocol, the WTO related agreements such as the TRIPS Agreement, SPS Agreement, GATT, and TBT Agreement, the conditions imposed by the WIPO as well as The Seed Treaty all affect the African Union in much the same way as the European Union. The EU is the most influential and significant trading partner of the AU, hence why an analysis of EU regulations was conducted above.[41]

One notable addition however, is the African Model Law on Safety in Biotechnology.[42] The African Model Laws were adopted to combat the lack of national regulation within the AU regarding biotechnology safety. This has been explained by the AU’s lack of acceptance of GM technologies. Many nations have been slow to adopt biotechnology within their agricultural systems, and others that have accepted biotechnology have done so hesitantly. Of the 54 African Union nations, only three had implemented commercial GM agricultural technologies by 2012 (Burkina Faso, South Africa and Sudan), with another five only allowing field trials of such technologies (Nigeria, Zimbabwe, Malawi, Kenya and Uganda).[43] The model laws thus created a link to the EU biotechnology framework, and developed a structure to be implemented within national biosafety regulations. This system has however been criticised for its extreme interpretation of the precautionary principle and emphasis on non-science policy. GM technology proponents have argued that this has caused a de facto regulatory ban on GM products in Africa.[44] GMO adoption as a means to combat global food security issues in Africa, have thus been stalled by the social and political denial of agri-biotech, and the regressive frameworks that are placed on African nations by the Cartagena Protocol and the African Model Law on Safety in Biotechnology.[45]

The Possible Solutions to GMO Acceptance and Achieving Global Food Security

This essay has currently outlined the debate regarding genetically modified organisms, flaws within intellectual property ownership of transgenic inventions, and detailed the current international and regional regulations governing biotechnology in Europe and Africa. The question still remains, how can we better regulate GMOs to combat the current food security crisis? Note here that this essay assumes that GMOs, when developed, tested and utilised correctly, can contribute to the strengthening of agricultural endeavours. So, the question is not ‘how can GMOs help global food security’, but rather ‘how can GMO policy and regulation help global food security’. Three recommendations are outlines below.

Public Education and Awareness of GMOs

While this solution sounds simple, it has perplexed scientists and policy makers since the dawn of genetic engineering. The tainted nature of the field surrounding GMOs has led to a fear among public citizens regarding the science. Genetic modification is regarded by some groups as an ‘unnatural’ and ‘immoral’ scientific practice. A lack of understanding regarding the patent system and corporate ownership of GMO intellectual property rights, has also swayed the public acceptance of GMOs toward a hesitant position. The solution needed is a push by scientists and government agencies to educate the public on the issues relevant to transgenic agriculture. Put succinctly by Salah Mahgoub:

“There is a need to view the issue of GM technology and its application to produce foods from both sides. It would be more helpful and beneficial to consumers to get a clear picture of the actual and potential benefits of GM product innovations, as well as knowledge of possible undesirable consequences. In addition, full comprehension of the functions and roles of public and private research institutions and bodies, the local and international regulations and intellectual property rights that govern the technology are needed to help in easing and possibly ending the dispute and controversy around GM technology and GM foods.”[46]

Furthermore, with a fully informed public having an appreciation for the benefits and risks involved in releasing GM agriculture, they will be better able to utilise the public participation and consideration principles within the Cartagena Protocol, Aarhus Convention and African Model Laws. This would assist policy makers to freely regulate biotechnology, allowing society to feel the full benefit of the technology, rather than hindering it through strict rules. This would be especially advantageous within the developing nations of Africa. Research has shown that government engagement and advocacy of scientific policies increases public awareness and appreciation for those sciences.[47] Therefore, the first step to effectively regulating GMOs to fight food insecurity, is to fully inform the world about the benefits and the risks of GM agriculture.

The Scientific Approach to the Assessment of Risk in GMOs:

This solution lies in the method policy makers and legislators view risks regarding genetically modified organisms. Current systems are heavily reliant on precaution. The Cartagena Protocol and African Model Law depend heavily on their interpretation of the ‘precautionary principle’. Thus, risk assessments conducted under such schemes are bound to view scientific uncertainty unfavourably.[48] The system would rather take no risk at all, than to chance an unknown or indeterminate consequence. The inherent uncertainty within the rapidly advancing field of genetic engineering adds to stagnant policy making.[49] Combined with the current public confusion regarding GMOs, and the public participation policies that must take into consideration this confusion, it makes the science surrounding genetic modification additionally ambiguous.

A departure is needed from this assessment technique. Thus, it is proposed that politicians move away from politically charged valuations to more pragmatic and scientific assessments. This would enable GMO policy to look away from ‘emotional public reactions’ to more rational decision making.[50] Thus, risk assessments would look to the hard scientific facts, weigh them up against each other, and return with the most beneficial and appropriate manner to proceed. In essence, the scientific assessment model will inherently be based on a utilitarian perspective of transgenic agricultural risk. It would consider the pros and cons of each scenario, and choose the one with the most social utility or ‘best interest’ for society. This perspective also allows African nations to have better regard to their socio-economic and sustainable development considerations within the Cartagena Protocol and African Model Law. An improvement in these key areas will assist in lifting those nations out of the poverty trap, with a flow on effect to promote their food security status.

A downside to this system, is that it avoids public opinion and participation, a core obligation within the Aarhus Convention. To counter this, the public would need to learn to trust the scientific assessment model. They would need to understand that it aims to protect the best interests of society. Another criticism asks the question about who will conduct the scientific assessments, and how will they apportion interests to society. To this query, there is no clear-cut answer. However, with the rapid development in genetic and environmental sciences, it is hoped that all assessments will return with a significant degree of consistency and certainty, thus clear decisions can be made on scientific fact.

This scheme would also allow a criticism of the ‘precautionary principle’. This criticism being, that the current principle deals only with unknown risks. It fails to address real and certain risks. Therefore, should we refocus the precautionary approach on the hard science that global climate change and food insecurity is real? Should we be taking precautions on these issues now, seeing as the scientific evidence suggests that both are pertinent issues?

To conclude this second solution, society must place its trust in the factions of science. We should let the science speak. If these steps based on science are not taken, policy will simply flounder about, caught in a vast cosmos of policy where it will frill around the edges of GMO regulation, solving only small pieces of the problem at a time, without hard-headedly steaming ahead with a solution.

Transition from Corporate Intellectual Property Rights to Cooperative Intellectual Property Rights:

To address the issue of privatisation and monopolisation of GMO technology, we must attempt to boost participation and funding of public sector laboratories and research. The aim is simple. Move IP ownership from the major conglomerates that inundate the agri-biotechnology market, to parties that will use IP rights for societal benefit. While such an idea seems outrageous and impossible, it has been done before. In 2003, following thirteen years of research at a cost of US $2.7 billion, the International Human Genome Sequencing Consortium announced the completion of the Human Genome Project, a global scientific effort that mapped the three billion base pairs that comprise the human genome.[51] This public consortium defeated other commercially-oriented rivals hoping to profit from patenting and licensing the work, thus ensuring the human genome is freely accessible to the global population. This global movement exemplifies how scientific effort and intellectual property rights can be used as a basis for humanitarian endeavours and acts of public good.

Therefore, governments and the scientific community should team up to produce solutions to the world’s most perplexing issues. Global food security being near the top of that list. The longer governments and researchers sit idle, the more opportunity big corporations will have at solving this problem for us, and profiting immensely from it, to the disadvantage of smaller, developing nations. Charitable organisations as well have joined to implement a similar solution. The Bill & Melinda Gates Foundation and The Rockefeller Foundation have been significant proponents in the aid to solve global issues. While society should not heavily rely on these philanthropy contributions, a synergistic relationship between government, charity, and research should be strived for. Such an affiliation will push for the development of GMOs as social problem-solving tools, rather than money making investments.

This has a great flow-on effect to developing nations, as it allows them to affordably carry on trade and business. Increased economic trade and revenue can thus be established within African nations, alleviating issues with poverty, and helping to secure adequate food production. Indeed, with the correct biotechnological advances, IP regulations and trade structures, developing nations may be able to ‘grow’ themselves out of poverty whilst contributing to the security of global food production.

