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Laws, Volume 3, Issue 2 (June 2014), Pages 181-387

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Open AccessArticle Image Right and Copyright Law in Europe: Divergences and Convergences
Laws 2014, 3(2), 181-207; doi:10.3390/laws3020181
Received: 11 March 2014 / Revised: 7 April 2014 / Accepted: 17 April 2014 / Published: 23 April 2014
Cited by 1 | PDF Full-text (294 KB) | HTML Full-text | XML Full-text
Abstract
This paper analyses the multiplicity of image rights in Europe and the classical conflictual relationship between the right to one’s own image and copyright law. First, the paper analyses the main mechanisms of legal protection of a person’s image in selected jurisdictions, [...] Read more.
This paper analyses the multiplicity of image rights in Europe and the classical conflictual relationship between the right to one’s own image and copyright law. First, the paper analyses the main mechanisms of legal protection of a person’s image in selected jurisdictions, in both the civil law and the common law tradition. It is deduced that the civil law approach based on the right of privacy or the right of personality is expressed mainly either via a duality, reflecting the extra-patrimonial and the patrimonial attributes to one’s own image, or via the recognition of a single right with a dual nature. On the other hand, the protection granted to the right to one’s own image in the United Kingdom is piecemeal in nature, since it is based on a broad interpretation of the classic torts of breach of confidence and passing off, which fails to provide a coherent and effective legal framework for protecting the intangible asset of a person’s image, both in terms of its dignitary and its economic identity. After pinpointing the major differences in terms of protecting the right to one’s own image in Europe, the emphasis is placed on the relationship between image rights and copyright law. A classic approach considers image rights as an external limitation of copyright law, and therefore typifies the relationship between image rights and copyright law as being primarily conflictual in nature. Nonetheless, it is also possible to focus on the convergences between the right to one’s own image and copyright law, since both refer to intangible assets that combine both extra-patrimonial and patrimonial interests. In this respect, copyright law could serve as a model for the eventual creation of a European patrimonial right to one’s own image. While the idea of promoting the recognition or establishment of a new intellectual property right for protecting the economic attributes of a person’s image in EU Member States’ domestic jurisdictions, inspired by the US publicity right, is not new, and has been advanced by doctrinal circles both in the civil law and in the common law tradition, the new borderless realities of the dissemination and commodification of image, and the affirmation of strong protection for the dignitary attributes of a person’s image by the case law of the European Court of Human Rights emphasise the need for, and the feasibility of, the construction of a European patrimonial right to one’s own image. The unique prototype of copyright law consisting of a synthesis of extra-patrimonial and patrimonial interests could be used as a model for building such a right. Full article
(This article belongs to the Special Issue Intellectual Property)
Open AccessArticle Access to Justice for Persons with Disabilities: An Emerging Strategy
Laws 2014, 3(2), 220-238; doi:10.3390/laws3020220
Received: 4 May 2014 / Revised: 19 May 2014 / Accepted: 20 May 2014 / Published: 27 May 2014
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Abstract
Persons with disabilities often find themselves marginalized by society and by our justice systems. We can improve access to justice by training better advocates. Advocates not only must be knowledgeable concerning relevant laws and regulations, but also must be able to interact [...] Read more.
Persons with disabilities often find themselves marginalized by society and by our justice systems. We can improve access to justice by training better advocates. Advocates not only must be knowledgeable concerning relevant laws and regulations, but also must be able to interact effectively on a personal, professional level with persons who have disabilities. We also want to make certain that persons with disabilities have the opportunity to learn to advocate for themselves and for other persons with disabilities. Technologies are available that can help us accomplish these goals. This article provides a brief survey of legal protections (and gaps in such protection) for persons with disabilities. Successful advocate training programs from around the world are identified and described. The article provides examples of how technology is being used to support these efforts and provides suggestions regarding additional ways in which technology could be employed. Law schools around the world have begun to embrace the goal of better advocacy, but improving access will require well-prepared advocates to answer the call. Training advocates to provide services to a population that may have significantly different needs even within that population may be a more efficient and effective way to improve access to justice than by attempting to draft laws and regulations that somehow address all possible circumstances. Full article
(This article belongs to the Special Issue Technology, Social Media and Law)
Open AccessArticle Registers of Artefacts of Creation—From the Late Medieval Period to the 19th Century
Laws 2014, 3(2), 239-281; doi:10.3390/laws3020239
Received: 18 March 2014 / Revised: 26 May 2014 / Accepted: 26 May 2014 / Published: 4 June 2014
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Abstract
This paper offers a new perspective on the “development” of the intellectual property regimes in the United Kingdom. The system put in place under the 1875 Trade Marks Act may be seen as the last of a sequence of earlier “technologies” that [...] Read more.
