Kant, Copyright and Communicative Freedom

The rapid recent expansion of copyright law worldwide has sparked efforts to defend the ‘public domain’ of non-propertized information, often on the ground that an expansive public domain is a condition of a ‘free culture’. Yet questions remain about why the public domain is worth defending, what exactly a free culture is, and what role (if any) authors’ rights might play in relation to it. From the standard liberal perspective shared by many critics of copyright expansionism, the protection of individual expression by means of marketable property rights in authors’ works serves as an engine of progress towards a fully competitive ‘marketplace of ideas’ – though only if balanced by an extensive public domain from which users may draw in the exercise of their own expressivity. This article shows that a significantly different, and arguably richer, conception of what a free culture is and how authors’ rights underpin it emerges from a direct engagement with the philosophy of Immanuel Kant. For Kant, progress towards a fully emancipated (i.e. a ‘mature’ or ‘enlightened’) culture can only be achieved through the critical intellectual activity that public communication demands: individual expressive freedom is only a condition, not constitutive, of this ‘freedom to make public use of one’s reason in all matters’. The main thesis defended in this article is that when Kant’s writings on publicity (critical public debate) are read in relation to his writings on the legal organization of publishing, a necessary connection emerges between authors’ rights – as distinct from copyrights – and what Jürgen Habermas and others have named the public sphere. I conclude that it is the public sphere, and not the public domain as such, that should serve as the key reference point in any evaluation of copyright law’s role in relation to the possibility of a free culture.     

Social and legal alienation: The case of aboriginal peoples in Canada

The concept ‘alienation’ has become a relatively common expression in contemporary society, the usage of which often belies the varied meanings it has had historically and in contemporary literature. Using the sociology of knowledge, an historical analysis of the use of ‘alienation’ in law, the social sciences, and religion reveals a rich and varied tradition. ‘Alienation’ arose with a positive religious meaning and subsequently became a cornerstone for the new property rights of an emerging capitalist economic order. In this new industrial order, social critics gave a negative meaning to ‘alienation’ that became the basis for the social scientific concept. The legal freedom to alienate property has arguably led to the marginalization of certain segments of society. A specific example of this process can be found in the struggles of Aboriginal peoples against their colonizers. Through the process of legal alienation, Aboriginal peoples lost not only their land, but their culture and self-worth. In recent years, Aboriginal peoples have attempted to reduce their social alienation through a variety of de-alienation strategies, including social, political, and legal struggles. One tactic has been land claim litigation. Therefore, through efforts to obtain legal alienation of land, Aboriginal peoples strive to reduce their social alienation and oppression.     

Property Offences as Crimes of Injustice

The article provides an outline of the basic principles and conditions of criminalisation of interferences with others’ property rights in the context of a specific context: a liberal, social democratic state, the legitimacy of which depends primarily on its impartiality between moral doctrines and the fair distribution of liberties and resources. I begin by giving a brief outline of the conditions of political legitimacy, the place of property and the conditions of criminalisation in such a state. With that framework in place, I argue that interferences with others’ property rights should be viewed as violations of political duties stemming from institutions of distribution. I then discuss three implications of this view: the bearing of social injustice on the criminal law treatment of acts of distributive injustice; the expansion of criminalisation over the violation of distribution-related duties, which are considered criminally irrelevant under moral conceptions of criminalisation; and, finally, the normative significance of the modus operandi.     

Governing Health and Social Security in the Twenty-First Century: Active Citizenship Through the Right to Participate

This article discusses the role of individual rights in the production of active citizenship. In recent years, the notion of ‘active citizenship’ has become an object of research in both political and social science. Studies that draw on the Foucaultian governmentality tradition have been particularly interested in various societal discourses and practices through which active citizenship is being produced. However, the role of law and rights has been neglected or even rejected in these studies. The aim of this article is thus to show that certain procedural rights, the right to participate in particular, constitute an important legal technology in the production of active citizenship. The analysis is based on the recent developments in Finnish social and health care law. It will also be argued that despite the apparently convergent subject-matter, Jürgen Habermas’s normative theory of the ‘procedural paradigm of law’ does not offer a meaningful framework in which to address the relationship between active citizenship and procedural rights since it is based on an overly narrow conception of subjectivity.     

