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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Wednesday, January 07, 2009

I see nothing wrong with the Adelphi Charter

Can anyone tell me what's so bad about the Adelphi Charter? To me it looks unexceptionable. It seeks a balance between the policy underlying intellectual property, on one hand, and other important rights, freedoms, and policy considerations on the other. In the hands of giant media corporations, which are placated by governments, intellectual property is often taken far beyond its original justification (creating property interests in certain resources that are not scarce, in order to encourage innovation) and is treated as an end in itself. Thus, we often see abuses of intellectual property rights. They need to be balanced by a robust doctrine of fair use and they should not be allowed to extend unreasonably.

I ask my question because a number of parties in Australia objected to the appointment of Ms Louise Sylvan to take part in the Productivity Commission's review of restrictions on parallel importation - partly on the basis that she was a signatory to the Adelphi Charter. In my view, this objection was misconceived.

Ms Sylvan has no legal conflict of interest even for the other reason given - i.e., that in her one-time role as CEO of the Consumers' Association she once gave her public support to the Association's policy of ending the restrictions. People such as judges and individuals conducting public reviews are required all the time to deal with issues on which they have previously expressed views. In this case, the views don't even seem to have been expressed as Ms Sylvan's private ones but as views that she was required to advocate in her official capacity. Anyone who has been involved in the process of lobbying or in the process of courtroom advocacy (or both) knows that public support given to certain views in your official capacity need have nothing to do with what you think privately. During my career I was called upon many times to advocate many positions about which I had private reservations. It's the nature of such jobs.

When it comes to being appointed to conduct a government review, the issue is not whether you once expressed a view on the topic - either a private view or a view that you were obliged to advocate in your official capacity. The question is whether there is any basis to believe that you are incapable of taking a disinterested approach to the issue. E.g., do you or your loved ones stand to benefit financially from one outcome or the other?

But even if there were something in this complaint, the complaint about the Adelphi Charter astounds me. The Adelphi Charter is entirely innocuous as far as I can see. What am I missing?

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