Unauthorised access to wireless local area networks: The limitations of the present Australian laws

Wireless local area networks (WLANs) have enjoyed a rapid increase in usage in recent years. WLANs serve to connect users to the Internet by means of radio or infrared frequencies. The rise in WLAN usage has however served to highlight some of the inadequacies of the present laws governing unauthorised access to WLANs. At present, the legislation serves to make unauthorised access, modification or impairment of electronic communications illegal. It is clear that the provisions prohibit the hacking of computer systems and denial of service attacks. However, it is unclear whether the legislation extends to additional forms of unauthorised access such as wardriving (using software to identify and map freely available WLAN) and joyriding (accessing a network with no further damage to the connection). The liability of Internet Service Providers and those engaged in unauthorised access in public places also remains unclear. Finally, the relationship of the offence of unauthorised access to the tort of trespass and the laws of copyright remain untested. The objective of this paper is to consider the measures necessary to increase the effectiveness of WLAN laws. The paper will begin by considering the nature of WLAN technology and the policy discourse to date. This will be followed by an examination of the present Australian law and an identification of areas of uncertainty. Finally, the paper will consider the measures required to enhance the certainty and effectiveness of the laws governing unauthorised access to WLAN.     

Indian Copyright Act and new communication technologies: A special focus on webcasting

The main aim of this paper is to consider whether the Indian Copyright Act 1957 (ICA) gives protection to future technologies. It follows an earlier paper on Webcaster's protection under copyright published in [2011] 27 CLSR 479–496. By way of asking that question it is sensible to examine whether webcasting/streaming is protected by ICA or not. In order to enquire the same, we need to study the penetration of streaming/webcasting technology into the Indian market and its application. Since the technology is linked with the Internet, it is also essential to examine its penetration and the availability of bandwidth and the potential market for such communications. All these aspects are studied in the first part of this paper. In the second part a brief outline is offered of the relevant provisions of the Act. At issue is whether they give protection to the future technologies or not. This will be considered in part three. The same will be examined with the proposed amendment to the Act too. The paper concludes that the Act fails to give protection to future technologies and therefore that streaming/webcasting is not protected in India under the copyright regime.     

从TRIPS协议看中国著作权的司法保护

我国加入WTO后,国内法中著作权法规定将面临与国际法相协调的问题。其中,我国著作权法与TRIPS协议在邻接权、合理使用,出租权、权利限制、执法措施等方面均有不同程度的差距。因此,我国著作权法首先应该从法规的完善上入手,逐步缩小与TRIPS协议的差距,扩大和国外的交流与合作,吸收、借鉴国外的先进经验和法律技术,并在此基础上不断加强我国著作权的司法保护力度,完善著作权的法律保护机制。     

All talk and no bite: Copyright infringement and piracy trends in India

The Copyright Act 1957 presents the face of modern copyright protection afforded to different intellectual works and is a key statement of intellectual property rights (IPR) in the Indian legislation governing this domain, as well as being compliant to the TRIPS Agreement on Trade Related Aspects of Intellectual Property Rights. This Act has been acceptably referred to on many occasions on global platforms, on account of its being one of the most elaborate and well-structured pieces of legislation in the field of intellectual property law. However, this well encompassing, highly creditable and widely acknowledged legislation seems to fall down in its practical implementation rendering its theoretical purpose partly futile. The situation so stands, that India continues to project major piracy rates with little regression in the trend despite the fact that this law is still very much in force. The reasons which deny effective copyright protection in India, for works of miscellaneous categories, have much to do with the lack of an equally strong enforcement mechanism. This paper provides an insight into the inadequacies of the Indian legal and administrative systems which have ultimately diminished the effectiveness of the copyright regime contrary to that envisioned by the law.     

印度转基因食品立法研究

印度作为最大的发展中国家之一,近些年转基因作物商业种植发展迅速,然而立法却相对滞后,呈现出起步晚、法律层级低和零散的局面。为改善该局面,印度政府近些年积极准备出台统一的转基因食品立法,在立法理念上突出对环境安全和人类健康保护,肯定预防原则、实行强制标签制度并强化责任和监管体制,为其它发展中国家提供了一定的参考和借鉴。     