Conclusion

The interplay of genetic technologies, international trade and intellectual property is thus a melting pot of cutting-edge scientific research, with a dash of emotive public consensus, held together through international frameworks and regional regulation. With the addition of the global food security debate, jurists have had an enjoyable time assessing the options that GMO regulation presents to help solve this issue. This essay advances a no-nonsense approach to achieving food security through biotechnology regulation. Firstly, the public must be educated regarding the benefits and risks presented by transgenic products. This will assist public participation, debate and acceptance of environmental risks posed by GMOs. Secondly, environmental risk assessments should take a strict scientific approach to the adoption of GMO regulations. Such a technique will remove the emotive politics and uncertainty within the current system, thus freeing the scientific endeavour to pursue maximal social utility. Lastly, a transition is needed from the monopolising structures of commercial research to more socially-focussed public sector research. Doing so allows a beneficial construction of intellectual property rights in biotechnology, and permit scientific developments to be used as socio-economic tools. This final solution also recognises that food security is a global problem, thus it requires a global effort to decipher. This essay also raises the point that, in the fight for global food security, developed countries must lend a generous hand to developing countries. The natural environment is a mystical creature that remains unaffected by the boundaries that separate the political world. Soon, it will also be time for humanity to let go of our borders, to come together as a global community to fight global issues. We are all in this together.

[1] Salah E.O. Mahgoub, Genetically Modified Food (Boca Raton: CRC Press, 2015), p. 2.

[2] Ibid. The global population is expected to reach 8 billion people by the year 2020, with 9 billion expected to inhabit the planet by the year 2050.

[3] Ibid.

[4] Ibid, p. 3.

[5] Ibid.

[6] See the work of Kary Mullis on the technique of Polymerase Chain Reaction (PCR) and the isolation of the DNA polymerase enzyme (Taq Polymerase) from Thermus aquaticus.

[7] See the work of Fredrick Sanger on Sanger sequencing and fluorescent primers, and Leroy Hood’s laboratory work on the first semi-automated DNA sequencing machine. See further, Smith LM, Sanders JZ, Kaiser RJ, Hughes P, Dodd C, Connell CR, Heiner C, Kent SB, Hood LE (12 June 1986). "Fluorescence Detection in Automated DNA Sequence Analysis". Nature 321 (6071): 674–79.

[8] For a brief and simplistic history of genetic science see, Phil McLean, A History of Genetics and Genomics (2011) <https://www.ndsu.edu/pubweb/~mcclean/plsc411/History-of-Genetics-and-Genomics-narrative-and-overheads.pdf> (Accessed 28 May 2016).

[9] Ahrens, Robert NM, Devlin, Robert H (2010). "Standing genetic variation and compensatory evolution in transgenic organisms: A growth-enhanced salmon simulation". Transgenic Research 20 (3): 583–97.

[10] This technique has been improved significantly by the CRISPR-Cas9 gene modification tool recently discovered in 2015. See the work of Doudna, Charpentier and Zhang.

[11] Muriel Lightbourne, Food Security, Biological Diversity and Intellectual Property Rights (Ashgate Publishing: Surrey, 2009), pp. 52-54.

[12] See Fisher, Lange & Scotford, Environmental Law: Text, Cases, and Materials (Oxford: Oxford University Press, 2013), chpt. 22; Dupuy & Vinuales, International Environmental Law (Cambridge: Cambridge University Press, 2015), chpt. 12.4.

[13] Lightbourne, above n 11, p. 53.

[14] Fikremarkos Merso Birhanu, Genetically Modified Organisms in Africa: Regulating a Threat or an Opportunity? In Bodiguel and Cardwell (eds), ‘The Regulation of Genetically Modified Organisms: Comparative Approaches’, 2010 (Oxford University Press, New York), pp. 227-228.

[15] Ibid.

[16] Mahgoub, above n 1, chpts. 4, 6. For a comprehensive tour of the science behind GMOs, also see chapters 2 and 3.

[17] Ibid, chpts. 6, 7.

[18] Ibid, p. 14.

[19] Ibid, p. 213.

[20] Ibid, pp. 211-215, 230-231.

[21] Ibid, p. 212.

[22] Ibid.

[23] 2000 Cartagena Protocol on Biosafety. Text available via <https://bch.cbd.int/protocol/text/>.

[24] 1993 Convention on Biological Diversity. Text available via <https://www.cbd.int/convention/text/default.shtml>.

[25] See, UNEP: Convention on Biological Diversity, ‘Cartagena Protocol on Biosafety: About the Protocol’ <https://bch.cbd.int/protocol/background/> (Accessed 28th May 2016). The text also refers to ‘living modified organisms’ (LMOs) as opposed to ‘genetically modified organisms’ (GMOs).

[26] Ibid.

[27] See, UNEP, ‘Rio Declaration on Environment and Development’, <http://www.unep.org/documents.multilingual/default.asp?documentid=78&articleid=1163> (Accessed 28 May 2016). Principle 15 states that ‘[i]n order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’

[28] Duncan French, The Regulation of Genetically Modified Organisms and International Law: A Call for Generality’ in Bodiguel and Cardwell (eds), ‘The Regulation of Genetically Modified Organisms: Comparative Approaches’, 2010 (Oxford University Press, New York), pp. 368-374.

[29] See, UNEP: Convention on Biological Diversity, ‘The Cartagena Protocol: What has been done on Compliance’ <http://bch.cbd.int/protocol/cpb_art34_info.shtml> (Accessed 27 May 2016).

[30] Text available via <https://www.wto.org/english/tratop_e/sps_e/spsagr_e.htm> (Accessed 27 May 2016).

[31] Timothy Josling, ‘A Review of WTO Rules and GMO Trade’ (2015) BioRes: Biotechnology 9(3). <http://www.ictsd.org/bridges-news/biores/news/a-review-of-wto-rules-and-gmo-trade> (Accessed 27th May 2016).

[32] Lightbourne, above n 11, pp. 5-6. See also, Gerald Kamstra, Marc Doring, Nick Scott-Ram, Andrew Sheard & Henry Wixon, ‘Patents on Biotechnological Inventions: The E.C. Directive’ (London: Sweet & Maxwell, 2002), p. 15.

[33] See FAO: The International Treaty on Plant Genetic Resources for Food and Agriculture, ‘The Importance of the International Treaty’ <http://www.planttreaty.org/content/recent-progress> (Accessed 24 May 2016).

[34] Lightbourne, above n 11, pp. 4-6.

[35] Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters 1998.

[36] Luc Bodiguel and Michael Cardwell, Genetically Modified Organisms and the Public: Participation, Preferences, and Protest in Bodiguel and Cardwell (eds), ‘The Regulation of Genetically Modified Organisms: Comparative Approaches’, 2010 (Oxford University Press, New York), p. 15.

[37] Josling, above n 31.

[38] ICTSD, ‘EU Parliament Rejects National Bans for GMO Prodcuts’ (2015) BioRes: Biotechnology <http://www.ictsd.org/bridges-news/biores/news/eu-parliament-rejects-national-bans-for-gmo-products> (Accessed 27 May 2016).

[39] ICTSD, ‘EU Ministers give green light to national GMO crop cultivation bans’ (2015) BioRes: Biotechnology <http://www.ictsd.org/bridges-news/biores/news/eu-ministers-give-green-light-to-national-gmo-crop-cultivation-bans> (Accessed 27 May 2016).

[40] See European Patent Office, ‘The European Patent Convention’ <https://www.epo.org/law-practice/legal-texts/epc.html> (Accessed 28 May 2016).

[41] Judith A. Chambers, ‘Biosafety of GM Crops in Kenya, Uganda, and Tanzania: An Evolving Landscape of Regulatory Progress and Retreat’ (Lanham: Rowman & Littlefield, 2013) p. 6.

[42] Ibid.

[43] Ibid, p. 5.

