Saturday, 21 May 2016

Passing Off and Misleading or Deceptive Conduct - Old dog, new tricks - CLE paper fow Law Society NSW March 2016

Passing Off and Misleading or Deceptive Conduct On Line – Old dog, new tricks.
Misleading and deceptive conduct in the course of trade is as old as commerce itself. But new technologies open up new opportunities for skulduggery.
The advent of the digital economy is a case in point. On one level, on-line advertising can be as misleading or deceptive as any other kind of conduct. But the way in which search engines work can also be gamed and this has permitted novel modes of misleading and deceptive conduct.
This paper will look at manifestations of misleading or deceptive conduct (including passing off) on-line. The principal areas of law that will be discussed are s18 of the Australian Consumer Law (ACL) and related provisions; the Trade Marks Act; and the tort of passing off. The On Line Infringement Act will receive an honourable mention. We wilt hen look at how the law applies to actual situation of online misconduct.
How Search Engines Work
All search engines – Google, Yahoo etc – combine search, indexing and retrieval functions. “Web crawlers” comb the internet and record the details of webpages and save them to dedicated data storage. The saved webpages are automatically indexed. When you enter a search query the search engine applies an algorithm – a mathematical kind of check list - to identify the web pages that are most relevant to your query.
The High Court summarised it nicely in ACCC v. Google [2013 HCA 1]:
18.          The internet is a global network of networks of computers. Computers connected to the internet communicate with each other – requesting and receiving data – by means of a common language, the Internet Protocol.. The World Wide Web is a vast system of interlinked documents ("web pages") which can be accessed by computers connected to the internet. Each web page has a unique address, or URL[. An internet user who wishes to access a web page at a known address can access that web page by entering the address into the web browser on his or her computer.
19.          An internet user who wishes to access a web page but does not know its address, or wishes to locate a selection of web pages relevant to a particular topic, is likely to use an internet search engine, like the Google search engine, in much the same way that a person who does not know the telephone number of a particular business, or wishes to contact a local provider of a particular product or service, might once have been likely to use a telephone directory.
20.          The Google search engine allows internet users to search for web pages by entering search terms into a search field and clicking on a button marked "Google Search" ("the search button"). Google keeps and constantly updates an index of billions of web pages which enables it to respond to users' search requests. Google does not control the search terms entered by users of the Google search engine, or the material available on the internet.
21.          During the period relevant to these proceedings, if a user of the Google search engine entered search terms into the search field and clicked on the search button, the Google search engine would display two types of search results: "organic search results" and "sponsored links".
22.          Organic search results are links to web pages, which are ranked in order of relevance to the search terms entered by the user. The Google search engine always displays organic search results, and organic search results are always displayed free of charge. Google does not sell placement in its organic search results. Instead, the order of relevance of organic search results is determined by a complex proprietary algorithm developed by Google which is a function of many factors, including the content of each web page which Google has indexed, and the number and type of links between each of those web pages.
23.          As mentioned above, a sponsored link is a form of advertisement. Each sponsored link is created by, or at the direction of, an advertiser who typically pays Google each time a user of the Google search engine clicks on the sponsored link. Not all search terms entered into the Google search engine result in the display of sponsored links. When the Google search engine does display sponsored links, they are listed separately from organic search results. They appear either above the organic search results in a shaded box marked "Sponsored Links" ("top left sponsored links"), or to the far right of the organic search results in a box marked "Sponsored Links" ("right side sponsored links"). Whether the Google search engine displays sponsored links, and the order and position in which such links appear if they are displayed, is not determined by the algorithm which determines the order of relevance of organic search results, but by the AdWords program….

Search Engine Optimisation
Essentially this involves designing a website so it will be ranked highly by the search engine algorithm on a relevant search.
There is an ongoing battle between search engine providers and Search Engine Optimisers. The Googles of the world do not want anyone else gaming their algorithm. This is partly to preserve the integrity of the service they provide but also so as to preserve the attractiveness of their Adword offering (see below).
But it will always be possible to manipulate search engine results by anticipating the variables they utilise to rank web pages.
Keywords and Adwords
A keyword in this context is a search query term. One (but only one) of the variables which search engines use to rank results is the frequency with which the key word appears in indexed web pages.
“Adwords” is a Google proprietary term and refers to a keyword which an advertiser can buy so that their link will appear as a “sponsored link”on the first page of any search using that keyword. 
Potential Misuse
A lot of energy goes into search engine optimisation whereby an advertiser’s site is designed to rank highly in organic search results. Techniques include “keyword stuffing” and “link spam”. Search engine providers will tell you these techniques do not work “anymore” but that seems questionable based on the case law.
Examples of potential misuse include:
1.    Piggy Backing – buying a keyword – often a trade mark – that belongs to another trader but linking it to your own web page. When the searcher enters that key word they will see a sponsored advertisement linking to the web site of the person who paid for the keyword. The keyword need not be identical to the yrade mark of the rival trader; one kind of misuse in this context is called “typo squatting”.
2.    Search Engine Optimisation – incorporating a rival trader’s trade mark or name (or something similar) into your website so as to appear in the organic search results  that use that name. As we will see this is not necessarily actionable misconduct.
3.    Domain Squatting – registering a domain name that incorporates a trade mark with established goodwill in the expectation that you will be paid to transfer it.
4.    Pirate Sites.
If you search the name of a product you will often be taken to a website selling (or permitting a free download or streaming if the product is digital) of counterfeit or unauthorised versions of that product. Examples include Ali baba, Coke & Popcorn, Pirate bay.That website appears in the search because it uses the trade mark of the product in question, usually without permission.

