Introducing the Open Clause to improve copyright flexibility in cyberspace? Analysis and commentary on the proposed “two-step test” in the Third Amendment to the Copyright Law of the PRC,in comparison with the EU and the US

The so called “three-step test”, that the limitations and exceptions of copyright shall be allowed in certain special cases, provided that they do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author, grants copyright flexibilities to balance the interests of all stakeholders, especially within the European system of circumscribed limitations and exceptions. This is essential for the domain of computer law, confronted by rapid and unpredictable global technological developments, and is, thus, enshrined in the most important international intellectual property (IP) treaties. Through the proposed third amendment to the Copyright Law of the PRC, the legislature intends to adopt this test while also introducing an open-ended list of limitations and exceptions that constitutes a China-specific “two-step test.” This contravenes prima facie the thesis endorsed by the WTO Panel in the case concerning Section 110(5) of the US Copyright Act in 2000. In contrast, court decisions in China frequently apply the fair use doctrine of US copyright law, neglecting to consider its peculiar context of the US common law tradition and, thus, unduly expanding the Chinese courts' discretionary power.This paper summarizes the case law in China and takes a comparative approach to address the divergence between the judicial application of cyber copyright law and the existing legislation. It suggests revising the proposed Article 43 of the Copyright Law of the PRC to capture the due interpretation of the three-step test, thereby finessing the delineation between rights protection and free use with the compensation of remuneration under the principle of proportionality. It argues that transplanting the US fair use doctrine into Chinese copyright law is feasible, but with the preconditions of endeavouring to strengthen judicial reform to integrate the IP adjudication systems, enhancing the coherence and efficiency of copyright enforcement, and facilitating consistent dialogues between scholars, practitioners, and lawmakers.     

The talk–listen–respond (TLR) model of representatives on Twitter

Despite the existing research on how elected representatives use Twitter, there are few comparative studies and none that considers Israel, a country that differs from most democracies in its electoral system. This study has two levels of analysis. The first is the country level, in which the author compares and explains how representatives in four countries – the US, Canada, Australia and Israel – use the talk, listen and respond model to achieve their goals. The second is the individual level, in which the author analyses how personal characteristics such as gender and age, and political characteristics such as seniority and membership in the opposition or coalition affect the frequency of use of Twitter. Using quantitative data, it is demonstrated that representatives vary in the frequency of their use of Twitter. On the country level, Australian representatives use Twitter more often than their counterparts in other countries. On the individual level, first-term members, members of the opposition, and older representatives use Twitter more often than those with more seniority, coalition members, and younger legislators.     

Mental health,substance use,and offending patterns among Native American youth in juvenile detention

Research has shown that youthful offenders in the juvenile justice system report an array of substance use and emotional and other mental health needs. The current study closely examined these issues in a large national sample (n = 539) of Native American youth drawn from the Survey of Youth in Residential Placement. Results demonstrated that frequent substance use was associated with the likelihood of being detained for a drug offense, while emotional and mental health needs were associated with detention for the most serious offenses. These results highlight the need for comprehensive substance use and other mental health assessments for Native American youth in the juvenile justice system.     

The Google conundrum: Perpetrator or facilitator on the net? - Forging a fair copyright framework of rights, liability and responsibility in response to search engine 2.0 - Part II: The Google Books Search Project

Is Google in its quest for search engine optimization through the creation of new technologies, which not only improves its search algorithms but also refines its search functions for users, doing it in a manner that makes it a perpetrator of primary copyright infringement or an invaluable facilitator for Internet functionality? How should the balance of interests in the treatment of creative works be recalibrated in the face of changes in search engine technology and operations, and the disputes that have arisen within the last decade in the context of the digital age and its needs? Using Google as a case study, this paper will look at the two main areas of dispute over the operations of information locator tools and services that either threatens search engine functionality and efficiency or weakens copyright holders’ exclusive rights. It proposes a concerted set of solutions through a reassessment and amendment of copyright law to optimize the social benefits and objectives of both the copyright regime and technological innovations in the electronic model of information archiving, indexing and delivery. A fair distribution of responsibilities and allocation of rights and liabilities will be suggested. In the process, due consideration will be given to both public and private interests, with the former taking precedence; while the recommended solutions will be made within the currently outdated framework for Internet intermediary protection (i.e. safe harbor laws) and exceptions (i.e. specific statutory exemptions and the general fair use defense) under the existing copyright regime. Thus, the proposed changes will be far reaching without being too radical a departure from current law, an evolution that will likely be more acceptable and realistic a solution to the problem.This paper is published in two parts. Part One of this paper published in the previous edition of the CLSR at [2011] 27 CLSR 110-131 dealt with the challenges to the copyright regime posed by the operations and technology behind the Google Images Search Engine, while Part Two will assess the benefits of the Google Books Search Project vis-à-vis the effects it will have on the scope of copyright protection. Recommendations are made to copyright law to accommodate both functions while generally preserving the main objectives of copyright protection.     