[44] Ibid, pp. 10-11.

[45] See further, Robert Paarlberg, ‘Starved for Science: How Biotechnology Is Being Kept Out Of Africa’ (Cambridge: Harvard University Press, 2008).

[46] Mahgoub, above n 1, p. 6.

[47] Chambers, above n 41, pp. 15-21. For a contrary view to public awareness of science not leading to an increase in scientific acceptance see, Fisher, Lange & Scotford, above n 12, pp. 1021-1023.

[48] Karen Morrow, Genetically Modified Organisms and Risk in Bodiguel and Cardwell (eds), ‘The Regulation of Genetically Modified Organisms: Comparative Approaches’, 2010 (Oxford University Press, New York), p. 70. See also, de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (Oxford: Oxford University Press 2002) 175.

[49] Christopher Rodgers, Implementing the Community Environmental Liability Directive: Genetically Modified Organisms and the Problem of Unknown Risk in Bodiguel and Cardwell (eds), ‘The Regulation of Genetically Modified Organisms: Comparative Approaches’, 2010 (Oxford University Press, New York), chpt. 8.

[50] Fisher, Lange & Scotford, above n 12, p. 1050.

[51] National Institutes of Health: National Human Genome Research Institute, ‘The Human Genome Project Completion: Frequently Asked Questions’ <http://www.genome.gov/11006943> (Accessed 25 May 2016).

The Impact of Modern Technology on the Duty of Confidentiality

Written By Chloe Widmaier

A Introduction

In today’s world, technology has had a dramatic impact on the legal profession.[1] Indeed, lawyers increasingly rely on new technologies to access information, communicate with clients and colleagues, and market themselves and their firms. [2] However, new technologies have also caused many problems. Perhaps the most serious problem is the impact of technology on the crucial duty of confidentiality – the idea that a lawyer will protect their client’s information – and the fact that new technology has compromised the duty. [3] In the United States, the Colorado Bar Association summarised the effect of modern technology on the duty of confidentiality:

It is impossible to predict how technological advances will alter the means by which communications can be conveyed or intercepted. However, regardless of technological developments, the [lawyer] must exercise reasonable care to guard against the risk that the medium….may somehow compromise the confidential nature of the information.[4]

This impact is especially troublesome as the duty of confidentiality is essential in promoting positive public opinion in the legal profession, and is key in encouraging clients to fully confide in their lawyers.[5]

This report will first briefly discuss what the duty of confidentiality entails. Second, it will examine the troubles lawyer’s face when determining who is a potential client when they are dealing with online inquires. Then this report will examine the risks associated with email communication, handling and storing files electronically, and metadata and examine their respective impacts on the duty of confidentiality. Finally, this report will ultimately suggest possibly ways to protect the duty of confidentiality from modern technology.

B An Overview of the Duty of Confidentiality and the Impact of Technology

The duties and requirements of a lawyer, have historically been found in the common law and in equity.[6] However, more recently they have been codified in the Queensland Law Society’s, Australian Solicitors Conduct Rules 2012 (the Rules).[7] Rule 9 of the Rules specifically covers the obligations of lawyers with respect to the duty of confidentiality. [8] According to Rule 9.1, a lawyer, ‘must not disclose any information which is confidential to a client and acquired by that [lawyer] during the client’s engagement to any person who is not…’ a member of the lawyer’s law firm or a barrister or employee of a person engaged by the lawyer’s law practice.[9] While there are a few exceptions, such as if the client authorises the disclosure, generally this is the rule.[10] Barristers are essentially bound by the same rule, through rule 108 of the Bar Association of Queensland’s, Barristers’ Conduct Rules.[11]

Furthermore, ‘confidential information’ has been defined by case law as ‘all communications made by the client regarding their affairs and all information learnt directly or indirectly about the client’.[12] This is a very broad definition intended to ensure that potentially any information a client gives is protected under the duty of confidentiality.

C Potential Clients

The internet raises issues with respect to identifying who is a client and when a lawyer-client relationship arises and with it, the duty of confidentiality. Typically, when dealing with clients, a lawyer’s duties and obligations commence with the execution of a retainer.[13] However, in the online context of internet websites and chatrooms, where individuals are able to submit informal inquires, identifying when an individual is owed a duty of confidentiality is complicated.[14] Some argue it depends on if the lawyer is giving legal advice or legal information – if they are found to be giving legal advice then the relationship and the relevant duties are activated.[15] However, this difference is often difficult to distinguish.[16] Definitions and guidelines– like those from the New South Wales Legal Technology Committee[17] – have been developed to help lawyers determine if they are giving advice or information.[18] However, the best solution is perhaps to always assume that a lawyer-client relationship exists.[19] Nevertheless, this approach presents its own concerns as well. For example, what if both sides in a legal dispute contact the same lawyer? Hopefully, the lawyer in that scenario would realise there would be a conflict of interest and would refer the second party to another lawyer.[20] It has been alternatively suggested that perhaps a better solution is for lawyers to use disclaimers when dealing with online inquires, which may offer some protection. Yet, lawyers should still exercise caution, as disclaimers do not always provided total immunity protection from legal proceedings.[21]

D Emails

Often lawyer’s emails will contain confidential information, which potentially puts that information at risk. This is due to the fact that when an individual sends an email, the information is sent to the internet service provider who breaks it down into packets of information.[22] These packets are then moved on to other servers until they reach the recipients sever where they are reassembled. [23] As the information travels along it is at risk of being intercepted at any moment, especially after it has been converted into the information packets.[24] Indeed, so-called packet-sniffing programs exist which intercept and copy the information in the packets.[25] Furthermore, the ease of emails invites mistakes, as for example, when an email is sent to an incorrect recipient.[26] Indeed, in the case of GT Corporation v Amare Safety[27] the defendant Amare accidently sent 50,000 privileged documents to the plaintiff GT during the discovery stage.[28] The information provided a strategic advantage to GT and indirectly contributed to Amare Safety ultimately losing the case.[29]

However, even in respect of such dangers, it is unclear if the duty of confidentiality mandates the protection of such communications. While some argue that there is an implied obligation to encrypt email messages it appears that there is no official duty to do so.[30] Indeed, according to the American Bar Association (ABA), despite the risk of emails, the ABA’s policy is that emails are to be treated the same as traditional mail and no encryption is required.[31] However, some still contend that if a lawyer believes that additional security is necessary – if there is a real threat or the information is especially important – then additional security precautions should be taken to protect the information. [32] Furthermore, it has been advised that lawyers should be kept informed of new developments in technology that may reduce such risks at a reasonable cost. [33] Additionally, it has been suggested that lawyers should inform their clients, especially if they are vulnerable, of the dangers of internet email communication.[34] Indeed, email guidelines such as that created by the Victorian Legal Practitioners’ Liability Committee provide valuable suggestions regarding email communication.[35]

E Handling and the Storage of Electronic Files

Currently, a large percentage of the documents a lawyer deals with are received and stored electronically. Electronic files are deceptively easy to amend and send to client parties and other individuals.[36] However, lawyers must be careful when they store or modify documents electronically as accidents can have extremely detrimental consequences.

Indeed, the ease at which documents can be stored invites mistakes. Take, for example, the situation in Hernandez v Esso Standard Oil Co.[37]In that case, a single mouse click by the defendants, Esso Oil, inadvertently merged privileged with non-privileged folders which were sent to the plaintiff, Hernandez. [38] It was held by the court that the click by Esso resulted in a waiver of privilege and caused Esso to lose 2,000 pages of privileged documents.[39] It is therefore necessary to be alert and careful when handling electronic documents.

The fact that a computer can store a significant amount of information also makes storing documents electronically more risky due to the danger of hackers. If a hacker manages to infiltrate a computer system they can easily steal or copy the information being stored without the owner even realising it or at least not until after the data breach has occurred.[40] Combined this with the fact that, under rule 14.2 of the Rules, a lawyer or a law firm may only destroy client documents seven years after the end of the engagement.[41] This means that lawyers have to keep and store a large amount of documents for a long period of time.[42] This in turn, puts confidential client information at an increased risk of being copied or stolen by hackers.[43] However, the situation worsens by the fact that if client instructions or legislative requirements to the contrary then the data may have to be stored even longer, further increasing the risk of it being compromised.

