時尚設計著作權可分離性論戰──以美國Star Athletica案為核心

2019 ◽  
Vol 18 (18) ◽  
pp. 215-281
Author(s):  
許炳華 許炳華
Keyword(s):  
Supreme Court ◽  
Copyright Protection ◽  
Apparel Industry ◽  
Copyright Law ◽  
Judicial System ◽  
Fashion Industry ◽  
Single Test ◽  
New Approach ◽  
The Supreme Court ◽  
Difficult Area

美國著作權法之概念上分離自1954年起即引發時尚業及司法實務之混亂，在著作權法之範疇，將美感與實用放在一起總是引發違和之感覺，實用性物品之可著作性為今日著作權法最艱難的爭議之一，「可分離性」原則即被用以處理上開疑難，然而該等原則描述容易，適用卻是困難，而多種現存之概念上分離的標準，使得著作權對於實用性物品之保護成為著作權法中最困難之領域，單一之標準容或降低司法實務間之緊張關係，而得以提供穩定之先例及可預測之結果。美國聯邦最高法院在最近之Star Athletica, L. L. C. v. Varsity Brands, Inc.案即被認為有釐清上開難題之機會，Star Athletica案提出可分離性之新途徑，著作權法並未定義可分離性，Star Athletica案可謂司法意欲填補該等模糊空間最新之嘗試，然而仍被批評所提出之標準缺乏明確性及清晰之指引，多數意見僅僅對法條加以釋義，且對於功能性之理論視若無睹。不過，Star Athletica案亦被認為對於時尚及配件產業，可謂恩賜，如果寬鬆地適用Star Athletica案最高法院所提出之新標準，有可能具備藝術特徵之實用性物品獲得著作權保護之機會將大增。 Conceptual separability in U. S. copyright law has been causing confusion in the fashion industry amongst American since 1954. In copyright law, the marriage of beauty and utility often proves fraught. One of the most difficult issues arising under the Copyright Act today is the copyrightability of useful articles. Seperability doctrine is used to deal with the issues. The doctrine has been easy to state but difficult to apply. The numerous existing tests for conceptual separability have made copyright protection of useful articles an exceedingly difficult area of copyright law. A single test for conceptual separability would alleviate conflict and tension with the judicial system, which would provide firm precedent and predictable outcomes. In Star Athletica, L. L. C. v. Varsity Brands, Inc., the U. S. Supreme Court had an opportunity to clarify the issues. In Star Athletica case, the Supreme Court recently unveiled a new approach to separability. The Copyright Act does not define separability, and Star Athletica is the latest judicial effort to try to fill that void. But the reasoning of Star Athletica still lacks clarity. The majority did little more than paraphrase the statue, and downplayed the functionality concern. Even so, Star Athletica decision is predictrd to be a boon to the fashion and apparel industry.

scholarly journals Role and Place of Higher Specialized Courts in the Judicial System of Ukraine

2020 ◽  
Vol 89 (2) ◽  
pp. 250-257
Author(s):  
V. V. Chumak
Keyword(s):  
Intellectual Property ◽  
Supreme Court ◽  
Legal Status ◽  
Judicial System ◽  
Judicial Power ◽  
Legal Documents ◽  
The Supreme Court ◽  
Specialized Courts ◽  
Definition Of

The role and place of higher specialized courts in the judicial system of Ukraine have been studied and determined. The author has studied such main categories as “judicial system of Ukraine”, “judiciary”, “judicial system” and “judicial power”. The judicial system of Ukraine has been established. The normative and legal base of functioning of highest specialized courts of Ukraine has been characterized. The author has provided own definition of the categories “judicial system of Ukraine” and “judicial power of Ukraine”. The author has offered to understand the category of “judicial system of Ukraine” as the totality of all hierarchically structured elements of the system (courts), which are endowed with exclusive competence to administer justice, built on the principles of territoriality and specialization, are defined by law and united by general principles of their organization and activity. In turn, the concept of “judicial power of Ukraine” is defined as the activity of courts (judicial system) to administer justice and to perform their professional duties within the limits and in the manner prescribed by the Constitution and laws of Ukraine in accordance with international and legal documents. It has been determined that highest specialized courts in the judicial system of Ukraine are the Supreme Court on Intellectual Property Issues and the Supreme Anti-Corruption Court. It has been concluded that highest specialized courts in the judicial system of Ukraine play an important role in the holistic mechanism of the entire judicial system, since they are endowed with exclusive competence to consider and decide cases on the merits of certain categories, and their activities are determined at the level of a separate regulatory act, which determines their legal status, and hence their place in the judicial system of Ukraine.

scholarly journals IMPLEMENTASI PERATURAN MAHKAMAH AGUNG REPUBLIK INDONESIA NOMOR 1 TAHUN 2016 TENTANG PROSEDUR MEDIASI DI PENGADILAN (Study Putusan Pengadilan Agama Rantauprapat No. No.487/Pdt.G/2020/PA-RAP Jo Putusan Pengadilan Tinggi Medan No.73/Pdt.G/2020/PTA-MDN)

2020 ◽  
Vol 8 (2) ◽  
pp. 72-81
Author(s):  
Muhammad Yusuf Siregar
Keyword(s):  
Supreme Court ◽  
Legal Aspects ◽  
Judicial System ◽  
Court Decision ◽  
High Court ◽  
Is Research ◽  
The Supreme Court ◽  
Legal Position ◽  
The Republic ◽  
Research Show

