Excepciones al derecho de autor relacionadas con los derechos humanos y la discapacidad en Colombia

Los conceptos de discapacidad, igualdad, no discriminación y accesibilidad de la Convención de los Derechos de las Personas con Discapacidad reconocen como situación fáctica de discriminación y desigualdad la hambruna de libros en las personas con discapacidad visual. El derecho de autor flexibiliza el alcance de su protección y contribuye con la disminución de barreras para acceder a las obras a través de las “excepciones” consagradas en el Tratado de Marrakech de 2013. El presente trabajo parte de una escasa literatura sobre la relación entre derechos humanos, discapacidad y los derechos de autor en el ordenamiento jurídico colombiano, reconoce su importancia y desarrolla el objetivo de identificar y analizar los fundamentos jurídicos de las excepciones al derecho de autor en Colombia en favor de personas con discapacidad visual, y el derecho de acceso a las obras literarias y artísticas para estas personas. La metodología de investigación, de enfoque cualitativo, se denomina black letter, y se lleva a cabo mediante el estudio de fuentes jurídicas y doctrinales. El resultado de la investigación refleja la perspectiva normativa internacional expuesta en el fundamento en el marco normativo colombiano actual.

Restating Copyright Law’s Originality Requirement

In 2015, the American Law Institute (ALI) launched a project to create a Restatement of the Law, Copyright. Concern, objection, and disagreement about the ALI’s Restatement projects is not new, but the Restatement of Copyright project seems to be particularly controversial among industries dependent on copyright protection. The drafting group has now worked through several versions of some proposed sections; a handful of these have been approved by the ALI Council and are ready to go before the ALI general membership. So now is a good time for close analysis of the chunks of the projects that have crystallized. This Article reviews the 2020 draft Restatement’s presentation of American copyright law’s threshold requirement for protection: that copyright protects only “original works of authorship,” and how that “originality” requirement should be understood in light of the Supreme Court’s 1991 decision in Feist v. Rural Telephone. Copyright’s originality requirement is a challenging subject for a Restatement because what is unquestionably agreed is that black letter law is limited, formulaic, and opaque. Not surprisingly, the Restatement’s handling of this topic hews close to the words of the Supreme Court’s modern pronouncement on the issue, sometimes to the detriment of a richer, potentially more enlightening discussion. The discussion here is based principally on “Tentative Draft No. 1” of the Restatement, released on April 8, 2020,3 but the discussion will also include consideration of the earlier “Council Drafts”4 that led to the 2020 proposal. Part I of the Article briefly describes the controversial beginnings of this Restatement project—and, as of 2021, the continuing animosity of copyright stakeholders to the project. Part II lays out the 2020 draft Restatement’s core provisions on copyright originality, the modest evolution of these provisions since the 2017 draft, and some concerns with what these sections, Comments, and Reporters’ Notes say. In broad strokes, the draft Restatement’s take on copyright originality is faithful to the Supreme Court’s 1991 Feist v. Rural Telephone decision, perhaps too much so. Part II.A explores the draft Restatement’s presentation of Feist’s “modicum of creativity” requirement, raising some issues both with what the Reporters have said so far and equally with what the draft Restatement seems unwilling to say about minimal creativity. Part II.B discusses the draft Restatement’s presentation of Feist’s “independent creation” requirement; here the concern is that the draft may conflate independent creation with minimal creativity in a way that does not contribute to coherence in copyright law.

Between Code and Treatise: The Hard Challenge of the Restatement of Copyright

The proposed Restatement of Copyright raises a question that has been obvious to everyone from the very start of the project: How do you restate an area of the law governed by a comprehensive federal statute? Restatements have, to date, focused near-exclusively on common law subjects. The Reporters of other Restatements thus did not operate in the shadow of an authoritative uniform federal statute. Instead, they faced an unruly and “ever-growing mass of decisions in the many different jurisdictions, state and federal, within the United States.” From this mass of decisions, the Reporters derived the “black-letter law” and “restated” the law in a form resembling a code. In doing so, reporters sought to bring order, clarity, and coherence to a body of law that lacked any other means of doing so. But if this act of restating the law in the form of a code is a central feature of a Restatement, then how do you restate an area of law that already has a comprehensive code? What is to be gained by essentially re-codifying the law?

Cyber Warfare

The Tallinn Manual on the International Law Applicable to Cyber Warfare (2013) sets out ninety-five ‘black-letter rules' governing conflicts and the basis for each in treaty and customary law. An earlier version of this article considered the applicability of national law to cyberspace. Specifically, whether there was sufficient basis at a national law level to establish norms for acceptable behavior at an international level. The proposition being it is time for a new kind of international cooperation in relation to cyber warfare and acceptable norms of behavior in cyberspace. This article provides detail from various national statutes to illustrate how national law applies to cyberspace. Both papers consider the applicability of current national criminal and tort law by using hypothetical scenarios in relation to self-defence, conspiracy and corporate responsibility in the private sector. The intention is to encourage experts to cooperate internationally to recognise national rules equivalent to the Tallinn work.

Public Caning: Should it Be Maintained or Eliminated? (A Reflection of Implementation Sharia Law in Indonesia)

<p>This article investigated the corporal punishment through judicial caning in Aceh, Indonesia. The judicial caning is conducted publicly and easily watched by the crowd, including children. This article aimed to search the facts that occurred during the implementation of judicial canning in Aceh. This study employed a qualitative method, with the interview as the main instrument and also used the black-letter law as a supporting approach. The research finding showed that public caning does not guarantee a deterrent effect on the defendants. In some cases, such as gambling and drinking, some of them will potentially repeat the same cases the following years, because the law concerning gambling and drinking does not accommodate rehabilitation mechanism. Furthermore, children attending the canning process will likely imitate the process in their future life. This research has a clear novelty as publication related to judicial caning is still limited in research and articles regarding the Indonesian legal system.</p>

CRITICAL LEGAL EDUCATION: A REMEDY FOR THE LEGACY OF COLONIAL LEGAL EDUCATION?

The call for decolonisation of legal education stems from the acknowledgement of the presence of retrogressive colonial approach to legal education. This approach includes a neutral and formal teaching that is blinded to ethical and social considerations. Law is a mirror of a country`s moral, cultural and social values and yet South African legal education distances itself with all other considerations and insists on a Western, autonomous and functionalist approach to legal education. This results in the moulding of uncritical and thoughtless “modern lawyers” with no concern to ethics and justice. Decolonisation demands a critical legal education and the replacement of the colonial “Black letter” teaching for a therapeutic jurisprudence. Both of which demand an interdisciplinary approach to legal education that acknowledges the impact of legal education on politics, society and culture. Thus, this article uses Critical Legal Studies (CLS) to deconstruct the colonial legal education epistemology.