Journal articles on the topic 'Associations, institutions, etc – law and legislation – australia'

Introduction. The provisions of national law indicate that state policy in the field of prevention and counteraction to domestic violence is one of the priorities of the state legal policy of Ukraine. The purpose of the paper is as follows: to review on the basis on legislation provisions the implementation of state policies in the field of preventing and combating domestic violence, by improving the forms of protection and assistance for victims of domestic violence. Results. In Ukraine domestic violence is not a purely family affair, since the state has established an effective mechanism for combating and preventing domestic violence; is defined a list of actors authorized to take appropriate measures. Subjects of administrative and legal response to domestic violence are the empowered state authorities, executive and local self-government bodies and their structural subdivisions, citizens' associations, enterprises, institutions and organizations, as well as individuals - citizens of Ukraine, foreigners, and stateless. It can be stated that currently in Ukraine there is a rather broad system of providing protection and assistance to domestic violence victims, which is aimed at securing the rights and legitimate victims’ interests of such violence, providing them with effective assistance and protection, preventing recurrence of domestic violence in the future. Domestic violence is counteracted and prevented through a wide range of state-provided means. Criminal, administrative and civil law responsibility may be imposed for the commission of domestic violence, furthermore the legislation provides for basic and specific measures to counter domestic violence. Conclusions. To overcome the problem of domestic violence, it is necessary to introduce an effective system of avoidence and prevention of this type of violence, this system should be based on the following elements: 1) prevention; 2) providing protection and assistance to victims; 3) bringing the perpetrators to justice. However, in our opinion, the solution to the preventing and combating domestic violence problem is possible only by joining forces of public and state structures, mass media, educational and medical institutions, national communities, etc.

In the article, through scientific abstraction, the concept of public control tools is defined as a set of means for realizing the goal of ensuring the rights, freedoms, and legitimate interests of individual citizens and society as a whole, which is carried out by public organizations, associations, and the population. Adapting the tools of control used in the management of organizations to the field of labor protection, it can be argued that public control in the field of labor protection can be carried out according to the legality of wage calculations, for which financial control tools can be used; part of the operational control tools can be involved in monitoring compliance with safety techniques at enterprises; individual quality control tools can be used in compliance with social labor conditions. The toolkit of public control over compliance with labor legislation can be selected depending on the purpose of its implementation. The purpose of control may change, and depending on it, one or another toolkit is selected, it may be more extensive, or only certain tools may be used. Even when the purpose of control is the same, the individual tasks resulting from it, and accordingly, the tools, may differ. The results of public control may be demands from the subjects of such control both to employers with the aim of guaranteeing certain social standards, ensuring constitutional rights (preserving life, health, etc.), and to state control bodies with the aim of introducing such demands into the regulatory and legal field. That is, the tasks of public control are not only the detection of deviations from the observance of labor protection norms by controlled objects, it is much broader and reflects the influences and demands of civil society. The article concludes that a civil society has been formed in Ukraine, whose institutions can take over certain functions of monitoring compliance with labor legislation, especially during martial law, when the risks of illegal actions on the part of employer’s increase.

Purpose. The purpose of the article is to clarify the principles of cooperation between theprosecutor’s office and institutions of civil society in the context of the implementation of the lawenforcement function. Methods. A complex of general and special scientific research methodsrepresents the theoretical and methodological basis of the research. In particular, the method of analysis and synthesis, systemic, systemic-structural, and comparative-legal was used during theanalysis of the current legislation of Ukraine and the assessment of the current state of regulationof certain aspects of the interaction of the prosecutor’s office with institutions of civil society. Themethods of analysis, synthesis, and forecasting contributed to the definition of certain debatableprovisions of the “Community Prosecutor” concept. In general, a comprehensive approach to theapplication of general and special scientific research methods ensured the reliability and validityof formulated conclusions, recommendations, and suggestions. Results. The conducted textualanalysis of the Constitution of Ukraine and the Law of Ukraine “On the Prosecutor’s Office”proved that the main profile legislative acts do not define the legal basis for the interaction ofthe prosecutor’s office and formalized structures of civil society, in particular such as the media,public organizations and other associations of citizens. This made it possible to state that thecurrent state of legal support for the joint activity of the latter in the context of law enforcementactivities is insufficient. Therefore, to ensure the implementation of such activities within thelegal framework, the unification of common activity algorithms, and the development of effectiveforms of interaction, it is important to regulate these aspects at the legislative level. It was foundthat the implementation of the “Community Prosecutor” Concept is promising in establishingfruitful communication between the prosecutor’s office non-governmental organizations, and thepopulation, however, the importance of reforming the legislation to implement the ideas enshrinedin it was emphasized. It was determined that the experience of civil society in some countries ofEurope and the world is proven. It was established that the latter purposefully certifies that themain constitutional duty of the prosecutor’s office is to protect and ensure social interests, the legalsystem, and a democratic society, and determine the priority areas of activity of the prosecutor’soffice, which should be given “special attention” in ensuring prosecution. Conclusions. Basedon the modern realities in which the civil society institutions of Ukraine are developing, it isimportant to establish their communication and interaction with the prosecutor’s office. Thefollowing forms of implementation of the law enforcement function of the state, through the jointinteraction of the outlined subjects, are considered promising for implementation, such as theinvolvement of the media in informing the public about the results and nature of the activitiesprosecutor’s office, informing about the results of conducted journalistic investigations to conducta competent review of the latter to identify facts of illegal behavior of individual subjects or theirgroups. It is important to involve public organizations, in particular human rights defenders,and other associations of citizens for joint information and educational, and scientific activities,involving the latter in such relevant forms of activity as documenting war crimes, conductingopen data investigations, and analyzing social networks to identify illegal actions of individualsubjects, etc. It is emphasized that the prospects for further interaction of the prosecutor’s officewith institutions of civil society dictate the need for normative consolidation of the relevant legalfoundations of this activity. In connection with this, it is proposed to make changes to the Lawof Ukraine “On the Prosecutor’s Office”, in particular, to supplement it with a separate section,which should define the fundamental principles of interaction between the prosecutor’s office andcivil society institutions.

The role and underlying functionality of labor law are radically changing in the current geopolitical and economic context. Though it gives rise of relations that follow specific rules non-standard forms of employment like outstaffing, gig employment, self-employment, spot employment etc., they may escape any regulation. At the same time, the role of integrative associations at work, transnational corporations is changing. The digitization in labor law is reaching a principally new level. While new methods of business cooperation and social communications will trigger the emergence of new effective forms of employment, the applicable labor law does not adequately follow realities of the day nor takes into account new and various forms of engaging people in specific activities including work. In December of 2022 a meeting on the draft “On Employment” was held at the State Duma. The draft had chapters addressing relations involved in platform work, non-standard forms of employment, etc. However, the draft raised a discussion and was revised, with outstaffing to be regulated under new principles. However, while the draft is not made effective, it can be amended and specified to make the proposed subject even more relevant. Therefore a need to conceptualize new forms of employment and to further improve the relevant legislation is a major area of action today. Moreover, automation at work, while bringing positive developments such as the use of robots able of better performing identical and repetitive tasks, is also fraught with various risks. At that, the increasing use of artificial intelligence is another threat to employment of the population. It is only logical that digitization at work entails non-standard forms of using classical institutions, opening up new possibilities to use social partnership, particularly, in the activities of sectoral unions for regulation of collective labor relations as discussed below in the paper. Author looks at issue of remote work and the nature of approaches to regulation of the underlying relations from a perspective of qualitative changes to regulation of electronic communication between workers and employers as part of remote legal relationships. It is proposed to revise relevant areas of research of mentioned and other relations to address contemporary challenges emerging in the field of labor law in the digital age.

The historical way of the development of banking business and the state of its legislative provision, which had an impact on criminal behavior in this area, has been studied. It has been noticed that the responsible officials of banking institutions, due to their high level of education, skillfully used gaps or contradictions in the legislation for the useful purposes of illegal enrichment. They quickly adapt to amendments in normative and legal regulation and invent new schemes of criminal technology. The key factors in the situation of committing crimes in the presented area are: search for opportunities for criminal enrichment by using existing powers; conspiracy of officials of commercial banks with representatives of supervisory agencies (curators from some units of the National Bank of UKraine) in order to cover up criminal activity; development of a plan of financial fraud with representatives of commercial organizations in order to steal the entrusted funds and their further legalization. Typically, such criminal “associations” try to have long-term relationships under the guise of corrupt relations with supervisors and banking secrecy in order to systematically generate illicit proceeds. In case of the risk of detecting criminal schemes, the banking institution may be brought to bankruptcy, which is used as the method to hide traces of criminal activity. Analysis of the impact of regulatory factor in the context of committing economic crimes in the banking sector is a perspective and relevant area of further research. In this regard, the development of the doctrine of forensic forecasting in conditions of instability of processes in the economy in its individual segments (lending, currency regulation), weak control over the conduct and accounting of banking transactions, etc. is of great importance. Equally important is the development of cooperation between law enforcement agencies involved in the fight against crime in the banking sector, with the units of the National Bank, the State Fiscal Service and financial monitoring; the improvement of the methodology of conducting certain types of examinations, etc. Provisions for such cooperation are enshrined in law and are in force, but some need to be revised in the light of central government reforms.

Implementation of an effective policy in the field of medical means circulation at the present stage of the development of Ukrainian society is one of the defining conditions for its further democratic reform, strengthening in the country of the institutions of the rule of law, competitive market economy, ensuring the implementation of human and citizen rights and freedoms. Any policy becomes understandable when it is understood who carries out it and what it is aimed at, i.e. defined subjects and objects of policy in society at one or another stage of historical development. This definition makes it possible to clarify the essence of political relations between subjects, as well as between subjects and objects of policy, to reveal the forms of their political behavior, methods of political activity, means of transformation of the political environment. The article highlights the issues concerning subjects that form the general state policy in the field of circulation of medicines. Their analysis is carried out and their main functions and tasks are determined. The state policy in the sphere of circulation of medicinal products is formed and implemented by the Verkhovna Rada of Ukraine, the President of Ukraine, the Cabinet of Ministers of Ukraine, the Ministry of Economic Development and Trade of Ukraine, the Ministry of Health of Ukraine, the State Service of Ukraine for Medicinal Products, professional associations of pharmaceutical workers, within the powers of which is the adoption of different types of normative legal acts (concepts, programs, provisions, procedures, rules, standards, instructions, instructions, licensing conditions, lists, codes, etc.), agreed with European and international legislation, as well as, if necessary, with other central bodies of executive power. Such standards follow, in addition to general normative legal acts, also from specialized acts on the formation of such policy.

Introduction. Current state-building and law-making processes as well as Ukraine’s European integration course substantiate the need for further research into the issues of the institutional capacity of the judicial system of Ukraine, in particular, the determination of its essence, features, ways of formation, etc. The above issue has not been in the focus of theoretical and legal attention in legal science yet. In domestic scientific sources, the problems of the institutional capacity of the judicial system of Ukraine are considered somewhat fragmentarily, which does not contribute to the formation of unified scientific approaches and their practical solution. The purpose of the paper is to determine the content and essence of the institutional capacity of the judicial system of Ukraine based on the analysis of current domestic legislation, international legal acts, and lawyers’ opinions. Results. It is noted that in modern science there is a pluralism of approaches to determining the essence of institutional capacity. The issues related to institutional capacity are studied in terms of the state, certain state and non-state institutions, public associations, etc. Therefore, taking into account the wide range of aspects covered by the concept of institutional capacity, its content can be most fully revealed only in a certain practical context, which also concerns the issue of the institutional capacity of the judicial system. It is determined that the institutional capacity of the judicial system of Ukraine is its ability to perform its functions effectively and transparently by ensuring the appropriate level of regulatory compliance, as well as structural, organizational, personnel and technical systems, processes and resources. The elements of the institutional capacity of the judicial system of Ukraine include its structural construction, legislative and regulatory support, financial resources, personnel support, organizational autonomy of courts and independence of judges, cooperation between judicial bodies and external relations, management systems and practices, leadership and judicial administration, training and maintaining the qualifications of both judges and court staff, judicial self-government, implementation of the latest techniques and technologies, etc. Conclusion. An institution with a sufficiently high level of institutional capacity will ensure the appropriate level of efficiency and effectiveness of its own activities. The institutional capacity of the judicial system of Ukraine includes a certain set of elements and features that ensure its effective operation and allow achieving the purpose of the existence of this institution.

The article examines scientific approaches to defining the concepts of "subject of administrative law", "status", "legal status", "administrative-legal status". It was found that the anti-corruption legislation does not contain the concept of "subject of state anti-corruption policy". It has been proven that the main subject of the state anti-corruption policy should be the people of Ukraine, who develop and implement policy measures through state and local self-government bodies. A broad approach to understanding the system of subjects of the state anti-corruption policy, which includes the system of subjects of combating it as a constituent element, and citizens and civil society occupies one of the main places in this system, is substantiated. The views of scientists regarding the classification of subjects of the state anti-corruption policy are analyzed. It has been proven that the existing scientific approaches are characterized by a certain complexity and burdensomeness, or on the contrary, they narrow or do not reveal the completeness of the system of subjects of the state anti-corruption policy. Most of the existing classifications are reduced to subjects of prevention and fight against corruption. It is substantiated that the existing approach to classification is not fully in harmony with the system of subjects of the state anti-corruption policy, as well as with the list of functions performed by individual subjects in the development of its measures, carried out in monitoring the state of implementation, etc. It is proved that the system of subjects of state anti-corruption policy is much wider than the system of subjects of fighting it. The subjects of the state anti-corruption policy are proposed to be understood as the people of Ukraine, bodies of state and local self-government, public associations, institutions and organizations, and persons who have rights and are endowed with duties (obliged or must participate) in the development and implementation of the state anti-corruption policy. The features of the concepts "subject of state anti-corruption policy" and "administrative-legal status of the subject of state anti-corruption policy" have been summarized, corresponding author's concepts have been formulated. The system of subjects of the state anti-corruption policy was also divided into main groups.

Currently all countries form or are in process of forming rules of law regulating turnover of new digital objects of rights that are called differently as digital rights, tokens, digital assets, digital currency, and cryptocurrency. The difference in wording does not allow to develop common international approaches to the cross-border turnover of such new objects of rights. States are only looking for ways to regulate relations in the digital economy. To find optimal solutions, a comparative legal research is needed to evaluate models of regulation and find effective ways and means of response to the modern challenges. Aim of the research is to analyze models of legal regulation of the turnover of digital rights and digital currency and offer model of regulation that allow such objects of rights to be fully included in the Russian civil turnover. The following tasks are being solved: choice of jurisdictions and analysis of legal norms that regulate turnover in the field; formulation of regulative models of the turnover of digital rights and digital currency based on legislation, doctrine and law enforcement; study of measures and means of regulation used in various states; analysis of different points of researchers on regulation of relations in the digital economy in Russia and abroad; proposal to the legislator of measures and means of regulation, based on the chosen regulative model of the turnover of digital rights and digital currency. Such methods as comparative legal, formal legal, legal modeling methods were used to compare experience of various jurisdictions and formulate regulative models in need. Also general methods of synthesis, analysis, induction, deduction, comparison, analogy, etc. were used. The study showed that the approaches used in the legal regulation in the field differ both in terms of legal norms and in creation of institutions and conditions for functioning digital market. Models of the corresponding legal regulation also differ. States use both prohibitive model of turnover regulation (prohibition of their issuance and turnover), partially prohibitive (restrictions on the turnover of digital rights and digital currency), partially permissive (admission of turnover of digital rights and digital currency, subject to conditions — licensing, regulatory sandboxes, etc.) and permissive model (allowing the turnover of digital rights and digital currency to all market participants, subject to minimum requirements). Terms like cryptocurrency, tokens, crypto assets, digital assets are more popular abroad, while in Russia the concepts of digital rights and digital currency are used to refer to similar legal phenomena. It would be necessary to compare categories under consideration for the possibility of their use in supranational regulation, and cross-border relations, in order to be able to speak with representatives of other jurisdictions in the same language. From the foreign experience, attention of legislator should be drawn to the need and possibility of licensing in relation to participants in the digital market, as well as to the success of regulatory sandboxes in this area, for example in Britain. At the same time, when establishing law enforcement practice in Russia in the field, especially with participation of consumers, experience in US, Britain, Australia as well as the legal regulation of the crypto industry in Japan shall be considered.

