Does private copying need an update in the UK?

Legal context: Most European legal systems have limited the ‘exclusive’reproduction right of authors in their works to enable usersto copy, for private purposes and without the authorizationof the authors, legally acquired protected material. In exchange,authors receive compensation for their loss of control of theircreations. The UK Copyright Act does not generally permit privatecopying, but it does exempt a few acts from the exclusive rightsawarded to authors through copyright. Key points: The article examines the limitations to the reproduction rightprovided by IP law in the UK, such as time-shifting, in thelight of relevant case law—GEMA (1964), Sony v UniversalStudios (1984)—the European Copyright Directive and aEuropean sector inquiry. Many countries have established levieson copying-friendly media where their proceeds are distributedto authors as compensation. This article argues for the needto reform the IP law in the UK, arguing that time-shifting andother reproduction acts authorized by the statute are privatecopying in disguise. The paper only considers legal privatecopying, which should not be mistaken with piracy or file-sharingin P2P networks. Practical significance: Copying another's works in the privacy of one's home has becomeincreasingly popular on account of the fast-developing paceof technology and its supporting platform: the internet. Althoughlevies have often been imposed on physical media (CDs, CDRs),new technologies such as MP3 and MP4 players and USB flash drivesare often exempted, despite their widespread use as tools forprivate copying. The private copying trend is bringing greaterbenefits to the users than to the creators of protected workswho understandably would like to obtain a share of the overallprofits.     

Regulatory Jurisdiction and the WTO

The WTO is not explicitly concerned with the problem of regulatoryjurisdiction in connection with prudential regulation (as opposedto industrial policy regulation). However, as the WTO has addressedincreasingly complex regulatory barriers to trade, it has developedseveral devices that have the implicit effect of allocatingregulatory jurisdiction among states.This article reviews afew illustrative cases in WTO law, including Helms–Burton,Shrimp, and Gambling. This review suggests how these cases maybe understood as dealing with allocation of regulatory jurisdiction.Negative integration rules such as national treatment or proportionalitymay serve as devices applied by tribunals for allocation ofregulatory authority. The WTO has very limited rules of positiveintegration—whereby states either harmonize regulationor agree on more specific allocations of regulatory authority,such as mutual recognition. However, it has developed a modestdegree of capacity to engage in positive regulation, or to referto positive integration rules developed in other contexts, suchas Codex Alimentarius. Finally, this article examines theoreticalbases for allocating and reallocating regulatory jurisdictionin order to establish a framework by which to analyse the roleof the WTO in this context.     

An Eye for an Eye: Proportionality as a Moral Principle of Punishment

The lex talionis of the Old Testament has been widely perceived—understandably,but mistakenly—as a barbaric law of retribution in kind.It is better understood as a seminal expression of restraintand proportionality as moral principles of punishment. Thishas been recognized from the earliest times. Over the interveningcenturies, the lex talionis has lost neither its moral significancenor its penal relevance. This is reflected in H.L.A. Hart'ssynthesis of modern retributivist and utilitarian theories ofpunishment and, again, in contemporary Canadian law throughthe recognition of proportionality as the fundamental principleof sentencing under the Criminal Code. The tension between thisfundamental principle and Canada's increasing resort to mandatoryminimum sentences of imprisonment is examined briefly in thislight.     

Restitution in America: Why the US Refuses to Join the Global Restitution Party

In the past generation, restitution law has emerged as a globalphenomenon. From its Oxbridge home, restitution migrated tothe rest of the Commonwealth, and ongoing Europeanization projectshave brought the common law of restitution into contact withthe Romanist concept of unjust enrichment, further internationalizingthis movement. In contrast, in the United States, scholarlyinterest in restitution, in terms of books, articles, treatises,symposia and courses on restitution, is meager. Similarly, whilerestitution, equity and tracing cases receive considerable treatmentat the highest levels of the English judiciary, US courts seemuninterested in these issues, rarely producing the theory-ladenopinions that have become quite common in the House of Lords.The situation is particularly curious because restitution isgenerally thought to be the invention of late nineteenth-centuryAmerican scholars. This article explains this divergence. Iargue that the Commonwealth restitution discourse is largelya product of pre- or anti-realist legal thought which generatesscepticism within the American academic-legal establishment.The article identifies the two dominant camps in American privatelaw thought—left-leaning redistributionalists and thecentre-right legal economists—and shows that neither hasany use for the Commonwealth's discourse. I conclude by analysingthe emerging drafts of the Restatement of Restitution and forecastthe future of American restitution law.     

