Melbourne Law School - Research Publications
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ItemDeveloping a Human Right to Democracy in International Law: Protection by the Rule of Law?(Bloomsbury Publishing, 2021-07)
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ItemNo Preview AvailableFrom Fair Dealing to User-Generated Content: Legal La La Land in Hong Kong(Cambridge University Press, 2021)In March 2016, the Hong Kong government abandoned its latest attempt to reform copyright law for the digital era. Notwithstanding strong support from the business sector, opposition to the Copyright (Amendment) Bill 2014 had become a crusade for civil rights activists and Internet user interest groups, who protested it online and outside the legislature, and also for prodemocracy lawmakers, who filibustered tirelessly until the bill’s demise. Had the bill become law, copyright users would have gained new fair dealing exceptions covering parody, satire, caricature, pastiche, comments on current events, and quotation – provisions and protections they had requested when the predecessor Copyright (Amendment) Bill 2011 was rejected – along with greater clarity on various technology-related matters. Instead, Hong Kong retains a limited and dated range of exceptions in the areas of education, journalism, and public administration.
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ItemA Global Rule of Law(Cambridge University Press, 2021-08-03)The view of international law as a profession committed to the spread of liberal ideas emerged in Europe and North America in the late nineteenth century.1 One of those ideas was the rule of law. Attempts to realize a global rule of law and attempts to constitute an international community have long been linked. For many international lawyers, this gave international law a sense of forward movement and a clear telos, with the caveat that the reality of unequal power relations meant that international law could never be measured directly against a model borrowed from domestic law and politics.
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ItemHealth Research and Privacy through the Lens of Public Interest(Cambridge University Press, 2021-06-24)This chapter considers how viewing the concept of privacy through a public interest lens can reveal the limitations of the narrow conception of privacy currently inherent to much health research regulation (HRR).
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ItemKeyword Advertising and Actionable Consumer Confusion(Edward Elgar, 2020-01-07)This chapter provides a critical analysis of keyword advertising cases in the United States, European Union, Australia and New Zealand. It reveals that after a relatively short period of uncertainty, courts have shown themselves to be comfortable with applying or tweaking existing trade mark law doctrines, such as nominative fair use and ‘use as a trade mark’, to deal with some of the challenges posed by keyword advertising. It then uses this body of law as a springboard to provide a critical reconsideration of the right to control the use of trade marks in advertising generally. It suggests that when defensive doctrines such as nominative fair use are being developed and applied, much greater attention needs to be paid to the unusual nature of right to control use in advertising, in particular.
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Item(Re)claiming trade mark protection(Edward Elgar, 2021-04-20)Trademark owners are allowed to, and frequently do, register their trademarks “with unduly broad specifications of goods and services, and they can register marks that contain many different elements without being required to identify those elements for which they are claiming exclusivity.” The ability to overclaim allows trademark owners to expand their infringement claims in surprising ways. This chapter explains the various ways that trademark owners can create overly broad protection, “ways in which the law facilitates and tolerates” this overclaiming, and ways to try to fix the problems of overclaiming.
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ItemFuller's Relationships(Franz Steiner Verlag, 2020)Inspired by correspondence between Fuller and a Japanese colleague, this article situates Lon Fuller's lifelong attention to procedures, processes and institutional forms in the context of the relational demands that he saw as constitutive to a condition of legality. Fuller's jurisprudence of the 'internal morality of law' must be understood as offering prescriptions of all governing relationships that are framed by the authority of law. The article thus deepens our understanding of the consistent features of Fuller's treatment of the conditions necessary to possess and exercise the authority of law, at the same time as it offer a fresh perspective through which to identify and address contemporary challenges of the rule of law that bear upon the intelligibility of relationships between legal officials and legal subjects.
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ItemAdministrative Discretion and Governing Relationships: Situating Procedural Fairness(Routledge, 2021)When 'procedural fairness', 'procedural justice', or 'procedural due process' have been singled out as sites of theoretical inquiry, efforts have primarily been directed to identifying the value of observing this cardinal demand of fair treatment within decision-making processes.
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ItemOn 'Dynastic' Inequality(Oxford University Press, 2021)This chapter investigates whether the replication of inequality is, other things being equal, morally objectionable in ways not applicable to inequality that remains confined to a single generation or “birth cohort.” The focus is both theoretical and practical. The chapter considers the philosophical foundations that might lie behind an objection to dynastic inequality, negotiating the diversity of egalitarian views supporting this position and the complexity around the causal mechanisms at work in cases where inequality has a dynastic tendency. It then discusses the policy reforms that might target inequalities that replicate old distributive trends while leaving newly produced trends more intact, with a focus on tax policy. Current tax rules in most developed economies do not make a distinction between new and old influences on the material distribution. Accordingly, it is likely that the tax reforms implied could be quite extensive.
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ItemThe Trans-Pacific Partnership as a Development of the Australia–United States Free Trade Agreement: Services Liberalisation and Investment Protection(Cambridge University Press, 2021-11-11)This chapter compares the Trans-Pacific Partnership Agreement (TPP) with the Australia -- United States Free Trade Agreement (AUSFTA), reflecting on relevant developments in the Australia -- United States relationship, including with respect to agriculture and biologic medicines. The chapter focuses on the Chapters on services and investment, addressing areas such as electronic commerce, investor--state dispute settlement (ISDS), and the "carve-out" of tobacco control measures from ISDS in the TPP. The comparison of investment in the two treaties is particularly of interest given the exclusion of ISDS in the AUSFTA and its inclusion (except as between Australia and New Zealand) in the TPP. We conclude that the TPP is a more modern agreement than the AUSFTA with several improvements that provide greater regulatory policy space. However, the inclusion of ISDS as between Australia and the United States in the TPP is questionable.