The gradual evolution of the standards of the founding instruments of the European Communities and then the European Unionin the field of their judicial systems, which is subject to the integration processes in Europe, is comprehensively analyzed. Thoroughscientific works of both foreign and domestic scientists cover the problems of various spheres of development of the European Union,its institutions, in particular, its Court of Justice. However, the study of this topic was not given enough attention. Therefore, the purposeof the article is a comprehensive analysis of the evolution of the standards of the constituent instruments of these associations inrelation to the establishment and expansion of the jurisdiction of their Court of Justice in the pre-Lisbon period. It is established thatthe origins of the standards of the Court of Justice were enshrined in the founding treaties of the European Communities, and were furtherdeveloped in the founding instruments of the European Union, which were constantly being transformed. The jurisdiction of theCourt of Justice of the Coal and Steel Community was limited to a narrow sphere of economy, and with the entry into force of theTreaties establishing the European Economic Community and the European Atomic Energy Community (1958), the Court became ajoint institution for the three communities, with the powers of ensuring respect for the law in the interpretation and application of eachof the treaties.The peculiarities of the amendments made to the provisions of the following constituent instruments are discovered. The SingleEuropean Act (1986) provided for a certain unification of the legislation of Western European countries, supplementing the foundingtreaties of the Communities with new provisions on the establishment of the Court of First Instance to hear certain claims of individualsand legal entities to relieve the Court of Justice. The Maastricht Treaty (1992) formally proclaimed the establishment of the EuropeanUnion and defined the new structure of the Court of Justice (Court, Tribunal and Specialized Tribunals), its composition and powers,and powers of the Member States in the judicial field. The Amsterdam Treaty (1997) expanded the jurisdiction of the Court of Justiceof the European Union, namely certain areas of activity of courts, their cooperation with other competent authorities of the MemberStates, joint actions of judicial cooperation in criminal matters, etc. The Treaty of Nice significantly deepened the standards of thefounding instruments of the Court of Justice, expanded the powers of its judicial bodies and modernized its structure (including theCourt of Justice and the Court of First Instance), defined high requirements for judges and advocates general, the periods of theirreplacement, extended the jurisdiction of the Court of First Instance, etc. Further transformation of the standards of the Court of Justicehas been carried out under the Lisbon Treaty, which requires a separate study.

The subject of the study is the segmental manifestation of the rule of law principle and its elements in the activities of justice authorities, courts and public associations, taking into account the economic basis of its influence. The purpose of the study is to examine the forms of manifestation of the rule of law principle and its individual elements in the activities of justice and court authorities, to clarify the role of the public in its practical application, and to identify opportunities for its economic support. Methodology. The study used general scientific and special methods of scientific knowledge: the method of system analysis, the dialectical method, the formal logical method, the structural and functional method, as well as a number of empirical methods. In particular, the method of comparison was used to determine the transformation of penitentiary bodies and their transformation into penitentiary justice bodies. The results of the study demonstrated the need for: qualitative consideration of the aspect of ensuring the correction of a convicted person after serving his or her sentence; involvement of representatives of civil society institutions in the resocialisation processes; and identification of potential ways to implement effective reforms that can increase the efficiency and fairness of the judiciary. Conclusion. The article reveals the relationship between the transformation of the penal system into the penitentiary system and the implementation of the rule of law in this area and its comprehensive enforcement. It is noted that the criminal executive system takes into account the aspect of ensuring the serving of sentences, and in the penitentiary system, which operates under the rule of law, the authors additionally identifies such a qualitative component as ensuring the correction of a convicted person after serving his/her sentence and his/her resocialisation. It was found that the economic rationale for the transformation of the judiciary based on the rule of law consists in reducing the costs of: court functioning due to the possibility of digitalization of the preparatory stages before the court hearing and the holding of court hearings in videoconference mode; reducing costs for the court apparatus through optimization of its functions; reducing the number of court cases due to active mediation and other possible options for resolving disputes peacefully, etc. It is noted that justice in judicial proceedings means not only formal compliance with the law, but also the exercise of rights and freedoms of individuals with due regard for equality, objectivity and impartiality. The authors prove that non-governmental organisations are an important institution capable of promoting the principle of justice as an integral element of the rule of law, since they ensure the right to apply to court and the right to protection of members and third parties. The role of the public in shaping the economic basis for reforms and the proper functioning of state bodies was also highlighted. It is noted that national legislation needs to be amended in terms of granting NGOs the right to apply to court in the interests of third parties, in particular, in cases where a person is unable to protect his or her rights for valid reasons. The study analyses the fundamental provisions on economic support for the implementation of the rule of law in various spheres of public relations.

The formation and development of the system of local self-government in Ukraine, the implementation of municipal reform in the context of the decentralization of the powers of public authorities, actualized the interest in researching the assets and values of European (Western) municipalism as constitutional values of humanity and the state and their perception in the post-Soviet legal space. The conducted systematic analysis of the historical retrospective of the formation and development of European (Western) local self-government, and by and large, European (Western) values (basic principles) of municipalism, makes it possible to assert that: a) the latter arose and were formed on the basis of city self-government (about object identification criterion); b) their appearance was the result of collective actions, practice, decisions made by all members of the community, in their interests, on their behalf and for the purpose of solving the most important and urgent issues of urban life (communicative-intersubjective criterion); c) their result was the formation of appropriate behavioral and activity guidelines for each person, their groups and associations that existed, functioned and developed in the conditions of city self-government (organizational-formalizing criterion); d) such behavioral and activity guidelines were not only borrowed by other members and institutions of the local territorial society, but also passed on to other generations of city residents and their associations, taking root in everyday behavior and becoming their mandatory forms and norms (prospective-hereditary criterion; d') they determined the fundamental principles of human socialization and local society - i.e., the emergence and formation of a corresponding system of interests, which in the future were transformed into corresponding behavioral guidelines (attitudes), including legal ones, as well as corresponding practical forms of life (habits), that arose on the basis of the implementation of relevant attitudes, including legal ones (criterion of adjustment in local society); e) they developed according to the following subject-subject scheme: "primitive community in the ancient world (priority of existential and functional issues of the existence of the human community) - ancient Greek polis cities (building a local civilization that significantly influenced the formation of the phenomenology of statehood) - ancient Roman cities - municipalities (building a municipal economy and local society with democratic foundations within the boundaries of a single state / empire) - cities of the feudal period of the development of society (ecclesiastical, knightly, princely / Kurfuster / etc.) (a period of understanding and awareness of the possibilities and advantages of living together within the framework of local of society) - medieval cities governed by Magdeburg law (magistrates + burgomasters) (formation of the fundamental legal foundations of city self-government) - citymunicipalities of post-revolutionary (New Times) and Napoleonic (post-Napoleonic) Europe (flourishing of municipal construction and becoming a prototype of the system array of modern competences municipalities, which became a guarantee of significant growth of their place and role in state construction) - city-municipalities of Modern times (definition of the important role and meaning of municipalities in the context of the municipal revolution of the late 19th - early 20th centuries. actually based on the approaches of "municipal socialism") - modern municipalities of united Europe (formation of the essential role of municipalities in the regional, state, macro-regional and panEuropean integration movement in the context of the municipal revolution of the second half of the 20th century - the beginning of the 21st century) - borrowing of European ( western) municipalism, its assets and values by the post-Soviet states in their striving to join the European family of peoples and states (the last decade of the 20th century - the beginning of the 21st century)" (historicalretrospective criterion). It is claimed that the modality of development of local self-government represents not only a scientific-doctrinal, but also a praxeological-axiological interest in determining its properties at the city level, and especially in relation to the emergence, formation and application of the values of municipalism, which: a) are decisive for a person, his groups and associations, and for the state (states), the international community, etc., and not only European states and the European international regional community, but taking into account the phenomenology of the reception of legal traditions, values, normative support and provision of European self-government by the countries of North and South America, Asia, of Africa (relationship of suzerainty-vassalage, colonial relations of the protectorate and colonies, use of tools of mandated territories, etc.), specifically for the latter, and hence for the entire international community of states, and both for borrowing and for studying and implementing best practices; b) thanks to which the institution of local democracy itself not only plays such an important role at the level of states and their international community, but also c) forms a broad and essential base of municipal values, which is d) a great and essential asset of humanity in the optimal organization of everyday life of every person - a member of the community and d') in fact, spreading to a lower level - rural, township, and a higher level of self-government - associated (district, regional) through borrowing the values of municipalism, - determine the existence, functioning and development of modern human civilization at all levels of local public management and has prognostic properties for the prospect of such existence and development, e) are recognized and legalized by the state through national legislation, as well as by signing international multilateral treaties and taking relevant international legal obligations regarding the recognition and functioning of the institution of local democracy on the territory of a specific state, e) legitimized by the population of each state acting as members of the relevant territorial community that exists and functions on its territory, g) moreover, directly contributes to the emergence and formation of the municipal consciousness (legal consciousness) of a person at its individual, group and collective levels of existence, as well as g) formation on the basis of the profile awareness (legal awareness) of municipal psychology, which determines, forms and corrects the relevant municipal behavior in accordance with the values of municipalism. It is proved that it is the constitutional values that lay the normative foundations for the formation, existence, legalization, legitimization, improvement and expansion of the range of values of municipalism, which is an immanent constituent part of the constitutional values - it is the values of municipalism that are detailed, concretized, segregated, separated, interpreted and interpreted at the local level, make constitutional values possible for everyday use and application.