The definition of ‘client documents’ are documents to which a client is entitled.[44] This definition does help to limit the number of documents required to be stored and lawyers often include a provision in their contracts allowing them to destroy the documents after the seven year period. [45] There is still a large risk of the confidential information being taken.[46] While client documents can be protected possibly by implementing encryption programs, there is no true full proof protection, as can be seen by the recent Panama papers scandal.[47]

F Metadata

Lawyers must also be cautious of word processing programs, because these programs create and store metadata. Metadata is commonly referred to as ‘data about data’ and is hidden information contained in word processing programs. [48] The information contained in the metadata includes details describing how, when, where, what and by whom a file was edited or created.[49] Metadata has many useful applications, it can be used to locate relevant documents easily, especially if there are inconsistences in the documents, for example different terminology. [50] However, metadata can also be dangerous as it may inadvertently reveal information regarding a matter.[51]

The Ok Tedi Mine case is an example of metadata being inadvertently disclosed to the opposite party and then being used as leverage. In that case, a mine in Papua New Guinea was operated by BHP Billiton (BHP).[52] The mine was found to have polluted the nearby Ok Tedi River.[53] An action was then brought an action against BHP.[54] Following the commencement of that action a piece of legislation was passed by the Government of Papua New Guinea which made it a criminal offence to sue BHP for polluting the Ok Tedi River and also it made it an offence to assist anyone who sought to bring such an action.[55]  However, it was inadvertently discovered through metadata that it was BHP’s lawyers who had drafted the legislation.[56] As a result BHP was charged with being in contempt of the court.[57] Following that decision BHP decided to settle the issue out of court for a undisclosed amount.[58]

Similar to issues with respect to emails, there are ways lawyers can protect their clients from risks related to metadata. Perhaps the best method is for lawyers to resume making paper copies of all their documents, as that would remove all traces of metadata. However, this is considered inefficient and impractical, and it is unlikely this method would be adopted by many.[59] Another more practical way to keep metadata safe is by installing programs that remove the metadata from the documents before they are sent.[60] However, lawyers must remember to use the program or the metadata will remain in the document and may lead to issues as discussed above.

G Conclusion

Modern technology has substantially changed how lawyers work. While technology has provided many benefits, such as easier means of communication and storage it has also caused many problems. Specifically, it has undermined the duty of confidentiality lawyers owe to their clients. It has made it difficult for lawyers to determine who their clients are in certain circumstances and has led to inadvertent disclosure of confidential information through emails, electronic storage, and metadata. While there appears to be some solutions emerging to address these issues, through software, guidelines, disclaimers, and other means. These do not appear to be complete solutions. It seems that for the foreseeable future confidential information will continue to be at risk.

[1] Law Reform Committee, Parliament of Victoria, When a Stranger Calls: Guidelines for Legal Services on Websites, Phone or E-mail (1999) 29.

[2] Philip Kellow, 'The Federal Court of Australia: Electronic Filing and the E-court On-line Forum' [2002] University of Technology Sydney Law Review 123, 124; Law Reform Committee, Parliament of Victoria, When a Stranger Calls: Guidelines for Legal Services on Websites, Phone or E-mail (1999) 29.

[3] Tuckiar v The King [1934] 52 CLR 335.

[4] Colorado Bar Association Ethics Committee, ‘Preservation of Client Confidences in View of Modern Communications Technology’ (1992) 90.

[5] Queensland Law Society, The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners (Queensland Law Society, 1st ed, 2014) 61; Colorado Bar Association Ethics Committee, ‘Preservation of Client Confidences in View of Modern Communications Technology’ (1992) 90.

[6] Ibid.

[7] Queensland Law Society, Australian Solicitors Conduct Rules (at 21 May 2012).

[8] Ibid.

[9] Ibid r 9.1.

[10] Ibid r 9.2

[11] Bar Association of Queensland, Barristers’ Conduct Rules (at 23 December 2011) r 108.

[12] Legal Practices Complaints Committee v Trowell [2009] WASAT 42.

[13] Queensland Law Society, Duties to Potential Clients (November 2008) Queensland Law Society, 46 <http://www.qls.com.au/Knowledge_centre/Ethics/Resources/Confidentiality/Confidentiality/Duties_to_potential_clients  >.

[14] Ibid.

[15] Del O’Roark, The Impact of the Internet on a Lawyer’s Standard of Care & Professional Responsibility’ (September 2008) Bench & Bar, 41 <http://www.lmick.com/_resources/documents/bench_and_bar/2008_bench_and_bar_september.pdf>.

[16] Law Reform Committee, Parliament of Victoria, When a Stranger Calls: Guidelines for Legal Services on Websites, Phone or E-mail (1999) 29, 31.

[17] New South Wales Legal Technology Committee, Guidelines on Social Media Policies (March 2012) New South Wales Legal Technology Committee <https://www.lawsociety.com.au/cs/groups/public/documents/internetcontent/587803.pdf>.

[18] Law Reform Committee, Parliament of Victoria, When a Stranger Calls: Guidelines for Legal Services on Websites, Phone or E-mail (1999) 29, 31.

[19] Ibid.

[20] Queensland Law Society, Australian Solicitors Conduct Rules (at 21 May 2012) r 11.2

[21] Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54.

[22] Steven Masur, ‘Confidentiality in a High-Tech World’ (2007) 24(5) GPSOLO http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/confidentiality.html\>.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Law Reform Committee, above n 17, 42.

[27] [2007] VSC 123.

[28] Guzya; Hill, ‘Commercial litigation: How a click of a mouse can cost thousands’ (2011) 39 American Bar Law Review 191, 192.

[29] Ibid.

[30] Charles Luce, Lawyering on the Internet: Confidentiality, Solicitation, Ethics and Etiquette (1998) Money White <http://www.moyewhite.com/ethics/netethic.htm>.

[31] American Bar Association Committee on Ethics and Professional Responsibility, ‘Protecting the Confidentiality of Encrypted E-mail’ (1999) 99-143 American Bar Association 99.

[32] Ibid.

[33] Charles Luce, Lawyering on the Internet: Confidentiality, Solicitation, Ethics and Etiquette (1998) Money White <http://www.moyewhite.com/ethics/netethic.htm>.

[34] Charles Luce, Lawyering on the Internet: Confidentiality, Solicitation, Ethics and Etiquette (1998) Money White <http://www.moyewhite.com/ethics/netethic.htm>; Charles Luce, Lawyering on the Internet: Confidentiality, Solicitation, Ethics and Etiquette (1998) Money White <http://www.moyewhite.com/ethics/netethic.htm>.

[35] Legal Practitioners’ Liability Committee, E-mail guidelines, (23 May, 2007) Legal Practitioners’ Liability Committee < http://lplc.com.au/bulletins/e-mail-guidelines/>. 

[36] Hill, above n 28, 192.

[37] (3) 1485 WL 1967364 (US, 2006).

[38] Ibid.

[39] Ibid.

[40] Hill, above n 28, 193.

[41] Queensland Law Society, Australian Solicitors Conduct Rules (at 21 May 2012) r 14; Queensland Law Society, Can I destroy client files after 7 years? (2011) Queensland Law Society <http://www.qls.com.au/Knowledge_centre/Ethics/Resources/Client_documents_and_liens/Can_I_destroy_client_files_after_7_years>.

[42] Ibid.

[43] Ibid.

[44] Queensland Law Society, The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners (Queensland Law Society, 1st ed, 2014) 61; Fordham v Legal Practitioners complaints committee (1997) 18 WAR 467.                                                                                  

[45] Queensland Law Society, The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners (Queensland Law Society, 1st ed, 2014) 61; Fordham v Legal Practitioners complaints committee (1997) 18 WAR 467.                                                                                                       

[46] Ibid.

