scholarly journals Reconstructing the Contours of the Copyright Originality and Idea- Expression Doctrines Regarding the Right to Deny Access to Works

2014 ◽  
Vol 1 (4) ◽  
pp. 921-940
Author(s):  
Michael D. Murray
Keyword(s):  
First Amendment ◽  
Freedom Of Expression ◽  
Cultural Knowledge ◽  
Fair Use ◽  
Digital Revolution ◽  
Content Development ◽  
Proper Definition ◽  
Definition Of ◽  
Access To Knowledge ◽  
The Right

ccess to innovative scientific, literary, and artistic content has never been more important to the public than now, in the digital age. Thanks to the digital revolution carried out through such means as super-computational power at super-affordable prices, the Internet, broadband penetration, and contemporary computer science and technology, the global, national, and local public finds itself at the convergence of unprecedented scientific and cultural knowledge and content development, along with unprecedented means to distribute, communicate, and access that knowledge. This Article joins the conversation on the Access-to-Knowledge, Access-to- Medicine, and Access-to-Art movements by asserting that the copyright restrictions affecting knowledge, innovation, and original thought implicate copyright’s originality and idea-expression doctrines first and fair use doctrine second. The parallel conversation in copyright law that focuses on the proper definition of the contours of copyright as described in the U.S. Supreme Court’s most recent constitutional law cases on copyright—Feist, Eldred, Golan, and Kirtsaeng—interprets the originality and idea-expression doctrines as being necessary for the proper balance between copyright protection and First Amendment freedom of expression. This Article seeks to join together the two conversations by focusing attention on the right to access published works under both copyright and First Amendment law. Access to works is part and parcel of the copyright contours debate. It is a “first principles” question to be answered before the question of manipulation, appropriation, or fair use is contemplated. The original intent of the Copyright Clause and its need to accommodate the First Amendment freedom of expression support the construction of the contours of copyright to include a right to access knowledge and information. Therefore, the originality and idea-expression doctrines should be reconstructed to recognize that the right to deny access to published works is extremely limited if not non-existent within the properly constructed contours of copyright.

Governing Fake News: The Regulation of Social Media and the Right to Freedom of Expression in the Era of Emergency

2021 ◽  
pp. 1-41
Author(s):  
Donato VESE
Keyword(s):  
Social Media ◽  
Freedom Of Expression ◽  
Self Regulation ◽  
Public Law ◽  
Fake News ◽  
Human Right ◽  
Social Media Platforms ◽  
Definition Of ◽  
The Right ◽  
Media Censorship

Governments around the world are strictly regulating information on social media in the interests of addressing fake news. There is, however, a risk that the uncontrolled spread of information could increase the adverse effects of the COVID-19 health emergency through the influence of false and misleading news. Yet governments may well use health emergency regulation as a pretext for implementing draconian restrictions on the right to freedom of expression, as well as increasing social media censorship (ie chilling effects). This article seeks to challenge the stringent legislative and administrative measures governments have recently put in place in order to analyse their negative implications for the right to freedom of expression and to suggest different regulatory approaches in the context of public law. These controversial government policies are discussed in order to clarify why freedom of expression cannot be allowed to be jeopardised in the process of trying to manage fake news. Firstly, an analysis of the legal definition of fake news in academia is presented in order to establish the essential characteristics of the phenomenon (Section II). Secondly, the legislative and administrative measures implemented by governments at both international (Section III) and European Union (EU) levels (Section IV) are assessed, showing how they may undermine a core human right by curtailing freedom of expression. Then, starting from the premise of social media as a “watchdog” of democracy and moving on to the contention that fake news is a phenomenon of “mature” democracy, the article argues that public law already protects freedom of expression and ensures its effectiveness at the international and EU levels through some fundamental rules (Section V). There follows a discussion of the key regulatory approaches, and, as alternatives to government intervention, self-regulation and especially empowering users are proposed as strategies to effectively manage fake news by mitigating the risks of undue interference by regulators in the right to freedom of expression (Section VI). The article concludes by offering some remarks on the proposed solution and in particular by recommending the implementation of reliability ratings on social media platforms (Section VII).

scholarly journals Natureza jurídica da denúncia anônima dirigida à autoridade pública

2017 ◽  
Vol 1 (36) ◽  
Author(s):  
Morton Luiz Faria de Medeiros
Keyword(s):  
Freedom Of Expression ◽  
Legal Proceedings ◽  
Anonymous Reporting ◽  
The Press ◽  
Legal Texts ◽  
Right Of Action ◽  
The One ◽  
Definition Of ◽  
The Right ◽  
Political Character