Australia in Maps is a compilation of cartography taken from the collection of over 600,000 maps held at the Australian National Library. Included in this collection are military maps, coastal maps and modern-day maps for tourists. The map of the eastern coast of ‘New Holland’ drawn by James Cook when he ‘discovered’ Australia in 1770 is included. Also published is Eddie Koiki Mabo’s map drawn on a hole-punched piece of paper showing traditional land holdings in the Murray Islands in the Torres Strait. This map became a key document in Eddie Mabo’s fight for native title recognition, a fight which became the precursor to native title rights as they are known today. The inclusion of these two drawings in a collection of maps defining Australia as a country illustrates the dichotomies and contradictions which exist in a colonial nation. It is now fifteen years since the Native Title Act 1994 (Commonwealth) was developed in response to the Mabo cases in order to recognise Indigenous customary law and traditional relationships to the land over certain (restricted) parts of Australia. It is 220 years since the First Fleet arrived and Indigenous land was (and remains) illegally possessed through the process of colonisation (Moreton-Robinson Australia). Questions surrounding ‘country’ – who owns it, has rights to use it, to live on it, to develop or protect it – are still contested and contentious today. In part, this contention arises out of the radically different conceptions of ‘country’ held by, in its simplest sense, Indigenous nations and colonisers. For Indigenous Australians the land has a spiritual significance that I, as a non-Indigenous person, cannot properly understand as a result of the different ways in which relationships to land are made available. The ways of understanding the world through which my identity as a non-Indigenous person are made intelligible, by contrast, see ‘country’ as there to be ‘developed’ and exploited. Within colonial logic, discourses of development and the productive use of resources function as what Wetherell and Potter term “rhetorically self-sufficient” in that they are principles which are considered to be beyond question (177). As Vincent Tucker states; “The myth of development is elevated to the status of natural law, objective reality and evolutionary necessity. In the process all other world views are devalued and dismissed as ‘primitive’, ‘backward’, ‘irrational’ or ‘naïve’” (1). It was this precise way of thinking which was able to justify colonisation in the first place. Australia was seen as terra nullius; an empty and un-developed land not recognized as inhabited. Indigenous people were incorrectly perceived as individuals who did not use the land in an efficient manner, rather than as individual nations who engaged with the land in ways that were not intelligible to the colonial eye. This paper considers the tensions inherent in definitions of ‘country’ and the way these tensions are played out through native title claims as white, colonial Australia attempts to recognise (and limit) Indigenous rights to land. It examines such tensions as they appear in the media as an example of how native title issues are made intelligible to the non-Indigenous general public who may otherwise have little knowledge or experience of native title issues. It has been well-documented that the news media play an important role in further disseminating those discourses which dominate in a society, and therefore frequently supports the interests of those in positions of power (Fowler; Hall et. al.). As Stuart Hall argues, this means that the media often reproduces a conservative status quo which in many cases is simply reflective of the positions held by other powerful institutions in society, in this case government, and mining and other commercial interests. This has been found to be the case in past analysis of media coverage of native title, such as work completed by Meadows (which found that media coverage of native title issues focused largely on non-Indigenous perspectives) and Hartley and McKee (who found that media coverage of native title negotiations frequently focused on bureaucratic issues rather than the rights of Indigenous peoples to oppose ‘developments’ on their land). This paper aims to build on this work, and to map the way in which native title, an ongoing issue for many Indigenous groups, figures in a mainstream newspaper at a time when there has not been much mainstream public interest in the process. In order to do this, this paper considered articles which appeared in Australia’s only national newspaper – The Australian – over the six months preceding the start of July 2008. Several main themes ran through these articles, examples of which are provided in the relevant sections. These included: economic interests in native title issues, discourses of white ownership and control of the land, and rhetorical devices which reinforced the battle-like nature of native title negotiations rather than emphasised the rights of Indigenous Australians to their lands. Native Title: Some Definitions and Some Problems The concept of native title itself can be a difficult one to grasp and therefore a brief definition is called for here. According to the National Native Title Tribunal (NNTT) website (www.nntt.gov.au), native title is the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs. The native title rights and interests held by particular Indigenous people will depend on both their traditional laws and customs and what interests are held by others in the area concerned. Generally speaking, native title must give way to the rights held by others. Native title is therefore recognised as existing on the basis of certain laws and customs which have been maintained over an area of land despite the disruption caused by colonisation. As such, if native title is to be recognised over an area of country, Indigenous communities have to argue that their cultures and connection with the land have survived colonisation. As the Maori Land Court Chief Judge Joe Williams argues: In Australia the surviving title approach […] requires the Indigenous community to prove in a court or tribunal that colonisation caused them no material injury. This is necessary because, the greater the injury, the smaller the surviving bundle of rights. Communities who were forced off their land lose it. Those whose traditions and languages were beaten out of them at state sponsored mission schools lose all of the resources owned within the matrix of that language and those traditions. This is a perverse result. In reality, of course, colonisation was the greatest calamity in the history of these people on this land. Surviving title asks aboriginal people to pretend that it was not. To prove in court that colonisation caused them no material injury. Communities who were forced off their land are the same communities who are more likely to lose it. As found in previous research (Meadows), these inherent difficulties of the native title process were widely overlooked in recent media reports of native title issues published in The Australian. Due to recent suggestions made by Indigenous Affairs Minister Jenny Macklin for changes to be made to the native title system, The Australian did include reports on the need to ensure that traditional owners share the economic profits of the mining boom. This was seen in an article by Karvelas and Murphy entitled “Labor to Overhaul Native Title Law”. The article states that: Fifteen years after the passage of the historic Mabo legislation, the Rudd Government has flagged sweeping changes to native title to ensure the benefits of the mining boom flow to Aboriginal communities and are not locked up in trusts or frittered away. Indigenous Affairs Minister Jenny Macklin, delivering the third annual Eddie Mabo Lecture in Townsville, said yesterday that native title legislation was too complex and had failed to deliver money to remote Aboriginal communities, despite lucrative agreements with mining companies. (1) Whilst this passage appears supportive of Indigenous Australians in that it argues for their right to share in economic gains made through ‘developments’ on their country, the use of phrases such as ‘frittered away’ imply that Indigenous Australians have made poor use of their ‘lucrative agreements’, and therefore require further intervention in their lives in order to better manage their financial situations. Such an argument further implies that the fact that many remote Indigenous communities continue to live in poverty is the fault of Indigenous Australians’ mismanagement of funds from native title agreements rather than from governmental neglect, thereby locating the blame once more in the hands of Indigenous people rather than in a colonial system of dispossession and regulation. Whilst the extract does continue to state that native title legislation is too complex and has ‘failed to deliver money to remote Aboriginal communities’, the article does not go on to consider other areas in which native title is failing Indigenous people, such as reporting the protection of sacred and ceremonial sites, and provisions for Indigenous peoples to be consulted about developments on their land to which they may be opposed. Whilst native title agreements with companies may contain provisions for these issues, it is rare that there is any regulation for whether or not these provisions are met after an agreement is made (Faircheallaigh). These issues almost never appeared in the media which instead focused on the economic benefits (or lack thereof) stemming from the land rather than the sovereign rights of traditional owners to their country. There are many other difficulties inherent in the native title legislation for Indigenous peoples. It is worth discussing some of these difficulties as they provide an image of the ways in which ‘country’ is conceived of at the intersection of a Western legal system attempting to encompass Indigenous relations to land. The first of these difficulties relates to the way in which Indigenous people are required to delineate the boundaries of the country which they are claiming. Applications for native title over an area of land require strict outlining of boundaries for land under consideration, in accordance with a Western system of mapping country. The creation of such boundaries requires Indigenous peoples to define their country in Western terms rather than Indigenous ones, and in many cases proves quite difficult as areas of traditional lands may be unavailable to claim (Neate). Such differences in understandings of country mean that “for Indigenous peoples, the recognition of their indigenous title, should it be afforded, may bear little resemblance to, or reflect minimally on, their own conceptualisation of their relations to country” (Glaskin 67). Instead, existing as it does within a Western legal system and subject to Western determinations, native title forces Indigenous people to define themselves and their land within white conceptions of country (Moreton-Robinson Possessive). In fact, the entire concept of native title has been criticized by many Indigenous commentators as a denial of Indigenous sovereignty over the land, with the result of the Mabo case meaning that “Indigenous people did not lose their native title rights but were stripped of their sovereign rights to manage their own affairs, to live according to their own laws, and to own and control the resources on their lands” (Falk and Martin 38). As such, Falk and Martin argue that The Native Title Act amounts to a complete denial of Aboriginal sovereignty so that Indigenous people are forced to live under a colonial regime which is able to control and regulate their lives and access to country. This is commented upon by Aileen Moreton-Robinson, who writes that: What Indigenous people have been given, by way of white benevolence, is a white-constructed from of ‘Indigenous’ proprietary rights that are not epistemologically and ontologically grounded in Indigenous conceptions of sovereignty. Indigenous land ownership, under these legislative regimes, amounts to little more than a mode of land tenure that enables a circumscribed form of autonomy and governance with minimum control and ownership of resources, on or below the ground, thus entrenching economic dependence on the nation state. (Moreton-Robinson Sovereign Subjects 4) The native title laws in place in Australia restrict Indigenous peoples to existing within white frameworks of knowledge. Within the space of The Native Title Act there is no room for recognition of Indigenous sovereignty whereby Indigenous peoples can make decisions for themselves and control their own lands (Falk and Martin). These tensions within definitions of ‘country’ and sovereignty over land were reflected in the media articles examined, primarily in terms of the way in which ‘country’ was related to and used. This was evident in an article entitled “An Economic Vision” with a tag-line “Native Title Reforms offer Communities a Fresh Start”: Central to such a success story is the determination of indigenous people to help themselves. Such a business-like, forward-thinking approach is also evident in Kimberley Land Council executive director Wayne Bergmann's negotiations with some of the world's biggest resource companies […] With at least 45 per cent of Kimberley land subject to native title, Mr Bergmann, a qualified lawyer, is acutely aware of the royalties and employment potential. Communities are also benefitting from the largesse of Australia’s richest man, miner Andrew “Twiggy” Forrest, whose job training courses and other initiatives are designed to help the local people, in his words, become “wonderful participating Australians.” (15) Again, this article focuses on the economic benefits to be made from native title agreements with mining companies rather than other concerns with the use of Indigenous areas of country. The use of the quote from Forrest serves to imply that Indigenous peoples are not “wonderful participating Australians” unless they are able to contribute in an economic sense, and overlooks many contributions made by Indigenous peoples in other areas such as environmental protection. Such definitions also measure ‘success’ in Western terms rather than Indigenous ones and force Indigenous peoples into a relationship to country based on Western notions of resource extraction and profit rather than Indigenous notions of custodianship and sustainability. This construction of Indigenous economic involvement as only rendered valid on particular terms echoes findings from previous work on constructions of Indigenous people in the media, such as that by LeCouteur, Rapley and Augoustinos. Theorising ‘Country’ The examples provided above illustrate the fact that the rhetoric and dichotomies of ‘country’ are at the very heart of the native title process. The process of recognising Indigenous rights to land through native title invites the question of how ‘country’ is conceived in the first place. Goodall writes that there are tensions within definitions of ‘country’ which indicate the ongoing presence of Indigenous people’s connections to their land despite colonisation. She writes that the word ‘country’: may seem a self-evident description of rural economy and society, with associations of middle-class gentility as well as being the antonym of the city. Yet in Australia there is another dimension altogether. Aboriginal land-owners traditionally identify themselves by the name of the land for which they were the custodians. These lands are often called, in today’s Aboriginal English, their ‘country’. This gives the word a tense and resonating echo each time it is used to describe rural-settler society and land. (162) Yet the distinctions usually drawn between those defined as ‘country’ people or ‘locals’ and the traditional Indigenous people of the area suggest that, as Schlunke states, in many cases Indigenous people are “too local to be ‘local’” (43). In other words, if white belonging and rights to an area of country are to be normalised, the prior claims of traditional owners are not able to be considered. As such, Indigenous belonging becomes too confronting as it disrupts the ways in which other ‘country’ people relate to their land as legitimately theirs. In the media, constructions of ‘country’ frequently fell within a colonial definition of country which overlooked Indigenous peoples. In many of these articles land was normatively constructed as belonging to the crown or the state. This was evidenced in phrases such as, “The proceedings [of the Noongar native title claim over the South Western corner of Australia] have been watched closely by other states in the expectation they might encounter similar claims over their capital cities” (Buckley-Carr 2). Use of the word their implies that the states (which are divisions of land created by colonisation) have prior claim to ‘their’ capital cities and that they rightfully belong to the government rather than to traditional owners. Such definitions of ‘country’ reflect European rather than Indigenous notions of boundaries and possession. This is also reflected in media reports of native title in the widespread use of European names for areas of land and landmarks as opposed to their traditional Indigenous names. When the media reported on a native title claim over an area of land the European name for the country was used rather than, for example, the Indigenous name followed by a geographical description of where that land is situated. Customs such as this reflect a country which is still bound up in European definitions of land rather than Indigenous ones (Goodall 167; Schlunke 47-48), and also indicate that the media is reporting for a white audience rather than for an Indigenous one whom it would affect the most. Native title debates have also “shown the depth of belief within much of rural and regional Australia that rural space is most rightfully agricultural space” (Lockie 27). This construction of rural Australia is reflective of the broader national imagining of the country as a nation (Anderson), in which Australia is considered rich in resources from which to derive profit. Within these discourses the future of the nation is seen as lying in the ‘development’ of natural resources. As such, native title agreements with industry have often been depicted in the media as obstacles to be overcome by companies rather than a way of allowing Indigenous people control over their own lands. This often appears in the media in the form of metaphors of ‘war’ for agreements for use of Indigenous land, such as development being “frustrated” by native title (Bromby) and companies being “embattled” by native title issues (Wilson). Such metaphors illustrate the adversarial nature of native title claims both for recognition of the land in the first place and often in subsequent dealings with resource companies. This was also seen in reports of company progress which would include native title claims in a list of other factors affecting stock prices (such as weak drilling results and the price of metals), as if Indigenous claims to land were just another hurdle to profit-making (“Pilbara Lures”). Conclusion As far as the native title process is concerned, the answers to the questions considered at the start of this paper remain within Western definitions. Native title exists firmly within a Western system of law which requires Indigenous people to define and depict their land within non-Indigenous definitions and understandings of ‘country’. These debates are also frequently played out in the media in ways which reflect colonial values of using and harvesting country rather than Indigenous ones of protecting it. The media rarely consider the complexities of a system which requires Indigenous peoples to conceive of their land through boundaries and definitions not congruent with their own understandings. The issues surrounding native title draw attention to the need for alternative definitions of ‘country’ to enter the mainstream Australian consciousness. These need to encompass Indigenous understandings of ‘country’ and to acknowledge the violence of Australia’s colonial history. Similarly, the concept of native title needs to reflect Indigenous notions of country and allow traditional owners to define their land for themselves. In order to achieve these goals and overcome some of the obstacles to recognising Indigenous sovereignty over Australia the media needs to play a part in reorienting concepts of country from only those definitions which fit within a white framework of experiencing the world and prioritise Indigenous relations and experiences of country. If discourses of resource extraction were replaced with discourses of sustainability, if discourses of economic gains were replaced with respect for the land, and if discourses of white control over Indigenous lives in the form of native title reform were replaced with discourses of Indigenous sovereignty, then perhaps some ground could be made to creating an Australia which is not still in the process of colonising and denying the rights of its First Nations peoples. The tensions which exist in definitions and understandings of ‘country’ echo the tensions which exist in Australia’s historical narratives and memories. The denied knowledge of the violence of colonisation and the rights of Indigenous peoples to remain on their land all haunt a native title system which requires Indigenous Australians to minimise the effect this violence had on their lives, their families and communities and their values and customs. As Katrina Schlunke writes when she confronts the realisation that her family’s land could be the same land on which Indigenous people were massacred: “The irony of fears of losing one’s backyard to a Native Title claim are achingly rich. Isn’t something already lost to the idea of ‘Freehold Title’ when you live over unremembered graves? What is free? What are you to hold?” (151). If the rights of Indigenous Australians to their country are truly to be recognised, mainstream Australia needs to seriously consider such questions and whether or not the concept of ‘native title’ as it exists today is able to answer them. Acknowledgments I would like to thank Damien Riggs and Andrew Gorman-Murray for all their help and support with this paper, and Braden Schiller for his encouragement and help with proof-reading. I would also like to thank the anonymous referees for their insightful comments. References Anderson, Benedict. Imagined Communities. London: Verso, 1983. “An Economic Vision.” The Australian 23 May 2008. Bromby, Robin. “Areva deal fails to lift Murchison.” The Australian 30 June 2008: 33. Buckley-Carr, Alana. “Ruling on Native Title Overturned.” The Australian 24 April 2008: 2. Faircheallaigh, Ciaran. “Native Title and Agreement Making in the Mining Industry: Focusing on Outcomes for Indigenous Peoples.” Land, Rights, Laws: Issues of Native Title 2, (2004). 20 June 2008 http://ntru.aiatsis.gov.au/ntpapers/ipv2n25.pdf Falk, Philip and Gary Martin. “Misconstruing Indigenous Sovereignty: Maintaining the Fabric of Australian Law.” Sovereign Subjects: Indigenous Sovereignty Matters. Ed. Aileen Moreton-Robinson. Allen and Unwin, 2007. 33-46. Fowler, Roger. Language in the News: Discourse and Ideology in the Press. London: Routledge, 1991. Glaskin, Katie. “Native Title and the ‘Bundle of Rights’ Model: Implications for the Recognition of Aboriginal Relations to Country.” Anthropological Forum 13.1 (2003): 67-88. Goodall, Heather. “Telling Country: Memory, Modernity and Narratives in Rural Australia.” History Workshop Journal 47 (1999): 161-190. Hall, Stuart, Critcher, C., Jefferson, T., Clarke, J. and Roberts, B. Policing the Crisis: Mugging, the state, and Law and Order. London: Macmillan, 1978. Hartley, John, and Alan McKee. The Indigenous Public Sphere: The Reporting and Reception of Aboriginal Issues in the Australian Media. Oxford: Oxford UP, 2000. Karvelas, Patricia and Padraic Murphy. “Labor to Overhaul Native Title Laws.” The Australian, 22 May 2008: 1. LeCouteur, Amanda, Mark Rapley and Martha Augoustinos. “This Very Difficult Debate about Wik: Stake, Voice and the Management of Category Membership in Race Politics.” British Journal of Social Psychology 40 (2001): 35-57. Lockie, Stewart. “Crisis and Conflict: Shifting Discourses of Rural and Regional Australia.” Land of Discontent: The Dynamics of Change in Rural and Regional Australia. Ed. Bill Pritchard and Phil McManus. Kensington: UNSW P, 2000. 14-32. Meadows, Michael. “Deals and Victories: Newspaper Coverage of Native Title in Australia and Canada.” Australian Journalism Review 22.1 (2000): 81-105. Moreton-Robinson, Aileen. “I still call Australia Home: Aboriginal Belonging and Place in a White Postcolonising Nation.” Uprooting/Regrounding: Questions of Home and Migration. Eds. S Ahmed et.al. Oxford: Berg, 2003. 23-40. Moreton-Robinson, Aileen. “The Possessive Logic of Patriarchal White Sovereignty: The High Court and the Yorta Yorta Decision.” Borderlands e-Journal 3.2 (2004). 20 June 2008. http://www.borderlands.net.au/vol3no2_2004/moreton_possessive.htm Morteton-Robinson, Aileen. Ed. Sovereign Subjects: Indigenous Sovereignty Matters. Allen and Unwin, 2007. Neate, Graham. “Mapping Landscapes of the Mind: A Cadastral Conundrum in the Native Title Era.” Conference on Land Tenure and Cadastral Infrastructures for Sustainable Development, Melbourne, Australia (1999). 20 July 2008. http://www.sli.unimelb.edu.au/UNConf99/sessions/session5/neate.pdf O’Connor, Maura. Australia in Maps: Great Maps in Australia’s History from the National Library’s Collection. Canberra: National Library of Australia, 2007. “Pilbara Lures Explorer with Promise of Metal Riches.” The Australian. 28 May 2008: Finance 2. Schlunke, Katrina. Bluff Rock: An Autobiography of a Massacre. Fremantle: Curtin U Books, 2005. “The National Native Title Tribunal.” Exactly What is Native Title? 29 July 2008. http://www.nntt.gov.au/What-Is-Native-Title/Pages/What-is-Native-Title.aspx The National Native Title Tribunal Fact Sheet. What is Native Title? 29 July 2008. http://www.nntt.gov.au Path; Publications-And-Research; Publications; Fact Sheets. Tucker, Vincent. “The Myth of Development: A Critique of Eurocentric Discourse.” Critical Development Theory: Contributions to a New Paradigm. Ed. Ronaldo Munck, Denis O'Hearn. Zed Books, 1999. 1-26. Wetherell, Margaret, and Jonathan Potter. Mapping the Language of Racism: Discourse and the Legitimation of Exploitation. New York: Harvester Wheatsheaf, 1992. Williams, Joe. “Confessions of a Native Title Judge: Reflections on the Role of Transitional Justice in the Transformation of Indigeneity.” Land, Rights, Laws: Issues of Native Title 3, (2008). 20 July 2008. http://ntru.aiatsis.gov.au/publications/issue_papers.html Wilson, Nigel. “Go with the Flow.” The Australian, 29 March 2008: 1.