[47] James Temperton and Matt Burgess, The security flaws at the heart of the Panama Papers (6 April 2016) Wired <http://www.wired.co.uk/news/archive/2016-04/06/panama-papers-mossack-fonseca-website-security-problems>.

[48] Hill, above n 28, 192.

[49] Ibid.

[50] Dan Pinnington, Beware the Dangers of Metadata (2004) Lawyers’ Professional Indemnity Company, 1 <http://www.practicepro.ca/lawpromag/metadata.pdf.>.

[51] Ibid.

[52] Stephen Warne, A good summation of Microsoft Word metadata issues for lawyers (17 March 2007) The Australian Professional Liability Blog < http://lawyerslawyer.net/2007/03/17/a-good-summation-of-microsoft-word-metadata-issues-for-lawyers/>.

[53] Ibid.

[54] Ibid.

[55] Ibid.

[56] Ibid.

[57] Ibid.

[58] BHP Billiton, BHP Billiton Withdraws from Ok Tedi Copper Mine and Establishes Development Fund for Benefit of Paupa New Guinea People (8 February 2002) BHP Billiton < http://www.bhpbilliton.com/investors/news/bhp-billiton-withdraws-from-ok-tedi-copper-mine-and-establishes-development-fund-for-benefit-of-papua-new-guinea>.

[59] Donna Payne, ‘Metadata: The Good, the Bad, and the Misunderstood’ (April 2013) 30(2) GP Solo < http://www.americanbar.org/publications/gp_solo/2013/march_april/metadata_the_good_the_bad_and_the_misunderstood.html>.

[60] Ibid.

Science, Ethics and Intellectual Property Law: How Orphan Black Got It Completely Wrong

Written by: Jocelyn Bosse

Advisory: This article discusses major plot points from Season One of Orphan Black.

CONTENTS

1                   Introduction

2                   Jurisdiction

3                   Myth One: “Patents are Forever”

4                   Myth Two: “Anything can be Patented”

5                   Myth Three: “Patents are Secret”

6                   Patents and National Security

7                   Ownership of Humans

8                   Legality of Cloning

1       Introduction

Many ethical and legal issues which arise from recent technological and scientific advances are explored in the cult television show, Orphan Black.[1] The protagonist, Sarah Manning, discovers that she is one of an unknown number of illegal clones, and in her quest for answers, grapples with questions of identity and body autonomy. The issues are brought to a head in the season one finale, in which evolutionary developmental biologist (and one of the clones), Cosima Niehaus, deciphers a synthetic DNA sequence in her genome to reveal a message: THIS ORGANISM AND DERIVATIVE GENETIC MATERIAL IS RESTRICTED INTELLECTUAL PROPERTY.[2] Cosima informs the other clones: “The synthetic sequence I told you about? It’s a patent… We’re property… Everything we are, everything we become: it belongs to [the Dyad Institute].”

Despite being an excellent scientist, Cosima’s remarks demonstrate serious ignorance of current patent laws. Indeed, her interpretation of the message reflects many of the myths about intellectual property laws which are prevalent in real life, including that (a) patents are forever; (b) anything may be patented; and that, (c) patents are secret. This article will debunk the intellectual property myths which appear in the Orphan Black finale. Pursuant to some remarks by Cosima’s lab partner in season two, the article will conclude with a discussion about the prevalent use of government secrecy orders over patents for the protection of national security, and some final notes about physical property rights and the legality of human cloning.

2       Jurisdiction

Intellectual property – like all law – varies between countries.[3] Though filmed in Canada, the creators of Orphan Black have indicated that the show takes place in “Generica” – a hybrid of Canada and the United States of America.[4] However, the question of jurisdiction is further complicated by the existence of clones across the globe, including England, Germany, Ukraine, Italy, Finland, Austria, France, and probably other nations.

Ever since the establishment of the World Intellectual Property Organization (WIPO) in 1967,[5] there has been considerable harmonisation of patents laws across the globe. Despite the ambiguity of the show’s jurisdiction, we can still make overall statements about the legal position of the clones in Orphan Black by reference to international law and the patent laws of relevant countries (especially the USA, Canada, the EU, Australia, and New Zealand).

3       Myth One: “Patents are Forever”

Unlike diamonds, patents rights do not extend in perpetuity. Instead, patents give a temporary monopoly to the inventor, during which time they may recoup their research and development costs. Upon expiration of the patent, the invention enters the public domain.[6]

The first patents under the Statute of Monopolies 1624 (UK) were granted for fourteen years, but since the signing of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (‘TRIPS’), patents have a non-renewable term of twenty years.[7] While term extensions are available under rare circumstances (e.g. delay in the application process in Canada, or the five-year pharmaceutical extensions in Australia), none of those exceptions would apply to human clones.

In Canada, the 20-year term was introduced in October 1989;[8] however, the Orphan Black clones were born in 1984,[9] so any patents would have been subject to the previous rule that patents expired after 17 years. Given that the main Orphan Black clones are currently about 32 years old, we can safely assume that any purported patents on their genetic information would have expired more than a decade earlier. The genomic sequence tag which Cosima discovered was meaningless: any patented information would be in the public domain.

4       Myth Two: “Anything can be Patented”

Under s 6 of the Statute of Monopolies 1624 (UK), patents must not be “contrary to the law, nor mischievous to the state… or generally inconvenient.” As for modern patent laws, Article 27 of the TRIPS Agreement allows countries to exclude patentable subject matter in order to protect “ordre public” and morality; this includes, for example, protection of human, animal or plant life or health, and the environment. Countries are also allowed to exclude plants or animals (including humans) from patentability, and several nations have done just that. The TRIPS terminology was borrowed from borrowed from Article 53(a) of the European Patent Convention (‘EPC’), and the European Board of Appeals defined the concept of ordre public as covering the protection of public security and integrity of individuals as part of society.[10] The EU Directive on Biotechnological Inventions[11] clearly prohibits patents on human clones:

Article 5

1. The human body, at the various stages of its formation and development, and the simple discovery of one of its elements, including the sequence or partial sequence of a gene, cannot constitute patentable inventions…

Article 6

1. Inventions shall be considered unpatentable where their commercial exploitation would be contrary to ordre public or morality; however, exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation.

2. On the basis of paragraph 1, the following, in particular, shall be considered unpatentable:

(a) processes for cloning human beings;

(b) processes for modifying the germ line genetic identity of human beings;

(c) uses of human embryos for industrial or commercial purposes; …

The Canadian Supreme Court has held that higher life forms (defined as multicellular organisms, including plants, mice, and humans) are not patentable subject matter.[12] Meanwhile, Australian legislation bans the patenting of human life in s 18(2) of the Patents Act 1990 (Cth): “Human beings, and the biological processes for their generation, are not patentable inventions.” The Deputy Commissioner of Patents has held that s18(2) extends to any entity which might reasonably claim the status of a human being, so the genetically modified clones would still fall within that exception.[13] Likewise, human clones are excluded under s 15 of the New Zealand Patents Act 2013 for reasons of ordre public and morality.[14]

The position is less concrete in the United States. The US Patent and Trademark Office has granted a patent in 2001 for a method for producing embryos from unfertilised eggs, to create cloned livestock.[15] Despite concerns that the patent would extend in to human cloning, the USPTO maintained a policy of refusing patents for human-related cloning on the grounds of a purported violation of the 13th amendment to the US Constitution, which prohibits slavery.[16] Although the 13th amendment is no longer invoked, patents related to human cloning are still not granted by the USPTO.

As such, the Orphan Black clones would definitely not be subject to patents in the EU, Australia, New Zealand or Canada. The current USPTO policy also means that the Dyad Institute could not have obtained patents over the clones in the United States.

5       Myth Three: “Patents are Secret”

The original “letters patent” were developed in the 1600s as a trade-off between inventors and the Crown: the British monarch would grant a monopoly over the invention, while the details of the invention had to be fully disclosed for the benefit of society.[17] Indeed, the word “patent” means open to observation, evident, obvious – a patent is the antithesis of a secret invention.