This paper offers a new perspective on the “development” of the intellectual property regimes in the United Kingdom. The system put in place under the 1875 Trade Marks Act may be seen as the last of a sequence of earlier “technologies” that sought to administer the creative endeavours of (sections of) the English population. Prior to the trade mark registration (that included examination) there was the registration of designs that did not require examination but was necessary for the protection of the right. In the eighteenth century, patent specifications were lodged with the Crown via a process that was much more involved than that was instituted for designs in the nineteenth century. Before that, books had to be enrolled with the Stationers’ Company before they could be printed. And, in what may be seen as an earlier attempt at the centralised regulation of artefacts of expression, the Rolls of Arms (maintained by the King of Arms) was repository of coats of arms for English nobility. An exploration of these different technologies of regulation, in their socio-political context, will offer new insight into the antecedents, and limits, of the registration systems that are now common across the intellectual property world. Full article
(This article belongs to the Special Issue Intellectual Property)
Open AccessArticle Should Postponing Motherhood via “Social Freezing” Be Legally Banned? An Ethical Analysis
Laws 2014, 3(2), 282-300; doi:10.3390/laws3020282
Received: 13 March 2014 / Revised: 30 April 2014 / Accepted: 28 May 2014 / Published: 5 June 2014
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Abstract
In industrial societies, women increasingly postpone motherhood. While men do not fear a loss of fertility with age, women face the biological boundary of menopause. The freezing of unfertilized eggs can overcome this biological barrier. Due to technical improvements in vitrification, so-called [...] Read more.
In industrial societies, women increasingly postpone motherhood. While men do not fear a loss of fertility with age, women face the biological boundary of menopause. The freezing of unfertilized eggs can overcome this biological barrier. Due to technical improvements in vitrification, so-called “social freezing” (SF) for healthy women is likely to develop into clinical routine. Controversial ethical debates focus on the risks of the technique for mother and child, the scope of reproductive autonomy, and the medicalization of reproduction. Some criticize the use of the technique in healthy women in general, while others support a legally defined maximum age for women at the time of an embryo transfer after oocyte cryopreservation. Since this represents a serious encroachment on the reproductive autonomy of the affected women, the reasons for and against must be carefully examined. We analyze arguments for and against SF from a gendered ethical perspective. We show that the risk of the cryopreservation of oocytes for mother and future child is minimal and that the autonomy of the women involved is not compromised. The negative ethical evaluation of postponed motherhood is partly due to a biased approach highlighting only the medical risks for the female body without recognizing the potential positive effects for the women involved. In critical accounts, age is associated in an undifferentiated way with morbidity and psychological instability and is thus used in a discriminatory way. We come to the conclusion that age as a predictor of risk in the debate about SF is, from an ethical point of view, an empty concept based on gender stereotypes and discriminatory connotations of aging. A ban on postponing motherhood via SF is not justified. Full article
(This article belongs to the Special Issue Legally Constructed Gendered Identities)
Open AccessArticle Revisiting Privacy and Dignity: Online Shaming in the Global E-Village
Laws 2014, 3(2), 301-326; doi:10.3390/laws3020301
Received: 5 May 2014 / Revised: 27 May 2014 / Accepted: 28 May 2014 / Published: 6 June 2014
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Abstract
Since the introduction of new Web-based technology in the early 21st century, online shaming against those who have violated social norms has been proliferating fast in cyberspace. We have witnessed personal information of targeted individuals being disclosed and displayed for the purpose [...] Read more.
Since the introduction of new Web-based technology in the early 21st century, online shaming against those who have violated social norms has been proliferating fast in cyberspace. We have witnessed personal information of targeted individuals being disclosed and displayed for the purpose of humiliation and social condemnation by the anonymous Internet crowd, followed often by harassment and abusive behavior online and offline, resulting in serious disruption of personal life. While public shaming as a form of criminal sanction has been widely discussed in present literature, social policing by shaming transgressions via the Internet is largely a new terrain yet to be explored and studied. Drawing on socio-legal literature on shaming and punishment, and jurisprudence from the English Courts on defamation, harassment and misuse of personal information and the European Court of Human Rights on the relationship between the right to private life and dignity, the discussion will explain how the role of dignity has informed the development of the right to privacy where its value has played a distinctive role. This refers especially to the context in which the plaintiffs could be said to be partly at fault as transgressor-victims. It argues that the recognition and protection of the dignity and privacy of an individual is necessary in order to arrive at norms and values inherent in decent participation in the e-village. In this article, the term “dignity” refers to one’s innate personhood, integrity and self-respect. Full article
(This article belongs to the Special Issue Technology, Social Media and Law)
Open AccessArticle A Counterfactual Impact Analysis of Fair Use Policy on Copyright Related Industries in Singapore
Laws 2014, 3(2), 327-352; doi:10.3390/laws3020327
Received: 18 February 2014 / Revised: 11 April 2014 / Accepted: 29 May 2014 / Published: 16 June 2014
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Abstract
Are more flexible fair use approaches, which require a test for determining whether new uses should be permitted, correlated with economic growth? Using the example of Singapore, we assess the extent to which fair use is related with growth in private copying [...] Read more.