So what can your client do about it?

The Competition and Consumer Act 2010 (Cth) Schedule 2 The Australian Consumer Law s18.
The old s52 of the TPA is now s18 of the ACL. It would be hard to exaggerate the usefulness of this provision. It has had a massive (and perhaps originally, unintended) impact on commercial litigation by virtue of its ability to override contractual provisions and exclusion clauses – subject always to proof of reliance. In this area its impact has been curtailed somewhat by judicial reluctance to accept that arm’s length commercial actors rely on anything except what is in the contract.
But its role in consumer protection and by extension the protection of intellectual property remains undiminished. It is often pleaded in parallel with other causes of action in copyright, trade mark and passing off because of its generous standing rules and flexible remedies. For example, a subsidiary or distributor of a foreign corporation can invoke s18 in circumstances where the foreign corporation lacks standing or would be subject to a disadvantageous security for costs order.
18 Misleading or deceptive conduct
(1)A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Section 4 effectively reverses the onus of proof in relation to representations as to future matters; such representations are deemed to be misleading or deceptive unless the representor had reasonable grounds for making the representation.
A contravention of s18 may result in a fine under ACL chapter 4; an injunction (s 232) ; a publication order( ss 246 -247); damages (s 2360; or remedial orders (ss 237 – 241, 248).
Section 18 does not however apply to representations made by an “information provider” in the course of business other than in an advertisement or information that publicises goods and services provided by the information provider, its related corporation or pursuant to an agreement with a provider of goods and services (eg advertorial) or the sale of land see s19 ACL. An information provider is a person who carries on a business of providing information (s19(5) ACL). This is an important provision not just for media outlets but also for search engine providers who, as anyone knows who has done an internet search, publish vast quantities of inaccurate information on a daily basis..
Section 209 ACL also provides a defence for information providers who publish misleading or deceptive material without reason to suspect it is infringing.
Trade Marks Act (1996) Cth.
Registration of a trade mark bestows a monopoly in relation to use of that mark in the course of trade to denote the goods or services in respect of which the mark is registered. If a rival trader uses the registered mark without permission or a mark “substantially identical or deceptively similar” to the registered mark then the owner of the mark can restrain that use by injunction and recover damages or account of profit (s126 (1)). Proving loss has however always been problematic in trade mark cases given the need to prove profit lost based on lost sales. This is problematic because it can be very difficult to know how many sales were in fact lost; usually the best that can be done is to identify how many sales were made by the infringer and ask the court to infer loss by multiplying that number by the applicant’s profit per unit. There is no equivalent to the “licence fee test” in Trade Mark law.
The Trade Marks Act however (since 2013) also permits ‘additional” damages in certain circumstances.
S126 (2) A court may include an additional amount in an assessment of damages for an infringement of a registered trade mark, if the court considers it appropriate to do so having regard to:
(a)the flagrancy of the infringement; and
(b) the need to deter similar infringements of registered trade marks; and
 (c) the conduct of the party that infringed the registered trade mark that occurred:
            (i)after the act constituting the infringement; or
(ii)after that party was informed that it had allegedly infringed the registered trade mark; and
(d)any benefit shown to have accrued to that party because of the infringement; and
 (e)all other relevant matters.
It can be confidently anticipated that this provision will be applied in a similar manner to s115(40 of the Copyright Act and so as to deliver specific and general deterrence. In Halal Certification Authority Pty Ltd v Scadilone Pty Ltd. The court awarded additional damages of $91,000 even though actual loss was nominal. In Vertical Leisure Limited & Anor v Skyrunner Pty Ltd & Anor [2014] FCCA 2033), the Federal Circuit Court awarded $300,000 in additional damages; compensatory damages were $44,000.
Directors may be personally liable as joint tort feasors but there is no equivalent to the authorisation concept in Copyright law. The availability of additional damages is a relatively recent change [2010] and should be applied as under the Copyright Act.
The beauty of a registered trade mark is that it can be used without proof of reputation or damage. Now that the Federal circuit court has jurisdiction in trade mark matters enforcement can be relatively cost effective.
Passing Off
The classic definition of passing off is the appropriating the goodwill of a rival trader.  In the Advocaat case Erven Warnink Besloten Vennootschop v J. Townend and Sons (Hull) Ltd (1979) AC 731 Lord Diplock held (at 741-2):
My Lords, A.G. Spalding and Bros v A.W. Gamage Ltd and the later cases make it possible to identify five characteristics which must be present in order to create a valid cause of action for passing off: (1) a misrepresentation

