Melbourne Law School - Research Publications

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    From Fair Dealing to User-Generated Content: Legal La La Land in Hong Kong
    Lee, A ; Clift, B ; Balganesh, S ; Ng-Loy, WL ; Sun, H (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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    Correction to: Lessons from Australian Water Reforms: Indigenous and Environmental Values in Market-Based Water Regulation
    Macpherson, E ; O’Donnell, E ; Godden, L ; O’Neill, L (Springer Singapore, 2022)
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    Demystifying the Burden of Proof in International Arbitration
    Garnett, R ; Ferrari, F ; Rosenfeld, F (Kluwer Law International, 2022)
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    A Global Rule of Law
    Orford, A ; Meierhenrich, J ; Loughlin, M (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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    Health Research and Privacy through the Lens of Public Interest
    Taylor, M ; Whitton, T ; Laurie, G ; Dove, E ; Ganguli-Mitra, A ; McMillan, C ; Postan, E ; Sethi, N ; Sorbie, A (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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    Health Data, Public Interest, and Surveillance for non-health related purposes
    Taylor, M ; Kirkham, R ; Iphofen, R ; O'Mathuna, D (Emerald Publishing, 2022)
    A policy of surveillance which interferes with the fundamental right to a private life requires credible justification and a supportive evidence base. The authority for such interference should be clearly detailed in law, overseen by a transparent process and not left to the vagaries of administrative discretion. If a state surveils those it governs and claims the interference to be in the public interest, then the evidence base on which the claim stands and the operative conception of public interest should be subject to critical examination. Unfortunately, there is an inconsistency in the regulatory burden associated with access to confidential patient information for non-health-related surveillance purposes and access for health-related surveillance or research purposes. This inconsistency represents a systemic weakness to inform or challenge an evidence-based policy on non-health-related surveillance. This inconsistency in unjustified and undermines the qualities recognised to be necessary to maintain a trustworthy confidential public health service. Taking the withdrawn Memorandum of Understanding (MoU) between NHS Digital and the Home Office as a worked example, this chapter demonstrates how the capacity of the law to constrain the arbitrary or unwarranted exercise of power through judicial review is not sufficient to level the playing field. The authors recommend ‘levelling up’ in procedural oversight, and adopting independent mechanisms equivalent to those adopted for establishing the operative conceptions of public interest in the context of health research to non-health-related surveillance purposes.
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    Keyword Advertising and Actionable Consumer Confusion
    Burrell, R ; Handler, M ; Aplin, T (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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    (Re)claiming trade mark protection
    Burrell, R ; Handler, M ; DINWOODIE, G ; Janis, M (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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    Fuller's Relationships
    Rundle, K ; Takikawa, H (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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    Administrative Discretion and Governing Relationships: Situating Procedural Fairness
    Rundle, K ; Meyerson, D ; Mackenzie, C ; MacDermott, T (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.