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     

Weakening of Dismissal Protection or Strengthening of Employment Policy in France?

The contrat première embauche (CPE—first hiringcontract) and the contract nouvelles embauches (CNE—contractfor new hiring), ie two new types of contract for permanentor open-ended employment, were introduced in France in 2005.Both contain specific provisions on dismissal protection andtrial periods which amount to the abrogation of the ordinarystatutory protection against dismissal. In the aftermath, Francewas hit by a wave of protests, especially on the part of theyounger generation, since the CPE legislation above all concernedthis group. Consequently, the CPE was revoked in 2006. The CNE,however, remains in force and the otherwise relevant dismissalprotection rules do not apply to it for a period of two years. The CNE is not only an additional model for the many forms ofemployment contract. It provides a new type of labour contractand is aimed at combating unemployment and achieving permanentemployment. This paper examines how the new types of employment contractaffect traditional dismissal protection law. In particular,recent court decisions concerning the CNE legislation are presentedin detail.     

Who is Afraid of Punishing Aggressors?: On the Double-Track Approach to International Criminal Justice

Since 1947, no alleged crime of aggression has ever been prosecuted,in spite of the many instances in which states have committedacts of aggression with the Security Council sometimes deemingan act to be such. A dual system of international criminal justicehas taken shape slowly. Crimes consisting of serious violationsof jus in bello, that is, war crimes, usually considered lessegregious than the crime of aggression, have been severely prosecutedand punished, in particular by the International Criminal Tribunalfor the former Yugoslavia (ICTY). Yet, the ‘supreme internationalcrime’ — aggressive war — mostly committedby political and military authorities of major powers, has beenignored and its perpetrators still occupy the summit of internationalpower undisturbed.     

Would the current ambiguities within the legal protection of software be solved by the creation of a sui generis property right for computer programs?

Legal context: Software is an anomaly in the traditional sphere of IP, andits problematic nature has been manifest in the confused findingsof courts on both sides of the Atlantic. This article considersthe reasons for the confusion, where things might have beendone better, and how the law could develop considering the realitiesof the industry. Key points: Software protection at present favours the multinational corporations,while the interests of smaller companies and the Free and OpenSource Software community are prejudiced greatly. The currentregime is not fundamentally incompatible with software, however,and as such features of it could and should be retained in thecreation of a sui generis IP right. Practical significance: Much of today's software industry is driven by the efforts ofsmall enterprises and the Free and Open Source Software community.Their interests are not recognized in the current protection-biasedframework, and as a result innovation is being stifled by thethreat of litigation. IP law in this area is preventing thevery thing it is designed to foster—enterprise and innovation.     

Violence and Massacres -- Towards a Criminal Law of Inhumanity?

The law's responses to massacres seem to vacillate between twomodels: (i) the model of the ‘criminal law of the enemy’inspired by the national criminal law and rendered topical againby the attacks of September 11; (ii) the model of the ‘criminallaw of inhumanity’ symbolized by the paradigm of crimesagainst humanity. The latter model is better suited to takeaccount of the qualitative dimension of massacres, i.e. thefact that they, besides being mass offences (quantitative criterion),also offend against humanity. To establish a ‘criminallaw of inhumanity’ as a model with a universal, or universalizable,dimension, three conditions are necessary, which concern (i)the definition of the crimes, (ii) the assignment of responsibilityand (iii) the nature of the punishment. As for the definitionof the crime, one could implicitly deduce from the list of actsconstituting crimes against humanity (Article 7 of the InternationalCriminal Court Statute) that humanity so protected has two inseparablecomponents: the individuality of each human being, not reducibleto membership in a group, and the equal membership of each inthe human community as a whole. With regard to the second condition,it is not sufficient to hold responsible the de jure or de factoleaders; intermediaries and perpetrators, at all levels of hierarchy,must also be held accountable. As for the third condition, itis not sufficient to content oneself with the watchword of thefight against impunity without bringing up the nature and functionsof the punishment; hence the necessity not only to rethink therole ‘criminal’ law can play in a policy of punishment,but also to focus on prevention, reparation and reconciliation.Finally, the author suggests that the proposed model of a ‘criminallaw of inhumanity’ must be built through the interplaybetween municipal law and international law. On the one hand,the wealth of national legal systems — also with regardto penalties and responsibility — should be better integratedinto international criminal justice; on the other, nationalcriminal systems should be better adapted to conditions of internationallaw, through the introduction into domestic law of the definitionsof the crimes and also the rules for assigning criminal responsibility.     

