User Property, User Rights, and User Privileges

2017 ◽  
Author(s):  
Pascale Chapdelaine
Keyword(s):  
Public Law ◽  
Copyright Law ◽  
Future Application ◽  
Private Law ◽  
The Public ◽  
Freedom Of Contract ◽  
Competing Interests ◽  
Regulatory Changes ◽  
Law And Policy ◽  
User Property

This chapter proposes two principles that should inform the development of copyright law and policy and of user rights. The first calls for more cohesion between copyright law, private law, and public law, and for less exceptionalism in copyright law. The second requires that the balance in copyright law be adjusted for its future application as a mediation tool between the competing interests of copyright holders, users, intermediaries, and the public. Instituting positive obligations for copyright holders in relation to users and steering freedom of contract toward the objectives of copyright law are necessary regulatory changes to rectify ongoing imbalances. The principle of technological neutrality should guide the judiciary in its application of copyright’s objective of promoting a balance in copyright law. The proposed guiding principles lead to the creation of a taxonomy and hierarchy of copyright user rights that take into account the myriad ways users experience copyright works.

Private and Public Law

2020 ◽  
pp. 574-592
Author(s):  
Thomas W. Merrill
Keyword(s):  
Law And Economics ◽  
Public Law ◽  
Private Law ◽  
General Criterion ◽  
The Public ◽  
Private Ordering ◽  
Public Rights ◽  
Private And Public ◽  
The Relationship ◽  
Derivatives Of

This chapter explores the relationship between private and public law. In civil law countries, the public-private distinction serves as an organizing principle of the entire legal system. In common law jurisdictions, the distinction is at best an implicit design principle and is used primarily as an informal device for categorizing different fields of law. Even if not explicitly recognized as an organizing principle, however, it is plausible that private and public law perform distinct functions. Private law supplies the tools that make private ordering possible—the discretionary decisions that individuals make in structuring their lives. Public law is concerned with providing public goods—broadly defined—that cannot be adequately supplied by private ordering. In the twentieth and twenty-first centuries, various schools of thought derived from utilitarianism have assimilated both private and public rights to the same general criterion of aggregate welfare analysis. This has left judges with no clear conception of the distinction between private and public law. Another problematic feature of modern legal thought is a curious inversion in which scholars who focus on fields of private law have turned increasingly to law and economics, one of the derivatives of utilitarianism, whereas scholars who concern themselves with public law are increasingly drawn to new versions of natural rights thinking, in the form of universal human rights.

13. The nature of judicial review

2020 ◽  
pp. 277-308
Author(s):  
Neil Parpworth
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Public Law ◽  
Executive Power ◽  
Decision Making Process ◽  
Private Law ◽  
The Public ◽  
Procedural Reform ◽  
Actual Decision ◽  
Public Bodies

Judicial review is a procedure whereby the courts determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision. Thus it is supervisory rather than appellate. Emphasis is also placed on the fact that the jurisdiction exists to control the exercise of power by public bodies. This chapter discusses the supervisory jurisdiction of the courts, procedural reform, the rule in O’Reilly v Mackman, the public law/private law distinction, collateral challenge, and exclusion of judicial review. The procedure for making a claim for judicial review under the Civil Procedural Rules (CPR) 54 is outlined.

Part I General Principles, 3 International Law as it Affects Private Law Conventions Governing Cross-Border Commercial Transactions

2015 ◽  
Keyword(s):  
International Law ◽  
Public Law ◽  
Private Law ◽  
Commercial Law ◽  
Typical Structure ◽  
The Public ◽  
State Security ◽  
The Subject ◽  
The Relationship ◽  
Domestic Law

Chapter 3, after describing general principles of international law and the relationship between international law and domestic law, focuses on the hitherto neglected subject of private commercial law conventions. Textbooks on international law invariably focus on public law treaties. By contrast this chapter addresses issues relating to private law conventions. It goes through the typical structure of a private law convention, the interpretation of conventions and the treatment of errors, and the enforcement of private conventional rights against States. The subject of private law conventions and public law has become of increasing importance with the appearance in several private law instruments of provisions of a public law nature designed, for example, to ensure that creditors’ rights are not enforced in a manner that adversely affects the public interest or State security. Reservations and declarations are also discussed, together with the subject of conflicts between conventions.