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The full text of patents can be easily found online, using a variety of means:

·       Google – many patents are available through Google. For example, the patent for entertaining a cat with a laser pointer (don’t panic, it lapsed back in 2007) is publicly available here (https://www.google.com/patents/US5443036).

·       International – the UN World Intellectual Property Organisation (WIPO) has a database of patent applications via Patentscope (http://www.wipo.int/patentscope/en/). Note, however, that there is no such thing as an “international patent” – WIPO merely facilitates the application process across different countries. Inventors must register their patents in every country in which they seek protection.

·       Canada – the Canadian Intellectual Property Office (CIPO) allows you to freely search their patents database here (http://www.ic.gc.ca/opic-cipo/cpd/eng/search/basic.html).

·       United States of America – the US Patent and Trademark Office has a searchable register here (http://patft.uspto.gov/netahtml/PTO/search-bool.html).

·       Australia – the database in found on the IP Australia website (http://pericles.ipaustralia.gov.au/ols/auspat/quickSearch.do)

·       New Zealand – the Intellectual Property Office of New Zealand has their database here (https://www.iponz.govt.nz/about-ip/patents/search/).

·       Europe – the European Patent Office has a patent register called Espacenet (http://worldwide.espacenet.com/?locale=en_EP).

Consequently, if the Dyad Institute had patented the genetic information of the Orphan Black clones, it would be freely accessible on the patent register of each country where a patent was held, and probably available on Google. Cosima could have avoided many hours of scientific research into her own genome by simply looking up the patent numbers on the USPTO or CIPO Registers. Only one category of patents can be kept secret: those which are subject to secrecy orders in the interests of national defence.

6       Patents and National Security

In Season Two of Orphan Black, Cosima discusses the patents with her lab partner, who remarks that “The Dyad was just a contractor. It could be a secret military patent.” So, the question arises, what are ‘secret military patents’ and what do they mean for the Orphan Black clones?

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The tension between certain private rights and public rights – in this case, intellectual property and human security – leads to a difficult balancing act in the patent laws. Although disclosure is one of the hallmark principles of patent law, publication of the details of certain inventions can pose risks to national security, especially if they relate to chemical, biological or nuclear weapons.[18] Governments are often concerned that the information disclosed in patent documents will end up in the “wrong hands,” particularly patents on weaponry and explosives which could be used by terrorist groups. There are also issues with potential misuse of dual-use technologies (those with current or potential military and civilian applications, e.g. ammonium nitrate, which could be used to produce propellant for ballistic missiles, but is mainly used in the manufacture of fertilisers).[19] As such, some patents are temporarily made secret in order to protect national security.

International Secrecy Orders

Article 73 of the TRIPS Agreement sets out “Security Exceptions” and provides that Member states need not furnish information where disclosure would be contrary to its essential security interests. Likewise, Article 4 of the Patent Law Treaty 2000 (‘PLT’) stipulates that “nothing in this Treaty and the Regulations shall limit the freedom of a Contracting Party to take any action it deems necessary for the preservation of essential security interests.”[20]

Secrecy Orders in the USA

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During World War I, the US Congress authorised the Patent and Trademark Office to temporarily classify certain defence-related patents in the interests on national security.[21] The legislation was extended during World War II to allow the Commissioner of Patents to prevent publication or disclosure of a patent where it might be “detrimental to the public safety or defence,” as well as to compensate the applicant if the subject matter of the patent is used by the military.

The laws were eventually replaced with the Invention Secrecy Act 1951 (US), which allows the American Federal Government to issue secrecy orders via the Commissioner of Patents, which are subject to an annual renewal process, except in times of war or national emergency. The use of these orders has been on the rise:[22] 5,445 secrecy orders were in effect in 2013, and 5,579 in 2015.[23] For example, Juliet Marine Systems developed a stealth boat which was unexpectedly made subject to a secrecy order in October 2009, thereby forbidding them from filing patents overseas or disclosing anything to potential investors until the order was lifted two years later.[24]

Other Jurisdictions

In Canada, the Minister of National Defence may take ownership of a patent for “any invention in instruments or munitions of war,”[25] and has the power to make the invention secret under s 20(5). The inventor(s) become(s) subject to s 4 of the Security of Information Act, and are thereby banned from communication of any details of the invention without the authority of the Minister of National Defence. Under s 20(9) of the Patents Act, the information may be kept secret until the expiration of the patent, or until it is waived by the Minister.

The Australian Department of Defence is empowered under s 152 of the Patents Act 1990 (Cth) to prohibit the publication of the details of a patent application, at which point it must be handled by a patent examiner with the requisite security clearance.[26] The prohibition order may remain in force until the expiration of the patent, unless it is revoked by the Department of Defence. Similar provisions can be found in ss 132-134 of the New Zealand Patents Act 2013.

However, while Cosima’s lab partner raised a very interesting point about the potential use of secrecy orders over patents, the fact remains that human clones are not patentable (and if they were, the patents would have expired). There can be no secrecy order if there is no valid patent to begin with.

7       Ownership of Humans

As far as tangible property rights are concerned, the message in Cosima’s genome asserted proprietary rights over her body, and any derivative material. Since the abolition of slavery, there has been a strict legal separation of property rights and personhood. In fact, property rights over human body parts have arguably been excluded from legal protection for two millennia: the Roman jurist, Ulpian, gave the maxim dominus membrorum suorum nemo videtur (“no one is the owner of their own limbs”), which has been interpreted in the English law to mean that a living human body cannot be the object of property rights.[27] In words of Justice Edelman of the Federal Court of Australia:

“Whatever meaning is given to ‘property’, it is independent of personhood. The antithesis of ‘property’ is personhood. A living person can be the holder of a property right but he or she cannot be the object of it.”[28]

The Romans would also consider the deceased clones to be res extra patrimonium and res extra commercium; a corpse is generally inviolable and unsaleable.[29] In modern jurisprudence, the Supreme Court of California has affirmed the Roman principles: the Court in Moore v Regents of the University of California[30] rejected a property claim over Moore’s own body parts (his spleen, blood, skin, and sperm) which had been used without consent for commercial purposes. Justice Panelli, in the plurality judgment, remarked:[31]

“Neither the Court of Appeal's opinion, the parties' briefs, nor our research discloses a case holding that a person retains a sufficient interest in excised cells to support a cause of action for conversion. We do not find this surprising, since the laws governing such things as human tissues, transplantable organs, blood, fetuses, pituitary glands, corneal tissue, and dead bodies deal with human biological materials as objects sui generis, regulating their disposition to achieve policy goals rather than abandoning them to the general law of personal property… The ramifications of recognizing and enforcing a property interest in body tissues are not known, but are greatly feared for the effect on human dignity of a marketplace in human body parts, the impact on research and development of competitive bidding for such materials, and the exposure of researchers to potentially limitless and uncharted tort liability.”

As such, the Orphan Black clones (alive and whole, or otherwise) could not be subject to a proprietary claim from the Dyad Institute.

8       Legality of Cloning

The law is concerned with two main types of cloning: (i) therapeutic cloning, which is the use of clonally propagated stem cells for the purposes of scientific research and medical treatment, and (ii) reproductive cloning, in which a cloned embryo is implanted into a womb.[32] While therapeutical cloning is legal in many states, the Orphan Black clones were created by reproductive cloning, which is generally illegal.

In March 2005, the United Nations General Assembly adopted the Declaration on Human Cloning, which called on members to adopt all measures necessary to prohibit human cloning inasmuch as it is incompatible with human dignity and the protection of human life.[33] The Declaration also called upon members to prohibit the application of genetic engineering techniques that may be contrary to human dignity and to prevent the exploitation of women in the application of life sciences. However, the Declaration has no binding authority over UN members, and would have no impact upon the legality of producing the Orphan Black clones.