Photo by 187929822 © Victor Moussa | Dreamstime.com INTRODUCTION The nonconsensual taking of a human organ to use in transplantation medicine violates ethical principles, including autonomy, informed consent, and human rights, as well as criminal laws. When such an organ harvesting is not just nonconsensual, but performed in a way that causes a death or uses the pretense of brain death without meeting the criteria, it also violates the dead donor[1] rule.[2] The dead donor rule is both ethical and legal. It prevents organ retrieval that would predictably cause the death of the organ donor.[3] Retrieval of a vital organ is permissible only after a declaration of death.[4] Forced organ harvesting may breach the dead donor rule as it stands. A reimagined, broader dead donor rule could consider a larger timeframe in the forced organ harvesting context. In doing so, the broad dead donor rule could cover intent, premeditation, aiding and abetting, and due diligence failures. A broad definition of forced organ harvesting is ‘‘the removal of one or more organs from a person by means of coercion, abduction, deception, fraud, or abuse of power. . .’’[5] A more targeted definition is “[t]he killing of a person so that their organs may be removed without their free, voluntary and informed consent and transplanted into another person.”[6] In the global organ harvesting context, forced organ harvesting violates the World Health Organization (WHO) Guiding Principle 3, which says “live organ donors should be acting willingly, free of any undue influence or coercion.”[7] Furthermore, WHO states live donors should be “genetically, legally, or emotionally” attached to the recipient. Guiding Principle 1 applies to deceased donors, covers consent, and permits donation absent any known objections by the deceased.[8] Principle 7 says, “Physicians and other health professionals should not engage in transplantation procedures, and health insurers and other payers should not cover such procedures if the cells, tissues or organs concerned have been obtained through exploitation or coercion of, or payment to, the donor or the next of kin of a deceased donor.”[9] There are underground markets in which organ hunters prey on the local poor in countries with low wages and widespread poverty[10] and human trafficking that targets migrants for the purpose of organ harvesting.[11] This paper explores forced harvesting under the backdrop of the dead donor rule, arguing that a human rights violation so egregious requires holding even distant participants in the chain of events accountable. By interfering with resources necessary to carry out bad acts, legislation and corporate and institutional policies can act as powerful deterrents. A broader dead donor rule would highlight the premeditation and intent evidenced well before the act of organ retrieval. I. Background and Evidence In China, there is evidence that people incarcerated for religious beliefs and practices (Falun Gong) and ethnic minorities (Uyghurs) have been subjects of forced organ harvesting. A tribunal (the China Tribunal) found beyond a reasonable doubt that China engaged in forced organ harvesting.[12] Additionally, eight UN Special Rapporteurs found a system of subjecting political prisoners and prisoners of conscience to blood tests and radiological examinations to determine the fitness of their organs.[13] As early as 2006, investigators found evidence of forced organ harvesting from Falun Gong practitioners. [14] Over a million Uyghurs are in custody there, and there is ample evidence of biometric data collection.[15] An Uyghur tribunal found evidence of genocide.[16] “China is the only country in the world to have an industrial-scale organ trafficking practice that harvests organs from executed prisoners of conscience.”[17] Witnesses testified to the removal of organs from live people without ample anesthesia,[18] summonses to the execution grounds for organ removal,[19] methods of causing death for the purpose of organ procurement,[20] removing eyes from prisoners who were alive,[21] and forcing live prisoners into operating rooms.[22] The current extent of executions to harvest organs from prisoners of conscience in China is unknown. The Chinese press has suggested surgeons in China will perform 50,000 organ transplants this year.[23] Doctors Against Forced Organ Harvesting (DAFOR) concluded, “[f]orced organ harvesting from living people has occurred and continues to occur unabated in China.”[24] China continues to advertise in multiple languages to attract transplant tourists.[25] Wait times for organs seem to remain in the weeks.[26] In the United States, it is common to wait three to five years.[27] II. The Nascent System of Voluntary Organ Donation in China In China, throughout the 1990s and early 2000s, the supply of organs for transplant was low, and there was not a national system to register as a donor. A 1984 act permitted death row prisoners to donate organs.[28] In 2005, a Vice Minister acknowledged that 95 percent of all organ transplants used organs from death row prisoners.[29] In 2007 the planning of a voluntary system to harvest organs after cardiac death emerged. According to a Chinese publication, China adopted brain death criteria in 2013.[30] There had been public opposition due partly to cultural unfamiliarity with it.[31] Cultural values about death made it more difficult to adopt a universal brain death definition. Both Buddhist and Confucian beliefs contradicted brain death.[32] Circulatory death was traditionally culturally accepted.[33] The Ministry of Health announced that by 2015 organ harvesting would be purely voluntary and that prisoners would not be the source of organs.[34] There are cultural barriers to voluntary donation partly due to a Confucian belief that bodies return to ancestors intact and other cultural and religious beliefs about respect for the dead.[35] An emphasis on family and community over the individual posed another barrier to the Western approach to organ donation. Public awareness and insufficient healthcare professional knowledge about the process of organ donation are also barriers to voluntary donation.[36] Although the Chinese government claims its current system is voluntary and no longer exploits prisoners,[37] vast evidence contradicts the credibility of the voluntary transplant program in China.[38] III. Dead Donor Rule: A Source of Bioethical Debate It seems tedious to apply this ethical foundation to something as glaring as forced organ harvesting. But the dead donor rule is a widely held recognition that it is not right to kill one person to save another.[39] It acts as a prohibition on killing for the sake of organ retrieval and imposes a technical requirement which influences laws on how death is declared. The dead donor rule prevents organ harvesting that causes death by prohibiting harvesting any organ which the donor agreed to donate only after death prior to an official declaration of death. There is an ongoing ethical debate about the dead donor rule. Many in bioethics and transplant medicine would justify removing organs in specific situations prior to a declaration of death, abandoning the rule.[40] Some use utilitarian arguments to justify causing the death of someone who is unconscious and on life support irreversibly. Journal articles suggest that the discussion has moved to one of timing and organ retrieval.[41] Robert Truog and Franklin Miller are critics of the dead donor rule, arguing that, in practice, it is not strictly obeyed: removing organs while a brain-dead donor is still on mechanical ventilation and has a beating heart and removing organs right after life support is removed and cardio-pulmonary death is declared both might not truly meet the requirement of the dead donor rule, making following the rule “a dubious norm.”[42] Miller and Truog question the concept of brain death, citing evidence of whole body integrated functions that continue indefinitely. They challenge cardio-pulmonary death, asserting that the definition includes as dead, those who could be resuscitated. Their hearts could resume beating with medical intervention. Stopping life support causes death only in those whose lives are sustained by it. Some stipulate that the organ retrieval must not itself cause the death. Some would rejigger the cause of death: Daniel Callahan suggests that the underlying condition causes the death despite removal of life support.[43] But logically, a person could continue life support and be alive, so clearly, removing life support does cause death. Something else would have caused brain death or the circumstance that landed the person on mechanical ventilation. To be more accurate, one could say X caused the irreversible coma and removing life support caused the death itself. Miller and Truog take the position that because withdrawal of life support does cause death, the dead donor rule should be defunct as insincere. To them, retrieving vital organs from a technically alive donor should be permissible under limited conditions. They look to the autonomous choices of the donor or the surrogate (an autonomy-based argument). They appreciate the demand for organs and the ability to save lives, drawing attention to those in need of organs. Live donor organ retrieval arguably presents a slippery slope, especially if a potential donor is close to death, but not so close to label it imminent. They say physicians would not be obligated to follow the orders of a healthy person wishing to have vital organs removed, perhaps to save a close friend or relative. Similarly, Radcliffe-Richards, et al. argue that there is no reason to worry about the slippery slope of people choosing death so they can sell their vital organs, whether for money for their decedents or their creditors.[44] The movement toward permissibility and increased acceptance of medical aid in dying also influence the organ donation arena. The slippery slope toward the end of life has potential to become a realistic concern. Older adults or other people close to death may want to donate a vital organ, like their heart, to a young relative in need. That could greatly influence the timing of a decision to end one’s life. IV. Relating the Dead Donor Rule to Forced Organ Harvesting There is well documented evidence that in China organs have been removed before a declaration of death.[45] But one thing the dead donor rule does not explicitly cover is intent and the period prior to the events leading to death. It tends to apply to a near-death situation and is primarily studied in its relationship to organ donation. It is about death more than it is about life. Robertson and Lavee investigated data on transplantation of vital organs in China and they document cases where the declaration of death was a pretense, insincere, and incorrect. Their aim was to investigate whether the prisoners were in fact dead prior to organ harvesting.[46] (The China Tribunal found that organs have been removed from live prisoners and that organ harvesting has been the cause of death.) They are further concerned with the possible role of doctors as executioners, or at least as complicit in the execution as the organ harvesting so closely follows it. V. A Broader Dead Donor Rule A presumed ethical precursor to the dead donor rule may also be an important ethical extension of the rule: the dead donor rule must also prohibit killing a person who is not otherwise near death for the purpose of post-death organ harvesting. In China, extra-judicial killings of prisoners of conscience are premeditated ― there is ample evidence of blood tests and radiology to ensure organ compatibility and health.[47] To have effective ethical force, the dead donor rule should have an obvious application in preventing intentional killing for an organ retrieval, not just killing by way of organ retrieval. When we picture the dead donor rule, bioethicists tend to envision a person on life support who will either be taken off it and stop breathing or who will be declared brain dead. But the dead donor rule should apply to healthy people subject to persecution at the point when the perpetrator lays the ground for the later killing. At that point, many organizations and people may be complicit or unknowingly contributing to forced organ harvesting. In this iteration of the dead donor rule, complicity in its violations would be widespread. The dead donor rule could address the initial action of ordering a blood or radiology test or collecting any biometric data. Trained physicians and healthcare technicians perform such tests. Under my proposed stretch of the dead donor rule, they too would be complicit in the very early steps that eventually lead to killing a person for their organs. I argue these steps are part of forced organ harvesting and violate the dead donor rule. The donor is very much alive in the months and years preceding the killing. A conspiracy of indifference toward life, religious persecution, ethnic discrimination, a desire to expand organ transplant tourism, and intent to kill can violate this broader dead donor rule. The dead donor rule does not usually apply to the timing of the thought of organ removal, nor the beginning of the chain of events that leads to it. It is usually saved for the very detailed determination of what may count as death so that physicians may remove vital and other organs, with the consent of the donor.[48] But I argue that declaring death at the time of retrieval may not be enough. Contributing to the death, even by actions months or years in advance, matter too. Perhaps being on the deathbed awaiting a certain death must be distinguished from going about one’s business only to wind up a victim of forced organ harvesting. Both may well be declared dead before organ retrieval, but the likeness stops there. The person targeted for future organ retrieval to satisfy a growing transplant tourism business or local demand is unlike the altruistic person on his deathbed. While it may seem like the dead donor rule is merely a bioethics rule, it does inform the law. And it has ethical heft. It may be worth expanding it to the arena of human trafficking for the sake of organ removal and forced organ harvesting.[49] The dead donor rule is really meant to ensure that death was properly declared to protect life, something that must be protected from an earlier point. VI. Complicity: Meaning and Application Human rights due diligence refers to actions that people or institutions must take to ensure they are not contributing to a human rights violation. To advise on how to mitigate risk of involvement or contribution to human rights violations, Global Rights Compliance published an advisory that describes human rights due diligence as “[t]he proactive conduct of a medical institution and transplant-associated entity to identify and manage human rights risks and adverse human rights impacts along their entire value and supply chain.”[50] Many people and organizations enable forced organ harvesting. They may be unwittingly complicit or knowingly aiding and abetting criminal activity. For example, some suppliers of medical equipment and immunosuppressants may inadvertently contribute to human rights abuses in transplantation in China, or in other countries where organs were harvested without consent, under duress, or during human trafficking. According to Global Rights Compliance, “China in the first half of 2021 alone imported ‘a total value of about 24 billion U.S. dollars’ worth of medical technology equipment’, with the United States and Germany among the top import sources.”