88. A Johnston
13 November 

Prof Jill McGeough
Chairman, ALRC Inquiry into Copyright and the Digital Economy
Australian Law Reform Commission
GPO Box 3708
Sydney NSW 2001

Dear Prof McGeough,

Submission to discussion paper on Copyright and the Digital Economy

Over the last several years, questions surrounding the proper bounds of intellectual property have become increasingly contentious. Furthermore, the technology which artists have used to create and display various forms of work, have changed radically. I make these observations given that the Commonwealth Government undertook a Convergence Inquiry into the popular broadcast media, which you discussed extensively in your Issues Paper.

The relevance of these comments to this inquiry is that I believe it is unrealistic to partition ideas of "copyright and the digital economy" from patent law reform. This is because, despite the fact that material such as DNA is governed by the Patents Act 1990, Professor James Martin makes a compelling case for DNA to be considered as part of the digital economy. In his book, The Meaning of the 21st Century, he says that DNA is:

like a book with 23 chapters-one for each of our 23 pairs of chromosomes, which make up the gene material (macromolecule) found in the nuclei of cells. Each chapter is divided into sections-genes. You have about 30,000 genes. A typical gene has about 10,000 letters (called ‘nucleotides’ or ‘bases,’ each of which can be one of four combinations…It is amazing to think that the entire 23-chapter book is coiled up in the DNA double-helix molecule in every cell of your body.

If this is the case, then it is potentially arguable under copyright law that your parents should at the very least have a moral rights claim over your DNA (as its authors) - at least until an individual's birth; whereupon that holding could transfer to the individual him or herself. This argument is mounted on the basis that patents held over genes identified as having important mutations in the diagnosis and treatment of conditions such as breast cancer, have limited some researchers in their work, as well as making treatment unaffordable for many patients. While it is not to be denied that the identification, isolation and development of genes into therapeutic compounds for treatment of disease is both costly and time-consuming, the principles of copyright and convergence provide an opportunity to reform a related area of the law, which has been remarkably resistant to change.

This resistance to change has in part been based on religious and social norms touching on issues from respect for the dead, to an abhorrence of slavery and, a belief in the general sanctity of human life itself. Sir William Blackstone stated in his Commentaries that:

heirs have no property right in the bodies or ashes of their ancestors, ‘nor can [an heir] bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried’.
Certainly, while our society’s reverence for the dead holds true, whether many of our laws continue to respect the aspirations and needs of the living, in light of new technologies, is highly doubtful. This can be seen if, for example, I was a computer programmer who wrote a new piece of software. Copyright allows me to sell the fruits of my labour and, expect a return in licence fees. Yet, when dealing with the most fundamental of all codes – my DNA – I can expect nothing from those who might choose to exploit tissue or blood samples taken in the course of medical procedures.

This was certainly the situation in the famous case of Moore v Regents of University of California, where John Moore, a leukaemia patient, found (after some years of growing increasingly suspicious of the consent forms his doctor was asking him to sign) that a cell line had been cultured and patented from his diseased pancreas. This had been removed, but Mr Moore’s doctor never saw fit to tell his patient what had been done with the organ post-surgery, nor the substantial wealth the Mo cell-line brought. Despite this, the majority of Justices in the Californian Supreme Court saw Mr Moore as having no claim over the organ once removed; nor did he have any entitlement to the cell-line proceeds. They, after all, the cells had been cultured through the medical and scientific skills of his surgeon, and did not represent any labour on Mr Moore’s part.

Only Justice Mosk was prepared to acknowledge Mr Moore as having been deceived and disenfranchised, when His Honour said:

(I)t does not follow that the researcher who obtains (tissue) must necessarily remain ignorant of any limitations on its use: by means of appropriate recordkeeping, the researcher can be assured that the source of the material has consented to his proposed use of it, and hence that such use is not a conversion. To achieve this end the originator of the tissue sample first determines the extent of the source's informed consent to its use -- e.g., for research only, or for public but academic use, or for specific or general commercial purposes; he then enters this information in the record of the tissue sample, and the record accompanies the sample into the hands of any researcher who thereafter undertakes to work with it…As the Court of Appeal correctly observed, any claim to the contrary ‘is dubious in light of the meticulous care and planning necessary in serious modern medical research’

When it comes to individuals having some claim at law, even if it be a limited moral right to their DNA, I believe this is an essential reform to copyright law; combined with an acceptance of the Martin argument that DNA is analogous to a computer program.  As a campaigner and researcher over a number of years, examinations extending from Lockean property theory to implications drawn from Mabo to the Moore case cited earlier, all rationales take you some distance, but never quite far enough.

In bridging this gap, it is also essential to ask a few difficult public policy questions. The first concerns whether the media, be it print, digital, online or in another form as yet un-devised, represents an appropriate store of value and, is something the State should spend time and resources protecting via legislation? Many of the major sporting codes seem able to demand obscene amounts of money in exclusive rights deals, limiting when matches telecast, place an ever-growing percentage of sponsor advertising within telecast times and, should you attended match, limit what spectators can take into the ground so that almost by necessity you will be obliged to buy food and drink at the venue.