The legislative choice on the right of priority

The right of priority, or preemption, is the security interest of priority claim enjoyed by the creditor to the ordinary or particular properties of the debtor provided directly by law. It can be distinguished clearly from similar rights and can be stipulated in the Law on Property Rights. The right of priority falls into the category of security interests. Though it differs from the guaranteed security interest or lien, the right of priority, taking the property as its object, the guarantee of the performance of particular creditor’s right as its aims, possesses the basic characteristics of the security interests. Thus, such a rule shall be stipulated in the Law of Property Right. The right of priority is instituted directly by the law in consideration of the social legislative policies. Such considerations are necessary to the realization of social fairness and justice and the protection of public interests and social welfare. From the perspective of legislative polices and techniques, it is more reasonable to institute the right of priority in the Law of Property Right than resort to other replacing rules in order to secure particular creditor’s right. Instituting the right of priority in legislation will not increase the risk of deals; on the contrary, it will help the parties concerned foresee risks. Therefore, it helps safeguard the safety of the deals.     

土地使用权的物权法定位——《物权法》规定之评析

不动产物权是根植于特定社会的法律制度,土地使用权便是独具中国特色的不动产物权,它是我国土地物权化的制度工具,是公有制与市场经济接轨的纽带。土地使用权在某种意义上属于他物权范畴,但因与大陆法国家用益物权的社会基础或功能不同,它并非大陆法国家意义上的用益物权。在我国,土地使用权充当自物权的功能,土地使用权自身不仅可以转让、处分,而且还可以设定用益物权。《物权法》将各土地使用权放入用益物权编规范,不仅不能凸显土地使用权在我国不动产物权上的基础地位,而且不利于建立清晰的土地使用权体系和用益物权体系。在笔者看来,我国不动产物权应当分土地所有权、土地使用权和用益物权三个层次,除地役权外,《物权法》并未规定真正意义上的用益物权。     

Nozick’s Reply to the Anarchist

Central to Nozick’s Anarchy, State and Utopia is a defense of the legitimacy of the minimal state’s use of coercion against anarchist objections. Individuals acting within their natural rights can establish the state without committing wrongdoing against those who disagree. Nozick attempts to show that even with a natural executive right, individuals need not actually consent to incur political obligations. Nozick’s argument relies on an account of compensation to remedy the infringement of the non-consenters’ procedural rights. Compensation, however, cannot remedy the infringement, for either it is superfluous to Nozick’s account of procedural rights, or it is made to play a role inconsistent with Nozick’s liberal voluntarist commitments. Nevertheless, Nozick’s account of procedural rights contains clues for how to solve the problem. Since procedural rights are incompatible with a natural executive right, Nozickeans can argue that only the state can enforce individuals’ rights without wronging anyone, thus refuting the anarchist.     

Historical Entitlement and the Practice of Bequest: Is There a Moral Right of Bequest?

Entitlement theorists claim that bequest is a moral right. The aim of this essay is to determine whether entitlement theorists can, on their own grounds, consistently defend that claim. I argue that even if there is a moral right to self-appropriated property and to engage in inter vivos transfers, it is a mistake to contend that there exists an equivalent moral right to make a bequest. Taxing or regulating bequest does not violate an individual’s moral rights because, regardless of whether bequest safeguards certain interests, those interests are not the interests of a living, morally inviolable being. Instead, they are the interests of a deceased entity that has lost the ability to track what it values and pursue projects in accord with those values – a quality that by entitlement theorists’ own arguments renders persons morally significant and deserving of rights in the first place.     

