scholarly journals Retelling Copyright: The Contributions of the Restatement of Copyright Law

2021 ◽  
Vol 44 (3) ◽  
Author(s):  
Jeanne C. Fromer ◽  
Jessica Silbey
Keyword(s):  
Historical Context ◽  
Case Law ◽  
Copyright Law ◽  
Professional Standards ◽  
Law Reform ◽  
Court Decisions ◽  
The Past ◽  
Dramatic Criticism ◽  
Federal Case ◽  
The Subject

The provisions at issue in the draft Restatement of Copyright Law on which ALI membership will vote at ALI’s upcoming annual meeting are central to copyright doctrine and have been the subject of numerous court decisions over the past several decades of technological and industry change: originality, fixation, categories of copyrightable subject matter, the idea-expression distinction, and authorship and ownership.  This abundance of legal activity on copyright law demonstrates the value to the profession of this project retelling copyright.  In contrast to the dramatic criticism of this Restatement project alleging political capture or illegitimate law reform, the draft’s provisions are routine and straightforward.  They will surprise no one and are almost boring in their adherence to and synthesis of the copyright statute and judicial interpretations of it. Far from being radical or ill-advised, the Restatement of Copyright Law is a reasonable and welcome addition to the work of the ALI. Part I of this Article situates the current Restatement of Copyright Law in the historical context of other ALI projects, drawing parallels in their purposes, processes, and political tensions. Part II describes the controversy over a “retelling” of copyright law as misguided insofar as it fails to account for the practice of interpretation as part of the practice of law that is constrained by professional standards.  Part III describes the analysis and exposition of the provisions of the draft portions of the Restatement of Copyright Law presented to the ALI membership for discussion and vote this year as unremarkable but also beneficial, achieving the ALI’s goals of clarification and simplification of the sprawling federal case law interpreting and applying the 1976 Copyright Act.

Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?

2020 ◽  
Author(s):  
Léon E Dijkman
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Federal Supreme ◽  
Validity Of A Patent

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.

Criminal Law

2019 ◽  
Author(s):  
Michael Allen ◽  
Ian Edwards
Keyword(s):  
Criminal Law ◽  
Strict Liability ◽  
Case Law ◽  
Mens Rea ◽  
Sexual Offences ◽  
The Past ◽  
Actus Reus ◽  
The Subject ◽  
The Law

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. Textbook on Criminal Law has been providing students of criminal law with a readable and reliable introduction to the subject for the past 28 years. This is the fifteenth edition, which has been updated to include all of the latest case law and statutory changes. Topics covered include actus reus, mens rea, negligence and strict liability, and capacity and incapacitating conditions. It also examines general defences, parties to crime, inchoate offences, and homicide. Towards the end of the book chapters consider non-fatal offences, sexual offences, offences under the Theft Acts 1968 and 1978, fraud, and criminal damage.

12. Discharge by frustration: subsequent impossibility

2021 ◽  
pp. 599-627
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Theoretical Basis ◽  
Case Law ◽  
Contract Law ◽  
Law Reform ◽  
Risk Allocation ◽  
Force Majeure ◽  
The Subject ◽  
Contractual Obligations ◽  
Contractual Risk ◽  
Selection Of

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Without the fault of either party, a contract may be automatically discharged due to frustration that renders further performance of the contract impossible, illegal, or radically different from what was originally conceived. In this case, the parties will be excused further performance of their contractual obligations. However, the frustration doctrine applies only where there is no express provision in the contract (a force majeure clause) allocating the risk. This chapter, which examines the frustration doctrine and discharge for subsequent impossibility, first considers the contractual risk allocation before turning to the theoretical basis for the doctrine of frustration. It then discusses limitations on the operation of the frustration doctrine before examining the effects of frustration and the effects on the parties’ positions of the Law Reform (Frustrated Contracts) Act 1943.

Negotiating Copyright in the American Theatre: 1856–1951

2021 ◽  
Author(s):  
Brent S. Salter
Keyword(s):  
Intellectual Property ◽  
Historical Context ◽  
Copyright Law ◽  
Business History ◽  
American Theatre ◽  
The Past ◽  
Professional Norms ◽  
History Of

Drawing on fascinating archival discoveries from the past two centuries, Brent Salter shows how copyright has been negotiated in the American theatre. Who controls the space between authors and audiences? Does copyright law actually protect playwrights and help them make a living? At the center of these negotiations are mediating businesses with extraordinary power that rapidly evolved from the mid-nineteenth to mid-twentieth centuries: agents, publishers, producers, labor associations, administrators, accountants, lawyers, government bureaucrats, and film studio executives. As these mediators asserted authority over creativity, creators organized to respond, through collective minimum contracts, informal guild expectations, and professional norms, to protect their presumed rights as authors. This institutional, relational, legal, and business history of the entertainment history in America illuminates both the historical context and the present law. An innovative new kind of intellectual property history, the book maps the relations between the different players from the ground up.

