Letter to the Editor

Geneva, 2^nd April 2008 Professor Geoff Gilbert Editor-in-Chief International Journal of Refugee Law Dear Professor Gilbert, May I refer to the article on ‘Redundant or Essential?How politics shaped the Outcome of the 1967 Protocol’by Dr. Sara Davies in the     

Editorial

Professor Maitland liked to point out that the beginnings ofthe trust are discernible in a ‘slight but unbroken threadof cases, beginning while the Conquest is yet recent.’¹This forensic Methuselah retains its vitality today becausereams of contractual boilerplate cannot compete with the efficiencyof equity's default rules. These were famously expressed bythe great Chief Judge of the New York Court of Appeals—laterto become a Justice of the Supreme Court of the United States—BenjaminCardozo, in Meinhard v. Salmon, 249 NY 458, 464 (1928):

Manyforms of conduct permissible in a workaday world for those actingat arm's length, are     

Market Failure and Non-Standard Contracting: How the Ghost of Perfect Competition Still Haunts Antitrust

Modern antitrust policy has a ‘love hate’ relationshipwith non-standard contracts that can overcome market failure.On the one hand, courts have abandoned various per se rulesthat once condemned such agreements outright, concluding thatmany non-standard contracts may produce benefits that are cognizableunder the antitrust laws.¹ The prospect of such benefits, itis said, compels courts to analyze these agreements under theRule of Reason, under which the tribunal determines whethera given restraint enhances or destroys competition.² At thesame time, courts, scholars, and the enforcement agencies haveembraced methods of rule of reason analysis that are undulyhostile to such agreements.³ In particular, courts and othersare too quick to view such agreements and the market outcomesthey produce as manifestations of market power. This articleseeks to explain why these agreements are still the object ofundue hostility.     

From Benchmarking to Final Status? Kosovo and The Problem of an International Administration's Open-Ended Mandate

This contribution examines certain inherent shortcomings ofan ‘open-ended’ institution-building operation forwhich the future status of the entity in statu nascendi remainsundecided. It first addresses the policy of conditionality throughwhich Kosovo’s international administration attempts tomeasure the performance of local institutions against imported‘standards’. The external representation functionof an international administration acting on behalf of a non-stateterritorial entity, as an agent of necessity, is then analysed,considering recent and little-known developments and suggestingthat UNMIK’s practice supports the argument that ‘internationalized’territories possess limited legal personality. Turning ‘inward’to a sphere of domestic governance, the contribution highlightssome of the problems encountered with regard to the privatizationof public assets in Kosovo. Here, it argues that UNMIK is awkwardlycaught between the pursuit of both the interests of the territoryunder its administration and the collective interest of theorganized international community – two sets of interestswhich can collide head-on. The article concludes by suggestingthat an international territorial agent should not, as a rule,attempt to mediate a solution, but endeavour to represent theterritory in good faith.

‘You gave us freedom, but not a future’.¹

     

A good introduction to publishing

Hugh Jones and Christopher Benson's book entitled, simply, PublishingLaw seeks to provide a useful and straightforward guide to copyrightlaw in the field of publishing. The accolades on the back statethat it is ‘an excellent, accessible, one-stop legal reference’and that it is ‘an invaluable resource for those practisingor studying the business of publishing’. Such praise bodeswell. The great tomes on copyright present a standard that is difficultto achieve. Laddie, Prescott & Vitoria     

Does Dworkin Commit Dworkin's Fallacy?: A Reply to Justice in Robes

In an article entitled ‘Dworkin's Fallacy, Or What thePhilosophy of Language Can't Teach Us about the Law’,I argued that in Law's Empire Ronald Dworkin misderived hisinterpretive theory of law from an implicit interpretive theoryof meaning, thereby committing ‘Dworkin's fallacy’.In his recent book, Justice in Robes, Dworkin denies that hecommitted the fallacy. As evidence he points to the fact thathe considered three theories of law—‘conventionalism’,‘pragmatism’ and ‘law as integrity’—inLaw's Empire. Only the last of these is interpretive, but each,he argues, is compatible with his interpretive theory of meaning,which he describes as the view that ‘the doctrinal conceptof law is an interpretive concept’. In this Reply, I arguethat Dworkin's argument that he does not commit Dworkin's fallacyis itself an example of the fallacy and that Dworkin's fallacypervades Justice in Robes just as much as it did Law's Empire.     