RESUMOO artigo busca analisar o conceito e a natureza jurídica da denúncia anônima, a partir dos métodos de abordagem hipotético-dedutivo e hermenêutico, por intermédio da interpretação de textos jurídicos extraídos de documentos legislativos, jurisprudenciais e doutrinários. Para tanto, principia-se pela definição de anonimato, investigando-se se a denúncia anônima constitui manifestação da liberdade de expressão ou de manifestação de pensamento, ideia ou opinião, a partir de depuração desses conceitos elementares que a circundam. Embora não haja uniformidade normativa ou doutrinária quanto a delimitações terminológicas para distinguir entre as liberdades de expressão, de manifestação de pensamento, de manifestação de opinião e de imprensa, conclui-se que o direito fundamental de liberdade de manifestação de pensamento é mais abrangente, possuindo dimensões individual (liberdade de expressão) e social (liberdade de prestação de informação), além da modalidade de liberdade de provocação de autoridade pública – em que se enquadram a denúncia anônima e os direitos de petição e de ação, por exemplo. Contudo, se, por um lado, a denúncia anônima não se confunde com o direito de petição – em face de este ostentar caráter político e estar atrelado ao direito a ser informado (o que é dificultado pelo anonimato) – tampouco pode ser equiparado ao direito de ação, que para instaurar processo judicial já demanda um mínimo de elementos de prova.ABSTRACTThis paper analyzes the concept and legal basis of anonymous reporting, using hypothetical-deductive and hermeneutics methods, through the interpretation of legal texts extracted from legislative, doctrine and jurisprudence documents. It begins with the definition of anonymity, investigating whether anonymous report constitutes manifestation of freedom of expression or manifestation of thought, idea or opinion, from the depuration of the elementary concepts that surround it. Although there is no normative or doctrinal uniformity regarding terminological delimitations to distinguish between the freedoms of expression, of expression of thought, of expression of opinion and of the press, it is concluded that the fundamental right of freedom of expression of thought is wider, including individual (Freedom of expression) and social (freedom to provide information) dimensions, in addition to the modality of freedom of provocation of public authority - which include anonymous reporting and petition and action rights, for example. However, if, on the one hand, the anonymous reporting is not the same as the right of petition - because the latter has a political character and is linked to the right to be informed (which is hampered by anonymity), it cannot be the same as the right of action, which in order to institute legal proceedings already requires a minimum of evidence.

scholarly journals DEFINITION OF THE CONCEPT OF «DEFAMATION» IN THE COUNTRIES OF CONTITENTAL EUROPE

2021 ◽  
pp. 104-111
Author(s):  
N. I. Skoropysova
Keyword(s):  
Western Europe ◽  
Freedom Of Expression ◽  
Burden Of Proof ◽  
Moral Rights ◽  
Protection Mechanism ◽  
Inaccurate Information ◽  
European Court ◽  
Protected Object ◽  
Definition Of ◽  
The Right

The article discusses the key issues of the interpretation of the concept of “defamation” in the countries of Western Europe. In a modern social and legal state, considerable attention is paid to the protection of individual rights and freedoms as the foundations of democracy. One of the basic personal rights is the right to personal dignity, protection of honor and reputation. Analysis of the structures of the current legislation, the positions of the Supreme Court, acts of the European Court, as well as classical and newest scientific approaches, defamation is an offense expressed in the dissemination of inaccurate information that violates the right of a legal entity to a business reputation. Honor, dignity, business reputation are constituent elements of such categories as personal moral rights and intangible benefits, in order to ensure the realization and functioning of the rights of which, a well-thought-out, well-coordinated and effective protection mechanism must be produced. Attention is focused on the fact that for the proper operation of such a mechanism, it is necessary to determine, first of all, the protected object, what are its features and boundaries that need to be regulated by law. Indeed, in the case of securing an incomplete list of protected in the legislation, fixing in the norms not all signs of the protected or the presence of gaps in the regulation of this legal relationship, the potential for abuse of the right or misinterpretation of its norms arises. National laws define in different ways whether the burden of proof lies with the plaintiff or the defendant. It is concluded that defamation is one of the unlawful acts that infringe upon honor, dignity and reputation and requires further study in the practice of the European Court. In dealing with defamation cases, courts always need to find a compromise and strike a balance between freedom of expression, freedom of thought and speech, and protection of dignity, honor and reputation.