论我国环境管理体制立法存在的问题及其完善途径

我国现行的环境管理体制立法存在着立法体系不完善、立法内容存在交叉和矛盾、某些立法授权不符合科学管理的规律等问题。为此 ,我国应当加强对环境管理体制立法的研究 ,注意借鉴国外环境管理体制立法的经验 ,加快制定综合性的环境管理体制立法。应将各单行立法中关于环境管理体制的规定具体化 ,及时修订与实际不符的法律规定。在立法程序上 ,改变由管理部门起草立法的方式 ,遵循先立法后改制的原则。并且在立法中引入公众对环境管理机构的监督机制     

Therapeutic cloning in Australia: one small stem from man, one giant leap for mankind

In 2002 the Australian Parliament enacted legislation which prohibited both therapeutic and reproductive embryonic cloning. Just four years later, in December 2006, this same legislation was amended, reversing the prohibition on therapeutic cloning, while retaining the ban on reproductive cloning. The Prime Minister, sensing the political mood, allowed a conscience vote. This contrasted with his decision several months earlier against introducing any changes to the 2002 Act, despite 54 recommendations having been made by a Statutory Review Committee. Approval of the legislation had as much to do with the careful drafting of the provisions as with any rational, social or scientific factor. The legislation is narrow in scope, retains an absolute prohibition on reproductive cloning and contains strict regulations with heavy criminal penalties. The Act requires a review after three years. A number of questions remain. Does stem cell research demand a global rather than a local approach, by way of an international Covenant? Does the legal status of a cloned embryo need further examination? Will the embryo have a separate legal standing recognised by law? These are some of the questions which will need addressing as the law tries to keep up with science.     

Child support enforcement program; state plan requirements, standards for program operations, and federal financial participation--Office of Child Support Enforcement, HHS. Notice of proposed rulemaking

This proposed rule would implement part of the paternity establishment provisions contained in section 331 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) and amended by section 5539 of Pub. L. 105-33, which impose new statutory requirements for a State's voluntary paternity acknowledgement process and require the Secretary to promulgate regulations governing voluntary paternity establishment services and identifying the types of entities other than hospitals and birth record agencies that may be allowed to offer voluntary paternity establishment services. States will be required to adopt laws and procedures that are in accordance with the statutory and regulatory provisions. These proposed regulations will address these procedures and related provisions.     

Any-Willing-Provider laws: their financial effect on HMOs

Any-Willing-Provider (AWP) legislation requires that health plans accept any health care provider who agrees to conform to the plan's conditions, terms, and reimbursement rates. Many states have adopted such legislation, raising questions about its effect on the managed care market. Those favoring this legislation argue that it will reduce restrictions on choice of provider, while opponents argue that it will reduce competition by increasing administrative and medical costs for managed care plans. Using cross-sectional time-series data for the period 1992-1995 (the period during which many of these laws were enacted), this study investigates the effect that these laws have on HMO financial performance. Our results show that "all-provider" AWP laws have a very limited effect on the financial performance measures we examine. "Pharmacy" AWP laws have a more significant effect, but neither type of law appears to affect the overall profitability of HMOs.     

民法变通规定制定权的法源冲突及解决路径——以《民法典》相关规定阙如为切入点

为在民事法治建设中妥善处理各民族风俗习惯与国家民事法律的关系,我国《民法通则》《婚姻法》《继承法》《收养法》赋予了民族自治地方人大对民事法律规定进行变通的权力。已经正式实施的《民法典》并没有对此项权力予以明确规定,而我国《民法通则》等法律又因为我国《民法典》的实施而被废止。在此背景下,民族自治地方人大还能否对民法典的相关规定进行变通或者补充,是全面贯彻实施《民法典》必须解决的一个重要问题。由于我国《民法通则》等法律规定的变通规定制定权是授权立法而非职权立法,依据宪法及宪法相关法有关立法权限划分的规定,已无法解决我国《民法典》与《民法通则》等法律之间存在的新的一般规定与旧的特别规定的冲突问题。在民法典时代,民族自治地方人大能否对《民法典》的规定进行变通或补充,尚有待全国人大常委会作出裁决。     

论“基本法律”和“法律”的性质和地位——质疑《立法法》第7条、第8条

我国《宪法》和《立法法》对全国人民代表大会制定“基本法律”和全国人大常委会制定“法律”均作了规定,但都没有明确界定两者的范围与界线,致使两者的立法权限和关系模糊,位阶不明确,这与法制统一原则相悖。本文通过对全国人大和全国人大常委会立法权的来源、性质、范围的分析和梳理,指出两者的立法权在性质和效力上的区别,由此说明“基本法律”与“法律”在性质、内容范围及其效力等级上是不同的,并指出《立法法》将两者混为一体所产生的影响是消极的。     