(2) made by a trader in the course of trade,
(3) to prospective customers of his or ultimate consumers of goods or services supplied by him,

(4) which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence) and
(5) which causes actual damage to a business or goodwill of a trader by whom the action is brought or (in a quia timet action) will probably do so." [citation]
In this sense ‘goodwill’ means reputation (not the amount someone would pay for the anticipated future profit of a businesss).
To have standing to bring an action in passing off you need to prove reputation in the jurisdiction and the real likelihood of damage by loss of sales. In Con Agra v McCain
(1992) 23 IPR 193,  the Full Federal Court held:
121.                I am of the opinion that it is not necessary in Australia that a plaintiff, in order to maintain a passing off action, must have a place of business or a business presence in Australia; nor is it necessary that his goods are sold here. It is sufficient if his goods have a reputation in this country among persons here, whether residents or otherwise, of a sufficient degree to establish that there is a likelihood of deception among consumers and potential consumers and of damage to his reputation.

If at all possible one avoids it passing off. But if your client has an unregistered trade mark it becomes relevant.

Actual cases – Piggy backing
In the Federal Court decision of Nicholas J in Australian Competition and Consumer Commission v Trading Post Australia Pty [2011] FCA 1086), his Honour held that the use by Trading Post Australia Pty Limited (Trading Post) of a competitor’s name as a keyword to trigger their own advertisement on Google searches was misleading or deceptive and in contravention of section 52 of the Trade Practices Act 1974 (Cth) (as it then was).
An exampleof the advertisement found to be misleading:
 KlosterFord New/Used Fords – Search 90,000 + auto ads online. Great finds daily!
J Nicholas found at [citation]:
1.            the advertisement conveyed that there was an association or affiliation between Klosters Ford and Trading Post, where no such association or affiliation existed;
2.            the advertisement conveyed that information related to Klosters Ford could be found at the Trading Post website; where this statement is contrary to fact and
3.            the advertisement conveyed that information regarding the sale of cars by Klosters Ford could be found at the Trading Post website, where this statement is contrary to fact.
Not surprisingly, the Trading Post did not defend the proceedings.
What is more interesting is the role of the search engine provider in this conduct. After all, the misleading advertisement was only available by reason of Google displaying it in response to a search for the appropriated key word.
In overseas jurisdictions Google has paid out big money, reputedly up to 90 million dollars in respect of the sale as Adwords of names which are registered trademarks. [citation].
The ACCC took action against Google for this practice, lost at first instance in the Federal court; won in the full court then lost in the High Court.
The High Court’s majority reasoning is worth quoting  extensively:
64.          The starting point for the ACCC's arguments was that the clickable headline in each of the sponsored links contained the name of a trader (and, in one case, the URL of a trader) different from that of the relevant advertiser. Referring to the keyword insertion facility, the ACCC argued that Google had inserted search terms chosen by users of the Google search engine as headlines in the sponsored links, and was therefore responsible for the collocation of the clickable headline containing the name (and, in one case, the URL) of another trader and the advertiser's URL. The ACCC also emphasised that Google had provided the functionality of the clickable headline (that is, the ability for users of the Google search engine to click on the headline of a sponsored link and be taken to the advertiser's web site). In addition, the ACCC submitted that, by displaying the sponsored links, Google had informed users of the Google search engine that the sponsored links were responsive to the users' search requests.

65.          Google always admitted that it published or displayed the STA Travel advertisements, the Carsales advertisements, the Ausdog advertisement and the Trading Post advertisement. However, Google contended that the fact that it displayed the sponsored links in response to users' search requests was not sufficient to justify a finding that Google had itself made the misleading representations conveyed by the sponsored links, or otherwise engaged in misleading and deceptive conduct.
66.          Google emphasised that each relevant aspect of a sponsored link – the headline, the advertising text, the advertiser's URL, the keywords and the use of keyword insertion – was specified by the advertiser, and that Google merely implemented the advertiser's instructions. Google submitted that the technical facilities it provided through the AdWords program were different in kind, but not in principle, from facilities provided to advertisers by other intermediaries such as publishers and broadcasters. Google further contended that any commercial association or affiliation between an advertiser and another trader was something peculiarly within the knowledge of the advertiser, and was not a matter within Google's expertise. Google also relied on the primary judge's findings that ordinary and reasonable users of the Google search engine would have understood that the sponsored links were advertisements paid for by advertisers to promote their products and businesses, and that Google was merely passing them on for what they were worth.

