The Islamic Veil and Freedom of Religion, the Rights to Education and Work: a Survey of Recent International and National Cases

The wearing of the female Islamic dress (generally referredto as the hijab), or any feature of this dress such as the headscarf(khimar), face veil (niqab) and the head-to-toe all envelopinggarment (jilbab) is a complex and multi-faceted issue that isoften raised in public debate in most European States in recentyears particularly in the education and employment areas. Thisarticle analyses the selected State practice and judicial decisionson the banning and similar restrictions to the wearing of theIslamic dress in State schools. Two issues are analysed: (i)whether the prohibition of female Muslim pupils or studentsfrom wearing the Islamic dress, or any feature of the Islamicdress, while at State schools amounts to an unjustifiable violationof the right to education and/or an unjustifiable violationof freedom to manifest one's religion or beliefs and (ii) ifa State (or a non-State actor) prohibits a female Muslim teacherfrom wearing the Islamic dress while at a State school, doesthis amount to a violation of the teacher's right to work and/orthe teacher's right to manifest freedom of religion or belief?     

Who controls the Naomi Campbell information flow? A practical analysis of the law of privacy

Legal context. The House of Lords held that the medical privacyof the glamorous supermodel Naomi Campbell was violated by publicationof details of her drug addiction treatment and a paparazzi picture.English law is developing under the influence of Article 8 (theright of privacy) and Article 10 (the right of freedom of expression)of the European Convention of Human Rights. The court explainedhow the action for breach of confidence protects privacy. So,who controls the Naomi Campbell information flow? Key points. Primarily, the courts control the flow of privateinformation. They do so through the cause of action of breachof confidence and remedies. In deciding liability, the courtsshould ask whether the benefit of publication is proportionateto the harm done by the invasion of privacy. To answer the question,they must balance the public interest in the right of privacyagainst the public interest in the right of freedom of expression.They may settle on a Reynolds type test by considering a numberof non-exhaustive factors. The article examines seven suggestedfactors and the remedies which can be deployed by the courts.Judgments from the English courts and the European Court ofHuman Rights are considered, including Campbell v MGN (HL),Douglas v Hello! (CA), McKennitt v Ash (HC), Peck v UK (ECtHR),Édition Plon v France (ECtHR), and Von Hannover v Germany(ECtHR). Practical significance. There are an increasing number of privacyclaims against the media. The article includes a checklist ofseven factors to help determine where the balance lies betweenprivacy and freedom of expression.     

Technology transfer in the navy: The historical background

This report reviews technology transfer in light of the Stevenson-Wydler Technology Innovation Act of 1980. Following a brief introduction, a section on “Definitions” explains the several meanings that the phrase “technology transfer” now carries in policy discussions. The next section, on “Passive Technology Transfer”, reviews traditional Department of Defense scientific and technical information programs that relate to technology transfer. A section on “Military Industrial Transfer” examines technology transfer from the Defense Department to private industry, expecially to defense contractors. A section on “The Stevenson-Wydler Act and Active Technology Transfer” describes the principal provisions of the new act and why Congress passed it. The next two sections, on “NASA’s Technology Transfer Program” and “The Federal Laboratory Consortium” outline the two existing Government programs Congress relied upon in developing ideas for the new law. A section on “Implementation of the Stevenson-Wydler Act”, discusses several important issues that must be considered by Navy laboratory management as the new law is put into effect in the Navy. Finally, a brief conclusion emphasizes the major point of the report: That Congress, in passing the Stevenson-Wydler Act, did not fully consider what relationship the new technology transfer programs it was requiring in the Executive Branch should bear to existing programs with similar purposes. If the public interest is to be served, the report argues, the Navy must consciously and carefully determine the proper nature of this relationship.     

Technology transfer in the California Department of Corrections

A technology transfer project began in 1982 in the California Department of Corrections. They contracted with a research organization to assist them in the identification and evaluation of new technology in the areas of personal alarm systems, electronic perimeter security systems, and contraband control. In addition the contractor was to develop in the department the capacity to maintain an ongoing technology transfer process at the conclusion of the project. After two years positive results have been achieved in each of the three areas of technology. The department has also established a permanent Technology Transfer Committee and created a full-time position to provide staff services.     