Modern Ethical and Societal Implications of Nanotechnology

2020 ◽  
Vol 07 (04) ◽  
pp. 1-8
Author(s):  
Aishwarya S Patil ◽  
Keyword(s):  
Advanced Technology ◽  
Societal Implications ◽  
Automotive Electronics ◽  
Ethical Aspects ◽  
Food And Agriculture ◽  
The Social ◽  
Proper Definition ◽  
Definition Of ◽  
The Right ◽  
Societal Implications Of Nanotechnology

Advancement in nanotechnology in multidisciplinary areas of health, cosmetics, automotive, electronics, food and agriculture is established. The researchers started to study and debate the social and ethical aspects in terms of benefits and risks. The study of nanotechnology starts with the proper definition of its purpose and its scope. Since nanotechnology is at an emerging stage, the study of ethics is needed and society revolving around this technology has to grow. This study will help the growth and future predictions about nanotechnology and its implications which can then be communicated to a wider audience which will build confidence and will give them the right to choose. Acceptance of advanced technology by society is the very first milestone for a longer run.

Mediating Print Culture: Censorship, Revolutionary Journalism and the Manifesto of Equals

2011 ◽  
Author(s):  
Sanja Perovic
Keyword(s):  
French Revolution ◽  
Print Culture ◽  
Free Speech ◽  
Freedom Of Expression ◽  
Political Representation ◽  
Popular Sovereignty ◽  
Definition Of ◽  
The Right ◽  
First Time ◽  
The French Revolution

Freedom of expression and censorship are frequently cast in opposing but symmetrical terms. According to the conventional narrative, the right to free speech was acquired when first the American and then the French Revolution overthrew the repressive censorship apparatus of the ancien régime. However this account of increasing emancipation overlooks the important role played by the French Revolution in establishing a new definition of censorship that was both tolerant of free speech and repressive of political difference. This paper contends that precisely when political representation in the widest possible sense is at stake, freedom of speech cannot be reduced solely to a question of rights. It begins by revisiting the Directory period when the enlightened ideal of an unmediated public sphere openly clashed for the first time with the opposing ideal of an ‘unmediated’ or ‘popular’ sovereignty promoted by the radical press. It then focuses on the Conspiracy of Equals to show how the presumed neutrality of the liberal press was forged by repressing competing understandings of the right to free speech. Rather than assume that revolutionary propaganda is the ‘other’ of liberalism, this paper demonstrates the joint origins of both liberal and revolutionary understandings of free speech in the new censorship laws that attempted to separate the message from the medium of revolution.

scholarly journals But names will never hurt me: Extending hate speech legislation to protect gender and sexual minorities in New Zealand

2021 ◽  
Author(s):  
◽  
Vanessa Haggie
Keyword(s):  
New Zealand ◽  
Sexual Minorities ◽  
Minority Groups ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
Minority Group ◽  
Constitutional Rights ◽  
Definition Of ◽  
The Right ◽  
The Voice

<p>Hate speech legislation involves a fundamental conflict with the right to freedom of expression. However, it is a conflict that can be justified in a constitutional framework in which free speech is not paramount and can be balanced against other rights and freedoms. This paper discusses the concept of “hate speech” legislation, the conflict between freedom of expression and hate speech censorship, and ways in which these seemingly-incompatible concepts might be harmonised. It considers, drawing on legislation and case law from other jurisdictions, and in light of the Marriage (Definition of Marriage) Amendment Act 2013, the possibility of extending such legislation to protect gender and sexual minorities in New Zealand, and suggests a potential framework for such legislative change. Any provision concerning hate speech must avoid overreaching into the realm of free expression. As a result, ‘hate speech’ should be clearly defined and narrowly focussed in scope, as words or matter which “exposes or tends to expose to hatred or contempt” the minority group at which the protection is aimed. In New Zealand’s constitutional/rights framework, this limitation on freedom of expression can be justified as reasonable and appropriate. While hate speech legislation does create a conflict with freedom of expression, to protect hate speech at the risk of perpetuating harm, discrimination, marginalisation and silencing is not appropriate. It sends the message that the voice of hate speakers is worth more than that of minorities, and undervalues the dignity and social assurance of those minority groups as valued members of society.</p>

scholarly journals Intellectual Freedom and Inclusivity: Opposites or Partners?

2020 ◽  
Vol 4 (3) ◽  
pp. 7
Author(s):  
Deborah A. Thomas
Keyword(s):  
21St Century ◽  
Freedom Of Expression ◽  
Public Library ◽  
Intellectual Freedom ◽  
Meeting Room ◽  
Library Community ◽  
Public Meeting ◽  
And Gender ◽  
Definition Of ◽  
The Right

A commentary on a recent controversy in Vancouver, British Columbia, Canada, when a speaker considered to be transphobic was allowed to book a meeting room at Vancouver Public Library. The library defended the right of the speaker to her freedom of expression, though certain conditions were placed on the event and the library publicly distanced itself from her views. The library has experienced a fractured relationship with the transgendered and gender non-confirming community since the event which it is attempting to mend.  This article is an exploration of the arguments on both sides in the library community and beyond and of the larger questions about the use of public meeting rooms and freedom of expression in the 21st century. It is also about the personal journey of the author, an advocate for both intellectual freedom and LGBTQ+ rights, and her conversations to those attempting to find a new definition of what constititutes intellectual freedom.