A Tory High Modernism? Grand Plans and Visions of Order in Neoconservative Ontario

Trends toward mass incarceration in the United States and elsewhere raise compelling questions about the social purposes of prisons, and their role in the consolidation (and/or privatization) of the neoconservative state. This article examines two moments of penal reform that were historically distinct, but remarkably similar in their shape and intent. Mike Harris’s Progressive Conservatives won control of Ontario’s provincial government in 1995, and undertook a wide-ranging program of institutional and social restructuring that was intended to transform Canada’s industrial heartland. Penal reform was central to this agenda, but Conservative efforts here were remarkably similar to those 160 years before, when Canada built its first penitentiary. This article compares these two moments of flux using a theoretical framework developed by James Scott. He argues that the grand plans of ‘high modernist’ reformers, while seeking to make society more ‘legible’ and ‘rational’, tend to employ simplifications—especially visually pleasing ones—which obscure and suppress insights that might be gained from the ‘practical knowledge’ of those closer to the ground. They do this at their peril, for grand plans tend to fail for lack of such knowledge. The article argues that Ontario’s experience fits neatly into these categories, except that the aim of reformers here has been to restore an old social order, rather than to build a new one.     

Imagining Human Rights: Utopia or Ideology?

Human rights are both a means for the ideological justification of the status quo and for its utopian subversion. In order to account for this paradox we need to consider the role that our capacity to form images plays in human rights discourses. I will first discuss how best to conceptualise the capacity to produce images, which is the focus of this paper. In order to go beyond the impasse generated by philosophical approaches to imagination as an individual faculty, and by sociological approaches to the imaginary understood as a social context, I propose to use the category of the ‘imaginal’, understood simply as that which is made of images and can therefore be both the product of an individual faculty and a social context. Second, I show how the imaginal enters the three major strategies of justifications of human rights, when we think of them as ‘human’, as ‘rights’ and as ‘rational’. Finally, I will show that the imaginal is also the force that compels us to enforce human rights, to put ourselves in the shoes of others and imagine a world that is different from the one in which we are currently living.     

The United Nations Convention on the Rights of the Child and the Punishment of Children Under English Law – Public and Private Vices?

The punishment of children in the domestic sphere and in the public domain is an issue of concern for those with care of children or whose interests lie in the protection of children’s human rights. How children are treated when they are judged to have broken rules reveals fundamental approaches to the welfare of those who have yet to reach adulthood. The effect of the United Nations Convention on the Rights of the Child in respect of how children are punished, whether in the home or as transgressors of criminal law, may be examined through two distinct but linked spheres: the private and home life context of domestic or personal punishment, and the public domain of state punishment of children in terms of criminal responsibility under English Law. Both spheres reveal attitudes towards the rights of children which suggest how human rights are accorded to particular groups in applying international obligations to a state’s domestic provision. This article seeks to explore some issues of compliance with Article 19 (the physical chastisement of children), Article 37 (the imprisonment of children being a ‚last resort’) and Article 40 (the minimum age of criminal responsibility) of the United Nations Convention on the␣Rights of the Child. The application of the rights of children and the operation of the ‚best interests’ of the child in applying Articles 19, 37 and 40 suggests that there are issues in relation to non-compliance which indicate a diminution of the separate rights of children under English Law in particular and in the operation of the best interests of the child. Penny Booth is a Reader in Law at Staffordshire University Law School.     

Trade marks plus? the role of trade marks in the global economy and the danger of over-protection

This article examines the economic role of the trade mark, both as a structuring device and as a means of adding value to products. It shows how its role as a flexible structuring device that provides a distinct focus for goodwill derives from the special meaning of the term “origin” or “trade origin” in trade mark law, this being what a trade mark is supposed to indicate. Firms can control the identity that a trade mark signifies and confers on the products with which it is used without being tied to any particular set of production arrangements. This article also considers how goodwill can be a source of economic benefit both through reducing transaction costs and, in some cases, through adding value to products. This article then examines the economic rationale for the legal protection of trade marks and shows how this is analogous to the rationale for awarding property rights over tangible resources and different from that for other forms of intellectual property right. The pressure to expand the legal protection of stronger trade marks is explored and it is accepted that there is an economic case for doing so. However, it is argued that the additional protection must be carefully calibrated through definitions that take account of its economic rationale and avoid the danger of over-extending it. In particular, this danger of over-protection arises from making a false analogy between stronger trade marks and the kind of intangible output that is the subject of the other forms of intellectual property right.     

