What's mine is mine and what's yours is mine too: Converging U.S. intellectual property exhaustion doctrines

With the increasing dispersion of intellectual property comes the intellectual property rights owner's continued desire to retain that part of the equation for which the bargain was struck. In terms of patents, the patentee strikes a deal to disclose the invention to the public in exchange for a monopoly over its use for a limited term. Copyright holders contribute their works to the intellectual pool receiving value by sale, lease or license. In 2012–13, the U.S. Supreme Court was tasked with delineating the realms of two intellectual property exhaustion doctrines and answering the question of where to draw the line with regard to an IP owner's ability to control the protected invention or work via patent or copyright, respectively. In one case, the Court permitted the intellectual property owner to restrict a subsequent purchaser's use of the product subject to protection, while in the other case the Court rejected the intellectual property owner's attempt to control the downstream use or resale of the product. This article discusses the relevant intellectual property exhaustion doctrines, analyzes and reconciles the Court's decisions in these cases, and provides guidance for navigating restrictions on use of U.S. protected products and works around the globe.     

买卖不破租赁规则的法律效果——以契约地位承受模式为前提

合同法第229条确立的是"契约地位承受模式",并非消极的承租人对抗模式。应确立租赁标的物所有权变动的通知义务,以保障承租人的知情利益。原出租人预先收取租金时,应肯定标的物交付后受让人对于原出租人的不当得利请求权或返还原物请求权,承租人则得以对原出租人的清偿对抗受让人的租金请求。出租人预先出让了将来租金债权时,在解释论上应肯定将来债权受让人的优先性,标的物受让人所受的不利益则通过其他制度予以救济。对于出租人地位保留的问题,应认为未经承租人同意的保留不生其效力,但在立法论上可以考虑有条件地肯定其效力。押租金的问题,则应坚持押租金契约的从属性,新所有权人的返还债务并不以是否受有现实转交为条件。     

Kant and Habermas on International Law

The purpose of this article is to present a critical assessment of Jürgen Habermas' reformulation of Kant's philosophical project Toward Perpetual Peace. Special attention is paid to how well Habermas' proposed multi‐level institutional model fares in comparison with Kant's proposal—a league of states. I argue that Habermas' critique of the league fails in important respects, and that his proposal faces at least two problems. The first is that it implies a problematic asymmetry between powerful and less powerful states. The second is that it entails creating a global police force that has an obligation to intervene against egregious human rights violations worldwide, and that this seems incompatible with the idea that every person has an innate right to freedom. There are important normative constraints relevant for institutional design in the international domain that Habermas does not take sufficiently into account. However, this does not mean that Kant's league cannot be supplemented with more comprehensive forms of institutional cooperation between states. On the basis of my assessment of the multi‐level model, I propose a hybrid model combining elements from Kant and Habermas.     

自然资源国家所有权之国家所有制说

财产权的宪法史可分为人权财产权和国家财产制两个阶段。自然资源归国家所有是国家财产制的组成部分，是现代宪法创设的用以实现国家目的的手段，其基本特征是国家垄断，其基本工具价值是垄断。以权利观审视自然资源国家所有权，它具有主体的唯一性和权利的专有性、不可变更性和价值优先性等特点。宪法上的自然资源国家所有权的实质是国家权力，是管理权，而非自由财产权。     

论我国水资源的所有权客体属性及其实践功能简

水资源的日益重要性使其在法律上逐渐与土地资源分离,成为独立的所有权客体,且不悖于所有权客体特定性原则。在比较罗马法中的共用物、法国的公产、德国的公物及日本的公用物、公共用物等公共物品类型的基础上,应将我国的水资源界定为公共用物并为其选择所适用的法律规则。水资源公共用物的定性不仅有利于彰显水资源负载利益的全民性,将其与满足行政目的的公用物相区分,而且为理顺水资源由全民所有、宪法上国家所有至民法上国家所有等所有权类型的转化路径,直到为人人平等享有用水机会创设的水权制度提供了深层理论基础。     

Article 345 TFEU (ex Article 295 EC), Its Meanings and Interpretations

Research that has been conducted over the last decades shows that neither the scope of application nor the exact meaning of Article 345 TFEU (ex Article 295 EC) is clear from its wording. This article seeks to clarify its meaning through analysis of the drafting of the Article as well as the use of it by the EU's institutions and by the Member States. Article 345 TFEU, formerly Article 295 EC and, before that, Article 222 EEC, is an Article that limits, but not prevents, the application of the TFEU Treaty as a whole to the way in which rules of a Member State deal with the right of ownership of undertakings. The conclusion can be drawn that Article 345 TFEU only concerns the private or public ownership of undertakings, with which the Community shall not concern itself and which can thus be regulated by the Member States themselves. Most importantly, the Article does not concern the content of the right of ownership, nor the objects of a right of ownership. It does therefore not form an obstacle to the development of a European property law.     