This study aims to analyze the legal aspects of the implementation of the Supreme Court Regulation No. 1 of 2016 on Mediation Procedures in Courts (Study of Rantauprapat Religious Court Decision No. 487 / Pdt.G / 2020 / PA-RAP Jo Medan High Court Decision No. 73 / Pdt.G / 2020 / PTA-MDN. This research is Normative Empirical, which is research by looking at conditions in the field by linking the source of laws and regulations in force in the Republic of Indonesia. The benefits that will be received from the results of this study are to find out and analyzing the legal position of the Supreme Court Regulation Number 1 of 2016 concerning Mediation Procedures in Courts and To find out and analyze the Implementation of the Supreme Court Regulation Number 1 of 2016 concerning Mediation Procedures in Courts in the Rantauprapat Religious Court Decision No.487 / Pdt .G / 2020 / PA-RAP Jo Medan High Court Decision No.73 / Pdt.G / 2020 / PTA-MDN. The results of the research show that the provisions of the Regulation of the Supreme Court of the Republic of Indonesia Number 1 of 2008 and / or Regulation of the Supreme Court of the Republic of Indonesia Number 1 of 2016 concerning Mediation Procedures in Courts in article 02 paragraph 04 states that "Judges in consideration of the decision of a case must state that the case concerned has strived for peace through Mediation by stating the name of the Mediator for the case concerned. The position of Mediation as stated in the Regulation of the Supreme Court of the Republic of Indonesia Number 1 of 2016 is one of the steps that must be taken in carrying out the Judicial system which is based on the decision of the Medan High Court Panel of Judges declaring that to completely reject the Plaintiff's Lawsuit with the Consideration that the case has been taken through the Mediation route although not maximally and His legal consideration is that the position of the witnesses presented by the Plaintiff is a witness who did not see the Plaintiff and Defendant fighting, but only told the story of the Plaintiff. Keywords: Implementation, Procedure, Mediation

scholarly journals Regional Benches of the Supreme Court of India - The Path Ahead

2017 ◽  
Vol 6 (1) ◽  
pp. 57-74
Author(s):  
Sankalp Mishra
Keyword(s):  
Supreme Court ◽  
Statistical Data ◽  
Well Being ◽  
Judicial System ◽  
Access To Justice ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Court Of Appeal ◽  
Wide Access ◽  
Law Commission

There is a need for the establishment of regional benches of the Supreme Court. By the analysis of various statistical data, the paper puts forward the urgent need for widening the reach of the Supreme Court and also to rejuvenate and reestablish the tarnishing reputation of the Supreme Court as an ordinary court of appeal. The paper explores the essential reasons for the establishment of benches of Supreme Court that can be broadly divided into three heads namely (i) wide access to justice (ii) Supreme Court reduced to an ordinary court of appeal (iii) litigation as a measure of well-being. The paper also analyses the recommendations laid out in the 95th, 120th, 125th and 229th Law Commission reports and analyses problem in hand, on the basis of analysis and the immediate need for the reform of the judicial system.

scholarly journals Registration of Second FIR (First Information Report) in Sughran Bibi Case: A Landmark Judgement of the Supreme Court of Pakistan

2020 ◽  
Vol 3 (1) ◽  
pp. 113-122
Author(s):  
Rais Nouman Ahmad ◽  
Faiz Bakhsh ◽  
M. Danyal Khan ◽  
Sidra Kanwal
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Supreme Court ◽  
Significant Role ◽  
Criminal Trial ◽  
Judicial System ◽  
Law Enforcement Agencies ◽  
The Supreme Court ◽  
Police Report ◽  
The Status

The registration of First Information Report (FIR) has remained a challenging area for the judicial system of Pakistan; the multiplicity of the FIRs means separate investigation and separate police report. Precedents were available far and against the second FIR which had been creating perplexity and nuisance for law enforcement agencies. First Information Report is contaminated by the inclusion of exaggerated facts by the aggrieved parties. Moreover, there are several allegations on the working of police in Pakistan for drafting the FIR arbitrarily. Although FIR is a mere document to report the incident, however, it has gained a significant role in deciding the fate of a criminal trial in Pakistan. Therefore, it is imperative to examine the status of FIR in criminal-trail framework of Pakistan. To do this, Sughran Bibi Case is very significant in interpreting the status of multiplicity of FIRs in the criminal trail framework. Seven judges of esteemed Supreme Court decided the fate of second FIR in this human rights case. The study investigates the doctrinal aspects of the judgement by presenting a theoretical examination of the status of FIR, its evidentiary value, and effectiveness in the criminal trial framework.  

scholarly journals THE MANY FACES OF STRICT SCRUTINY: HOW THE SUPREME COURT CHANGES THE RULES IN RACE CASES

2010 ◽  
Vol 72 (1) ◽  
Author(s):  
Evan Gerstmann ◽  
Christopher Shortell
Keyword(s):  
Affirmative Action ◽  
Supreme Court ◽  
Racial Discrimination ◽  
Racial Profiling ◽  
Single Test ◽  
Strict Scrutiny ◽  
The Supreme Court ◽  
Different Types ◽  
The Government ◽  
The Many

In this paper, we argue that there is no single test called strict scrutiny when the Court considers claims of racial discrimination. In fact, the Court changes the rules depending on why and how the government is using race. By examining racial redistricting, remedial affirmative action, and diversity-based affirmative action cases, we show how the Court uses at least three verydifferent versions of strict scrutiny. The costs of maintaining the fiction of unitary strict scrutiny is high. In the area of racial profiling, for example, courts refuse to apply strict scrutiny for fear that it will either overly hamper police or will weaken strict scrutiny in other areas of racial discrimination. An open acknowledgment that the Court is already using different standards of analysis for different types of racial discrimination would allow courts to craft appropriate standards without fear of diminishing protections in other areas.

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