宅基地使用权流转模式的选择

宅基地使用权禁止流转制度无疑成了宅基地发挥其土地价值的巨大障碍,实践中已形成错综复杂的宅基地使用权的＂隐形市场＂,这严重影响了社会的稳定。通过房地分离和设立法定租赁权,建立与此相适应的宅基地有期限、有偿使用制度及完善的农村宅基地使用权登记制度等配套措施,以较少的成本解决宅基地使用权的流转,是较为合理的方案。     

拍卖、招标在国有建设用地使用权出让中的利弊研究

抑制房价过快上涨一直是当前宏观调控的重要目标之一。而地价作为组成房价的重要部分,其上涨状况直接关系到房价的调控效果。针对目前地价不断上涨的状况,国家草拟了《深化国有建设用地有偿使用制度改革实施方案》,已上报国务院审批实施。文件的主要内容是要对当前国有土地出让手段中拍卖和招标的比例进行调整,降低拍卖在土地出让总量中的比例、提高招标的比例,希望通过这一手段起到抑制地价的作用。然而,地价的上涨是一个复杂的过程,拍卖和招标作为两种出让手段,确实在其中发挥了一定的作用,但是其对地价的真正影响仍需要检验。同时,考虑到二者在出让过程中公开性上的差异,笔者认为,不能轻易调整二者比例,而是需要经过详细的比较验证过程。本文拟通过比较拍卖、招标两种土地出让方式在对推动地价上涨的效果、出让过程的公开透明度以及对土地价值实现程度的影响程度,分析推动地价上涨的其他原因,进而客观评价拍卖、招标作为出让手段的利弊,同时对当前政策给出相关建议。     

The characteristics of head wounds inflicted by "humane killer" (captive-bolt gun)--a 15-year study

The "humane killer" or captive-bolt gun, is the tool/weapon widely used in meat industry and private farmer households for slaughtering animal stock. Out of 17,250 autopsies performed at the Institute of Forensic Medicine in Novi Sad during the 15-year period (1991-2005), 29 cases of suicides and two homicides were committed by captive-bolt pistols. Wounds inflicted by captive-bolt guns have specific morphological features, distinctive from wounds made by other kinds of hand firearms. Selected features of the captive-bolt wounds (punched round entrance and a double pattern of smoke soiling) depend on distance and angle of instrument at the time of firing. Autopsy findings were compared with an experimental model consisting of 20 domestic pigs. Obtained results confirmed that the appearance of the entrance hole and soot deposits, along with differences in shape, location, extent, and density of soot blackening, could be useful in identification of weapon, direction of discharge, shooting distance, and angle of the muzzle to the frontal and sagittal planes of the head at the moment of fire.     

The inadequate legislative response to e-signatures

This article examines the two most influential international initiatives on electronic signatures (UNCITRAL’s 1996 Model Law on Electronic Commerce and the 1999 EU Electronic Signature Directive). It considers whether the legislative approaches in Australia and the United Kingdom based on these initiatives are helpful in deciding whether lower level signature methods such as simple email messages are likely to satisfy a legal requirement for a signature. The conclusion reached is that they are unhelpful. The article goes on to consider whether legislative amendments based on UNCITRAL’s 2001 Model Law on Electronic Signatures or the 2005 UN Convention on the Use of Electronic Communications in International Contracts would improve the identified weaknesses. It concludes that such an update would clarify some issues, but that overall it will not solve the difficulties. The article ends with a brief speculation on the likely attributes of a more helpful approach.     

Deciding to Intervene: An Analysis of International and Domestic Influences on United States Interventions in Intrastate Disputes

Although the United States has been the most prolific intervener in the international system since the end of World War II, there has been little consensus among scholars regarding the motivations of U.S. interventions in domestic political disputes abroad. In addition, scholars do not agree on the relative effects of international factors and domestic factors on intervention decisions by the U.S. Previous research on the motivations of U.S. interventions has occurred within at least two distinctive “streams” of literature: (1) studies of state interventions; and (2) studies of the use of military force by the U.S. Hypotheses regarding U.S. interventions in intrastate disputes are derived from the previous literature, and the hypotheses are tested using recently-compiled data on intrastate disputes and U.S. interventions in intrastate disputes occurring between 1945 and 2002. The results suggest a combination of international factors, including geographic proximity and ideological linkage, significantly influence the decisions of the U.S. to intervene in intrastate disputes. The results also suggest international factors are generally more important than domestic factors, and the effects of both domestic factors and international factors on U.S. intervention decisions may differ depending on the specific type of intervention and the time period.