Digital Economy Act 2010: fighting a losing battle? Why the ‘three strikes’ law is not the answer to copyright law's latest challenge

This paper argues that the Digital Economy Act (DEA) 2010, already much delayed in its implementation, is fundamentally flawed in three respects. First, there are internal inconsistencies in the complex provisions to be enacted under secondary legislation. In particular, the problem of relying on Internet Protocol (IP) addresses to identify alleged infringers has proved problematic. Secondly, the proposed measures are disproportionate in terms of the offence and severity of the punishment involving a warning-system leading to possible disconnection from the Internet for copyright infringement. Thirdly, the Act is unlikely to succeed in its central purpose to control unauthorised digital copying because of its technological specificity in a fast moving environment, and a lack of consumer acceptance. Finally, by comparing the treatment of these issues under legislation in other countries, in particular New Zealand, alternative copyright enforcement models are explored.     

The Constitutionalisation of Party Unity: The Origins of Anti-defection Laws in India and Israel

In spite of a pronounced increase in the number of states that have adopted anti-defection laws over the past several decades, the literature on party unity in democratic legislatures has paid scant attention to understanding the conditions that lead to the adoption of such restrictive measures on the mobility of elected deputies. This article seeks to fill this gap. The authors provide a simple game-theoretic model to explain the passage of anti-defection measures in India, in 1985, and Israel, in 1991. These two democratic states were among the first to experiment with the constitutionalisation of anti-defection measures. Moreover, their comparison is important because although these laws were adopted under seemingly very different circumstances, they were supported with a strong consensus by both the government party, or coalition, and the opposition. It is argued that the reasons for the passage of the anti-defection laws in these two states were rooted in the strategic consequences of the changes that took place in the format of their party systems. The Indian and the Israeli cases show, respectively, that a dominant party system (India) and a tightly balanced bipolar party system (Israel) provided equally compelling incentives for rampant party switching between government and opposition, which therefore created an incentive for both sides to agree to, and adopt, a strict legislative measure to curb defections.     

Scientia potentia est: Making threats of copyright infringement

There has been much debate in the UK as to whether copyright law should have an unjustified threats provision similar to that found in UK patent, trade mark, and registered design law. Unjustified threats provisions for copyright law exist in other commonwealth jurisdictions, such as Australia and India. We argue that all of the existing unjustified threats provisions in the UK are too narrow in their scope. Threats more generally have played a significant role in the development of copyright law, and a provision aimed at ‘unjustified’ threats may paradoxically restrict discourse about the scope of copyrights. We therefore suggest that the best way to proceed is not just to introduce an unjustified threats provision but instead to make clearer what is, and is not, protected by copyright.     

德国《著作权法》中报酬请求权制度及其启示

为适应新技术发展和国际著作权法发展的要求，德国《著作权法》对包括报酬请求权在内的许多内容进行了修订。报酬请求权是德国《著作权法》中一项重要而又颇具特色的内容，对当前我国著作权法的完善具有重要的借鉴意义。比较其与我国著作权法上获得报酬权的不同，可以总结其对我国著作权法改革的借鉴意义。即增加关于基于提供复制机会的法定报酬请求权的规定，并辅之以版权补偿金制度和完善的著作权集体管理组织制度。     

Extraterritorial laws for cross-border reproductive care: the issue of legal diversity

Certain states impose restrictions on assisted reproduction because they believe such acts to be morally wrong. However, people who live in a state with restrictive legislation always have the option of going abroad to evade that law. Turkey and several states in Australia have enacted extraterritorial laws to stop forms of reproductive travelling for law evasion. Within the EU, the European Convention of Human Rights would normally remove the need for extraterritorial laws. However, because of the wide margin of appreciation allowed by the European Court of Human Rights, legal diversity on these matters persists. In the case of S.H. and Others v. Austria, moral justification, consistency and proportionality were introduced by the First Section to rule on Member States' legislation on medically assisted reproduction. The First Section mostly ruled on the effectiveness of the law, while the focus should be on the validity of the normative aim. The Grand Chamber reversed this judgement based on the margin of appreciation doctrine, using it as a pragmatic substitute for a substantial decision. In general, the E.U.'s interests of harmonization and unification are at odds with the right to national identity of individual states in areas of contested morality.     