Editors' Note

Capital market or capital markets? We say the latter in thetitle of this Journal. The articles in this issue, however,deal with attempts to harmonise, codify and direct a more commonapproach, albeit regional in some cases, for capital marketactivities, which we know are sometimes slow to respect eithernational jurisdictional     

Towards the End and Beyond: The "Almost" Referral of Bagaragaza in Light of the Completion Strategy of the International Criminal Tribunal for Rwanda

The Bagaragaza case was the first at the International CriminalTribunal for Rwanda in which the referral of an accused to anational jurisdiction was discussed. Such a referral may bemade at the discretion of a Trial Chamber designated by thePresident, if the Chamber satisfied itself that the Accusedwill have a fair trial and that the death penalty will not beimposed or carried out. The referral can be made to three differentStates: the one where the accused was arrested, the one werethe crimes were committed and the one which has jurisdictionand is willing and adequately prepared to hear the case. Inthe Bagaragaza case, the request for referral was dismissed,because the Referral State in question, the Kingdom of Norway,has no provision for genocide in its penal law. This paper discussesthe referral mechanism and the role it plays in the Tribunal'sambitious completion strategy. An analysis of the Bagaragazacase will show how this mechanism has actually been applied,concluding that the Tribunal rightly resisted the pressure toabide by the completion strategy and chose substance over form.After the Tribunal's closure, two important questions will facethe international community: (a) Where will convicted and acquittedpersons be relocated? (b) Has international criminal justicebeen promoted at the expense of long-term peace and stability?     

Evaluation technology transfer: Some problems and solutions

Evaluation of technology transfer is an important part of the total transfer process. Sound results require a practical approach, which avoids use of the research model. The evaluation process is often expensive and time consuming. However, good evaluation will improve:motivation,knowledge,decisions, andaccountability. Evaluation must be based on use of reliable data. Technology transfer evaluation data can be classified — based on accuracy — aslow,medium, orhigh order — data. Evaluation problems can be designated — according to origin — as being related tonew information,human elements, orinstitutional structure. In each area, the more common evaluation problems can be solved with careful attention to detail. Technology transfer evaluation can be a complicated, but rewarding process. There is nosingle, correct way for Technology Transfer evaluation, but rather there is a wide variety of techniques which all have merit, depending on local circumstances.     

Jerome Gilson

Distinguished US lawyer Jerome Gilson has practised trade markand unfair competition law for more than 40 years. He is bestknown in the US and internationally as the original author ofTrademark Protection and Practice (LexisNexis/Matthew Bender),which was renamed Gilson on Trademarks in 2007. How did you first become interested in IP? Five years into general practice, I sent a Time article about     

Gauging the process of international technology transfer

A Technology Transfer Index is proposed for gauging the process of international technology transfer. The approach is based on the premise that the transferee in the process aims at achieving technological independence through gradual replacement of imported technological components by indigenous resources. By avoiding abstract concepts and concentrating on the end-results of the technology transfer process, the index can be computed from readily available statistics of production costs and international trade. The quantitative measure is expected to be a useful indicator for economic planning, aid program management and project evaluation and assessment.     

Copyright, continuums and freedom of speech

‘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.

Copyright and Free Speech Comparative and International Analyses ByJonathan Griffiths and Uma Suthersanen, Eds, 2005, Oxford: OxfordUniversity Press Price: £80.00, Hardback, ISBN: 0199276048.pp. 426   If one were to summarize this     

Gaining confidence in the law of confidence

Legal context. The recent case of EPI v Symphony has left theUK law of confidentiality in an uncertain state: the extentto which recipients of confidential information may be permittedto ‘use’ mixtures of such information with publiclyavailable material remains unclear. The Court of Appeal in EPIfelt that it was hard to reconcile the principle that any claimin confidence must fail if the material in question is in thepublic domain with the ‘springboard’ doctrine; butis the distinction illusory? Key points. Issues raised in this case include considerationof what precisely is ‘use’ of confidential information,when mixed with public information, and whether a confider shoulddo more than rely on confidentiality obligations to protectthe fruits of his/her disclosures. This article asks how confidentialityobligations may be aligned with the control of statutory intellectualproperty rights. It considers whether the Court of Appeal inMarkem v Zipher has confused the issue and speculates as tohow far the general law of contract can assist the confider. Practical significance. Finally, this article discusses whichlegal tools will best assist the confider seeking to protectits intellectual property.     