The High Court agreed with Google, finding that its technology did no more than transmit the choices of the advertiser.

Further, though it did not have to decide the point the High Court agreed with the first instance judge that Google was an information provider and entitled to the protection of s209 of the ACL.

The decision does have its problems. For a start there are plenty of examples of Google actively rejecting certain Adwords – the process is not automated. Anything to do with sex seems to come in for scrutiny [cite Australian sex party reporting].

In any event it is clear enough that the trader who seeks to exploit the reputation of a rival trader in a key word by linking it to their web page can be restrained. Damages may be difficult to prove but that is where additional damages come in to their own.

Easy Living and Lift Shop were trade rivals in the home lift market. Easy Living had its web site “optimised’ so that the words Lift Shop were incorporated into it with the result that searches for that term would also produce a result linking to Easy Living.

Lift shop alleged that the following search result infringed its registered trade mark in “Lift Shop” and also constituted a contravention of s18..

Easy Living Lifts | Home Elevators | Lift Shop  Home Elevators ... ▼

At Easy Living home elevators website you will find details on all of our lifts and home elevators here, which will help you achieve the easy living you deserve. 

The first instance judge was persuaded that “Lift Shop” was a generic term and further that the respondents advertisement sufficiently distinguished itself so as to avoid any breach of s18.

The appeal case turned on whether the use by Lift Shop’s trade rival Easy Living Lifts of the words comprising the registered trade mark of Lift Shop was use as a trade mark or was simply descriptive of its (easy Living’s) business.

The Full  Federal Court applied the analysis of the high Court in The Shell Company of Australia Limited v Esso Standard Oil (Australia) Limited [1963] HCA 66; (1963) 109 CLR 407

In that case  Kitto J (at 424-425), with whom Dixon CJ and Taylor and Owen JJ agreed, said:
The crucial question in the present case seems to me to arise at this point. Was the appellant’s use, that is to say its television presentation, of those particular pictures of the oil drop figure which were substantially identical with or deceptively similar to the respondent’s trade marks a use of them “as a trade mark”? With the aid of the definition of “trade mark” in s. 6 of the Act, the adverbial expression may be expanded so that the question becomes whether, in the setting in which the particular pictures referred to were presented, they would have appeared to the television viewer as possessing the character of devices, or brands, which the appellant was using or proposing to use in relation to petrol for the purpose of indicating, or so as to indicate, a connexion in the course of trade between the petrol and the appellant. Did they appear to be thrown on to the screen as being marks for distinguishing Shell petrol from other petrol in the course of trade?

The Full Federal Court observed:

35.          At face value, the words “Lift Shop”, as a compound expression, certainly have descriptive aspects. This does not necessarily mean, however, that those words could not, and in context did not, also function as a trade mark. The position is explained by the following observations of Gummow J (when in this Court) in Johnson & Johnson [1991] FCA 310; (1991) 30 FCR 326 (at 347-348):

When the issue is one of infringement, a pivotal question is whether the use complained of is use by the alleged infringer as a trade mark. The answer to that question requires an understanding of the “purpose and nature” of the impugned use: see Shell Company of Australia Ltd v Esso Standard Oil (Australia) Ltd (the Shell case) [1963] HCA 66; (1963) 109 CLR 407 at 426, per Kitto J. As his Honour there points out, … where the issue is one of infringing use by use of a word mark (as in the present case), the fundamental question remains, …whether those to whom the user is directed are being invited to purchase the goods (or services) of the defendants which are to be distinguished from the goods of other traders “partly because” (emphasis supplied) they are described by the words in question.

45.          In the present case, the relevant question is whether the words “Lift Shop”, as used by the respondent in the title of its web page, functioned to distinguish its goods or services from those of others? Objectively considered, the answer to that question is “no”.

46.          Those searching the internet using the search term “lift shop” would have understood, on seeing the displayed results, and in particular the words “Lift Shop” in the title of the respondent’s web page, that the respondent was using those words to convey that its business was one of supplying “lifts” and “home elevators”. Although the use of the words “Lift Shop” was given some prominence because of their use in the title of the respondent’s web page, neither that fact, nor the positioning of those words within the title, imbued them with the character of a trade mark. The use of the words “Lift Shop” as shown in the entries quoted in paragraphs [9]-[11], makes clear that their only functional significance was to describe the character of that business. Their use by the respondent was not to distinguish its business from others. To the contrary, in the larger setting provided by the results pages, the use of those words was to designate, and would have been understood as designating, that the respondent’s business was of the same character as, or at least of a similar character to, other businesses grouped and operating as “lift shops”. Such use is the antithesis of trade mark use.