scholarly journals Review of Canadian University Fair Dealing Policies

2017 ◽  
Author(s):  
Lisa Di Valentino
Keyword(s):  
Web Sites ◽  
Copyright Law ◽  
Court Decisions ◽  
Policy Decisions ◽  
Intended Audience ◽  
Fair Dealing ◽  
Canadian Universities ◽  
The Past ◽  
Current State ◽  
The Future

The past three years have seen a number of changes in the area of copyright law, particularly in the area of education. As a result, Canadian universities have had to make policy decisions to account for these changes and the resulting expansion of fair dealing rights. The content and consistency of the resulting policies may have a significant effect on the future interpretation of fair dealing rights. In this paper I analyze the current state of fair dealing policies and supporting information found on university web sites. I conclude that an ideal fair dealing policy is open ended and flexible, and incorporates mention of the significant elements of copyright legislation, court decisions, and other areas of law, in a way that is accessible to its intended audience of faculty and instructors.

scholarly journals Defining Fair Use on YouTube: A Guide to Modern Copyright

2021 ◽  
Vol 10 (4) ◽  
Author(s):  
Cole Scott ◽  
John Murnan
Keyword(s):  
Content Analysis ◽  
Case Law ◽  
Copyright Law ◽  
Fair Use ◽  
Court Decisions ◽  
Complex Issue ◽  
Large Complex ◽  
Copyright Laws

Copyright law is a large, complex issue that has found itself at the center of controversy on YouTube. Much of the debate around copyright centers on whether a video is fair use, the exception to copyright laws. There are large problems on YouTube surrounding the exploitation of the Content ID system, and the solutions to these problems often rely on the assumption of clear and defined copyright law, which is far from the case. This led my research into finding out based on the case law, what constitutes fair use on YouTube? Using a content analysis, these complexities of copyright law were able to be broken down into easy-to-understand guidelines. To do this, roughly 30 cases were found using the websites case.law and copyright.gov, and the decision of the case and the reasoning behind it were pulled out to create guidelines based on the copyright case law of court decisions. These guidelines consist of having a license for the copyrighted content, using the content for education, criticism or review, providing significant commentary to shift the focus away from the content, using the content for parody, changing the purpose of the content, or using an insignificant portion of the content. If any of these scenarios are met, then the video will likely not violate copyright. The use of these guidelines could be implemented into YouTubes algorithm, but more likely these guidelines would be easy to follow for creators to know whether or not their video will violate copyright.

Criminal Law

2021 ◽  
Author(s):  
Michael Allen ◽  
Ian Edwards
Keyword(s):  
Criminal Law ◽  
Strict Liability ◽  
Case Law ◽  
Mens Rea ◽  
Sexual Offences ◽  
The Past ◽  
Actus Reus ◽  
The Subject ◽  
The Law

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. Textbook on Criminal Law has been providing students of criminal law with a readable and reliable introduction to the subject for the past 30 years. This is the sixteenth edition, which has been updated to include all of the latest case law and statutory changes. Topics covered include actus reus, mens rea, negligence and strict liability, and capacity and incapacitating conditions. It also examines general defences, parties to crime, inchoate offences, and homicide. Towards the end of the book chapters consider non-fatal offences, sexual offences, offences under the Theft Acts 1968 and 1978, fraud, and criminal damage.

Cash benefits from social assistance in the light of the jurisprudence of administrative courts – selected problems. Part 2

2021 ◽  
Vol 36 (1) ◽  
pp. 153-190
Author(s):  
Sywia Łakoma
Keyword(s):  
Subject Matter ◽  
Social Assistance ◽  
Case Law ◽  
Life Situation ◽  
Financial Capacity ◽  
The Past ◽  
The Social ◽  
The Subject ◽  
Cash Benefits ◽  
Administrative Courts