Indirect holdings of securities and exercise of shareholder rights (a Spanish perspective)

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

• Shareholder rights have been the centre of the debatein Corporate Governance since recently. At the same time, modernsecurities markets have evolved and changed profoundly in recentdecades, both in the way in which the securities are representedand transferred—through electronic book entries held byintermediaries—and in the geographical reach of such transfers:every corner of the world.
• Recent research has thoroughly analysedthe effects of the indirect holding system in those countriesthat have chosen to give legal status to indirect holding systems(where the paradigm is the USA), leading to the conclusion thatin these countries the issuer–investor relationship encountersfar more difficulties than in those that facilitate direct holding.Some scholars have even proposed that countries such as theUSA should move into a direct holding similar to the Spanishone.
• This article analyses whether direct holdings facilitatethe said issuer–investor relationship by reviewing . . . [Full Text of this Article]

 

The Morals and Order Exceptions in WTO Law: Balancing the Toothless Tiger and the Undermining Mole

On 10 April 2007, the United States requested consultationswith China regarding trading rights for publications and audiovisualproducts. Following US—Gambling, this case is likely toprovoke the next clash between free trade and public morals.This article takes an abstract approach to the scope and contentof the public morals and public order exceptions in the GATSand the GATT and, given the absence of a public order exceptionunder the GATT, analyzes how these two concepts interrelatewith one another. In this regard, the finding in US—Gamblingthat Members should individually define the scope of ArticleXIV(a) GATS is critically examined, but the article suggeststhat it deserves support based on an interpretation in accordancewith general principles of the law of treaties. Following theidentification of instruments that limit the risk for abuseof the morals and order exceptions, the article will turn tothe scope-related aspect regarding the justifiability of ‘extraterritorial’measures.     

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.     

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 Proprietary Foundations of Corporate Law

Recent work in both the theory of the firm and of corporatelaw has called into question the appropriateness of analysingcorporate law as ‘merely’ a set of standard formcontracts. This article develops these ideas by focusing onproperty law's role in underpinning corporate enterprise. Rightsto control assets are a significant mechanism of governancein the firm. However, their use in this way predicates somearrangement for stipulating which parties will have controlunder which circumstances. It is argued that ‘propertyrules’—a category whose scope is determined functionally—protectthe entitlements of parties to such sharing arrangements againsteach other's opportunistic attempts to grant conflicting entitlementsto third parties. At the same time, the legal system uses arange of strategies to minimize the costs such protection imposeson third parties. The choice of strategy significantly affectsco-owners’ freedom to customize their control-sharingarrangements. This theory is applied to give an account of the‘proprietary foundations’ of corporate law, whichhas significant implications for the way in which the subject'sfunctions are understood and evaluated.     

The Implications of the ASLEF Case

The decision of the European Court of Human Rights in ASLEFv United Kingdom (27 February 2007) will require the governmentto re-visit the law relating to the right of trade unions toexclude and expel individuals because of their membership ofpolitical organisations perceived by trade unions to be hostileto their interests. It is now clear—as was pointed outat the time—that the changes made by the Employment RelationsAct 2004 do not go far enough to meet obligations under theEuropean Convention on Human Rights (ECHR). However, the casealso raises much wider questions about the compatibility ofother statutory restraints on trade union autonomy with Article11 of the ECHR, notably ss 64–67 (on unjustifiable discipline)and 174–177 (on exclusion and expulsion as a whole, andnot only the measures relating to membership of hostile politicalparties). This article considers both the immediate and thewider implications of the ASLEF decision for British trade unionlaw, in the context of what appears to be a greater willingnessof the Strasbourg Court to listen more carefully to trade uniongrievances than in the past. The article also draws attentionto the role of litigation as a trade union strategy to recoverlost rights, and again emphasises the importance of InternationalLabour Organisation Convention 87 and the Council of Europe'sSocial Charter of 1961 (as well as the jurisprudence thereunder)as important sources in the construction of the ECHR, Article11.