Domain Squatting
This is the on line version of the venerable practice of “digging a commercial pit’ per Isaacs J in Turner General Motors(Australia) Pty Ltd (1929) 42 CLR 352 .
In Turner v General Motors, an American manufacturer of motor cars, which had a trade reputation in Australia, marketed them here through agents whose operations it controlled by means of a subsidiary. The defendants commenced to carry on business in Sydney as dealers in second hand motor cars under names which resembled both those of the American company and its new company.. Isaacs J. said (at 364):
But on principle the whole contention is fallacious (that is the contention that the appellants had done nothing legally wrong as regards the respondent). In the first place, a man who digs a pit in a path along which he has reason to believe another man will shortly travel, does nothing of which the man can legally complain before he comes to it. But if the latter happens to fall into the hole and suffers injury, does the argument of original freedom from responsibility avail the man who digs the pit? What Ernest Samuel Turner for all the defendants in the suit did was to dig a commercial pit in advance. If there ensued injury, or probability of injury, there is surely a remedy.

First, what is a domain name? According to Wikipedia, a domain name :
represents an Internet Protocol (IP) resource, such as a personal computer used to access the Internet, a server computer hosting a web site, or the web site itself or any other service communicated via the Internet.
Domain names are organized in subordinate levels (subdomains) of the DNS root domain, which is nameless. The first-level set of domain names are the top-level domains (TLDs), including the generic top-level domains (gTLDs), such as the prominent domains com, info, net, edu, and org, and the country code top-level domains (ccTLDs). Below these top-level domains in the DNS hierarchy are the second-level and third-level domain names that are typically open for reservation by end-users who wish to connect local area networks to the Internet, create other publicly accessible Internet resources or run web sites. The registration of these domain names is usually administered by domain name registrars who sell their services to the public.

Because the sub level domain names are administered nationally it is possible for the beady eyed cyber squatter to get in first and reserve a domain name which has perceived value.
Similar practices relating to business names and trade marks are as old as the hills, or at least as old as the Isaacs High Court.
Domain squatting also arises in disputes between overseas manufacturers and their local distributors.
In Macquarie Bank Ltd v Seagle [2008] FCA 1417. “macquarie’ domain names were successfully  restrained because involved a false and misleading representation that Macquarie bank was the registrant.
But in Bing! Software PtyLltd v. Bing Technologies Pty Ltd (No.1) [2008] FCA 1760 it was found that any confusion only transient and the applicant failed.
CSR Ltd v resource capital Australia Pty Ltd [2003]FCA 279. The applicant succeeded re “csrsugar. Com because registration implied they were connected to the applicant.
Mark Foys Pty Ltd v TVSN (Pacific) Ltd [200] FCA 1626. Applicant succeeded re notwithstanding disclaimers on website.
In Mantra Group Pty Ltd v Tailly Pty Ltd (No 2) 2010 86 IPR 19 Tailly registered numerous domain names including the words “Circle on Cavill” which was the name of a holiday apartment complex on the Gold Coast managed by Mantra. Mantra was the exclusive on-site letting agent. Tailly however had the right to let a number of unitsd in the same complex. Mantra had registered the trade mark ‘Circle on Cavill”. The Court held:
  It has been doubted whether the mere registration of a domain name containing the words of a trade mark constitutes the use of those words as a trade mark for the purposes of s 120 of the Trade Marks Act: see CSR Ltd v Resource Capital Australia Pty Ltd [2003] FCA 279; (2003) 128 FCR 408 (“CSR Ltd”) at [42] per Hill J and the cases referred to. However, if the registered domain name is linked to a website that contains advertising material that promotes goods or services in relation to which the trade mark is registered, this combination of use could constitute use as a trade mark under s 120 of the Trade Marks Act. This is all the more so if the advertising material on the website also uses the words of the trade mark to promote the goods or services concerned. In considering whether these situations constitute trade mark use, it will be necessary to apply the general principles set out above to the particular circumstances: see the discussion in Shanahan at [115.1050].
... Thus, when one compares the size, positioning and format of the descriptive use of the words “Circle on Cavill”, with the size, positioning and format of the banner heading use of those words, I consider that a member of the public, taking an objective view of the matter, would conclude that the primary, or most significant use of those words is as a badge or emblem to indicate that Tailly is the origin of the accommodation letting services at Circle on Cavill.
In the case of domain names there is an alternative dispute resolution procedure administered by Au Domain Administration Pty Ltd and called auDRP. An application is made to Resolution institute or WIPO for appointment of an adjudication panel (usually comprised of lawyers with expertise in IP). The process requires the consent of both parties and if that is obtained is binding. The grounds for complaint and procedural rules are set out in the .au Dispute Resolution Policy (auDRP) (2010-05).
Critically, the policy provides that if the party who registered the name is not in fact carrying on business under it they are not entitled to maintain the registration.
The decision to use alternative dispute resolution is not however a no brainer. The Federal Circuit Court does offer a relatively cheap and quick alternative with the great benefit that costs will be awarded to the successful party.