[51] The companies supplying the equipment may be able to slow or stop the harm by failing to supply necessary equipment and drugs. Internal due diligence policies would help companies analyze their suppliers and purchasers. Corporations, educational institutions, and other entities in the transplantation supply chain, medical education, insurance, or publishing must engage in human rights due diligence. The Global Rights Compliance advisory suggests that journals should not include any ill-gotten research. Laws should regulate corporations and target the supply chain also. All actors in the chain of supply, etc. are leading to the death of the nonconsenting victim. They are doing so while the victim is alive. The Stop Forced Organ Harvesting Act of 2023, pending in the United States, would hold any person or entity that “funds, sponsors, or otherwise facilitates forced organ harvesting or trafficking in persons for purposes of the removal of organs” responsible. The pending legislation states that: It shall be the policy of the United States—(1) to combat international trafficking in persons for purposes of the removal of organs;(2) to promote the establishment of voluntary organ donation systems with effective enforcement mechanisms in bilateral diplomatic meetings and in international health forums;(3) to promote the dignity and security of human life in accordance with the Universal Declaration of Human Rights, adopted on December 10, 1948; and(4) to hold accountable persons implicated, including members of the Chinese Communist Party, in forced organ harvesting and trafficking in persons for purposes of the removal of organs.[52] The Act calls on the President to provide Congress a list of such people or entities and to sanction them by property blocking, and, in the case of non-US citizens, passport and visa denial or revocation. The Act includes a reporting requirement under the Foreign Assistance Act of 1961 that includes an assessment of entities engaged in or supporting forced organ harvesting.[53] The law may have a meaningful impact on forced organ harvesting. Other countries have taken or are in the process of legal approaches as well.[54] Countries should consider legislation to prevent transplant tourism, criminalize complicity, and require human rights due diligence. An expanded dead donor rule supports legal and policy remedies to prevent enabling people to carry out forced organ harvesting. VII. Do Bioethicists Mention Human Rights Abuses and Forced Organ Harvesting Enough? As a field, bioethics literature often focuses on the need for more organs, the pain and suffering of those on organ transplant waitlists, and fairness in allocating organs or deciding who belongs on which waitlist and why. However, some bioethicists have drawn attention to forced organ harvesting in China. Notably, several articles noted the ethical breaches and called on academic journals to turn away articles on transplantation from China as they are based on the unethical practice of executing prisoners of conscience for their organs.[55] The call for such a boycott was originally published in a Lancet article in 2011.[56] There is some acknowledgement that China cares about how other countries perceive it,[57] which could lead to either improvements in human rights or cover-ups of violations. Ill-gotten research has long been in the bioethics purview with significant commentary on abuses in Tuskegee and the Holocaust.[58] Human research subjects are protected by the Declaration of Helsinki, which requires acting in the best interests of research subjects and informed consent among other protections.[59] The Declaration of Helsinki is directed at physicians and requires subjects enroll in medical research voluntarily. The Declaration does not explicitly cover other healthcare professionals, but its requirements are well accepted broadly in health care. CONCLUSION The dead donor rule in its current form really does not cover the life of a non-injured healthy person at an earlier point. If it could be reimagined, we could highlight the link between persecution for being a member of a group like Falun Gong practitioners or Uyghurs as the start of the process that leads to a nonconsensual organ retrieval whether after a proper declaration of death or not. It is obviously not ethically enough to ensure an execution is complete before the organs are harvested. It is abuse of the dead donor rule to have such a circumstance meet its ethical requirement. And obviously killing people for their beliefs or ethnicity (and extra-judicial killings generally) is not an ethically acceptable action for many reasons. The deaths are intentionally orchestrated, but people and companies who may have no knowledge of their role or the role of physicians they train or equipment they sell are enablers. An expanded dead donor rule helps highlight a longer timeframe and expanded scope of complicity. The organ perfusion equipment or pharmaceuticals manufactured in the United States today must not end up enabling forced organ harvesting. With an expanded ethical rule, the “donor is not dead” may become “the donor would not be dead if not for. . .” the host of illegal acts, arrests without cause, forced detention in labor camps, extra-judicial killings, lacking human rights due diligence, and inattention to this important topic. The expanded dead donor rule may also appeal to the bioethics community and justify more attention to laws and policies like the Stop Forced Organ Harvesting Act of 2023. - [1] The word “donor” in this paper describes any person from whom organs are retrieved regardless of compensation, force, or exploitation in keeping with the bioethics literature and the phrase “dead donor rule.” [2] Robertson, M.P., Lavee J. (2022). Execution by organ procurement: Breaching the dead donor rule in China. Am J Transplant, Vol.22,1804– 1812. doi:10.1111/ajt.16969. [3] Robertson, J. A. (1999). Delimiting the donor: the dead donor rule. Hastings Center Report, 29(6), 6-14. [4] Retrieval of non-vital organs which the donor consents to donate post-death (whether opt-in, opt-out, presumed, or explicit according to local law) also trigger the dead donor rule. [5] The Stop Forced Organ Harvesting Act of 2023, H.R. 1154, 118th Congress (2023), https://www.congress.gov/bill/118th-congress/house-bill/1154. [6] Do No Harm: Mitigating Human Rights Risks when Interacting with International Medical Institutions & Professionals in Transplantation Medicine, Global Rights Compliance, Legal Advisory Report, April 2022, https://globalrightscompliance.com/project/do-no-harm-policy-guidance-and-legal-advisory-report/. [7] WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation, as endorsed by the sixty-third World Health Assembly in May 2010, in Resolution WHA63.22 https://apps.who.int/iris/bitstream/handle/10665/341814/WHO-HTP-EHT-CPR-2010.01-eng.pdf?sequence=1. [8] WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation (2010). [9] WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation (2010). [10] Promchertchoo, Pichayada (Oct. 19, 2019). Kidney for sale: Inside Philippines’ illegal organ trade. https://www.channelnewsasia.com/asia/kidney-for-sale-philippines-illegal-organ-trade-857551; Widodo, W. and Wiwik Utami (2021), The Causes of Indonesian People Selling Covered Kidneys from a Criminology and Economic Perspective: Analysis Based on Rational Choice Theory. European Journal of Political Science Studies, Vol 5, Issue 1. [11] Van Reisen, M., & Mawere, M. (Eds.). (2017). Human trafficking and trauma in the digital era: The ongoing tragedy of the trade in refugees from Eritrea. African Books Collective. [12] The Independent Tribunal into Forced Organ Harvesting from Prisoners of Conscience in China (China Tribunal) (2020). https://chinatribunal.com/wp-content/uploads/2020/03/ChinaTribunal_JUDGMENT_1stMarch_2020.pdf [13] UN Office of the High Commissioner, Press Release, China: UN human Rights experts alarmed by ‘organ harvesting’ allegations (UN OTHCHR, 14 June 2021), https://www.ohchr.org/en/press-releases/2021/06/china-un-human-rights-experts-alarmed-organ-harvesting-allegations. [14] David Matas and David Kilgour, Bloody Harvest. The killing of Falun Gong for their organs (Seraphim Editions 2009). [15] How China is crushing the Uyghurs, The Economist, video documentary, July 9, 2019, https://youtu.be/GRBcP5BrffI. [16] Uyghur Tribunal, Judgment (9 December 2021) (Uyghur Tribunal Judgment) para 1, https://uyghurtribunal.com/wp-content/uploads/2022/01/Uyghur-Tribunal-Judgment-9th-Dec-21.pdf. [17] Ali Iqbal and Aliya Khan, Killing prisoners for transplants: Forced organ harvesting in China, The Conversation Published: July 28, 2022. https://theconversation.com/killing-prisoners-for-transplants-forced-organ-harvesting-in-china-161999 [18] Testimony demonstrated surgeries to remove vital organs from live people, killing them, sometimes without ample anesthesia to prevent wakefulness and pain. China Tribunal (2020), p. 416-417. https://chinatribunal.com/wp-content/uploads/2020/03/ChinaTribunal_JUDGMENT_1stMarch_2020.pdf; Robertson MP, Lavee J. (2022), Execution by organ procurement: Breaching the dead donor rule in China. Am J Transplant, Vol.22,1804– 1812. doi:10.1111/ajt.16969. [19] Doctors reported being summoned to execution grounds and told to harvest organs amid uncertainty that the prisoner was in fact dead. China Tribunal (2020), p. 52-53. [20]In testimony to the China Tribunal, Dr. Huige Li noted four methods of organ harvesting from live prisoners: incomplete execution by shooting, after lethal injection prior to death, execution by removal of the heart, and after a determination of brain death prior to an intubation (pretense of brain death). China Tribunal (2020), pp. 54-55. https://chinatribunal.com/wp-content/uploads/2020/03/ChinaTribunal_JUDGMENT_1stMarch_2020.pdf [21] A former military medical student described removing organs from a live prisoner in the late 1990s. He further described his inability to remove the eyes of a live man and his witnessing another doctor forcefully remove the man’s eyes. China Tribunal (2020), p. 330. [22] In 2006, a nurse testified that her ex-husband, a surgeon, removed the eyes of 2,000 Falun Gong practitioners in one hospital between 2001 and 2003. She described the Falun Gong labor-camp prisoners as being forced into operating rooms where they were given a shot to stop their hearts. Other doctors removed other organs. DAFOH Special Report, 2022. https://epochpage.com/wp-content/uploads/sites/3/2022/12/DAFOH-Special-Report-2022.pdf [23] Robertson MP, Lavee J. (2022), Execution by organ procurement: Breaching the dead donor rule in China. Am J Transplant, Vol.22,1804– 1812. doi:10.1111/ajt.16969. [24] DAFOH Special Report, 2022. https://epochpage.com/wp-content/uploads/sites/3/2022/12/DAFOH-Special-Report-2022.pdf; DAFOH’s physicians were nominated for a Nobel Prize for their work to stop forced organ harvesting. Šućur, A., & Gajović, S. (2016). Nobel Peace Prize nomination for Doctors Against Forced Organ Harvesting (DAFOH) - a recognition of upholding ethical practices in medicine. Croatian medical journal, 57(3), 219–222. https://doi.org/10.3325/cmj.2016.57.219 [25] Robertson and Lavee (2022). [26] Stop Organ Harvesting in China, website (organization of the Falun Dafa). https://www.stoporganharvesting.org/short-waiting-times/ [27] National Kidney Foundation, The Kidney Transplant Waitlist – What You Need to Know, https://www.kidney.org/atoz/content/transplant-waitlist [28] Wu, Y., Elliott, R., Li, L., Yang, T., Bai, Y., & Ma, W. (2018). Cadaveric organ donation in China: a crossroads for ethics and sociocultural factors. Medicine, 97(10). [29] Wu, Elliott, et al., (2018). [30] Su, Y. Y., Chen, W. B., Liu, G., Fan, L. L., Zhang, Y., Ye, H., ... & Jiang, M. D. (2018). An investigation and suggestions for the improvement of brain death determination in China. Chinese Medical Journal, 131(24), 2910-2914. [31] Huang, J., Millis, J. M., Mao, Y., Millis, M. A., Sang, X., & Zhong, S. (2012). A pilot programme of organ donation after cardiac death in China. The Lancet, 379(9818), 862-865. [32] Yang, Q., & Miller, G. (2015). East–west differences in perception of brain death: Review of history, current understandings, and directions for future research. Journal of bioethical inquiry, 12, 211-225. [33] Huang, J., Millis, J. M., Mao, Y., Millis, M. A., Sang, X., & Zhong, S. (2015). Voluntary organ donation system adapted to Chinese cultural values and social reality. Liver Transplantation, 21(4), 419-422. [34] Huang, Millis, et al. (2015). [35] Wu, X., & Fang, Q. (2013). Financial compensation for deceased organ donation in China. Journal of Medical Ethics, 39(6), 378-379. [36] An, N., Shi, Y., Jiang, Y., & Zhao, L. (2016). Organ donation in China: the major progress and the continuing problem. Journal of biomedical research, 30(2), 81. [37] Shi, B. Y., Liu, Z. J., & Yu, T. (2020). Development of the organ donation and transplantation system in China. Chinese medical journal, 133(07), 760-765. [38] Robertson, M. P., Hinde, R. L., & Lavee, J. (2019). Analysis of official deceased organ donation data casts doubt on the credibility of China’s organ transplant reform. BMC Medical Ethics, 20(1), 1-20. [39] Miller, F.G. and Sade, R. M. (2014). Consequences of the Dead Donor Rule. The Annals of thoracic surgery, 97(4), 1131–1132. https://doi.org/10.1016/j.athoracsur.2014.01.003 [40] For example, Miller and Sade (2014) and Miller and Truog (2008). [41] Omelianchuk, A. How (not) to think of the ‘dead-donor’ rule. Theor Med Bioeth 39, 1–25 (2018). https://doi-org.ezproxy.cul.columbia.edu/10.1007/s11017-018-9432-5 [42] Miller, F.G. and Truog, R.D. (2008), Rethinking the Ethics of Vital Organ Donations. Hastings Center Report. 38: 38-46. [43] Miller and Truog, (2008), p. 40, citing Callahan, D., The Troubled Dream of Life, p. 77. [44] Radcliffe-Richards, J., Daar, A.S., Guttman, R.D., Hoffenberg, R., Kennedy, I., Lock, M., Sells, R.A., Tilney, N. (1998), The Case for Allowing Kidney Sales, The Lancet, Vol 351, p. 279. (Authored by members of the International Forum for Transplant Ethics.) [45] Robertson and Lavee, (2022). [46] Robertson and Lavee, (2022). [47] China Tribunal (2020). [48] Consent varies by local law and may be explicit or presumed and use an opt-in or opt-out system and may or may not require the signoff by a close family member. [49] Bain, Christina, Mari, Joseph. June 26, 2018, Organ Trafficking: The Unseen Form of Human Trafficking, ACAMS Today, https://www.acamstoday.org/organ-trafficking-the-unseen-form-of-human-trafficking/; Stammers, T. (2022), "2: Organ trafficking: a neglected aspect of modern slavery", Modern Slavery and Human Trafficking, Bristol, UK: Policy Press. https://bristoluniversitypressdigital.com/view/book/978144736. [50] Do No Harm: Mitigating Human Rights Risks when Interacting with International Medical Institutions & Professionals in Transplantation Medicine, Global Rights Compliance, Legal Advisory Report, April 2022, https://globalrightscompliance.com/project/do-no-harm-policy-guidance-and-legal-advisory-report/. [51] Global Rights Compliance, p. 22. [52] The Stop Forced Organ Harvesting Act of 2023, H.R. 1154, 118th Congress (2023). https://www.congress.gov/bill/118th-congress/house-bill/1154. [53] The Stop Forced Organ Harvesting Act of 2023, H.R. 1154, 118th Congress (2023), https://www.congress.gov/bill/118th-congress/house-bill/1154. [54] Global Rights Compliance notes that Belgium, France (passed law on human rights due diligence in the value supply chain), United Kingdom, United States, Canada, Australia, and New Zealand have legal approaches, resolutions, and pending laws. p. 45. [55] For example, Caplan, A.L. (2020), The ethics of the unmentionable Journal of Medical Ethics 2020;46:687-688. [56] Caplan, A.L. , Danovitch, G., Shapiro M., et al. (2011) Time for a boycott of Chinese science and medicine pertaining to organ transplantation. Lancet, 378(9798):1218. doi:10.1016/S0140-6736(11)61536-5 [57] Robertson and Lavee. [58] Smolin, D. M. (2011). The Tuskegee syphilis experiment, social change, and the future of bioethics. Faulkner L. Rev., 3, 229; Gallin, S., & Bedzow, I. (2020). Holocaust as an inflection point in the development of bioethics and research ethics. Handbook of research ethics and scientific integrity, 1071-1090. [59] World Medical Association Declaration of Helsinki: Ethical Principles for Medical Research Involving Human Subjects, adopted by the 18th WMA General Assembly, Helsinki, Finland, June 1964, and amended multiple times, most recently by the 64th WMA General Assembly, Fortaleza, Brazil, October 2013. https://www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-for-medical-research-involving-human-subjects/