Part II of David Bainbridge's study of the copyright (computer software) amendment act 1985

The considerable amount of piracy of computer programs which has taken place recently has shaken the software industry's confidence in legal methods of protecting their products. If nothing more, the new Act should restore some of this confidence, but the industry must be prepared to take the legal measures now available. The stronger criminal sanctions provided for by section 3 of the Act emphasise the criminality of software piracy and it is hoped that the police will also begin to take software theft seriously. But there are some grey areas in copyright law as amended by the new Act; the precise scope of ‘material form’ and ‘adaptation’ are unclear - will the making of a duplicate of a program stored on magnetic cassette tape infringe copyright? A wide definition of ‘material form’ could have put protection beyond doubt whilst allowing for future developments in computer storage media. The new Act is seen as an interim measure pending a comprehensive review of copyright law (per Lord) Lucas of Chilworth, Hansard House of Lords, 10 May 1985 p. 873; he said that the Government hoped to bring forward a comprehensive Copyright Bill no later than the 1986/7 session). Furthermore, the whole area of computer storage of more traditional works of copyright such as literary and musical works, is not specifically mentioned in the new Act. Other questions such as the ownership of works including computer programs produced by or with the aid of a programmed grammed computer (first identified as being a likely problem as early as 1977 by the Whitford Committee) are not dealt with all by the Act. Lord Macmilland of Ovenden recently called for new legislation to deal with the copyright problems caused by new technology (The Times 18th September 1985 p.3), and it is hoped that full consideration will be given to the effect of computers on all forms of intellectual property when copyright law is rationalised and re-codified.     

略论版权的技术保护措施

技术保护措施弥补了法律手段保护版权的不足 ,但技术保护措施又催生了更先进的破解技术及其装置 ,版权及其邻接权权利人的利益受到严重威胁 ,世界知识产权组织和主要国家均加强了反规避技术措施的立法。本文从技术保护措施的主体、相关性、有效性及目的正当性方面考察了各国对技术措施的界定 ,并对规避侵权行为的表现形式、侵权抗辩进行了比较研究 ,分析了我国著作权法中有关反规避技术措施的立法缺陷 ,提出了相应的改进思路。     

Legal Protection Against Domestic Violence in India: Scope and Limitations

This paper deals with the scope and limits of legal measures to curb domestic violence against women in India. The Indian state has enacted several laws in the past to address the issue and recently a new comprehensive law is added to the list. The new law has become an alternative to many urban victims. Yet, a review of the performance of the old and new laws on domestic violence proves that legal measures to curb domestic violence have serious limitations. They could neither guarantee any reduction in the extent of such violence, nor could they expedite the justice delivery system in India. Much remains to be done to ensure gender justice in a patriarchal society. Discussion here is based on secondary data and supplemented by field data collected through qualitative research informed by feminist epistemology in the district of Burdwan, West Bengal.     

《著作权法》修改:关键条款的解读与分析(下)

修改后的《著作权法》将视听作品分为"电影作品、电视剧作品及其他视听作品",并分别规定了不同的著作权归属规则,但两类视听作品分类标准不明,且对其他视听作品采用约定优先的著作权归属规则,不利于此类视听作品的许可与传播。当一名合作作者无正当理由反对对合作作品的特定利用时,其他合作作者不能发放专有许可,这可能给合作创作的学术论文和专著的出版带来负面影响。修改后的著作权法将电台、电视台和报刊通讯社员工的职务作品定为特殊职务作品,可能产生其员工离职后无法获得出版其职务作品文集所须授权的问题。新增的有关职务表演的规定合理地解决了长期以来将"演出单位"作为"表演者"的问题。对传播录音制品获酬权的规定并不是法定许可,因为《著作权法》并没有为录音制作者规定除信息网络传播权之外的传播权专有权利。修改后的《著作权法》的一大亮点是将广播组织的转播权以技术中立的方式拓展至网络环境。有关用作者的署名推定权利存在的规定,被诉侵权人应证明其使用涉案作品已获许可的规定,以及法院有权没收和销毁侵权复制品的规定,均直接来源于《中美经济贸易协定》,其中有些仅具有形式意义。修改后的《著作权法》为摄影作品享受新的保护期(作者有生之年加50年)所设定的条件与《世界知识产权组织版权条约》不一致,可能需要再次修改。