Disputes about corporate expression absorption and their legal remedies

Corporate expression is the expression that a company gives to the outside in its capacity as a legal entity. Often referring to resolutions made by shareholder meetings and the board of directors, based on good faith and bound by contractual spirit, a company must be held liable for its expression. Corporate expression absorption refers to the corporate behaviors and situations wherein the majority voting shareholders and directors replace the will of the minority voting shareholders and directors within their own will. Among them, the majority voting shareholders at a shareholders’ meeting (shareholders’ general meeting) are decision-making shareholders, and directors, managers and other senior management staff that decide corporate affairs are called decision-making members. Corporate expression absorption consists of two sorts: absorption by shareholders’ meeting and absorption by the board of directors. Shareholders’ meeting is a company’s authoritative organization; when the voting rights of some shareholders exceed the statutory limit, they will be able to manipulate the expression of shareholders’ meetings and replace the will of other shareholders with that of their own. The expression absorption by the board of directors refers to the practice wherein the majority directors decide on important corporate matters in accordance with the majority rule. Thus, it can be seen that the corporate expression absorption is a double-edged sword, not only capable of uplifting operational efficiency but also likely to help decision-making shareholders achieve personal gains and transfer corporate interests. As for the disputes of corporate expression absorption, the following legal remedies might be adopted: (1) Limit the voting rights of decision-making shareholders. (2) Provide shareholders with veto power over specific events. (3) Ask the chambers of commerce (industry associations) to arbitrate specific events. (4) Preserve the market value of shares held by dissenting directors. (5) Expand cumulative voting; (6) Provide shareholders the right to exit. (7) Legal remedies for corporate deadlock. (8) Shareholders’ derivative lawsuits. __________ Translated from China Law, No. 4, 2005     

Criticism on the urbanized trend of Chinese law research

By referring to the phenomena of the ever intensifying consummation of anti-fake laws resulting in ever increasing inundation of faking cases, this article describes the correlation between the consumers’ rights and the research on Chinese law. It is further pointed out that the relationship between the study of Chinese law and the protection of consumers’ rights typically interprets the difficult situation of Chinese law research: On the one hand, Chinese law does not give the required attention to the protection of consumers’ rights concerning people’s health and life safety. Worse, all the discussions about the issues of consumers’ rights are all oriented on serious urbanization tendency and departmental law science tendency, judging or measuring the concrete realities of consumers’ rights in China based on the concepts of western laws. The specific time-and-space element of China endowing essential meanings in the research of consumers’ rights in Chinese law as the base and evidence of research is eliminated, leaving the research of Chinese law in a distorted position in China. __________ Translated from China Reform, No. 9, 2005     

Entertainment starts with an E: the ecstasy market in Greece

The purpose of this article is to provide an account of the social organisation of the ecstasy market in Greece. Concern about ecstasy production, distribution and use in Greece has risen since ecstasy appeared in the country in the early to mid-1990s, and continues to be fuelled by media reports which reinforce the perception that there are huge profits for traders. Moreover, the Greek authorities have adopted a ‘war on drug’ rhetoric when it comes to ecstasy trafficking. Thus, the fact that such mentalities are commonplace, while the knowledge deficit about the particular market remains gaping, makes it an imperative to examine the structure and dynamics of the ecstasy market in the country. We aim here to provide an account of the ‘extent’ and nature of the ecstasy market in Greece as well as a presentation of the ‘actors’ involved. We also explicitly focus on the issue of price of ecstasy tablets in the country, which we regard as key to the understanding of the logic of this particular market. Our investigation of various aspects of the market concludes with a number of more systematic observations regarding the particular business.     