scholarly journals CONFIDENTIALITY CLAUSES IN INVESTOR-STATE CONTRACTS FOR THE PROTECTION OF TRADE SECRETS AFTER PROMULGATION OF THE INDONESIAN ACT ON PUBLIC INFORMATION DISCLOSURE

2021 ◽  
Vol 29 ((S2)) ◽  
pp. 115-141
Author(s):  
Sanusi Bintang ◽  
Mujibussalim Mujibussalim ◽  
Mahfud Mahfud ◽  
Fikri Fikri
Keyword(s):  
Information Disclosure ◽  
Current Practice ◽  
Public Information ◽  
Contract Law ◽  
Public Law ◽  
Private Law ◽  
Trade Secrets ◽  
New Model ◽  
The Public ◽  
Aceh Province

A confidentiality clause is a clause in investor-state contracts which is in the operative part of the contract to guarantee adequate protection of the trade secrets of the contracting parties. This article argues that there is a need to change the current practice where investor-state contracts in Indonesia utilizes broadly defined confidentiality clauses as a means to protect trade secrets in international business transactions. This is because a broadly defined confidentiality clause is contradictory to the provisions of the Act on Public Information Disclosure (APID). APID is aimed mainly at providing public information disclosure. The public information includes public contracts, such as investor-state contracts. Therefore, a new model of the confidentiality clause is needed for the protection of trade secrets as intended by the Act on Trade Secrets (ATS) and contract law as well as public information disclosure as intended by APID. This article employs doctrinal legal research. The research utilized, primary, secondary, and tertiary legal authorities. The primary legal material intensively used in this article consists of mandatory-primary legal authorities, in the form of statutes and contracts. The contracts used are the investor-state contracts of Aceh Province, Indonesia. The finding shows that a new model of the confidentiality clause can be created by accommodating both the interest of the state for providing public information disclosure based on APID and the interest of investors for the protection of trade secrets based on ATS and contract law. Investor-state contracts are a specific type of contract which has specific characteristics that apply to both private law and public law. They are different from purely international commercial contracts which only apply private law. Investor-state contract drafters need to be aware of this difference and provide a more balanced confidentiality clause in the contracts.

scholarly journals Crown act of state and detention in Afghanistan

2020 ◽  
Vol 71 (2) ◽  
pp. 109-133
Author(s):  
Jane Rooney
Keyword(s):  
Supreme Court ◽  
Armed Conflict ◽  
Public Law ◽  
Private Law ◽  
The Public ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Executive Action ◽  
Uk Supreme Court ◽  
The Uk

The Serdar Mohammed litigation signalled a decisive change in judicial attitude towards scrutiny of extraterritorial executive action in armed conflict. The most significant indicator of a change in judicial attitude was the reinstatement of the act of state doctrine in the private law claim in tort. Act of state bars tort claims against the Crown when the Crown acts outside of its territory. The UK Supreme Court characterised act of state as a non-justiciability doctrine. The article argues that the UK Supreme Court exercised extreme deference in its adjudication of the act of state in the private law claim. This deference was then mirrored in the reasoning employed in the public law claim under the Human Rights Act 1998, departing from international and domestic standards on detention in armed conflict.

13. The nature of judicial review

2018 ◽  
Author(s):  
Neil Parpworth
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Public Law ◽  
Executive Power ◽  
Decision Making Process ◽  
Private Law ◽  
The Public ◽  
Procedural Reform ◽  
Actual Decision

Judicial review is a procedure whereby the courts determine the lawfulness of the exercise of executive power. It is concerned with the legality of the decision-making process as opposed to the merits of the actual decision. Thus it is supervisory rather than appellate. This chapter discusses the supervisory jurisdiction of the courts, procedural reform, the rule in O’Reilly v Mackman, the public law/private law distinction, collateral challenge, and exclusion of judicial review. The procedure for making a claim for judicial review under the Civil Procedural Rules (CPR) 54 is considered.