Are more flexible fair use approaches, which require a test for determining whether new uses should be permitted, correlated with economic growth? Using the example of Singapore, we assess the extent to which fair use is related with growth in private copying technology and copyright markets. With reference to a differences-in-differences (DiD) methodology applied to the 2005 fair use amendments of the Singapore Copyright Act we test the law’s implications on private copying technology and copyright sectors in Singapore. The modifications of the Singapore Copyright Act were part of a set of changes of its Intellectual Property (IP) laws undertaken in the context of a Free Trade Agreement with the United States. Our findings seem to support the hypothesis that a more flexible fair use policy is correlated with faster growth rates in private copying technology industries. However, the counterfactual impact analysis did not support our second hypothesis, that flexible fair use policy would be correlated with higher growth in the copyright industries (indirectly via the growth of private copying technology industries). Thus, while the growth of copyright industries slowed down to a limited extent after 2005, the industrial group did not experience the degree of negative impact we expected. Moreover, this limited negative impact was offset by the positive impact of fair use policy correlated with higher growth in private copying technology industries. We caution that a counterfactual analysis cannot be used to attribute a causal relationship. It can only establish a correlation between a policy and a given outcome. Our findings must be read in this light. Further research, containing more comprehensive data sets and possibly also singling out international trade aspects, would benefit the debate on the interplay of copyright law and economic growth. Full article
(This article belongs to the Special Issue Intellectual Property)
Open AccessArticle Designing and Implementing e-Justice Systems: Some Lessons Learned from EU and Canadian Examples
Laws 2014, 3(2), 353-387; doi:10.3390/laws3020353
Received: 4 May 2014 / Revised: 9 June 2014 / Accepted: 10 June 2014 / Published: 24 June 2014
Cited by 1 | PDF Full-text (523 KB) | HTML Full-text | XML Full-text
Abstract
Access to justice has become an important issue in many justice systems around the world. Increasingly, technology is seen as a potential facilitator of access to justice, particularly in terms of improving justice sector efficiency. The international diffusion of information systems (IS) [...] Read more.
Access to justice has become an important issue in many justice systems around the world. Increasingly, technology is seen as a potential facilitator of access to justice, particularly in terms of improving justice sector efficiency. The international diffusion of information systems (IS) within the justice sector raises the important question of how to insure quality performance. The IS literature has stressed a set of general design principles for the implementation of complex information technology systems that have also been applied to these systems in the justice sector. However, an emerging e-justice literature emphasizes the significance of unique law and technology concerns that are especially relevant to implementing and evaluating information technology systems in the justice sector specifically. Moreover, there is growing recognition that both principles relating to the design of information technology systems themselves (“system design principles”), as well as to designing and managing the processes by which systems are created and implemented (“design management principles”) can be critical to positive outcomes. This paper uses six e-justice system examples to illustrate and elaborate upon the system design and design management principles in a manner intended to assist an interdisciplinary legal audience to better understand how these principles might impact upon a system’s ability to improve access to justice: three European examples (Italian Trial Online; English and Welsh Money Claim Online; the trans-border European Union e-CODEX) and three Canadian examples (Ontario’s Integrated Justice Project (IJP), Ontario’s Court Information Management System (CIMS), and British Columbia’s eCourt project). Full article
(This article belongs to the Special Issue Technology, Social Media and Law)

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Open AccessCreative Death House Desiderata: A Hunger for Justice, Unsated
Laws 2014, 3(2), 208-219; doi:10.3390/laws3020208
Received: 30 March 2014 / Revised: 22 April 2014 / Accepted: 23 April 2014 / Published: 25 April 2014
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Abstract
The death penalty lives on in America, with some 1350 prisoners put to death since 1976, when the modern American death penalty was reborn. Most prisoners get a last meal of their choice, though that choice is constrained by cost and, often, [...] Read more.
The death penalty lives on in America, with some 1350 prisoners put to death since 1976, when the modern American death penalty was reborn. Most prisoners get a last meal of their choice, though that choice is constrained by cost and, often, the stock in the prison kitchen. Last meals can be thought of as brief moments of autonomy in a relentlessly dehumanizing execution process. They also entail a distinctive cruelty. At their lowest point, prisoners seek comfort food but are never comforted. This meal is no entre to a relationship, but instead a recipe for abandonment. Dignity is nowhere to be found on the death house menu. Yet hope lingers, even here; human beings, it seems, cannot live or die without hope. Justice, the most profound human hunger, goes unsated by design. Full article
(This article belongs to the Special Issue The Death Penalty in the 21st Century)

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