相邻关系的民法调整

德国法系相邻关系所有权扩张说不能包涵全部相邻关系的民法调整方法 ,且在与所有权概念衔接、权利客体等方面存在着一系列难以克服的理论缺陷。相邻关系民法调整方法应包括相邻权、所有权限制、物上请求权、疆界及标志物的共有四种方法 ,并以法国法系的法定地役权观念来定义相邻权本质。应重视习惯的作用 ,综合运用物权和债权调整方法 ,尊重当事方意愿、允许变更约定 ,赋予相邻方一定自治的权利。     

War and International Order in Kant's Legal Thought“*

Abstract. Kant's writings on international law and especially his Toward Perpetual Peace have been interpreted both in a “statist” and a “cosmopolitan” manner. In this article it is argued that these interpretations stem from an ambiguity in those writings. In the course of proposing a resolution of this ambiguity, the first question to be examined is the extent to which war forms a part of human history and of human nature. Secondly, Kant's arguments against the realistic position and the conditions for a lasting peace are presented. An interpretation is then offered both of the proposed league of nations and of the situation that exists when such a league is still absent. According to the interpretation offered here, Kant's writings fit partly within the tradition of the “just war.”¹     

How Kant's View of Perfect and Imperfect Duties Resolves an Alleged Moral Dilemma for Judges*

Abstract. I clarify Kant's classification of duties and criticize the apocryphal tradition that, according to Kant, perfect duties trump imperfect duties. I then use Kant's view to argue that judges who believe that an action is immoral and should be illegal need not set aside their beliefs in order to comply with binding precedents that permit the action. The same view of morality that causes some people to oppose certain actions, including abortion, requires lower–court judges to comply with binding precedents. Therefore, someone's opposition to legal abortion, by itself, does not justify opposing that person's nomination to a lower court.     

物权法定主义：在自由与强制之间

对物权法定主义的传统解释导致了物权法的僵硬性 ,不符合社会经济的现实需要。不同物权类型的性质不同 ,在法律体系和社会生活中的地位和作用也不相同。可以把物权分为基础性物权与功能性物权。前者主要包括所有权、基地使用权等用益物权、典权和自然资源使用权 ;后者主要包括抵押权、质权、让与担保和留置权等。当事人设定功能性物权的根本目的是利用物的基础性权利 (如所有权 )来担保债权的实现。在法律上 ,对于基础性物权应当坚持物权法定主义 ,而功能性物权则可由当事人自由创设。     

水权制度初论

本文从水权的基本含义着手 ,通过分析水权与水资源所有权在各国产生的社会经济背景以及二者之间的关系 ,将水权定位为民法上的新型用益物权 ,并进一步说明了水权在优化水资源配置、实现水资源多元价值方面的制度功能。为使水权与相关物权相互衔接和配合 ,作者从理论上探讨了水权与土地所有权及使用权、相邻权、地役权等物权制度的关系 ,并初步提出了理顺它们之间关系的立法设想。文章还探讨了水权不同于传统用益物权的特征 ,并对水权的种类、设立和取得方式以及水权贸易的具体规则提出了自己的见解     

Immigration and Equal Ownership of the Earth

A number of philosophers argue that the earth's resources belong to everyone equally. Suppose this is true. Does this entail that people have a right to migrate across borders? This article considers two models of egalitarian ownership and assesses their implications for immigration policy. The first is Equal Division, under which each person is granted an equal share of the value of the earth's natural resources. The second is Common Ownership, under which every person has the right to use the earth's natural resources, but not the right to exclude others from them. While these models and their associated ideas have a long history within Western political thought, this article will examine them as they are presented by two sets of contemporary philosophers: Hillel Steiner, who defends Equal Division, and Michael Blake and Mathias Risse, who defend Common Ownership. In the case of each model, the article does three things. First, it considers the implications of the model for immigration policy. Second, it defends the model against objections from those defending immigration restrictions. Third, it contends that the model does not go far enough in its opposition to immigration restrictions. More specifically, the article argues that both Equal Division and Common Ownership, as presented by their proponents, fail to respect the claims of people whose interest in the land is not primarily economic. If the earth belongs to everyone equally, then people should not be prevented from pursuing important migratory goals such as family reunification, career development and education. The article concludes with a proposal for combining Equal Division with Common Ownership. Under this combined model, people would be free to migrate across international borders.     