Civilized Squatting

This article seeks to trace the origins of the requirement thata squatter must have an intention to possess (animus possidendi)in order to establish title by adverse possession. The requirementhas been confirmed by the House of Lords in the recent caseof Pye (Oxford) Ltd v Graham [2003] 1 AC 419. Its origins canreadily be traced back to the decision of the Court of Appealin Littledale v Liverpool College [1900] 1 Ch 19, but thereis little evidence of any need for intention before that case,and no convincing authority is cited for it. Possible explanationsfor the source of this requirement are considered by the article(for instance cases on re-entry by landlords and the so-called‘found chattel’ cases), but these are ultimatelyrejected. The article goes on to suggest that the reason forthis is that the intention requirement was ‘imported’into English law from German Pandectist writers of the nineteenthcentury. It suggests that Littledale was the case in which thishappened. It seeks to support this hypothesis by reference tobiographical details of Lindley MR, who gave the leading judgmentin Littledale, and who not only trained in part in Germany butalso took an active interest in German scholarship of the time.A brief survey of the relevant German sources is undertaken,focusing primarily on the work of Savigny, but also consideringthe rival theory of Jhering. Finally, it tracks the developmentand refinement of the content of animus possidendi, first by19th century legal scholars and then by 20th century judges,to make it ‘fit’ with English property law. It seeksto address the question of whether the animus possidendi requirementis a free-standing element (the ‘strong’ will theory),or whether it is simply implied from the acts of the squatter(the ‘weak’ will theory), and suggests a solutionby reference to the German sources and later English cases.Finally, it considers how the House of Lords decision in Pyereflects the logical culmination of the acceptance of this ‘legaltransplant’ into the common law.     

Comparative advertising and celebrity photographs--fair dealing under the CDPA 1988

Legal context. Legal context. This article reviews the conceptof ‘fair dealing’ under Copyright Designs and PatentsAct 1988, section 30. It does so in the context of to recentcases concerning the fair dealing defence, IPC Media Ltd v NewsGroup Newspapers Ltd and Fraser Woodward Ltd v BBC are considered. Key points. The traditional approach of courts to ‘fairdealing’ is based upon a number of ‘factors’considered relevant in determining whether a use of a copyrightwork is fair. The article argues that there are a number ofproblems with this approach. In particular, it claims that theapproach is unsystematic and rests upon a number of questionableassumptions. It suggests that the decision of Hart J in IPCMedia Ltd demonstrates these problems to a very significantdegree. In contrast, that of Mann J in Fraser Woodward Ltd provideswelcome guidance on the application of the concept of fairnessin certain cases. Practical significance. The criticisms made in this articlehighlight a number of discrepancies in the existing case lawand suggest a need for closer consideration and greater disciplinein decision-making in this area.     

Freakonomics: Scholarship in the Service of Storytelling

Freakonomics: A Rogue Economist Explores the Hidden Side ofEverything by Steven D. Levitt and Stephen J. Dubner is certainlypopular. Indeed, my search for something comparable took meback more than 120 years.¹ Even with the uncertainty about whatconstitutes a best seller, it is clear that the book has reacheda huge audience, especially for a book about "economics." AsI write this, it has been on the New York Times best-sellerlist for 46 weeks, and having started on the Publisher’sWeekly Hardcover Nonfiction best-seller list in the 12th positionon April 25, 2005, it has hovered in the top ten thereafter.Moreover, as reported on the Freakonomics web site, the bookhas garnered a large international audience, and the book ison various "best of" lists. Levitt and Dubner have sought abroad and diverse audience for their collection of stories:Levitt has been on "The 700 Club" (a talk show by conservativebusinessman and religious broadcaster Pat Robertson) and "TheDaily Show with Jon Stewart" (a center–left parody ofthe news and news reporting) among other places. Both the authorswrite a column for the New York Times Magazine as well as participatein an active blog (just navigate from the book’s web siteto the URL http://www.freakonomics.com, where, among other things,they respond to a large number of readers’ inquiries²).The book comes complete with more than 20(!) pages of referencesand citations as diverse as a radio talk show caller’sunverified claim that her niece was named "Shithead" (pronouncedSHUH-teed) as well as Kenneth Arrow’s "A Theory of Discrimination"and includes a two-and-a-half page tabulation of average yearsof mother’s education by child’s first name. Theextensive footnotes should not mislead: Freakonomics does nottake its subjects very seriously. In Freakonomics, Levitt’sscholarship and the scholarship of others are put in the serviceof telling a "good story" rather than the other way around.Indeed, if the many reviews of the book are any guide, manyfind the book "entertaining" even if they felt that "Levitt’sonly real message is to encourage confrontational questions"(Berg, 2005). One reviewer found the stories so compelling thathe went so far as to suggest that "criticizing Freakonomicswould be like criticizing a hot fudge sundae" (Landsburg, 2005).     