Article 3(d) of the Charter of Fundamental Rights of the European Union explicitly prohibits reproductive human cloning. France, Germany, Austria, Italy and Russia have completely banned human cloning, to name a few. In the United Kingdom, reproductive cloning is banned,[34] while therapeutic cloning has been tightly regulated by the Human Fertilisation and Embryology Authority since 1990.[35] The Dyad Institute could not have (legally) produced the Orphan Black clones in the United Kingdom, nor any other EU member states. Furthermore, the Council of Europe has specifically banned reproductive cloning in the Convention on Human Rights with Regard to Biomedicine 1997, which held to apply in European countries where no legislation has been passed to address the legality of human cloning.[36]

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Canada has a complete ban on human cloning, both therapeutic and reproductive, pursuant to s 5(1)(a) of the Assisted Human Reproduction Act 2004. As such, the Orphan Black clones could not have been created there. Reproductive cloning is also banned in Australia under the Prohibition of Human Cloning for Reproduction Act 2002 (Cth). Although the desire to improve scientific research and medical treatment meant that the ban on therapeutic cloning was lifted in 2006,[37] the reproductive cloning conducted by the Dyad Institute would still be illegal in Australia.[38]

The picture is more complicated in the United States, where the Congress has repeatedly failed to enact legislation to address human cloning, and there are no Federal laws with respect to human cloning.[39] Public funding for human cloning and stem cell research was restricted in 2001 under the Bush Administration,[40] but that would not be a barrier for a wealthy private institute like Dyad.[41] While fifteen states ban reproductive cloning,[42] the Dyad Institute could have produced the Orphan Black clones in other parts of the country. Nevertheless, the Dyad Institute would have no legal control over Sarah Manning, Cosima Niehaus, or the other clones. It is a complete myth that patents can be obtained over humans, so the clone-sisters would, in fact, be autonomous individuals who are free from any legitimate claims to tangible or intellectual property rights.

The mass-production of human clones by a malevolent corporation might still be pure science fiction, but the legal questions raised by Orphan Black are no less important to the real world. Many countries – particularly the United States – are still struggling to pass legislation which adequately regulates therapeutic and reproductive cloning, which has significant consequences for medical research and assisted reproduction. Furthermore, the use of government secrecy orders illustrates the difficult balancing act between the protection of national security, and the promotion of private innovation. While the fictional clones in Orphan Black are (incorrectly) concerned by the Dyad Institute’s intellectual property rights over their bodies, real people across the globe stand to benefit, or suffer, from the enforcement of poorly-understood patent laws, and the legislative control of human cloning.

---

[1] BBC America, Orphan Black (16 June 2016) <http://www.bbcamerica.com/shows/orphan-black/>. The first season aired in March-June 2013.

[2] Tim Surette, Orphan Black Season 1 Finale Review: Same, Same But Different (2 June 2013) TV.com <http://www.tv.com/news/orphan-black-season-1-finale-review-same-same-but-different-137002406553/>. The DNA tag was based on ASCII (American Standard Code for Information Interchange) coded basepairs.

[3] Article 4bis, Paris Convention for the Protection of Industrial Property 1883.

[4] Marsha Lederman, ‘How Canada is becoming the sci-fi nation’, The Globe and Mail (online), 13 April 2013 <http://www.theglobeandmail.com/arts/television/how-canada-is-becoming-the-sci-fi-nation/article11157191/?page=2>.

[5] Convention Establishing the World Intellectual Property Organization, signed at Stockholm on 14 July 1967. WIPO administers the Convention for the Protection of Industrial Property 1883, which deals with patents and related rights.

[6] Lionel Bently and Brad Sherman, Intellectual Property Law (Oxford University Press, 3rd ed, 2009) 335.

[7] Article 33: “The term of protection available shall not end before the expiration of a period of twenty years counted from the filing date.” See also: Patents Act 1990 (Cth) s 67.

[8] Patent Act, RSC 1985, c P-4, s 44.

[9] Orphan Black Wiki, Sarah Manning (21 June 2016) <http://orphanblack.wikia.com/wiki/Sarah>.

[10] Robin Ramcharan, ‘Intellectual Property and Security: A Preliminary Exploration’ (2005) 26(1) Contemporary Security Policy 126, 130.

[11] Council Directive 98/44/EC on the Legal Protection of Biotechnological Inventions [1998] OJ L 213/13, art 5-6.

[12] Harvard College v Canada (Commissioner of Patents) [2002] 4 SCR 45 [155].

[13] See Re Luminis Pty Ltd & Fertilitescentrum AB (2004) 62 IPR 420.

[14] Relevantly, the New Zealand legislation lists the following exceptions: (i) a process for cloning human beings, (ii) a process for modifying the germ line genetic identity of human beings, and (iii) the use of human embryos for industrial or commercial purposes.

[15] US 6211429 B1 “Complete oocyte activation using an oocyte-modifying agent and a reducing agent” (Priority Date: 18 June 1997) <http://google.com/patents/US6211429>.

[16] Andrew Pollack, ‘Debate on Human Cloning Turns to Patents’, The New York Times (online), 17 May 2002 <http://www.nytimes.com/2002/05/17/us/debate-on-human-cloning-turns-to-patents.html>.

[17] Mark J Davison, Ann L Monotti and Leanne Wiseman, Australian Intellectual Property Law (Cambridge University Press, 2nd ed, 2012) 409.

[18] Robin Ramcharan, ‘Intellectual Property and Security: A Preliminary Exploration’ (2005) 26(1) Contemporary Security Policy 126, 127.

[19] Ibid 133.

[20] The treaty entered into force in 2005, though Canada and Germany have not yet acceded.

[21] Act of 6 October 1917, ch 95, § 42, 40 Stat 394.

[22] G W Schultz, ‘Government Secrecy Orders on Patents have Stifled more than 5000 Inventions’ <https://www.wired.com/2013/04/gov-secrecy-orders-on-patents/>. There is a heavy penalty upon those who breach a secrecy order: a fine of up to $10,000 or up to 2 years imprisonment.

[23] Federation of American Scientists, Invention Secrecy Activity (as reported by the Patent & Trademark Office) <http://www.fas.org/sgp/othergov/invention/stats.html>.

[24] Caroline Winter, ‘This Stealth Attack Boat May Be Too Innovative for the Pentagon’ (22 August 2014) Bloomberg Businessweek <http://www.bloomberg.com/news/articles/2014-08-21/juliet-marines-ghost-boat-will-be-hard-sell-to-u-dot-s-dot-navy>.

[25] Patent Act, RSC 1985, c P-4, s 20(1).

[26] Bill McFarlane, ‘How to Keep a Secret: Prohibition Orders on Patents’ (25 August 2012) <http://www.mondaq.com/australia/x/193566/Patent/how+to+register+a+patent>.

[27] R v Bentham [2005] UKHL 18 [14] (Lord Rodger), citing D.9.2.13pr (Ulpian). Following the Australian High Court decision of Doodeward v Spence (1908) 6 CLR 406, the principle has seen modern adaptation in cases which concern the posthumous use of sperm samples for in vitro fertilization (IVF), which eroded the previous hostility of the English courts towards consideration of human biological material as “property”: Jonathan Yearworth & Ors v North Bristol NHS Trust [2009] 2 All ER 986; for an American example, see Hecht v. Superior Court of Los Angeles County (1993) 20 Cal. Rptr. 2d 275.

[28] James Edelman, ‘Property Rights to our Bodies and their Products’ (2015) 39(2) University of Western Australia Law Review 47, 53.

[29] Henk AMJ Ten Have and Jos VM Welie (eds), Ownership of the Human Body: Philosophical Considerations on the Use of the Human Body and its Parts in Healthcare (Kluwer Academic Publishers, 1998) 69.

[30] (1990) 51 Cal. 3d 120.

[31] The opinion from Panelli J was joined by Lucas, Eagleson and Kennard JJ, Arabian J concurring.

[32] See Australian Stem Cell Foundation, ‘Fact Sheet 4: Therapeutic Cloning’ (July 2010) <http://www.stemcellfoundation.net.au/docs/fact-sheets/fact-sheet-4---therapeutic-cloning-(somatic-cell-nuclear-transfer).pdf>.