Public/Private

2020 ◽  
pp. 466-480
Author(s):  
Jean-Bernard Auby
Keyword(s):  
Essential Feature ◽  
Common Law ◽  
Public Domain ◽  
Public Law ◽  
Roman Law ◽  
Private Sphere ◽  
Private Law ◽  
The Public ◽  
Private And Public ◽  
The Relationship

This chapter examines the distinction between public law and private law. It stresses the importance of being aware of this difference between the public/private and public law/private law dichotomies. The public–private divide is universal even if, from one society to another, it can be conceived differently in certain ways. All human communities have an idea about the relationship between the private sphere and the public domain. By contrast, the distinction between public law and private law is not universal. It may be ignored, rejected, or confined to a very limited sphere of operation as, traditionally, in common law systems. Conversely, the public law/private law distinction may be understood as an essential feature of the juridical world, as was the approach of Roman law, inherited by the continental legal systems.

From Public Law to Public Policy, or The “Public” in “Public Law”

1972 ◽  
Vol 5 (04) ◽  
pp. 410-418
Author(s):  
Martin Shapiro
Keyword(s):  
Public Policy ◽  
Political Science ◽  
Public Law ◽  
Judicial Behavior ◽  
Private Law ◽  
The Public ◽  
Forward Looking

In a self-consciously forward looking survey recently published inPS, Glendon Schubert continues to employ the phrase “public law” as roughly synonymous with the legal concerns of political science. The recent publication of Murphy and Tanenhaus'The Study of Public Lawalso reaffirms that, in spite of the movement toward “judicial behavior,” which it might have been anticipated would change the boundaries of the field, the “public” in public law is still very much with those political scientists particularly concerned with things legal. There does not seem to me to be any valid reason why political scientists should maintain the public law—private law distinction and then proceed to exclude themselves from the “private” law sphere.

10. Judicial review: access to review and remedies

Public Law ◽  
2018 ◽  
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Public Law ◽  
Private Law ◽  
Legal Basis ◽  
Legal Requirements ◽  
The Public ◽  
Meaning And Purpose

This chapter provides an introduction to judicial review and its various features and requirements. It starts by exploring the meaning and purpose of judicial review, explaining the particular functions of the courts and the jurisdiction that justifies their scrutiny of administrative matters. It then sets out the legal basis for judicial review and the process through which applications proceed, which while rooted in statute, has developed incrementally through both case law and the 1998 Woolf Reforms. The chapter considers issues relating to access to review, exploring the legal requirements that must be fulfilled before an application for judicial review can be entertained by the Administrative Court. This includes a discussion of standing, which determines who can bring a claim, and consideration of the issues relating to the public law/private law divide, which concerns against whom a claim can be brought and the matter upon which that claim can be founded.

scholarly journals Rethinking the Public-Private Law Divide in the Age of Governmentality and Network Governance

2018 ◽  
Vol 5 (2) ◽  
pp. 119-143 ◽  
Author(s):  
Lukas van den Berge
Keyword(s):  
Common Law ◽  
Modern Art ◽  
Public Law ◽  
Network Governance ◽  
Private Law ◽  
Public And Private ◽  
The Public ◽  
European Public ◽  
Present Context ◽  
Stateless Society

This article presents an analysis of the ways in which the public-private law divide is envisioned in French, English and Dutch law. First, it explains why French law’s tradition of regarding public and private law as ‘two separated worlds’ is now outmoded, failing to live up to the present trends of ‘governmentality’ and ‘network governance’ determining the modern art of government. Subsequently, it argues that the holistic idea of English ‘common law’ as French law’s conceptual counterpart is equally outmoded, with its ideology of ‘self-government’ within a ‘stateless society’ being out of touch with an age of managerialism and ‘governmentality’ in which the state withdraws from society only to increase its grip on societal processes. Finally, it proposes a paradigm recently developed in Dutch doctrinal thought as an attractive theoretical framework for structural innovations that may contribute to a stable and legitimate system of modern European public law that attunes to its present context without being alienated from its central classical tenets – be it either those rooted in the French or the English tradition.

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