Overcoming the challenges posted by technology to traditional copyright law: from Betamax to Grokster

Legal context: Dual use technology, or technology which can be used for bothinfringing and non-infringing uses, raises interesting issuesin the area of copyright law. This note analyses inter aliathe two US Supreme Court decisions on dual use technology, separatedby a gap of over 20 years—Sony v Universal Studios (1984)and MGM v Grokster (2005). Key points: Sony lays down the famous ‘Betamax’ defence—ifthe technology is ‘capable of substantial non-infringinguses’, then it cannot be challenged as infringing. Thistest had stood the test of time, and it is only recently inGrokster that there arose an occasion to reconsider its application.The Court in Grokster, borrowing from the jurisprudence developedin Patent law, recognized a novel test of liability—basedon the active ‘inducement’ to infringe. The flawin Grokster is that despite its attempt to develop new standardsfor a digital age, the ruling leaves areas of uncertainty. Practical significance: Dual use technology has become ubiquitous in this age—fromthe iPod to YouTube to P2P software, all are capable of beingused in lawful as well as unlawful ways. Legal pronouncementshave the potential to impact not just the development of law,but also innovation in technology. Some believe that the ‘brightline’ of Sony has been muddled thereby threatening technologicalinnovation. Others, me included, believe that Sony is inapplicablein the face of new technology, and hail the decision in Groksteras a positive step forward in what it actually decides. However,in what it does not decide, Grokster still represents a lostopportunity by the Court to clear up the muddled waters.     

The Concluding Observations of United Nations Human Rights Treaty Bodies

The seven principal United Nations-sponsored human rights treatiesstipulate that States Parties submit periodic reports to therespective treaty monitoring bodies (or ‘committees’)¹on the implementation of their treaty obligations. Followingthe review of a report, the treaty body in question issues aset of ‘concluding observations’, containing itscollective assessment of the State's record and recommendationsfor enhanced implementation of the rights in question. Arguably,the issuance of concluding observations is the single most importantactivity of human rights treaty bodies. It provides an opportunityfor the delivery of an authoritative overview of the state ofhuman rights in a country and for the delivery of forms of advicewhich can stimulate systemic improvements. Its significanceis all the greater now that the only accounts of the reviewof periodic reports which appear in the annual reports of thetreaty bodies are the adopted concluding observations.² Thisarticle seeks to test key aspects of the quality of concludingobservations. The analysis is set within the framework of reviewof the development of the practice.     

All the best things come to those who wait

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review of ideas, articles,books, films and other media. It will include replies (and rejoinders)to articles, the evaluation of new ideas or proposals, and reviewsof books and articles both directly and indirectly related tointellectual property law. In 1966, Professor Benjamin Kaplan gave the Carpentier Lecturesat Columbia University. His subject was copyright law and eachof his three lectures examined a different aspect of that subject.The first looked at the ‘First Three Hundred and FiftyYears’, the second at ‘Plagiarism Reexamined’,and the final at ‘Proposals and Prospects’. Theselectures were     

The Shifting and Multiple Border and International Law

The question of how the ‘border’ is conceived ininternational law, and how it shapes identity and peoples’lives, remains largely unexplored in the international legalliterature. This article seeks to contribute to our understandingof the meaning of the border in international law, and in thecontemporary context, by drawing on the work of the philosopherand political theorist, Étienne Balibar, and by reflecting,in the light of his work, on the recent decision of the Houseof Lords in R v Immigration Officer at Prague Airport. It isshown that international law's focus on the territorial bordermay render invisible other borders which are significant forsubaltern groups, and thereby fail to address the manner inwhich borders affect lives and determine outcomes. Borders arenot stable and ‘univocal’, but instead, ‘multiple’,shifting in meaning and function from group to group. They arealso being ‘exported’ such that a person may experiencea foreign border while still within the territory of their owncountry. In highlighting the multiplicity of borders, the articleseeks to prompt further reflection on the articulation and applicationof norms of international law in a way that addresses the realitiesof the contemporary context.     

The Best Interests of the Child? Is the Best Interests of the Child in the Best Interests of Children?