This was one of the reasons I thought the Optus decision was so poorly decided on appeal. While you can argue that the Optus technology allowed people to watch a delayed telecast on their Optus phone or computer, why should any sporting code hold a monopoly on a spectacle? Such a concept was clearly rejected in Victoria Park Racing & Recreation Grounds Co Ltd v Taylor. The Racing Park had attempted to prevent Mr Taylor, a neighbour, from broadcasting the results of races, as they said this reduced takings. But, as Latham CJ said:

(T)he defendants have not interfered in any way with the use and enjoyment of the plaintiff's land. The effect of their actions is to make the business carried on by the plaintiff less profitable, and they do so by providing a competitive entertainment. It is unnecessary to cite authorities for the proposition that mere competition (certainly if without any motive of injuring the plaintiff) is not a cause of action. The facts are that the racecourse is as suitable as ever it was for use as a racecourse. What the defendants do does not interfere with the races, nor does it interfere with the comfort or enjoyment of any person who is on the racecourse. The alleged nuisance cannot be detected by any person upon the land as operating or producing any effect upon the plaintiff's land. It is consistent with the evidence that none of the persons on that land may, at any given moment, be aware of the fact that a broadcast is being made. The only alleged effect of the broadcast is an effect in relation to people who are not upon the land, that is, the people who listen in or have the opportunity of listening in and who therefore stay away from the land. In my opinion the defendants have not in any way interfered with the plaintiff's land or the enjoyment thereof.

Justice Dixon also wisely cautioned against finding new forms of injunctive relief which impeded others’ use of their property. His Honour sad in particular:

An occupier of land is at liberty to exclude his neighbour's view by any physical means he can adopt. But while it is no wrongful act on his part to block the prospect from adjacent land, it is no wrongful act on the part of any person on such land to avail himself of what prospect exists or can be obtained. Not only is it lawful on the part of those occupying premises in the vicinity to overlook the land from any natural vantage point, but artificial erections may be made which destroy the privacy existing under natural conditions. In Chandler v. Thompson Le Blanc J. said that, although an action for opening a window to disturb the plaintiff's privacy was to be read of in the books, he had never known such an action maintained, and when he was in the common pleas he had heard it laid down by Eyre L.C.J. that such an action did not lie and that the only remedy was to build on the adjoining land opposite to the offensive window. After that date there is, I think, no trace in the authorities of any doctrine to the contrary. In Johnson v. Wyatt Turner L.J. said: "That the windows of the house may be overlooked, and its comparative privacy destroyed, and its value thus diminished by the proposed erection ... are matters with which, as I apprehend, we have nothing to do," that is, they afforded no ground for an injunction.

I am increasingly of the view that modern copyright jurisprudence is all too willing to grant title to new forms of “virtual” property which are both largely “spectacle and speculative”. It seemed strange that the Optus case did not include a broad discussion of the merits of competition, or call on the Applicants to take their own measures, if they wanted to prevent others seeing an event by another means, at a time of their choosing. While some may well say that the law and technology has moved on since Victoria Park, the common law principles the case enunciates are still worthy in my view. They speak to competition, consumer choice and preventing monopolistic conduct; all worthy public goods.

Indeed, in my view, much of what many will seek to have “protected” through this Discussion Paper will not amount to things truly worthy of legal protection; the successful Optus case appeal before the full Federal Court being a clear example of bad law. By contrast, I seek convergence of copyright and patent law, so that individuals may have some claim over the most precious and fundamental building blocks of our lives – our DNA. Patent law is not achieving that end, which is why I now come to copyright law and the treatment of DNA as a digital code in the digital economy, looking for resolution.

Securing a stake in our genes would help prevent deceptions, such as that perpetrated on Mr Moore. And, it may also help address the needs of those afflicted by long-term chronic diseases and disabilities. If we can achieve a modest return for our participation in research, through proper recognition of our ongoing interest in test samples (containing our unique DNA) code, then as Justice Michael Kirby said in Harrington:

(Making an award) in a case such as this would provide the plaintiff with a degree of practical empowerment.  Such damages would enable such a person to lead a more dignified existence.  They would provide him or her with a better opportunity to participate in society than he or she might otherwise enjoy where the burden of care and maintenance falls on the disabled person's family, on charity or on social security. 

In that particular case, a question of medical negligence turned on whether a mother was properly informed and counselled by her doctor on the potential impact of contracting rubella while with child. At birth, the child was found to have serious disabilities; regardless the majority refused to entertain a ‘wrongful life’ claim. Only Kirby J. was prepared to lift the pseudo-religious constraints and openly confront both negligence and quality of life issues, as the above quotation demonstrates.

Again, as someone with a disability, I not only want research to be encouraged so that my ailments (and those of many like me) can be cured, but also to work out what happens in the meantime. To this end, I’ve called for a much bolder approach to science and research, as well as the calling to account of those who would hobble such research under the sometimes contrived guise of ‘religious and moral objections’. While these battles are fought, a range of interim measures must be found to support the chronically ill and long-term disabled while we wait for cures.  Drawing on Kirby J’s insight, we should be able to call for some royalty fees for the ‘fair dealing’ we permit in providing tissue and other samples. After all, with the ageing of the population, volatility of tax receipts and, the recent history of global financial crisis, relying on public provision is the ultimate self-delusion.

We only have to look at the Centre for Independent Studies’ research into the National Disability Insurance Scheme, to know this is a dangerously unsustainable scheme; particularly if significant cuts are not made in other public outlays. Again, given these concerns, I seek to establish a revenue stream for patients and the chronically ill, via copyright. In acknowledging DNA as a code fit for the digital economy, we can import concepts of fair dealing and fair returns. We should aim for a situation where individuals’ need for support and care need not be based entirely on State provision. Equally, we need to ensure that both researchers and patients have ready access to DNA for both furthering scientific inquiry and applying affordable treatments.  I do not believe, on the basis of my own research, that patent law has been striking the appropriate balance on its own.

I thank the ALRC in advance, for its consideration of this submission. If you have any questions, please feel free to contact me.

Yours faithfully,

Adam Johnston

13 November 2012