股东表决权:公司所有与公司控制的连接点

美国学者Berle和Means于1932年系统地分析了在公众公司中存在的公司所有与公司经营相分离的现象后,在经济学和公司法学中都产生了重大的影响。根据该理论,在公众公司中的股东对经营层失去了控制,表决权也没有任何意义了。对此,基于所有权结构的有效性分析,本文认为股东对管理层并没有失去控制,而是由某一个或者几个大股东控制着公司。在两权分离过程中,表决权扮演着极为重要的角色,它是公司所有与公司经营的连接点。它不但维系和控制着公司所有者与经营者的关系,还是不同股东之间争夺公司控制权的工具,是控制股东对中小股东进行控制的工具。为了顺应这一工具主义趋势,表决权与股份之间出现了分离倾向的同时,表决权本身也出现了客体化趋势,在表决权的救济上也已经从损害赔偿为主的救济方式走向了撤销公司决议为主。     

Sexual Desire and the Importance of Marriage in Kant's Philosophy of Law

In his moral writings, Kant states that moral duty cannot be derived from “the special characteristics of human nature.” This statement is untenable if one takes seriously Kant's moral views on sexual desire. Instead close study reveals that considerations based on both morality and nature play a role here. The combination of these two elements leads to inconsistencies and difficulties in Kant's understanding of sexual desire, but they enable us to better understand the importance Kant attributes to marriage within his philosophy of law.     

承包权与经营权分置的法构造

承包权与经营权分置,建立所有权、承包权及经营权“三权分置”的农地权利体系,是中国农地权利制度的既定政策选择。这种新型农地权利体系既能承载“平均地权”的功能负载,又能实现农地的集约高效利用,兼顾了农地的社会保障功能和财产功能,为建立财产型的农地权利制度、发挥农地的融资功能提供了制度基础。我国现行物权法关于用益物权客体范围的界定过于狭窄和僵硬,阻碍了对物的多维利用。依循多层权利客体的法理,经营权乃是土地承包经营权人设定的、以土地承包经营权为标的的权利用益物权,其与土地承包经营权属于不同层次客体上存在的用益物权,可以同时成立而并不冲突。通过认可权利用益物权,承包权与经营权分置的制度设计完全可为用益物权体系所容纳。以设定经营权这一方式行使和实现土地承包经营权,将导致现行农地使用权流转方式类型的结构性整合以及农地融资方式、农地使用权继承的结构性变动。     

Age spots: Gender sensitivity and the Hutchins Commission

The language of the Hutchins Commission report, A Free and Responsible Press, written in 1947, is sexist. The language flaws the report, but certainly does not destroy its value. Language must be separated from content, such as in Plato's and Kant's writings. Although the Hutchins Commission uses unfortunate language, its message goes beyond mere toleration to a supererogatory duty: The ideal of the marketplace of ideas shall be made concrete. Just as Plato's vision of women ruling in equal numbers has yet to become reality and just as Kant's ethical vision of every human's liberation from mistreatment has yet to be realized, the Hutchins Commission's call for a chorus of voices remains unfilled. The call has been echoed and in some case intensified, such as in Carol Gilligan's work on the voices of women. But the goals remain undiminished beacons that remind us—educators as well as the media—that we still have much work ahead in order to achieve inclusiveness.     

The Right to Buy,the Leaseholder,and the Impoverishment of Ownership

Right to Buy is one of the most successful schemes devised to extend home ownership to those otherwise excluded. Its introduction by Margaret Thatcher and endorsement by New Labour provide a critical indicator of those governments' neo‐liberal credentials. This article suggests that one of the key achievements of the Right to Buy was to obscure inequalities inherent in a project of democratization via property ownership. It examines New Labour's political reform of local authority landlordism and leaseholder rights and exposes the vulnerability of Right to Buy lessees and their successors in title. It argues that the promise of inclusion via home ownership is a more conditional promise than generally recognized, in some cases impoverishing rather than enriching. It concludes by reflecting on the importance of scrutinizing schemes which purport to democratize ownership, observing that the position of Right to Buy leaseholders is unlikely to improve following the abandonment of social reform projects by the coalition government.     

Authorship,Authenticity, and Intellectual Property in Australian Aboriginal Art

This article analyzes research and legal cases about authorship, authenticity, and intellectual property in Aboriginal art. The concepts of Aboriginality, authenticity, and ownership are used to show the complexities of Aboriginal law, legal copyright, and the moral rights framework. The clan ownership of Dreaming makes Aboriginal artists' relationship different to other artists' individual ownership of their work. Research on this topic by members of the Faculty of Business and Law unit of the Centre for Leisure Management Research at Deakin University was undertaken for the Australian Institute of Aboriginal and Torres Strait Islander Studies. This article provides significant contextual analyses of major issues leading to Commonwealth Government inquiries and legislation in Australia during 2006-8.