Introduction How do we measure intimacy? What are its impacts on our social, political and personal lives? Can we claim a politics to our intimate lives that escapes the normative confines of archaic institutions, while making social justice claims for relationship recognition? Negotiating some of these disparate questions requires us to think more broadly in contemporary public debates on equality and relationship recognition. Specifically, by outlining the impacts of the popular "gay marriage" debate, this paper examines the impacts of queer theory in association with public policy and community lobbying for relationship equality. Much of the debate remains polarised: eliminating discrimination is counterposed to religious or reproductive narratives that suggest such recognition undermines the value of the "natural" heterosexual family. Introducing queer theory into advocacy that oscillates between rights and reproduction problematises indexing intimacy against normative ideas of monogamy and family. While the arguments circulated by academics, lawyers, politicians and activists have disparate political and ethical impacts, when taken together, they continue to define marriage as a public regulation of intimacy and citizenship. Citizenship, measured in democratic participation and choice, however, can only be realised through reflexive politics that value difference. Encouraging critical dialogue across disparate areas of the marriage equality debate will have a significant impact on how we make ethical claims for recognising intimacy. (Re)defining Marriage In legislative terms, marriage remains the most fundamental means through which the relationship between citizenship and intimacy is crystallised in Australia. For example, in 2004 the Federal Liberal Government in Australia passed a legislative amendment to the Marriage Act 1961 and expressly defined marriage as a union between a man and a woman. By issuing a public legislative amendment, the Government intended to privilege monogamous (in this case understood as heterosexual) intimacy by precluding same-sex or polygamous marriage. Such an exercise had rhetorical rather than legal significance, as common law principles had previously defined the scope of marriage in gender specific terms for decades (Graycar and Millbank 41). Marriage as an institution, however, is not a universal or a-historical discourse limited to legal or political constructs. Socialist feminist critiques of marriage in the 1950s conceptualised the legal and gender specific constructs in marriage as a patriarchal contract designed to regulate female bodies (Hannam 146). However, Angela McRobbie notes that within a post-feminist context, these historical realities of gendered subjugation, reproduction or domesticity have been "disarticulated" (26). Marriage has become a more democratic and self-reflexive expression of intimacy for women. David Shumway elaborates this idea and argues that this shift has emerged in a context of "social solidarity" within a consumer environment of social fragmentation (23). What this implies is that marriage now evokes a range of cultural choices, consumer practices and affective trends that are incommensurable to a singular legal or historical term of reference. Debating the Politics of Intimacy and Citizenship In order to reflect on this shifting relationship between choice, citizenship and marriage as a concept, it is necessary to highlight that marriage extends beyond private articulations of love. It is a ritualised performance of heterosexual individual (or coupled) citizenship as it entrenches economic and civil rights and responsibilities. The private becomes public. Current neo-liberal approaches to same-sex marriage focus on these symbolic and economic questions of how recognising intimacy is tied to equality. In a legal and political context, marriage is defined in s5 Marriage Act as "the union between a man and a woman to the exclusion of all others, voluntarily entered into for life." While the Act does not imbue marriage with religious or procreative significance, such a gender dichotomous definition prevents same-sex and gender diverse partners from entering into marriage. For Morris Kaplan, this is a problem because "full equality for lesbian and gay citizens requires access to the legal and social recognition of our intimate associations" (201). Advocates and activists define the quest for equal citizenship by engaging with current religious dogma that situates marriage within a field of reproduction, whereby same-sex marriage is seen to rupture the traditional rubric of monogamous kinship and the biological processes of "gender complementarity" (Australian Christian Lobby 1). Liberal equality arguments reject such conservative assertions on the basis that desire, sexuality and intimacy are innate features of human existence and hence always already implicated in public spheres (Kaplan 202). Thus, legal visibility or state recognition becomes crucial to sustaining practices of intimacy. Problematising the broader social impact of a civil rights approach through the perspective of queer theory, the private/public distinctions that delineate citizenship and intimacy become more difficult to negotiate. Equality and queer theory arguments on same-sex marriage are difficult to reconcile, primarily because they signify the different psychic and cultural investments in the monogamous couple. Butler asserts that idealisations of the couple in legal discourse relates to norms surrounding community, family and nationhood (Undoing 116). This structured circulation of sexual norms reifies the hetero-normative forms of relationships that ought to be recognised (and are desired) by the state. Butler also interrogates this logic of marriage, as a heterosexual norm, and suggests it has the capacity to confine rather than liberate subjects (Undoing 118-20). The author's argument relies upon Michel Foucault's notion of power and subjection, where the subject is not an autonomous individual (as conceived in neo liberal discourses) but a site of disciplined discursive production (Trouble 63). Butler positions the heterosexuality of marriage as a "cultural and symbolic foundation" that renders forms of kinship, monogamy, parenting and community intelligible (Undoing 118). In this sense, marriage can be a problematic articulation of state interests, particularly in terms of perpetuating domesticity, economic mobility and the heterosexual family. As former Australian Prime Minister John Howard opines: Marriage is … one of the bedrock institutions of our society … marriage, as we understand it in our society, is about children … providing for the survival of the species. (qtd. in Wade) Howard's politicisation of marriage suggests that it remains crucial to the preservation of the nuclear family. In doing so, the statement also exemplifies homophobic anxieties towards non-normative kinship relations "outside the family". The Prime Ministers' words characterise marriage as a framework which privileges hegemonic ideas of monogamy, biological reproduction and gender dichotomy. Butler responds to these homophobic terms by alluding to the discursive function of a "heterosexual matrix" which codes and produces dichotomous sexes, genders and (hetero)sexual desires (Trouble 36). By refusing to accept the binary neo-liberal discourse in which one is either for or against gay marriage, Butler asserts that by prioritising marriage, the individual accepts the discursive terms of recognition and legitimacy in subjectifying what counts as love (Undoing 115). What this author's argument implies is that by recuperating marital norms, the individual is not liberated, but rather participates in the discursive "trap" and succumbs to the terms of a heterosexual matrix (Trouble 56). In contradistinction to Howard's political rhetoric, engaging with Foucault's broader theoretical work on sexuality and friendship can influence how we frame the possibilities of intimacy beyond parochial narratives of conjugal relationships. Foucault emphasises that countercultural intimacies rely on desires that are relegated to the margins of mainstream (hetero)sexual culture. For example, the transformational aesthetics in practices such as sadomasochism or queer polyamorous relationships exist due to certain prohibitions in respect to sex (Foucault, History (1) 38, and "Sex" 169). Foucault notes how forms of resistance that transgress mainstream norms produce new experiences of pleasure. Being "queer" (though Foucault does not use this word) becomes identified with new modes of living, rather than a static identity (Essential 138). Extending Foucault, Butler argues that positioning queer intimacies within a field of state recognition risks normalising relationships in terms of heterosexual norms whilst foreclosing the possibilities of new modes of affection. Jasbir Puar argues that queer subjects continue to feature on the peripheries of moral and legal citizenship when their practices of intimacy fail to conform to the socio-political dyadic ideal of matrimony, fidelity and reproduction (22-28). Puar and Butler's reluctance to embrace marriage becomes clearer through an examination of the obiter dicta in the recent American jurisprudence where the proscription on same-sex marriage was overturned in California: To the extent proponents seek to encourage a norm that sexual activity occur within marriage to ensure that reproduction occur within stable households, Proposition 8 discourages that norm because it requires some sexual activity and child-bearing and child-rearing to occur outside marriage. (Perry vs Schwarzenegger 128) By connecting the discourse of matrimony and sex with citizenship, the court reifies the value of marriage as an institution of the family, which should be extended to same-sex couples. Therefore, by locating the family in reproductive heterosexual terms, the court forecloses other modes of recognition or rights for those who are in non-monogamous relationships or choose not to reproduce. The legal reasoning in the case evinces the ways in which intimate citizenship or legitimate kinship is understood in highly parochial terms. As Kane Race elaborates, the suturing of domesticity and nationhood, with the rhetoric that "reproduction occur within stable households", frames heterosexual nuclear bonds as the means to legitimate sexual relations (98). By privileging a familial kinship aesthetic to marriage, the state implicitly disregards recognising the value of intimacy in non-nuclear communities or families (Race 100). Australia, however, unlike most foreign nations, has a dual model of relationship recognition. De facto relationships are virtually indistinguishable from marriage in terms of the rights and entitlements couples are able to access. Very recently, the amendments made by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Reform) Act 2008 (Cth) has ensured same-sex couples have been included under Federal definitions of de facto relationships, thereby granting same-sex couples the same material rights and entitlements as heterosexual married couples. While comprehensive de facto recognition operates uniquely in Australia, it is still necessary to question the impact of jurisprudence that considers only marriage provides the legitimate structure for raising children. As Laurent Berlant suggests, those who seek alternative "love plots" are denied the legal and cultural spaces to realise them ("Love" 479). Berlant's critique emphasises how current "progressive" legal approaches to same-sex relationships rely on a monogamous (heterosexual) trajectory of the "love plot" which marginalises those who are in divorced, single, polyamorous or multi-parent situations. For example, in the National Year of Action, a series of marriage equality rallies held across Australia over 2010, non-conjugal forms of intimacy were inadvertently sidelined in order to make a claim for relationship recognition. In a letter to the Sydney Star Observer, a reader laments: As a gay man, I cannot understand why gay people would want to engage in a heterosexual ritual called marriage … Why do gay couples want to buy into this ridiculous notion is beyond belief. The laws need to be changed so that gays are treated equal under the law, but this is not to be confused with marriage as these are two separate issues... (Michael 2) Marriage marks a privileged position of citizenship and consumption, to which all other gay and lesbian rights claims are tangential. Moreover, as this letter to the Sydney Star Observer implies, by claiming sexual citizenship through the rubric of marriage, discussions about other campaigns for legislative equality are effectively foreclosed. Melissa Gregg expands on such a problematic, noting that the legal responses to equality reiterate a normative relationship between sexuality and power, where only couples that subscribe to dyadic, marriage-like relationships are offered entitlements by the state (4). Correspondingly, much of the public activism around marriage equality in Australia seeks to achieve its impact for equality (reforming the Marriage Act) by positioning intimacy in terms of state legitimacy. Butler and Warner argue that when speaking of legitimacy a relation to what is legitimate is implied. Lisa Bower corroborates this, asserting "legal discourse creates norms which universalise particular modes of living…while suppressing other practices and identities" (267). What Butler's and Bower's arguments reveal is that legitimacy is obtained through the extension of marriage to homosexual couples. For example, Andrew Barr, the current Labor Party Education Minister in the Australian Capital Territory (ACT), noted that "saying no to civil unions is to say that some relationships are more legitimate than others" (quoted in "Legal Ceremonies"). Ironically, such a statement privileges civil unions by rendering them as the normative basis on which to grant legal recognition. Elizabeth Povinelli argues the performance of dyadic intimacy becomes the means to assert legal and social sovereignty (112). Therefore, as Jenni Millbank warns, marriage, or even distinctive forms of civil unions, if taken alone, can entrench inequalities for those who choose not to participate in these forms of recognition (8). Grassroots mobilisation and political lobbying strategies around marriage equality activism can have the unintentional impact, however, of obscuring peripheral forms of intimacy and subsequently repudiating those who contest the movement towards marriage. Warner argues that those who choose to marry derive pride from their monogamous commitment and "family" oriented practice, a privilege afforded through marital citizenship (82). Conversely, individuals and couples who deviate from the "normal" (read: socially palatable) intimate citizen, such as promiscuous or polyamorous subjects, are rendered shameful or pitiful. This political discourse illustrates that there is a strong impetus in the marriage equality movement to legitimate "homosexual love" because it mimics the norms of monogamy, stability, continuity and family by only seeking to substitute the sex of the "other" partner. Thus, civil rights discourse maintains the privileged political economy of marriage as it involves reproduction (even if it is not biological), mainstream social roles and monogamous sex. By defining social membership and future life in terms of a heterosexual life-narrative, same-sex couples become wedded to the idea of matrimony as the basis for sustainable intimacy and citizenship (Berlant and Warner 557). Warner is critical of recuperating discourses that privilege marriage as the ideal form of intimacy. This is particularly concerning when diverse erotic and intimate communities, which are irreducible to normative forms of citizenship, are subject to erasure. Que(e)rying the Future of Ethics and Politics By connecting liberal equality arguments with Butler and Warner's work on queer ethics, there is hesitation towards privileging marriage as the ultimate form of intimacy. Moreover, Butler stresses the importance of a transformative practice of queer intimacy: It is crucial…that we maintain a critical and transformative relation to the norms that govern what will not count as intelligible and recognisable alliance and kinship. (Undoing 117) Here the author attempts to negotiate the complex terrain of queer citizenship and ethics. On one hand, it is necessary to be made visible in order to engage in political activism and be afforded rights within a state discourse. Simultaneously, on the other hand, there is a need to transform the prevailing hetero-normative rhetoric of romantic love in order to prevent pathologising bodies or rendering certain forms of intimacy as aberrant or deviant because, as Warner notes, they do not conform to our perception of what we understand to be normal or morally desirable. Foucault's work on the aesthetics of the self offers a possible transformational practice which avoids the risks Warner and Butler mention because it eludes the "normative determinations" of moralities and publics, whilst engaging in an "ethical stylization" (qtd. in Race 144). Whilst Foucault's work does not explicitly address the question of marriage, his work on friendship gestures to the significance of affective bonds. Queer kinship has the potential to produce new ethics, where bodies do not become subjects of desires, but rather act as agents of pleasure. Negotiating the intersection between active citizenship and transformative intimacy requires rethinking the politics of recognition and normalisation. Warner is quite ambivalent as to the potential of appropriating marriage for gays and lesbians, despite the historical dynamism of marriage. Rather than acting as a progressive mechanism for rights, it is an institution that operates by refusing to recognise other relations (Warner 129). However, as Alexander Duttmann notes, recognition is more complex and a paradoxical means of relation and identification. It involves a process in which the majority neutralises the difference of the (minority) Other in order to assimilate it (27). However, in the process of recognition, the Other which is validated, then transforms the position of the majority, by altering the terms by which recognition is granted. Marriage no longer simply confers recognition for heterosexual couples to engage in reproduction (Secomb 133). While some queer couples may subscribe to a monogamous relationship structure, these relationships necessarily trouble conservative politics. The lamentations of the Australian Christian Lobby regarding the "fundamental (anatomical) gender complementarity" of same-sex marriage reflect this by recognising the broader social transformation that will occur (and already does with many heterosexual marriages) by displacing the association between marriage, procreation and parenting (5). Correspondingly, Foucault's work assists in broadening the debate on relationship recognition by transforming our understanding of choice and ethics in terms of "queer friendship." He describes it as a practice that resists the normative public distinction between romantic and platonic affection and produces new aesthetics for sexual and non-sexual intimacy (Foucault, Essential 170). Linnell Secomb argues that this "double potential" alluded to in Foucault and Duttman's work, has the capacity to neutralise difference as Warner fears (133). However, it can also transform dominant narratives of sexual citizenship, as enabling marriage equality will impact on how we imagine traditional heterosexual or patriarchal "plots" to intimacy (Berlant, "Intimacy" 286). Conclusion Making an informed impact into public debates on marriage equality requires charting the locus of sexuality, intimacy and citizenship. Negotiating academic discourses, social and community activism, with broader institutions and norms presents political and social challenges when thinking about the sorts of intimacy that should be recognised by the state. The civil right to marriage, irrespective of the sex or gender of one's partner, reflects a crucial shift towards important democratic participation of non-heterosexual citizens. However, it is important to note that the value of such intimacy cannot be indexed against a single measure of legal reform. While Butler and Warner present considered indictments on the normalisation of queer intimacy through marriage, such arguments do not account for the impacts of que(e)rying cultural norms and practices through social and political change. Marriage is not a singular or a-historical construction reducible to state recognition. Moreover, in a secular democracy, marriage should be one of many forms of diverse relationship recognition open to same-sex and gender diverse couples. In order to expand the impact of social and legal claims for recognition, it is productive to rethink the complex nature of recognition, ritual and aesthetics within marriage. In doing so, we can begin to transform the possibilities for articulating intimate citizenship in plural democracies. References Australian Christian Lobby. "Submission to the Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the Marriage Equality Amendment Bill 2009." Deakin: ACL, 2009. Australian Government. "Sec. 5." Marriage Act of 1961 (Cth). 1961. ———. Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Reform) Act 2008 (Cth). 2008. Bell, David, and John Binnie. The Sexual Citizen: Queer Politics and Beyond. Oxford: Polity P, 2000. Berlant, Lauren. "Intimacy: A Special Issue." Critical Inquiry 24 (1998): 281-88. ———. "Love, a Queer Feeling." Homosexuality and Psychoanalysis. Eds. Tim Dean and Christopher Lane. Chicago: U of Chicago P, 2001:432-52. Berlant, Lauren, and Michael Warner. "Sex in Public." Ed. Lauren Berlant. Intimacy. Chicago and London: U of Chicago P, 2000: 311-30. Bower, Lisa. "Queer Problems/Straight Solutions: The Limits of a Politics of 'Official Recognition'" Playing with Fire: Queer Politics, Queer Theories. Ed. Shane Phelan. London and New York: Routledge, 1997: 267-91. Butler, Judith. Gender Trouble: Feminism and the Subversion of Identity. New York and London: Routledge, 1990. ———. Undoing Gender. New York: Routledge, 2004. Duttmann, Alexander. Between Cultures: Tensions in the Struggle for Recognition. London: Verso, 2000. Foucault, Michel. The History of Sexuality (1): The Will to Knowledge. London: Penguin Books, 1977. ———. "Sex, Power and the Politics of Identity." Ethics: Subjectivity and Truth. Ed. Paul Rabinow. London: Allen Lange/Penguin, 1984. 163-74. ———. Essential Works of Foucault: 1954-1984: Ethics, Vol. 1. London: Penguin, 2000. Graycar, Reg, and Jenni Millbank. "From Functional Families to Spinster Sisters: Australia's Distinctive Path to Relationship Recognition." Journal of Law and Policy 24. 2007: 1-44. Gregg, Melissa. "Normal Homes." M/C Journal 10.4 (2007). 27 Aug. 2007 ‹http://journal.media-culture.org.au/0708/02-gregg.php›. Hannam, Jane. Feminism. London and New York: Pearson Education, 2007. Kaplan, Morris. "Intimacy and Equality: The Question of Lesbian and Gay Marriage." Playing with Fire: Queer Politics, Queer Theories. Ed. Shane Phelan. London and New York: Routledge, 1997: 201-30. "Legal Ceremonies for Same-Sex Couples." ABC Online 11 Nov. 2009. 13 Dec. 2011 ‹http://www.abc.net.au/news/stories/2009/11/11/2739661.htm›. McRobbie, Angela. The Aftermath of Feminism: Gender, Culture and Social Change. London and New York: Sage, 2008. Michael. "Why Marriage?" Letter to the Editor. Sydney Star Observer 1031 (20 July 2010): 2. Millbank, Jenni. "Recognition of Lesbian and Gay Families in Australian Law - Part One: Couples." Federal Law Review 34 (2008): 1-44. Perry v. Schwarzenegger. 3: 09 CV 02292. United States District Court for the Northern District of California. 2010. Povinelli, Elizabeth. Empire of Love: Toward a Theory of Intimacy, Genealogy and Carnality. Durham: Duke UP, 2006. Puar, Jasbir. Terrorist Assemblages: Homonationalism in Queer Times. Durham: Duke UP, 2007. Race, Kane. Pleasure Consuming Medicine: The Queer Politics of Drugs. Durham and London: Duke UP, 2009. Secomb, Linnell. Philosophy and Love. Edinburgh: Edinburgh UP, 2007. Shumway, David. Modern Love: Romance, Intimacy and the Marriage Crisis. New York: New York UP, 2003. Wade, Matt. "PM Joins Opposition against Gay Marriage as Cleric's Election Stalls." The Sydney Morning Herald 6 Aug. 2003. Warner, Michael. The Trouble with Normal: Sex, Politics and the Ethics of Queer Life. Cambridge: Harvard UP, 1999.