Pirate Sites
Rather, I am referring to sites which offer ostensibly legal products for download or sale which in fact are counterfeit or unauthorised.
Such sites may be hosted on a legitimate platform such as eBay or may have their own site such as Ali Baba or Pirate Bay.
If those sites are offering counterfeit goods or unauthorised copies of copyright material they can be attacked by obtaining evidence of the iinfringement through a test purchase and then bringing proceedings for infringement of copyright, trade mark s18 and passing off as appropriate. The appearance of the Microsoft registered mark on an unauthorised software download is an infringement of the Trademarks Act, just as is the affixation of a Chanel trade mark on a counterfeit bag.
The On Line Infringement Act came into effect last year and has yet to be the subject of judicial pronouncement.
It will however provide a means of blocking pirate sites located outside the jurisdiction in places where court action is not a viable form of enforcement.
To take advantage of the Act, a copyright owner needs to have evidence of three basic facts:
i)              an “online location outside Australia”;
ii)             which has the  primary purpose of infringing or facilitating infringement of copyright;
iii)            the “carriage service provider” (essentially an ISP) which provides access to the online location in question.
The new section 115A (5) provides factors to be taken into account by the Court in determining whether to grant the injunction:
(a)   flagrancy of the infringement, or the flagrancy of the  facilitation of the infringement, as the referred to in paragraph (1)(c);
(b)   whether the online location makes available or contains directories, indexes or categories of the means to infringe, or facilitate an infringement of, copyright
(c) whether the owner or operator of the online location demonstrates a disregard for copyright generally; 
(d) whether access to the online location has been disabled by orders from any court of another country or territory on the ground of or related to copyright infringement;
(e) whether disabling access to the online location is a proportionate response in the circumstances; 
(f)  the impact on any person, or class of persons, likely to be affected by the grant of the injunction;
(g) whether it is in the public interest to disable access to the online location;
(h) whether the owner of the copyright complied with subsection (4)
(i)any other remedies available under this Act; 
(j) any other matter prescribed by the regulations; 
(k)any other relevant matter. 

Germany : Memories of a Nation - Neil McGregor

Germany: Memories of a Nation
By Neil MacGregor

Neil MacGregor is director of the British Museum - boy must he enjoy going to work - and so is well placed to add to the developing genre of "history by artefact". This is far more than a museum catalogue; it is an approach to history that takes as its departure point a specific artefact, be that a building, coin or text (even a fairy tale) - and by seeking to explicate its provenance gain fresh insights into its historical context. In the Australian context a good example is Ochre and Rust by Philip Jones. In Germany: Memories of a Nation Macgregor applies this approach to the spectacular and terrible history of the big daddy of Zentral Europa - Deutchland.

MacGregor's approach is hardly value free. For a start, calling the book memories of a 'nation' is deliberately ironic. As anyone who finished high school in the 1970s knows there was a thing called the Unification of Germany, orchestrated by that wily old political operator Otto von Bismarck who successively punched out the Danes, the Austrians and the French to create the German empire which proceeded to give us the "short twentieth century", two world wars, and, indirectly, Soviet Communism. And before Napoleon did away with it, there was the splendidly ramshackle Holy Roman Empire, land of Snow White and Rapunzel.

And this is MacGregor's point - there is a nation called Germany; it dominates Europe -  but it has no coherent national story; the attempt to create one in the Wilhemian and Third Reich ended very badly indeed.  Indeed it is the diversity of the German speaking territories - poorly understood outside Germany -  which makes this a fascinating excursion.

MacGregor takes as his starting points artefacts as diverse as "lost capitals" - the ridiculously complex and yet somehow workable coinage of the Holy Roman Empire; and Grimm's fairy tales.  The lost capitals are Konigsberg (home of Kant and now in Russia) and Strasbourg (now in France) - which illustrate the instability of Germany's borders. The coinage demonstrates the diffusion of sovereignty across dozens of politically sovereign states ranging in size from a few thousand to millions of citizens. The fairy tales tap into ideas about German language and character. There is plenty more: Prussian  iron jewellery; Saxon ceramics and "degenerate art".

In the context of the Britex debate Germany: Memories of a Nation has a particular resonance because despite its title it assiduously undermines the concept of nation as  Macgregor organises his artefacts to argue  (for the most part implicitly) for the inevitability of Europe as a political and economic unity.

Death by Water - Kenzabaro Oe

Death By water
By Kenzaburo Oe

Oe is arguably Japan's greatest living author. Born in 1935 he was awarded the Nobel prize for literature in 1994. Death by Water is said to be his last novel but given the longevity of pre-war Japanese one would be wise not to bet on it.