[33] General Assembly Adopts United Nations Declaration on Human Cloning by Vote of 84-34-37’ (8 March 2005) <http://www.un.org/press/en/2005/ga10333.doc.htm>.

[34] Human Reproductive Cloning Act 2001 (UK), which was repealed and superseded by the Human Fertilisation and Embryology Act 2008 (UK). Section 3 of the 2008 Act forbids reproductive cloning.

[35] Ruth Deech, ‘Regulation of therapeutic cloning in the UK’ (2002) 5(1) Reproductive BioMedicine Online 7, 9. The cloning regulations under the Human Fertilisation and Embryology Act 1990 (UK) were challenged in the UK High Court by the ProLife Alliance in November 2001, which triggered the enactment of emergency legislation. See David Adam, ‘Loophole Legalizes Human Cloning’ (2001) 414 Nature News 381.

[36] The Convention is relevant, for example, in The Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, on the Prohibition of Cloning Human Beings was passed in 2001, and Article 1 prohibits “any intervention seeking to create a human being genetically identical to another human being alive or dead.”

[37] Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006 (Cth).

[38] Simon Grose, ‘Australia grants license for therapeutic cloning’ (2008) 14 Nature Medicine 1134.

[39] Many bills have been introduced, e.g. HR4808 - Stem Cell Research Advancement Act of 2009, but never passed. Issues related to abortion have been a key barrier to the successful enactment of human cloning legislation over the years, while the strong lobbying efforts of the biotechnology industry was partially behind the failure to enact laws in the late 1990s. The Food and Drug Administration has claimed authority over reproductive cloning, but it seems unlikely that its purported regulatory jurisdiction would stand up to legal challenge. See <http://www.npr.org/news/specials/cloning/faq_blanknav.html>.

[40] The 2001 statement was supplemented by Executive Order 13435 of June 20, 2007.

[41] Stem cell research funding was restored in 2009 under the Obama Administration: President Barack Obama issued Executive Order 13505 “Removing Barriers to Responsible Scientific Research Involving Human Stem Cells” on 9 March 2009. The Order made no comment on human cloning.

[42] Reproductive cloning is banned in Arkansas, California, Connecticut, Iowa, Indiana, Massachusetts, Maryland, Michigan, North Dakota, New Jersey, Rhode Island, South Dakota, Florida, Georgia, and Virginia.

Australian Feminist Judgments Project with Dr Francesca Bartlett

Dr Francesca Bartlett joined the TCB School of Law in 2006 and lectures in The Legal Profession and Contract Law. Her research includes, notably, the Australian Feminist Judgments Project which was published in 2014. The project involves a group of feminist academics, lawyers and activists who have agreed to write alternative judgments in a series of Australian legal cases. In this interview, Francesca explains the difficulties in re-writing judgments, the purpose of the project and the ways in which judgments were re-written with a feminist perspective. The project is administered by the University of Queensland.

Prianka: Let’s start off with a little introduction. I came across Australian Feminist Judgments Project whilst reading Louth v Diprose and being appalled at the result. Can you tell me a bit about the process with writing alternative judgments?

Francesca: The process was different for all of the different judgement writers. I think we had about 24 judgement writers, academics from around the country. Their motivations for why they wanted to write particular judgments varied. For instance, my motivation was that I didn’t like a particular notorious case, but I also hated teaching it so I thought it would be interesting to re-think it. So instead of me just saying that the High Court ‘got it wrong’, I could actually have a go at seeing if there was a way for the High Court to do it right.

Other people really wanted to change the law, so for example some of the Family Court judgments were saying that current interpretation of the Statutory Law was really narrow and it needn’t be, so the motivation for many of the contributors was law reform. Interestingly, we found (as the people running the project) in the end that the feminist academics who usually write ‘out-there’ articles wrote fairly conservative judgments because they had to conform to the system. We were very clear with our writers that their judgments had to use writing of the era and that they they couldn’t slip in academic work – you had to really pretend that you were a judge. As you can imagine, this was really difficult for some of the writers, so they had a range of ways of approaching their writing. We ended up with many different ways of helping our writers re-think and re-write the law.

We had the project published as a book but we can’t put that online, but we have created a website (see below) that is sponsored by the Law School. We’ve done mapping (battered woman syndrome, sexually transmitted debt etc) and we’ve tried to use them in academic ways. These were exercises where a researcher would start with academic commentary and trace cases through the commentary. What they were looking for was the impact of feminist thought in the law and so-on. These are large areas of work that can be at anyone’s disposal – I urge all students to dip into this! (See below for links)

In the mapping section on the website, we’ve also collected many existing judgments that we do like, not just judgments relating to feminism but also ones that span broader fairness or equality issues, such as LGBTI discrimination and the like. All this information is on the website, and could be useful for a student doing a research project.

Prianka: I’ve found that when I read modern cases not always, but sometimes, the outcome for women is much better than it would’ve been maybe 100 years ago. I read Sidhu v Van Dyke for my Trusts Assignment and I can imagine the judgment would have been scathing to a mistress if it had been written some years ago.

Francesca: You’re absolutely right. Another thing that we did during the project was interview about 40 different judges all around the country who we identified as ‘feminist judges’. Keep in mind that a lot of them did not like that description, but they talked to us about how they went about their judgments, what their views were and so on, and a lot of them said that particularly having women, and women that really care about women, on the court really changes the atmosphere and has a significant affect on their colleagues and how the court works. So things are starting to change, even if there isn’t a female decision-maker. That’s not to say that judgments have been entirely transformed from when courts where male-dominated, but it is getting there slowly.

Part of what we were trying to do was think about the transformation and what more can be done and how much avenue there is to be expressly concerned about these issues.

One of the people we worked with, a woman called Rosemary Hunter (a bit of a guru in the feminist academic world) is of the view that you can bring about express feminism in the way that you go about judging, and has written a lot about that aspect of it.

Prianka: I’ll admit, especially in my first year of studying law, I didn’t give much thought to feminism (or lack thereof) in judgments unless I was reading a judgment that really stood out to me as being blatantly discriminatory.

Francesca: One of the judgments that has been re-written is about re-marriage prospects, and how the judges would literally say, for example, ‘is this woman attractive’ or ‘is she likely to get re-married’ and then reduce her damages if it was likely that she’d get a husband. However, it was part of the law at the time and it is difficult to shift that sort of law. It has shifted now, but at the time it was very difficult for something like this to shift organically.

There’s still plenty of this kicking around, however. Like in Australia, it wasn’t until 1980 that a woman could open their own bank account without her husband signing off or if she was single, she had to sign something saying she was infertile. The 80s doesn’t seem like a very long time ago – the research that we conducted whilst doing the project was really interesting (and at times a bit worrying).

Prianka: Are there many similar projects world-wide? I know of one in the UK.

Francesca: It actually started with a group of women from Canada – they all wanted to write about the way that the court had interpreted a particular article of their bill of rights because they felt that the courts had been reading that article down drastically, and they wanted to re-write that group of judgments. Rosemary Hunter and a few other English academics then adopted the idea and expanded it quite a lot.

The UK’s project has a website as well, but they haven’t updated the website in a while but they only had Court of Appeal decisions and above. They were very creative with how they made their decisions and produced a book as well, but that’s not available online.

Basically, we thought it would be a good idea to do it in Australia too. There’s a New Zealand project, and an American project is currently being worked on. There’s also an international law project being worked on, which is kind of interesting in its difference. I don’t know how far along it is in terms of resources, but what’s really different in that project is that they deal with a lot of code countries, where there is no reasoning and only statute. It’s a really different and interesting way of judicial reasoning.

Our project is essentially finished, so we’re always happy to come and talk about it or help people access it in some way. And all the resources that we have can be used as fodder for students completing research projects on a range of different topics.

Further details of the Australian Feminist Judgments Project can be found at https://law.uq.edu.au/the-australian-feminist-judgments-project . The website is extensive and contains many resources for anyone interested in the project. Francesca encourages anyone keen to make good use of everything available!