scholarly journals The Natural Right To Parody: Assessing The (Potential) Parody/Satire Dichotomies In American And Canadian Copyright Laws

2018 ◽  
Vol 35 ◽  
pp. 69-98
Author(s):  
Amy Lai
Keyword(s):  
Free Speech ◽  
Natural Law ◽  
Freedom Of Expression ◽  
Natural Right ◽  
Legal Definition ◽  
The Core ◽  
Copyright Laws ◽  
American Law ◽  
Definition Of ◽  
The Right

This paper argues that the right to expressing oneself through parodies should constitute part of the core freedom of expression of a normative copyright regime. By drawing upon natural law legal theories, the paper proposes a legal definition of parody that would help to bring the copyright jurisprudence of a jurisdiction more in line with its free speech tradition. It argues that a broad parody definition, one that encompasses a great variety of expressive works but would not compete with the original and its derivatives in the market, is preferable to a narrow one. The paper then explains why the parody defence in American law and the parody exception in the Canadian copyright statute should follow the proposed parody definition, which would properly balance the rights of copyright owners with those of users.

scholarly journals Extremism. Juridical Abstraction. Problems of Demarcating the Freedom of Expression

2019 ◽  
Vol 13 (4) ◽  
pp. 629-640
Author(s):  
Vladimir Suchkov ◽  
Vladimir Filonov
Keyword(s):  
Russian Federation ◽  
Negative Impact ◽  
Freedom Of Expression ◽  
Local Level ◽  
Constitutional Court ◽  
National Courts ◽  
The Russian Federation ◽  
The Law ◽  
Definition Of ◽  
The Right

The authors examine the juridical idea of extremist used in the criminal law of the Russian Federation. This work is an attempt to solve the problem of differentiating between this concept and the freedom of expression. The establishment of boundaries and limits of these phenomena is important for both lawmakers and law enforcers. The authors use the attributes of the phenomenon of «extremism» in an attempt to understand its form and contents. To achieve this, they analyze views on different scholars on extremism, the law and its amendments, clarifications of the highest court authorities of the country regarding the object of this research, and study the doctrinal practice of experts – linguists and psychologists. They synthesize the discovered meanings of extremism and identify its features. The obtained information allowed the authors to conclude that the definition of extremism formulated in the law is not precise, it lacks clear boundaries and, at the categorial level, could be viewed as an abstract concept. This concept, incorporated in the law, has a negative impact on the quality of the law and impedes the right choice of interpretation by national courts. The fuzziness of legal prescriptions has not yet been eliminated by the Constitutional Court of the Russian Federation and the law enforcement practice of the Supreme Court of the Russian Federation. All this creates endless opportunities for interpreting the law at the local level. The authors present disturbing statistics that show a tremendous growth in the number of offences in this area in recent years. They believe that the cause of the problem is the above-mentioned law that allows excessive interpretation by the law enforcer. The presented research deals with the bottlenecks of constitutional law as it analyzes the freedom of expression with its boundaries and limits. The authors discuss the conflict of constitutional and criminal laws from the viewpoint of enforcing specific law clauses. The research includes constructive criticism of the instruments used by experts (linguists and psychologists) who perform their tasks for criminal cases and materials on speech goals, which belongs to the domain of criminalistics. The authors present their own vision of this problem based on the opinion of scholars, historical experience and court practice.

Consequences of the Nature of the Parody Exception

2019 ◽  
pp. 70-90
Author(s):  
Sabine Jacques
Keyword(s):  
Freedom Of Expression ◽  
Copyright Infringement ◽  
Copyright Law ◽  
Fair Use ◽  
Fair Dealing ◽  
Freedom Of Contract ◽  
Strict Interpretation ◽  
Legal Nature ◽  
The Right ◽  
And Function

This chapter examines the consequences of the nature and function of the parody exception in copyright law. It first explains the ‘mechanics’ behind the parody exception, particularly as a defence to copyright infringement, before discussing the legal nature of copyright exceptions and in relation to copyright and contract laws. It then addresses the question of whether copyright exceptions, especially the parody exception, amount to rights or are more akin to interests. It also considers the principle of strict interpretation as a rule of interpretation for the parody exception and reviews recent decisions that illustrate whether the user rights approach resulted in any noticeably broader interpretation of copyright exceptions. Finally, it explores the principles underpinning freedom of contract and how judges, notwithstanding the parody exception’s procedural label as a defence, assess fair use, fair dealing, or rules of the genre in light of the right to freedom of expression.

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