In Death by Water Oe has gives us another iteration of his alter ego Kogito Choko. Like Oe himself, Kogito Choko is from rural Shikoku, had a father who died in a flood at the end of the war, attended the elite Tokyo University, and has spent his entire career as a novelist. Those who have read The Changeling which was published in 2014 will be familiar with the context. Apparently there are at least another six novels which deal with this same character, most of which are not available in English.

The novel is about Kogito Choko's attempt to write a novel about his father who drowned in a flooded river towards the end of the Second World War.  The novel is to be a kind of summation of his life's work.  To this end he revisits his old home in Shikoku where his mother has kept a suitcase full of documents about his father. While there, his sister organises a series of is interviews by a theatre director who wishes to write a play about Kogito Choko's final novel. The director is accompanied by his theatre collective including his spunky assistant Unaiko and they workshop the play as Choko is interviewed. The interviews and play become a device to interrogate Choko's and by extension, Oe's  obsessions and recurrent themes. It's a bit like Oe, or is it Choko, is getting in first with the ultimate primer to understanding Oe or is it Choko's oeuvre.

At this point the solipsism of the whole exercise could become a bit hard to take.

But Oe is playing a long game and the novel gently drifts away from the writing project to focus on Choko's relationships with his disabled adult son Akari, his wife Chikashi, her dead brother Goro (in real life - perhaps that should be in inverted commas - this was Juzo Itami, the director of Tampopo) and Unaiko, who has some dark secrets of her own. The narrative drive is provided by a new theatre project Unaiko persuades Choko to assist with; one that opens up old wounds.

The point is that the whole series of these Choko novels repeat and recombine and tinker with  more or less the same constellation of elements. The Changeling was also partly about Choko/Oe's youth in Shikoku and his father's untimely death but in that novel his father dies in a farcical right wing uprising against the occupation.

And remember, the protagonist of this novel is a novelist ie a professional liar so be careful whom you believe. In the end the novel is searingly honest about the way in which one man seeks to construct and reconstruct his identity, even as he faces his own mortality.

Saturday, 20 February 2016

To Hell and Back

To Hell and Back
By Ian Kershaw

The centenary of World War One has seen an avalanche of books revisiting the Great War. Seen in isolation it is a somewhat mysterious catastrophe. No one really needed it and its ostensible cause – the assassination of an unpopular crown prince in an obscure province of the Austro Hungarian Empire -  hardly seemed to justify four years of industrialised carnage. But historians such as Eric Hobsbawm have long argued (his The Age of Extremes – the Short Twentieth Century 1914-1991 was published in 1994) that the “short” twentieth century – the period between 1914 and the collapse of the Soviet Union in 1991) needed to be considered as a coherent whole.

In To Hell and Back Ian Kershaw attempts a single volume history of the first half of this period -1914 to 1949. If the reason we read history is to understand and learn from the past then it is essential that the unit of analysis used– what historians call periodisation -  be capable of yielding meaningful conclusions.  In Kershaw’s analysis the reason Europe rebounded from what Hobsbawm calls the Age of Catastrophe and embarked on the Golden Age of Prosperity (up until about 1974) lies in the following: the end of Germany’s great power ambitions; the purging of war criminals; the formal division between the West (under American protection) and the Soviet bloc; economic growth; and the threat of nuclear war. Together these factors militated against a revival of the unchecked nationalism of the inter war period and ushered in a period of stability.

In To Hell and Back Kershaw gives what could be described as the liberal version of the first half of the short twentieth history. In contrast to Hobsbawm, (who was a Marxist) he downplays the contest between Capitalism and Soviet Communism and sees a much more contingent series of events driven ultimately by the interaction between Germany’s drive for European dominance and the various structural instabilities arising from the aftermath of the fall of multi–ethnic empires in Eastern Europe.

The book has the problems of any single volume overview of complex multiple subjects. Readers familiar with Richard Evans’ two volume history of the Third Reich for example will not be overly impressed by Kershaw’s necessarily abbreviated treatment of this subject.  In particular, his treatment of the amazingly rapid consolidation of Nazi power following Hitler’s appointment as Chancellor in 1933 (which, when one thinks about it, is at the root cause of a whole series of consequences which made the 20th century so uniquely terrible) begs more questions than it answers.

Nevertheless, Kershaw’s knowledge of the period is detailed (his two volume biography of Hitler puts that beyond doubt); his command of economic statistics is impressive; and his conclusions are all eminently defensible. Essential reading for those interested in Modern History but follow it up by revisiting Hobsbawm.

On Stalin's Team

On Stalin's Team
By Sheila Fitzpatrick

Okay here is the thing about Stalin and historiography. He manages to crystallize every major ideological conflict of the twentieth century. As a result, the debate about Stalin oscillates between those like Robert Conquest who portray Stalin's regime as the embodiment of totalitarianism and Stalin as the greatest mass murderer in history and a bungler to boot; those like Simon Sebag Montefiores whose Court of the Red Tzar depicts Stalin as brilliant, charismatic and cruel; and the revisionists, such as Sheila Fitzpatrick and Arch Getty, who seek  to interpret Stalin as a rational albeit ruthless political operator.