Introduction Children are not only born digital, they are fashioned toward a lifestyle that needs them to be digital all the time (Palfrey and Gasser). They click, tap, save, circulate, download, and upload the texts of their lives, their friends’ lives, and the anonymous lives of the people that surround them. They are socialised as Internet consumers ready to participate in digital services targeted to them as they age such as Snapchat, Instagram, and YouTube. But they are also fashioned as producers, whereby their lives are sold as content on these same markets. As commodities, the minutiae of their lives become the fodder for online circulation. Paradoxically, we also celebrate these digital behaviours as a means to express identity. Personal profile-building for adults is considered agency-building (Beer and Burrows), and as a consequence, we praise children for mimicking these acts of adult lifestyle. This article reflects on the Kids, Creative Storyworlds, and Wearables project, which involved an ethnographic study with five young children (ages 4-7), who were asked to share their autobiographical stories, creative self-narrations, and predictions about their future mediated lives (Atkins et al.). For this case study, we focus on commercialised forms of children’s automedia, and we compare discussions we had with 6-year old Cayden, a child we met in the study who expresses the desire to make himself famous online, with videos of Jacob, a child vlogger on YouTube’s Kinder Playtime, who clearly influences children like Cayden. We argue that child social influencers need consideration both as autobiographical agents and as child subjects requiring a sheltered approach to their online lives.Automedia Automedia is an emergent genre of autobiography (Smith and Watson Reading 190; “Virtually Me” 78). Broadcasting one’s life online takes many forms (Kennedy “Vulnerability”). Ümit Kennedy argues “Vlogging on YouTube is a contemporary form of autobiography in which individuals engage in a process of documenting their life on a daily or weekly basis and, in doing so, construct[ing] their identity online” (“Exploring”). Sidonie Smith and Julia Watson write that “visual and digital modes are projecting and circulating not just new subjects but new notions of subjectivity through the effects of automediality” with the result that “the archive of the self in time, in space and in relation expands and is fundamentally reorganized” (Reading 190). Emma Maguire addresses what online texts “tell us about cultural understandings of selfhood and what it means to communicate ‘real’ life through media” naming one tool, “automedia”. Further, Julie Rak calls on scholars “to rethink ‘life’ and ‘writing’ as automedia” to further “characterize the enactment of a personal life story in a new media environment.” We define automedia as a genre that involves the practices of creating, performing, sharing, circulating, and (at times) preserving one’s digital life narrative meant for multiple publics. Automedia revises identity formation, embodiment, or corporealities in acts of self-creation (Brophy and Hladki 4). Automedia also emphasizes circulation. As shared digital life texts now circulate through the behaviours of other human subjects, and automatically via algorithms in data assemblages, we contend that automediality currently involves a measure of relinquishing control over perpetually evolving mediatised environments. One cannot control how a shared life narrative will meet a public in the future, which is a revised way of thinking about autobiography. For the sake of this paper, we argue that children’s automedia ought to be considered a creative, autobiographical act, in order to afford child authors who create them the consideration they deserve as agents, now and in the future. Automedial practices often begin when children receive access to a device. The need for a distraction activity is often the reason parents hand a young child a smartphone, iPad, or even a wearable camera (Nansen). Mirroring the lives of parents, children aspire to share representations of their own personal lives in pursuit of social capital. They are often encouraged to use technologies and apps as adults do–to track aspects of self, broadcast life stories and eventually “live share” them—effectively creating, performing, sharing, and at times, seeking to preserve a public life narrative. With this practice, society inculcates children into spheres of device ubiquity, “socializing them to a future digital lifestyle that will involve always carrying a computer in some form” (Atkins et al. 49). Consequently, their representations become inculcated in larger media assemblages. Writing about toddlers, Nansen describes how the “archiving, circulation and reception of these images speaks to larger assemblages of media in which software protocols and algorithms are increasingly embedded in and help to configure everyday life (e.g. Chun; Gillespie), including young children’s media lives (Ito)” (Nansen). Children, like adult citizens, are increasingly faced with choices “not structured by their own preferences but by the economic imperatives of the private corporations that have recently come to dominate the internet” (Andrejevic). Recent studies have shown that for children and youth in the digital age, Internet fame, often characterized by brand endorsements, is a major aspiration (Uhls and Greenfield, 2). However, despite the ambition to participate as celebrity digital selves, children are also mired in the calls to shield them from exposure to screens through institutions that label these activities detrimental. In many countries, digital “protections” are outlined by privacy commissioners and federal or provincial/state statutes, (e.g. Office of the Privacy Commissioner of Canada). Consequently, children are often caught in a paradox that defines them either as literate digital agents able to compose or participate with their online selves, or as subjectified wards caught up in commercial practices that exploit their lives for commercial gain.Kids, Creative Storyworlds and Wearables ProjectBoth academic and popular cultural critics continually discuss the future but rarely directly engage the people who will be empowered (or subjugated) by it as young adults in twenty years. To address children’s lack of agency in these discussions, we launched the Kids, Creative Storyworlds and Wearables project to bring children into a dialogue about their own digital futures. Much has been written on childhood agency and participation in culture and mediated culture from the discipline of sociology (James and James; Jenks; Jenkins). In previous work, we addressed the perspective of child autobiographical feature filmmakers to explore issues of creative agency and consent when adult gatekeepers facilitate children in film production (Pedersen and Aspevig “My Eyes”; Pedersen and Aspevig “Swept”). Drawing on that previous work, this project concentrates on children’s automediated lives and the many unique concerns that materialize with digital identity-building. Children are categorised as a vulnerable demographic group necessitating special policy and legislation, but the lives they project as children will eventually become subsumed in their own adult lives, which will almost certainly be treated and mediated in a much different manner in the future. We focused on this landscape, and sought to query the children on their futures, also considering the issues that arise when adult gatekeepers get involved with child social media influencers. In the Storyworlds ethnographic study, children were given a wearable toy, a Vtech smartwatch called Kidizoom, to use over a month’s timeframe to serve as a focal point for ethnographic conversations. The Kidizoom watch enables children to take photos and videos, which are uploaded to a web interface. Before we gave them the tech, we asked them questions about their lives, including What are machines going to be like in the future? Can you imagine yourself wearing a certain kind of computer? Can you tell/draw a story about that? If you could wear a computer that gave you a super power, what would it be? Can you use your imagination to think of a person in a story who would use technology? In answering, many of them drew autobiographical drawings of technical inventions, and cast themselves in the images. We were particularly struck by the comments made by one participant, Cayden (pseudonym), a 6-year-old boy, and the stories he told us about himself and his aspirations. He expressed the desire to host a YouTube channel about his life, his activities, and the wearable technologies his family already owned (e.g. a GroPro camera) and the one we gave him, the Kidizoom smartwatch. He talked about how he would be proud to publically broadcast his own videos on YouTube, and about the role he had been allowed to play in the making of videos about his life (that were not broadcast). To contextualize Cayden’s commentary and his automedial aspirations, we extended our study to explore child social media influencers who broadcast components of their personal lives for the deliberate purpose of popularity and the financial gain of their parents.We selected the videos of Jacob, a child vlogger because we judged them to be representative of the kinds that Cayden watched. Jacob reviews toys through “unboxing videos,” a genre in which a child tells an online audience her or his personal experiences using new toys in regular, short videos on a social media site. Jacob appears on a YouTube channel called Kinder Playtime, which appears to be a parent-run channel that states that, “We enjoy doing these things while playing with our kids: Jacob, Emily, and Chloe” (see Figure 1). In one particular video, Jacob reviews the Kidizoom watch, serving as a child influencer for the product. By understanding Jacob’s performance as agent-driven automedia, as well as being a commercialised, mediatised form of advertising, we get a clearer picture of how the children in the study are coming to terms with their own digital selfhood and the realisation that circulated, life-exposing videos are the expectation in this context.Children are implicated in a range of ways through “family” influencer and toy unboxing videos, which are emergent entertainment industries (Abidin 1; Nansen and Nicoll; Craig and Cunningham 77). In particular, unboxing videos do impact child viewers, especially when children host them. Jackie Marsh emphasizes the digital literacy practices at play here that co-construct viewers as “cyberflâneur[s]” and she states that “this mode of cultural transmission is a growing feature of online practices for this age group” (369). Her stress, however, is on how the child viewer enjoys “the vicarious pleasure he or she may get from viewing the playing of another child with the toy” (376). Marsh writes that her study subject, a child called “Gareth”, “was not interested in being made visible to EvanHD [a child celebrity social media influencer] or other online peers, but was content to consume” the unboxing videos. The concept of the cyberflâneur, then, is fitting as a mediatising co-constituting process of identity-building within discourses of consumerism. However, in our study, the children, and especially Cayden, also expressed the desire to create, host, and circulate their own videos that broadcast their lives, also demonstrating awareness that videos are valorised in their social circles. Child viewers watch famous children perform consumer-identities to create an aura of influence, but viewers simultaneously aspire to become influencers using automedial performances, in essence, becoming products, themselves. Jacob, Automedial Subjects and Social Media InfluencersJacob is a vlogger on YouTube whose videos can garner millions of views, suggesting that he is also an influencer. In one video, he appears to be around the age of six as he proudly sits with folded hands, bright eyes, and a beaming, but partly toothless smile (see Figure 2). He says, “Welcome to Kinder Playtime! Today we have the Kidi Zoom Smartwatch DX. It’s from VTech” (Kinder Playtime). We see the Kidi Zoom unboxed and then depicted in stylized animations amid snippets of Jacob’s smiling face. The voice and hands of a faceless parent guide Jacob as he uses his new wearable toy. We listen to both parent and child describe numerous features for recording and enhancing the wearer’s daily habits (e.g. calculator, calendar, fitness games), and his dad tells him it has a pedometer “which tracks your steps” (Kinder Playtime). But the watch is also used by Jacob to mediate himself and his world. We see that Jacob takes pictures of himself on the tiny watch screen as he acts silly for the camera. He also uses the watch to take personal videos of his mother and sister in his home. The video ends with his father mentioning bedtime, which prompts a “thank you” to VTech for giving him the watch, and a cheerful “Bye!” from Jacob (Kinder Playtime). Figure 1: Screenshot of Kinder Playtime YouTube channel, About page Figure 2: Screenshot of “Jacob,” a child vlogger at Kinder Playtime We chose Jacob for three reasons. First, he is the same age as the children in the Storyworlds study. Second, he reviews the smart watch artifact that we gave to the study children, so there was a common use of automedia technology. Third, Jacob’s parents were involved with his broadcasts, and we wanted to work within the boundaries of parent-sanctioned practices. However, we also felt that his playful approach was a good example of how social media influence overlaps with automediality. Jacob is a labourer trading his public self-representations in exchange for free products and revenue earned through the monetisation of his content on YouTube. It appears that much of what Jacob says is scripted, particularly the promotional statements, like, “Today we have the Kidizoom Smartwatch DX. It’s from VTech. It’s the smartest watch for kids” (Kinder Playtime). Importantly, as an automedial subject Jacob reveals aspects of his self and his identity, in the manner of many child vloggers on public social media sites. His product reviews are contextualised within a commoditised space that provides him a means for the public performance of his self, which, via YouTube, has the potential to reach an enormous audience. YouTube claims to have “over a billion users—almost one-third of all people on the Internet—and every day people watch hundreds of millions of hours on YouTube and generate billions of views” (YouTube). Significantly, he is not only filmed by others, Jacob is also a creative practitioner, as Cayden aspired to become. Jacob uses high-tech toys, in this case, a new wearable technology for self-compositions (the smart watch), to record himself, friends, family or simply the goings-on around him. Strapped to his wrist, the watch toy lets him play at being watched, at being quantified and at recording the life stories of others, or constructing automediated creations for himself, which he may upload to numerous social media sites. This is the start of his online automediated life, which will be increasingly under his ownership as he ages. To greater or lesser degrees, he will later be able to curate, add to, and remediate his body of automedia, including his digital past. Kennedy points out that “people are using YouTube as a transformative tool, and mirror, to document, construct, and present their identity online” (“Exploring”). Her focus is on adult vloggers who consent to their activities. Jacob’s automedia is constructed collaboratively with his parents, and it is unclear how much awareness he has of himself as an automedia creator. However, if we don’t afford Jacob the same consideration as we afford adult autobiographers, that the depiction of his life is his own, we will reduce his identity performance to pure artifice or advertisement. The questions Jacob’s videos raise around agency, consent, and creativity are important here. Sidonie Smith asks “Can there be a free, agentic space; and if so, where in the world can it be found?” (Manifesto 188). How much agency does Jacob have? Is there a liberating aspect in the act of putting personal technology into the hands of a child who can record his life, himself? And finally, how would an adult Jacob feel about his childhood self advertising these products online? Is this really automediality if Jacob does not fully understand what it means to publicly tell a mediated life story?These queries lead to concerns over child social media influence with regard to legal protection, marketing ethics, and user consent. The rise of “fan marketing” presents a nexus of stealth marketing to children by other children. Stealth marketing involves participants, in this case, fans, who do not know they are involved in an advertising scheme. For instance, the popular Minecon Minecraft conference event sessions have pushed their audience to develop the skills to become advocates and advertisers of their products, for example by showing audiences how to build a YouTube channel and sharing tips for growing a community. Targeting children in marketing ploys seems insidious. Marketing analyst Sandy Fleisher describes the value of outsourcing marketing to fan labourers:while Grand Theft Auto spent $120 million on marketing its latest release, Minecraft fans are being taught how to create and market promotional content themselves. One [example] is Minecraft YouTuber, SkydoesMinecraft. His nearly 7 million strong YouTube army, almost as big as Justin Bieber’s, means his daily videos enjoy a lot of views; 1,419,734,267 to be precise. While concerns about meaningful consent that practices like this raise have led some government bodies, and consumer and child protection groups to advocate restrictions for children, other critics have questioned the limits placed on children’s free expression by such restrictions. Tech commentator Larry Magid has written that, “In the interest of protecting children, we sometimes deny them the right to access material and express themselves.” Meghan M. Sweeney notes that “the surge in collaborative web models and the emphasis on interactivity—frequently termed Web 2.0—has meant that children are not merely targets of global media organizations” but have “multiple opportunities to be active, critical, and resistant producers”...and ”may be active agents in the production and dissemination of information” (68). Nevertheless, writes Sweeney, “corporate entities can have restrictive effects on consumers” (68), by for example, limiting imaginative play to the choices offered on a Disney website, or limiting imaginative topics to commercial products (toys, video games etc), as in YouTube review videos. Automedia is an important site from which to consider young children’s online practices in public spheres. Jacob’s performance is indeed meant to influence the choice to buy a toy, but it is also meant to influence others in knowing Jacob as an identity. He means to share and circulate his self. Julie Rak recalls Paul John Eakin’s claims about life-writing that the “process does not even occur at the level of writing, but at the level of living, so that identity formation is the result of narrative-building.” We view Jacob’s performance along these lines. Kinder Playtime offers him a constrained, parent-sanctioned (albeit commercialised) space for role-playing, a practice bound up with identity-formation in the life of most children. To think through the legality of recognising Jacob’s automedial content as his life, Rak is also useful: “In Eakin’s work in particular, we can see evidence of John Locke’s contention that identity is the expression of consciousness which is continuous over time, but that identity is also a product, one’s own property which is a legal entity”. We have argued that children are often caught in the paradox that defines them either as literate digital creators composing and circulating their online selves or as subjectified personas caught up in commercial advertising practices that use their lives for commercial gain. However, through close observation of individual children, one who we met and questioned in our study, Cayden, the other who we met through his mediated, commercialized, and circulated online persona, Jacob, we argue that child social influencers need consideration as autobiographical agents expressing themselves through automediality. As children create, edit, and grow digital traces of their lives and selves, how these texts are framed becomes increasingly important, in part because their future adult selves have such a stake in the matter: they are being formed through automedia. Moreover, these children’s coming of age may bring legal questions about the ownership of their automedial products such as YouTube videos, an enduring legacy they are leaving behind for their adult selves. Crucially, if we reduce identity performances such as unboxing, toy review videos, and other forms of children’s fan marketing to pure advertisement, we cannot afford Jacob and other child influencers the agency that their self representation is legally and artistically their own.ReferencesAbidin, Crystal. “#familygoals: Family Influencers, Calibrated Amateurism, and Justifying Young Digital Labor.” Social Media + Society 3.2 (2017): 1-15.Andrejevic, Mark. “Privacy, Exploitation, and the Digital Enclosure.” Amsterdam Law Forum 1.4 (2009). <http://amsterdamlawforum.org/article/view/94/168>.Atkins, Bridgette, Isabel Pedersen, Shirley Van Nuland, and Samantha Reid. “A Glimpse into the Kids, Creative Storyworlds and Wearables Project: A Work-in-Progress.” ICET 60th World Assembly: Teachers for a Better World: Creating Conditions for Quality Education – Pedagogy, Policy and Professionalism. 2017. 49-60.Beer, David, and Roger Burrows. “Popular Culture, Digital Archives and the New Social Life of Data.” Theory, Culture & Society 30.4 (2013): 47–71.Brophy, Sarah, and Janice Hladki. 