The writings of Goldstein, Freud and Solnit, particularly someof the concepts they developed, have exercised a profound influenceon our thinking about children. A new, revamped, final, authoritativeedition presents the opportunity for critical re-assessment.The author finds a partial analytical framework, a dated imageof children, a narrow concept of children's rights, triggersfor intervention which leave children dangerously exposed and,above all, a sense diat events have moved on leaving the mostinfluential text of this generation firmly rooted in the ideas,problems and concepts of the last. The publication in one revised volume of the landmark trilogyof Beyond, Before and In¹ provides an excuse, if one were needed,to assess the impact and re-evaluate the arguments containedwithin the three monographs and now compressed and updated.Whether or not one agrees with all, or even any, of the ideascontained within Best Interests (as I shall now call the collection),and I shall criticize both applications and implications, theconcepts have impressed themselves, perhaps indelibly, on ourthinking about children. Like it or not, anyone thinking aboutchild law or policy, the relation between parents and children,the state and family, has to grapple with concepts like ‘leastdetrimental alternative’, the ‘psychological parent’,a child's sense of time and others of the rich ideas which permeateBest Interests.²     

Google Print--Fair use and opt-out issues

A lecture given by Professor Richard A. Epstein, ‘WhatLight If Any Does The Google Print Dispute Shed On IntellectualProperty Law?’, is available in The Columbia Science andTechnology Law Review. It relates to the     

A Retreat from Pepper v Hart? A Reply to Lord Steyn

This article shows how the House of Lords has, in recent years,embarked on a retreat from its landmark decision in Pepper vHart which had relaxed the rule prohibiting courts from usingministerial statements made in Parliament for the purpose ofinterpreting statutes. This development was initiated by a lecturegiven by Lord Steyn in May 2000 and subsequently published inthis journal. The article attempts to refute the reasons advancedin support of the retreat. In addition, it sets out to showthat the alternative solution proposed by Lord Steyn createsboth conceptual and practical difficulties. As a result it arguesfor a reversal of the retreat.     

The ongoing design duty in Universal Music Australia Pty Ltd v Sharman License Holdings Ltd Casting the scope of copyright infringement even wider

The Australian Federal Court case of Universal Music AustraliaPty Ltd v Sharman License Holdings Ltd (‘Sharman’)¹is the latest in a series of peer-to-peer (P2P) filesharingcases from various jurisdictions that has found the softwaredistributor/technology provider liable for copyright infringement.² Sharman followed a few months after the groundbreaking US SupremeCourt case of MGM Studios v Grokster Ltd ³ (‘Grokster’)that had acknowledged the Sony safe harbour for technology providersbut also introduced an inducement of infringement doctrine todeal with reprehensible conduct of infringers. While both cases involved similar technology and shared a numberof similarities on the facts and legal principles⁴, a closerexamination of Sharman shows that the net of copyright infringementin P2P filesharing is cast wider than that in Grokster. The effect of Sharman is an increased burden on the technologyprovider and the potentially tremendous consequences on innovationdue to the lack of a clear safe harbour as well as the wideningof the design obligation.     

Clear, Simple, and Precise Legislative Drafting: How Does a European Community Directive Fare?

In 2001, Martin Cutts redrafted Toy-Safety Directive 88/378/EEC¹in plain language. He criticized the language of that Directiveas being archaic legalese.² He added that Directives, as a whole,were poorly drafted.³ The European Commissions Legal Servicerejected his criticisms. It stated that it had published theEuropean Commission’s plain language guidelines⁴ afterDirective 88/378/EEC had been drafted. In a previous articlein the Statute Law Review,⁵ Butt and Castle’s⁶ plain languageguidelines were explicated using examples from Directive 2002/2/EC.⁷In this article, their guidelines are applied to the whole ofthat Directive to see if its language is ‘clear, simple,and precise’.⁸ The criticisms made in the previous article,⁹combined with those made in this article, suggest that the draftersof Directive 2002/2/EC¹⁰ have not yet mastered the skill ofwriting in ‘clear, simple, and precise’ language.     

Can We Protect How We Do What We Do? A Consideration of Business Method Patents in Australia and Europe

In the long history of monopolies, business method patents area novel and recent edition. In the Digital Age, where time ismoney and speed is everything, innovative methods for undertakingbusiness are as important to a business as the products or servicesit provides to its clients. In recent years several reviews,conducted in both Australia and internationally,⁴ have questionedthe appropriateness of patenting business methods. This paperreviews the availability of business method patents in Australiain light of the 2006 decision of the Full Court of the FederalCourt in Grant v Commissioner of Patents,⁵ which confirmed theneed in Australia for a ‘useful product’ to issuefrom the working of a method (business or otherwise) in orderfor the method to be patentable. This paper will review argumentsboth criticising and defending business method patents and considerwhether business methods warrant special treatment.     

Which law applies? A reply to Professor Torremans

The first 150 words of the full text of this article appear below.

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

In a recent article,¹ Professor Torremans argues that the countryof origin (sometimes called the lex originis) should be thelaw applied to authorship and ownership of copyright.² There is no doubt that several countries do apply the countryof origin to initial ownership and authorship of copyright works.Citing both the Austrian and Belgian Codes on Private InternationalLaw as examples,³ Professor Torremans also mentions the decisionof the US Second Circuit of Appeals in . . . [Full Text of this Article]