The aim of this study is to present social assistance benefits in cash in terms of the jurisprudence of administrative courts. The analysis of the provisions of the Act on Social Assistance and the case law related to the indicated subject matter confirms that the granting of optional benefits in cash – which are the subject of this part of the article – takes place under administrative approval. As a result, meeting the positive prerequisites for a given benefit, with the simultaneous lack of negative prerequisites, does not have to mean that the expected aid is to be obtained. In this case, the principles and objectives of social assistance, including the principle of subsidiarity, are of a great importance. This principle results, first of all, in the obligation to independently undertake actions – by persons or families interested in receiving assistance – in order to overcome a difficult life situation. Only when this is not possible, support is provided by social assistance bodies. Then, however, great importance – which is emphasized in the judicature – is attached to the cooperation of individuals or families with social assistance bodies. The jurisprudence presented in the study also confirms that the significance for granting optional benefits is the use by an individual in the past or at the time of applying for of other social assistance specific benefits. These circumstances, in the best case, may affect the amount of the benefit granted, but may also result in refusal of performing its payment, among others, due to the justified needs of other people. Additionally, the judicature points out that the refusal to grant optional cash benefits may also be affected by the limited financial capacity of the social assistance body (Article 3 (4) of the Act on Social Assistance). This is one of the elements that distinguish these benefits from obligatory benefits in cash, including, in particular, the periodic allowance, where the limited financial capacity of the social assistance body may only affect the amount of the benefit, but may not be the basis for refusal to grant it.

3. Subject matter

2018 ◽  
Author(s):  
L. Bently ◽  
B. Sherman ◽  
D. Gangjee ◽  
P. Johnson
Keyword(s):  
Subject Matter ◽  
Case Law ◽  
Copyright Law ◽  
European Court Of Justice ◽  
Dramatic Works ◽  
The Third ◽  
European Court ◽  
Musical Works ◽  
The Subject ◽  
Exhaustive List

This chapter is concerned with the subject matter, or types of creation, protected by copyright law as stipulated by the Copyright, Designs and Patents Act 1988. Eight categories of work are examined: literary works, dramatic works, musical works, artistic works, films, sound recordings, broadcasts, and published editions (or typographical works). The chapter considers the definitions of these categories of work in the case law and through the jurisprudence of the European Court of Justice. It also discusses three important issues. First, that legal categories do not necessarily correspond to the objects usually associated with copyright law. Second, that all types of subject matter that are protected by copyright are referred to as ‘works’. The third issue, and the most problematic, is whether the list of works must be treated as an exhaustive list.

scholarly journals 'Stolen from Its People and Wrenched from Its Roots'? A Study of the Crown's 1867 Acquisition of the Rongowhakaata Meeting House Te Hau ki Turanga

2021 ◽  
Author(s):  
◽  
Kesaia L Waigth
Keyword(s):  
Historical Context ◽  
Valuable Insight ◽  
Museum Exhibit ◽  
Control Power ◽  
The Past ◽  
History Of ◽  
The Subject ◽  
The Government ◽  
Waitangi Tribunal ◽  
Insight Into

<p>Te Hau ki Tūranga is the oldest meeting house in existence. It was built in the early 1840s at Orakaiapu Pā, just south of Gisborne, by Ngāti Kaipoho (a hapū/subtribe of Rongowhakaata) chief Raharuhi Rukupō. In the nineteenth century whare whakairo (carved houses) were significant symbols of chiefly and tribal mana (prestige, control, power). They were ‗carved histories‘, physical embodiments of tribal history and whakapapa (genealogy) representing a link between the living and the dead. In 1867 Native Minister J C Richmond acquired the whare on behalf of the government to augment the collections of the Colonial Museum in Wellington. Over the almost 150 years since the whare arrived in Wellington, the acquisition of Te Hau ki Tūranga has been the subject of three government inquiries and numerous Rongowhakaata requests for its return. It has also been dismantled and re–erected three times and housed in three different museum buildings. At the close of the twentieth century Rongowhakaata submitted a claim to the Waitangi Tribunal for the ‗theft‘ of Te Hau ki Tūranga. Their claim also expressed concerns about the care and management of the whare in the hands of the Museum of New Zealand Te Papa Tongarewa and its predecessors. This thesis tells the story of Te Hau ki Tūranga from 1867 until the present. It asks: was the whare ‗stolen from its people and wrenched from its roots‘? as Rongowhakaata claim and places the story of Te Hau ki Tūranga in its historical context. It aims to understand the motives and agendas of the characters involved and reach a conclusion as to what most likely happened in 1867. This thesis also breaks new ground by examining the politics surrounding the whare as a museum exhibit and a Treaty of Waitangi claim. Overall this study provides a valuable insight into the history of Crown–Māori relations. It reveals why deep–seated grievances still exist among Māori today and demonstrates the value of the Treaty settlement process as an opportunity for Māori to tell their stories and gain redress for injustices that occurred in the past, but are still being felt in the present.</p>

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