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M/C Journal 19.4 (2016). <http://journal.media-culture.org.au/index.php/mcjournal/article/view/1127>.———. “The Vulnerability of Contemporary Digital Autobiography” a/b: Auto/Biography Studies 32.2 (2017): 409-411.Kinder Playtime. “VTech Kidizoom Smart Watch DX Review by Kinder Playtime.” YouTube, 4 Nov. 2015. <https://www.youtube.com/watch?v=JaxCSjwZjcA&t=28s>.Magid, Larry. “Protecting Children Online Needs to Allow for Their Right to Free Speech.” ConnectSafely 29 Aug. 2014. <http://www.connectsafely.org/protecting-children-online-needs-to-allow-for-their-right-to-free-speech/>.Maguire, Emma. “Home, About, Shop, Contact: Constructing an Authorial Persona via the Author Website.” M/C Journal 17.3 (2014). <http://journal.media-culture.org.au/index.php/mcjournal/article/view/821>.Marsh, Jackie. “‘Unboxing’ Videos: Co-construction of the Child as Cyberflâneur.” Discourse: Studies in the Cultural Politics of Education 37.3 (2016): 369-380.Nansen, Bjorn. “Accidental, Assisted, Automated: An Emerging Repertoire of Infant Mobile Media Techniques.” M/C Journal 18.5 (2015). <http://journal.media-culture.org.au/index.php/mcjournal/article/view/1026>.———, and Benjamin Nicoll. “Toy Unboxing Videos and the Mimetic Production of Play.” Paper presented at the 18th Annual Conference of Internet Researchers (AoIR), Tartu, Estonia. 2017.Palfrey, John, and Urs Gasser. 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It is the same spectacle all over the Western world: whenever delegates gather to discuss the development and consequences of new media technologies, a handful of people among them will stand out from the crowd, and somehow seem not quite to fit in with the remaining assortment of techno-evangelists, Internet ethnographers, multimedia project leaders, and online culture critics. At some point in the proceedings, they'll get to the podium and hold a talk on their ideas for the future of copyright protection and intellectual property (IP) rights in the information age; when they are finished, the reactions of the audience typically range from mild "what was that all about?" amusement to sheer "they haven't got a clue" disbelief. Spare a thought for copyright lawyers; they're valiantly fighting a losing battle. Ever since the digitalisation and networking of our interpersonal and mass media made information transmission and duplication effortless and instantaneous, they've been trying to come up with ways to uphold and enforce concepts of copyright which are fundamentally linked to information as bound to physical objects (artifacts, books, CDs, etc.), as Barlow has demonstrated so clearly in "Selling Wine without Bottles". He writes that "copyright worked well because, Gutenberg notwithstanding, it was hard to make a book. ... Books had material surfaces to which one could attach copyright notices, publisher's marques, and price tags". If you could control the physical media which were used to transmit information (paper, books, audio and video tapes, as well as radio and TV sets, or access to cable systems), you could control who made copies when and where, and at what price. This only worked as long as the technology to make copies was similarly scarce, though: as soon as most people learnt to write, or as faxes and photocopiers became cheaper, the only real copyright protection books had was the effort that would have to be spent to copy them. With technology continuously advancing (perhaps even at accellerating pace), copyright is soon becoming a legal fiction that is losing its link to reality. Indeed, we are now at a point where we have the opportunity -- the necessity, even -- to shift the fictional paradigm, to replace the industrial-age fiction of protective individual copyright with an information-age fiction of widespread intellectual cooperation. As it becomes ever easier to bypass and ignore copyright rules, and as copyright thus becomes ever more illusionary, this new fiction will correspondingly come ever closer to being realised. To Protect and to ... Lose Today, the lawyers' (and their corporate employers') favourite weapon in their fight against electronic copyright piracy are increasingly elaborate protection mechanisms -- hidden electronic signatures to mark intellectual property, electronic keys to unlock copyrighted products only for legitimate users (and sometimes only for a fixed amount of time or after certain licence payments), encryption of sensitive information, or of entire products to prevent electronic duplication. While the encryption of information exchanges between individuals has been proven to be a useful deterrent against all but the most determined of hackers, it's interesting to note that practically no electronic copyright protection mechanism of mass market products has ever been seen to work. However good and elaborate the protection efforts, it seems that as long as there is a sufficient number of interested consumers unwilling to pay for legitimate access, copy protections will be cracked eventually: the rampant software piracy is the best example. On the other hand, where copy protections become too elaborate and cumbersome, they end up killing the product they are meant to protect: this is currently happening in the case of some of the pay-per-view or limited-plays protection schemes forced upon the U.S. market for Digital Versatile Discs (DVDs). The eventual failure of such mechanisms isn't a particularly recent observation, even. When broadcast radio was first introduced in Australia in 1923, it was proposed that programme content should be protected (and stations financed) by fixing radio receivers to a particular station's frequency -- by buying such a 'sealed set' receiver you would in effect subscribe to a station and acquire the right to receive the content it provided. Never known as uninventive, those Australians who this overprotectiveness didn't completely put off buying a receiver (radio was far from being a proven mass medium at the time, after all) did of course soon break the seal, and learnt to adjust the frequency to try out different stations -- or they built their own radios from scratch. The 'sealed set' scheme was abandoned after only nine months. Even with the development of copy protection schemes since the 1920s, a full (or at least sufficiently comprehensive) protection of intellectual property seems as unattainable a fiction as it was then. Protection and copying technology are never far apart in development anyway, but even more fundamentally, the protected products are eventually meant to be used, after all. No matter how elaborately protected a CD, a video, or a computer programme is, it will still have to be converted into sound waves, image information, or executable code, and at that level copying will still remain possible. In the absence of workable copy protection, however, copies will be made in large amounts -- even more so since information is now being spread and multiplied around the globe virtually at the speed of light. Against this tide of copies, any attempts to use legislation to at least force the payment of royalties from illegitimate users are also becoming increasingly futile. While there may be a few highly publicised court cases, the multitude of small transgressions will remain unanswered. This in turn undermines the equality before the law that is a basic human right: increasingly, the few that are punished will be able to argue that, if "everybody does it", to single them out is highly unfair. At the same time, corporate efforts to uphold the law may be counterproductive: as Barlow writes, "against the swift tide of custom, the Software Publishers' current practice of hanging a few visible scapegoats is so obviously capricious as to only further diminish respect for the law". Quite simply, their legal costs may not be justified by the results anymore. Abandoning Copyright Law If copyright has become a fiction, however -- one that is still, despite all evidence, posited as reality by the legal system --, and if the makeup of today's electronic media, particularly the Internet, allow that fiction to be widely ignored and circumvented in daily practice -- despite all corporate legal efforts --, how is this disparity between law and reality to be solved? Barlow offers a clear answer: "whenever there is such profound divergence between the law and social practice, it is not society that adapts". He goes on to state that it may well be that when the current system of intellectual property law has collapsed, as seems inevitable, that no new legal structure will arise in its place. But something will happen. After all, people do business. When a currency becomes meaningless, business is done in barter. When societies develop outside the law, they develop their own unwritten codes, practices, and ethical systems. While technology may undo law, technology offers methods for restoring creative rights. When William Gibson invented the term 'cyberspace', he described it as a "consensual hallucination" (67). As the removal of copyright to the realm of the fictional has been driven largely by the Internet and its 'freedom of information' ethics, perhaps it is apt to speak of a new approach to intellectual property (or, with Barlow, to 'creative rights') as one of consensual, collaborative use of such property. This approach is far from being fully realised yet, and must so for now remain fiction, too, but it is no mere utopian vision -- in various places, attempts are made to put into place consensual schemes of dealing with intellectual property. They also represent a move from IP hoarding to IP use. Raymond speaks of the schemes competing here as the 'cathedral' and the 'bazaar' system. In the cathedral system, knowledge is tightly controlled, and only the finished product, "carefully crafted by individual wizards or small bands of mages working in splendid isolation" (1), is ever released. This corresponds to traditional copyright approaches, where company secrets are hoarded and locked away (sometimes only in order to keep competitors from using them), and breaches punished severely. The bazaar system, on the other hand, includes the entire community of producers and users early on in the creative process, up to the point of removing the producer/user dichotomy altogether: "no quiet, reverent cathedral-building here -- rather, ... a great babbling bazaar of differing agendas and approaches ... out of which a coherent and stable system could seemingly emerge only by a succession of miracles", as Raymond admits (1). The Linux 'Miracle' Raymond writes about one such bazaar-system project which provides impressive proof that the approach can work, however: the highly acclaimed Unix-based operating system Linux. Instigated and organised by Finnish programmer Linus Torvalds, this enthusiast-driven, Internet-based development project has achieved more in less than a decade than what many corporate developers (Microsoft being the obvious example) can do in thrice that time, and with little financial incentive or institutional support at that. As Raymond describes, "the Linux world behaves in many respects like a free market or an ecology, a collection of selfish agents attempting to maximise utility which in the process produces a self-correcting spontaneous order more elaborate and efficient than any amount of central planning could achieve" (10). Thus, while there is no doubt that individual participants will eventually always also be driven by selfish reasons, there is collaboration towards the achievement of communal goals, and a consensus about what those goals are: "while coding remains an essentially solitary activity, the really great hacks come from harnessing the attention and brainpower of entire communities. The developer who uses only his or her own brain in a closed project is going to fall behind the developer who knows how to create an open, evolutionary context in which bug-spotting and improvements get done by hundreds of people" (Raymond 10). It is obvious that such collaborative projects need a structure that allows for the immediate participation of a large community, and so in the same way that the Internet has been instrumental in dismantling traditional copyright systems, it is also a driving factor in making these new approaches possible: "Linux was the first project to make a conscious and successful effort to use the entire world as its talent pool. I don't think it's a coincidence that the gestation period of Linux coincided with the birth of the World Wide Web, and that Linux left its infancy during the same period in 1993-1994 that saw the takeoff of the ISP industry and the explosion of mainstream interest in the Internet. Linus was the first person who learned how to play by the new rules that pervasive Internet made possible" (Raymond 10). While some previous collaborative efforts exist (such as shareware schemes, which have existed ever since the advent of programmable home computers), their comparatively limited successes underline the importance of a suitable communication medium. The success of Linux has now begun to affect corporate structures, too: informational material for the Mozilla project, in fact, makes direct reference to the Linux experience. On the Net, Mozilla is as big as it gets -- instituted to continue development of Netscape Communicator-based Web browsers following Netscape's publication of the Communicator source code, it poses a serious threat to Microsoft's push (the legality of which is currently under investigation in the U.S.) to increase marketshare for its Internet Explorer browser. Much like Linux, Mozilla will be a collaborative effort: "we intend to delegate authority over the various modules to the people most qualified to make decisions about them. We intend to operate as a meritocracy: the more good code you contribute, the more responsibility you will be given. We believe that to be the only way to continue to remain relevant, and to do the greatest good for the greatest number" ("Who Is Mozilla.org?"), with the Netscape corporation only one among that number, and a contributor amongst many. Netscape itself intends to release browsers based on the Mozilla source code, with some individual proprietary additions and the benefits corporate structures allow (printed manuals, helplines, and the like), but -- so it seems -- it is giving up its unlimited hold over the course of development of the browser. Such actions afford an almost prophetic quality to Barlow's observation that "familiarity is an important asset in the world of information. It may often be the case that the best thing you can do to raise the demand for your product is to give it away". The use of examples from the computer world should not be seen to mean that the consensual, collaborative use of intellectual property suggested here is limited only to software -- it is, however, no surprise that a computer-based medium would first be put to use to support computer-based development projects. Producers and artists from other fields can profit from networking with their peers and clients just as much: artists can stay in touch with their audience and one another, working on collaborative projects such as the brilliant Djam Karet CD Collaborator (see Taylor's review in Gibraltar), professional interest groups can exchange information about the latest developments in their field as well as link with the users of their products to find out about their needs or problems, and the use of the Net as a medium of communication for academic researchers was one of its first applications, of course. In many such cases, consensual collaboration would even speed up the development process and help iron out remaining glitches, beating the efforts of traditional institutions with their severely guarded intellectual property rights. As Raymond sees it, for example, "no commercial developer can match the pool of talent the Linux community can bring to bear on a problem", and so "perhaps in the end the free-software culture will triumph not because cooperation is morally right or software 'hoarding' is morally wrong ... , but simply because the commercial world cannot win an evolutionary arms race with free-software communities that can put orders of magnitude more skilled time into a problem" (10). Realising the Fiction There remains the problem that even the members of such development communities must make a living somehow -- a need to which their efforts in the community not only don't contribute, but the pursuit of which even limits the time available for the community efforts. The apparent impossibility of reconciling these two goals has made the consensual collaborative approach appear little more than a utopian fiction so far, individual successes like Linux or (potentially) Mozilla notwithstanding. However, there are ways of making money from the communal work even if due to the abolition of copyright laws mere royalty payments are impossible -- as the example of Netscape's relation to the Mozilla project shows, the added benefits that corporate support can bring will still seem worth paying for, for many users. Similarly, while music and artwork may be freely available on the Net, many music fans will still prefer to get the entire CD package from a store rather than having to burn the CD and print the booklet themselves. The changes to producer/user relations suggested here do have severe implications for corporate and legal structures, however, and that is the central reason why particularly the major corporate intellectual property holders (or, hoarders) and their armies of lawyers are engaged in such a fierce defensive battle. Needless to say, the changeover from the still-powerful fiction of enforcible intellectual property copyrights to the new vision of open, consensual collaboration that gives credit for individual contributions, but has no concept of an exclusive ownership of ideas, will not take place overnight. Intellectual property will continue to be guarded, trade secrets will keep being kept, for some time yet, but -- just as is the case with the established practice of patenting particular ideas just so competitors can't use them, but without ever putting them to use in one's own work -- eventually such efforts will prove to be self-defeating. Shutting one's creative talents off in a quiet cathedral will come to be seen as less productive than engaging in the creative cooperation occuring in the global bazaar, and solitary directives of central executives will be replaced by consensual decisions of the community of producers and users. As Raymond points out, "this is not to say that individual vision and brilliance will no longer matter; rather, ... the cutting edge ... will belong to people who start from individual vision and brilliance, then amplify it through the effective construction of voluntary communities of interest" (10). Such communal approaches may to some seem much like communism, but this, too, is a misconception. In fact, in this new system there is much more exchange, much more give and take going on than in the traditional process of an exchange of money for product between user and producer -- only the currency has changed. "This explains much of the collective 'volunteer' work which fills the archives, newsgroups, and databases of the Internet. Its denizens are not working for 'nothing,' as is widely believed. Rather they are getting paid in something besides money. It is an economy which consists almost entirely of information" (Barlow). And with the removal of the many barriers to the free flow of information and obstacles to scientific and artistic development that traditional copyright has created, the progress of human endeavour itself is likely to be sped up. In the end, then, it all comes down to what fictions we choose to believe or reject. In the light of recent developments, and considering the evidence that suggests the viability, even superiority of alternative approaches, it is becoming increasingly hard to believe that traditional copyright can, and much less, should be sustained. Other than the few major copyright holders, few stand to gain from upholding these rights. On the other hand, were we to lift copyright restrictions and use the ideas and information thus made available freely in a cooperative, consensual, and most of all productive way, we all might profit. As various projects have shown, that fiction is already in the process of being realised. References Barlow, John Perry. "Selling Wine without Bottles: The Economy of Mind on the Global Net." 1993. 26 Jan. 1999 <www.eff.org/pub/Publications/John_Perry_Barlow/HTML/idea_economy_article.php>. Gibson, William. Neuromancer. London: HarperCollins, 1984. Raymond, Eric S. "The Cathedral and the Bazaar." 1998. 26 Jan. 1999 <http://www.redhat.com/redhat/cathedral-bazaar/cathedral-bazaar.php>. Taylor, Mike. "Djam Karet, Jeff Greinke, Tim Song Jones, Nick Peck, Kit Watkins." Gibraltar 5.12 (22 Apr. 1995). 10 Feb. 1999 <http://www.progrock.net/gibraltar/issues/Vol5.Iss12.htm>. "Who Is Mozilla.org?" Mozilla.org Website. 1998. 26 Jan. 1999 <http://www.mozilla.org/about.php>. Citation reference for this article MLA style: Axel Bruns. "The Fiction of Copyright: Towards a Consensual Use of Intellectual Property." M/C: A Journal of Media and Culture 2.1 (1999). [your date of access] <http://www.uq.edu.au/mc/9902/copy.php>. Chicago style: Axel Bruns, "The Fiction of Copyright: Towards a Consensual Use of Intellectual Property," M/C: A Journal of Media and Culture 2, no. 1 (1999), <http://www.uq.edu.au/mc/9902/copy.php> ([your date of access]). APA style: Axel Bruns. (1999) The fiction of copyright: towards a consensual use of intellectual property. M/C: A Journal of Media and Culture 2(1). <http://www.uq.edu.au/mc/9902/copy.php> ([your date of access]).