The contributions of invention management companies to technology transfer

A new type of organization which is explicitly dedicated to technology transfer has emerged in the United States: Companies which manage inventions produced by universities, independent inventors and other creative groups. This paper shows that these “Invention Management Companies” (IMCs) make important and unique contributions to technology transfer on legal issues (e.g., guarding against patent infringements), marketing (e.g., convincing a company to commercialize au invention) and advocating the invention against the organized opposition of established technologies. Given the contributions of IMCs to an emerging system for encouraging innovation (an “Inventive Society”), the paper recommends broadening the role of IMCs as information providers and linking them to incubators and venture capital companies.     

'Trade mark use' in Europe: revisiting Arsenal in the light of Opel and Picasso

Legal context: The European Court of Justice (ECJ) decision in the case ofArsenal Football Club v. Reed led to uncertainty regarding thepractical scope of a trade mark proprietor's property rights. Key points: The uncertainty resulted from a failure of the ECJ to addressclearly the issue of what constitutes infringing trade markuse. The ECJ ignored the question of the High Court as to whetheruse of a trade mark as an indication of origin is necessaryfor establishing infringement. They instead established an ambiguousstandard for what constitutes infringing trade mark use, suggestingthat only use that jeopardises the essential function of a trademark is an infringing use. This ambiguity has had problematicimplications for subsequent interpretations of trade mark law,particularly in the Court of Appeal in Arsenal and the Houseof Lords in R v Johnstone. Two relatively new ECJ cases may help clarify the issue. InOPEL, the ECJ suggested that infringing use of a trade markmust be use that is perceived by the relevant public as a designationof origin. The Picasso decision limits the effect of the Arsenaldecision on the relevance of confusion in non-sale situationsto the facts of Arsenal. In particular, it stresses the pointthat when assessing likelihood of confusion in the context ofan opposition to an application for registration the court shouldfocus on the perception of the relevant public at the pointof sale. Practical significance: The benefit of these two cases is that they create some clarityfor legal practitioners and the Courts when addressing the questionof what constitutes infringing trade mark use.     

Inter Partes Proceedings and the Reform of the Community Trade Mark Implementing Regulation

Legal and practical context. Commission Regulation 1041/2005of 29 June 2005, which amends the Community Trade Mark ImplementingRegulation, entered into force on 25 July 2005. Substantialamendments are brought to inter partes proceedings, that isoppositions and applications in revocation or in invalidity,and appeal procedures. Key points. The rules governing the substantiation of the earlierrights and time limits are now stricter. Also, the new regimeaims at circumscribing the consequences of the rather broadinterpretation which the Court of First Instance gave over thelast two years to the notion of functional continuity betweenthe opposition division and the Boards of Appeal. Practical significance. The authors analyse the new provisionscontained in the Community Trade Mark Implementing Regulationin the light of the latest case law of the Court of First Instance,in order to provide practitioners with a simplified guide.     

TRIGGERING INSPECTIONS EX OFFICIO: MOVING BEYOND A PASSIVE EU CARTEL POLICY

The implementation of leniency programs is considered a successboth at a EU Community level and in individual member states.The paper discusses the value of ex officio investigations forcartel detection in light of leniency and complaint-based cases.Are ex officio investigations still needed? Should a competitionauthority concentrate its scarce resources exclusively on theprosecution of leniency or complaint-based cases or follow aproactive market monitoring policy? It is argued that investigationstriggered ex officio are an important complementary enforcementtool to the other passive instruments available to a competitionauthority. A bottom-up methodology for triggering inspectionsbased on economic criteria is presented allowing for a moreproactive cartel policy.     