One thing is for sure, while Stalin was the boss (and that's what they called him in Russian) millions and millions of Soviet citizens died. Now admittedly, about twenty million of those were killed by the Nazis but that still leaves a massive butcher's bill.

And yet, what if Russia had not industrialised during the twenties and thirties at break neck speed and at the cost of massive human suffering? Well no T-34 tanks for a start. And the Germans could probably have held onto Festung Europa until they developed nuclear weapons. It really does not bear thinking about.

In On Stalin's Team Sheila Fitzpatrick seeks to revise the view that Stalin operated as dictator surrounded by sycophantic yes men. The opening of many Soviet era archives since the 1990s does mean that it is possible to revisit the Cold War Robert Conquest view of Stalin; the risk is - as Fitzpatrick acknowledges in her introduction - that by humanising Stalin and interpreting his actions as, in a sense rational, one can be seen to become an apologist for his crimes.

Fitzpatrick makes a pretty compelling case for her argument, at least up until the post war period. It is indeed striking that Stalin's own family suffered as much or more in the Great Purge as other Politburo members. Also the phenomenon of "dosage" - the way in which team members fell gradually from high office to the  Gulag or worse  - is indeed best explained by Stalin's need to sell his decisions to other team members.

What the book lacks however is a detailed analysis of what the various team members actually achieved in their areas of relative autonomy (with the exception perhaps of Molotov).  Orzhonikidze in industry and Mikoyan in trade for example have fascinating stories to tell but, to be fair to Fitzpatrick, this would require a much larger book.

The Edge of the World

The Edge of the World - How the North Sea Made us Who We Are
By Michael Pye

In The Edge of the World Michael Pye  gives us a brilliant rethinking of the way in which medieval Europe became modern Europe. This is the story of seafaring and trading people - the Frisians, the Norse, the Hanseatic league and all the peoples who engaged in the economy of the North sea.

His method reminds me very much of Inga Clendenin's close reading of the primary sources as evinced in Dancing with Strangers, or Philip Jones'  analysis of post contact Aboriginal artifacts in Ochre and Rust. Pye  focuses on very specific historical detail - be that a known historical event, a clause in a contract, or a physical artifact -  and  by interrogating them for meaning is able to draw plausible wider inferences.

Thus he focuses on the meaning of cash hoards as opposed to hack silver; silk trimming on shoes found in the ruins of an 11th century Norwegian town; the specifics of the construction of Norse buildings at Anse aux Meadows in New Foundland; the details of marriage contracts. Combined with the surviving literary sources this close reading of the sources yields rich insights.

Pye is particularly interested in the way in which the use of money as an an abstract measure of value is related to the development of mathematics and science. In the world of the North Sea this dynamic had its most immediate application to trade, navigation and ship building and windmills. There were implications for politics, capital formation and the status of women.

Along the way he manages to recover innumerable fragments of past lives and by relating them to the larger patterns he infers give them a meaning beyond what the physical artifact or contractual clause alone could achieve.  An unusual and valuable work. 

The Australian moment – How we were made for these times
By George Megalogenis

One suspects this book was conceived and written in the aftermath of the GFC in 2009/10 when Australia really did look to have dodged a bullet and before the slow down of 2011 which, at least in the South East of the country, felt as bad as anything since the early 90s (if not the mid 70s).

The book’s central thesis however remains valid, even if subjectively it is hard to relate to. Megalogenis argues persuasively that Australia, of all the developed economies in the world, is best placed to weather the current difficult economic times. To make his point he gives a lucid account of Australian economic and political history since the mid sixties. For readers of a certain age and disposition this is a very engaging march down memory lane to a time when politicians had not had media training and when the issues of the day were the kind and extent of economic and social reform. The personal peccadilloes of our elected representatives, while noted in passing, were scarcely the point.

Megalogenis’s argument is essentially that each of our governments since the early 70s can take some credit for producing the uniquely robust set of policies which puts us in the solid position we now, apparently, enjoy. Whitlam lowered tariffs. Fraser decisively changed the immigration mix. Hawke and Keating floated the dollar, deregulated the banking system, managed the trade unions and produced fiscal surpluses when it was appropriate. Howard gave us the GST and didn’t stuff up what Hawke and Keating had achieved. Rudd handled the GFC according to the textbook before imploding. And now, even if there is a double dip recession, Australia is well placed to deal with it. Not that you would know that watching the news (and George has something to say about what is wrong about the intersection between our media and politics, not all that different to what Lindsay Tanner said in Sideshow).

Megalogenis is one of the more interesting journalists writing about Australian economics and politics today. He has some interesting gripes (down on baby boomers for example) but while clearly dry economically does not follow the News Limited script. Highly recommended.