The Molotov Milkshake: Corporate Social Responsibility and the Market

This article investigates links between the final scene—the milkshake scene—of P. T. Anderson’s film, ‘There Will Be Blood’, and a commercial advertisement for the sale of oil, which relies on a milkshake drinking analogy. The comparison probes a tension between the aspiration for capitalist economic growth and the self-regulation of corporate social responsibility (CSR). Business figures committed to the practice of CSR struggle with the possibility that deeper, systemic forms of violence inherent in market competition supersede their attempts at installing more responsible cycles of economic exchange. A risk remains, all the while, that social and environmental concern of the kind expressed in CSR is only able to acquire ‘value’ in the market, a relational or ‘dialectical’ system of exchange, where it meets contrasting cycles or events in the market: the value of alternatives (e.g. ‘going green’) is predicated on pre-existing products or earlier cycles of marketisation. The article discusses difficulties that CSR creates in terms of making interventions and raising conflict with corporate actors, and a tendency for the system to leave inert, exposed or abandoned, those that try. The capacity of CSR to eradicate the more vicious shadow of capitalist markets is challenged in the article. There is no release, the author argues, in a concept that is so essentially dependent on market mechanisms and on competitively motivated (ex)change.     

Welfare state, unemployment, and social justice: Judgments on the rights and obligations of the unemployed

This article reports judgments on the rights and obligations of the unemployed in The Netherlands. A large majority of the Dutch population is shown to support (i) the unemployed’s right to social security as well as their obligation to work, (ii) the principle that declining a job offering should be punished, and (iii) harsh sanctions in some specific cases of job refusal. An emphasis on the obligation to work results from conservative attitudes regarding both distributive justice (economic conservatism) and retributive justice (cultural conservatism). Furthermore, conservative attitudes regarding distributive justice derive from a privileged economic position (especially high income and infrequent experience of unemployment), whereas conservative attitudes regarding retributive justice result from a restricted cultural position (low level of education, technical rather than cultural type of education, and limited involvement in arts and culture).     

Rights and Resources—Libertarians and the Right to Life

The author addresses Robert Nozick's claim that: “The particular rights over things fill the space of rights, leaving no room for general rights to be in a certain material condition.” Hence Nozick insists that rights are violated if citizens are compelled to contribute to others' welfare, however urgent their needs may be. The author argues that it is characteristic of libertarian theories that they invoke the moral sanctity of private property against welfarist or egalitarian conceptions of social justice. Nozick's version of the libertarian critique has three conceptual pillars–“right,”“thing” and “space.” On that basis Nozick claims that talk of welfare “rights” can be condemned on the plane of rights. This is true, Nozick maintains, even of “the right to life.” The author contends that this argument fails. It equivocates over the idea of “rights”; and it misconceives crucial features of property. Nozick deploys exclusive “domain rights,” whilst attacking “important‐interest rights.” His historical‐entitlement theory fails as a justification of private property. The author argues that, so far as material objects are concerned, private property institutions depend upon trespassory rules which do not impose morally binding obligations unless basic needs are catered for. Furthermore, private property institutions also comprise monetary resources to which the spatial metaphor of exclusive rights does not apply. Holdings vested in any particular person at any particular time are stamped, morally, with a mix of contestable and mutable property‐specific justice reasons. Hence it is fallacious to suppose that ownership rights together exhaust all normative space over “things.” The major objection to speaking of everyone's having a right to various things such as equality of opportunity, life, and so on, and enforcing this right, is that these “rights” require a substructure of things and materials and actions; and other people may have rights and entitlements over these. [≡] The particular rights over things fill the space of rights, leaving no room for general rights to be in a certain material condition. (Nozick 1974, 238)     

从法律角度研究中国土地制度变迁路径及土地制度安排

Through the discussion of property rights of land in the People’s Republic of China by examining the evolution of legal frameworks governing land institutions and that of the rights embodied, it traces out the development of urban and rural land tenure changes during the pre-reform era (pre-1978) and post-reform era (post-1978). Analysis shows that after thirty years of opening up and orientation towards a market economy, there is still a wide divergence of rights between urban and rural land tenure. Quasi-leasehold system of urban land tenure, accompanied by relatively well-established titling and registration procedures as well as an open market for transaction, has been established. In contrast, although the rural land contracting system has endowed farmers with thirty years of agricultural land usufruct rights and attempts to strengthen farmers’ tenure security have been made progressively over the years, farmers are yet not enjoying the full bundles of land rights. Imminent reforms in rural land tenure includes, but not restricted to, the following crucial areas: Farmers’ right to mortgage their land, a well-functioning land market, well-defined and just causes for land requisition written in law, a clear delineation of the different roles and rights of the collective and individual farmers.