Discourses of Division: Law, Politics and the ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

This article undertakes a critical reading of the argumentsused at the bench and the bar in the 2004 ICJ Wall advisoryopinion. The Wall case included an unprecedented number of Stateand non-State participants and it is therefore a valuable sitein which to explore the parameters and limits of legal speech.What argumentative strategies were employed at the Peace Palace?How did different participants present the relationship betweenlaw and politics? In particular, because the example of Palestinecan be seen as a challenge to the post-colonial order, how didThird World States employ the language of international lawin support of Palestinian self-determination? It is shown thatalthough international legal speech is highly restrictive, manyThird World States are willing to challenge its boundaries througha deep-set faith in the dividends of legal argumentation.     

Technology transfer legislation: An overview

This article provides an overview of the Federal legislation on technology transfer beginning with the Bayh-Dole and Stevenson-Wydler acts of 1980 and ending with the 1987 Executive Order, “Facilitating Access to Science and Technology.” The legislation and Executive Order provide the context for Federal laboratory technology transfer activities. The article covers the historic development of transfer legislation, the authorities given to laboratories, incentives for technology transfer provided by legislation, and the mandated duties and responsibilities of ORTAs, organizations, and agencies.     

The genesis of liability in ancient law

This article considers the emergence and evolution of punitiveand compensatory remedies in ancient law. I describe how ancientpractices of retaliation gradually evolved, through four generalphases, into rules requiring victim's compensation. I suggestthat the Biblical lex talionis ('eye for an eye...life for alife') and similar rules that emerged in other ancient legalsystems triggered an important change in the ancient law ofwrongs, marking the end of a system of retaliatory justice andthe emergence of a system based on victim's compensation. Thepaper addresses four related questions. (1) Why was a singlelimit of 1:1 to talionic penalties introduced across all categoriesof wrongdoing, replacing older customary practices that haddifferent multipliers according to the circumstances of thecase? (2) In the presence of imperfect enforcement, did the1:1 limit to retaliation result in underdeterrence? (3) Whydid the practices of literal talionis rapidly fall into disuseafter written formalization? (4) Where the kofer and blood-moneypayments made under a threat of literal retaliation likely togenerate overextraction from the wrongdoer and excessive deterrence?     

Sourcing from China: stopping the IP leaks from your clients' supply chain

Legal context: It is no secret that IP in China is a challenge. However, commercialactivity in or with China is now predictable enough that companiescan, and should, plan for it by taking control of their supplychain. This requires a combination of legal and practical measures.This article sets out some of these steps. Key points: In order to minimize the risks of IP leakage their supply chainsin China, there are three key stages of protection: (i) Pre-sourcing;(ii) Negotiating strong contracts with suppliers; and (iii)Managing the relationship with your supply chain. Practical significance: If your clients do business in China or source products fromhere and cannot answer the following questions, their IP isat risk of infringement. They need to take steps to proactivelymanage their supply chain.

• Do your clients know which factoryis producing their products?How many links are in your clientssupply chain, each one increasingthe chances for IP infringement?
• Do your clients' agreements with their suppliers adequatelyprotect their IP?
• Have your clients taken steps to prevent‘midnight productionruns’ and ‘backdoor sales’by their suppliers?
• How is the IP being provided to them?Do your clients need togive them everything for production?
• What steps have been taken post-production to ensure thatyourclients' suppliers don't continue to manufacture theirproducts?

     

Economic crises, capital transfer restrictions and investor protection under modern investment treaties

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

• Capital liberalization was the norm of internationaleconomic relations until the Economic Depression of the 1930swhen exchange restrictions became an important instrument ofeconomic policy of many countries.
• The IMF Articles of Agreementwere the outcome of efforts by several countries to providean acceptable international legal framework that would minimizethe negative impact of exchange restrictions while at the sametime preserving the right of Member States to impose exchangerestrictions when faced with balance-of-payment problems.
• Thatposition is to a large extent maintained by most modern investmenttreaties although subject to heightened scrutiny by internationalarbitral tribunals under the disciplines of expropriation, nationaltreatment and fair and equitable treatment standards among othersin order to protect investors’ interests whilst safeguardinghost states, regulatory autonomy.