Laws — Open Access Journal

Government interventions can affect processes of technological transition through the enactment of legal and other policy instruments. In this contribution, we concentrated on legal interventions only and examined what they were, the relation between the public and private players that they affected, and the nature of the incentive they provided. We did this for four historical cases in the world of utility industries in the Netherlands in the nineteenth and twentieth centuries. The summarizing results for each case appeared in overview tables which eventually showed whether most of the administered stimuli were negative, neutral, or positive for the action alternatives of the innovating players, and thus the further development of the newly emerging technology. It is hard to escape the conclusion that the common argument and rhetoric that governments normally aim to propel industrial progress by opening a variety of options for innovating private players rings hollow when analyzed more systematically. A higher number of the incentives we found across the four cases were negative rather than positive, while some cases had only negative incentives and none had more positive than negative incentives. Full article

The legal conception and interpretation of the subject of law have long been challenged by different theoretical backgrounds: from the feminist critiques of the patriarchal nature of law and its subjects to the Marxist critiques of its capitalist ideological nature and the anti-racist critiques of its colonial nature. These perspectives are, in turn, challenged by anarchist, queer, and crip conceptions that, while compelling a critical return to the subject, the structure and the law also serve as an inspiration for arguments that deplete the structures and render them hostages of the sovereignty of the subject’ self-fiction. Identity Wars (a possible epithet for this political and epistemological battle to establish meaning through which power is exercised) have, for their part, been challenged by a renewed axiological consensus, here introduced by posthuman critical theory: species hierarchy and anthropocentric exceptionalism. As concepts and matter, questioning human exceptionalism has created new legal issues: from ecosexual weddings with the sea, the sun, or a horse; to human rights of animals; to granting legal personhood to nature; to human rights of machines, inter alia the right to (or not to) consent. Part of a wider movement on legal theory, which extends the notion of legal subjectivity to non-human agents, the subject is increasingly in trouble. From Science Fiction to hyperrealist materialism, this paper intends to signal some of the normative problems introduced, firstly, by the sovereignty of the subject’s self-fiction; and, secondly, by the anthropomorphization of high-tech robotics. Full article

Today’s increasingly widespread recognition of fashion’s artistic value has revamped the debate on the appropriateness of rights and remedies provided by IP law to fashion designs. From an Italian–US comparative perspective, this article inquires whether copyright protection, traditionally accorded to artists, is eligible and applied for fashion, detecting that rights and remedies are better accessible to major fashion companies and for iconic items, while they are not easily attainable by smaller designers. Analyzing a number of case studies, this article describes a growing phenomenon in the age of the digital revolution, that is, controversies regarding the fashion world tend to be disputed on social media rather than in courtrooms. Beyond the debate on which existing formal legal tools are suitable for fashion, the purpose is to bring the phenomenon of informal self-regulation out of court into conversation, examining advantages and disadvantages. Social media platforms are more suitable to fashion’s nature and dynamics, and ultimately, their verdicts seem to obtain better results than litigation, balancing the unequal positions of established and emerging brands. Full article

This article examines legal challenges to women’s reproductive rights in Ireland and the United States, arguing that backlash against reproductive rights is a consequence of the long unsettled position of women’s reproductive freedom in liberal democracies and the catalogue of rights. It examines the legal foundations of reproductive rights and their perceived conflicts with other values, such as religion, and focuses on the current legal challenges to women’s bodily autonomy regarding choice and motherhood. It demonstrates the many contexts in which women have not acquired full reproductive freedom, and explores the nature of the current backlash. It argues that the nature of the backlash is not simply a reclamation of what has been legally guaranteed, but instead a deepening of the preexisting divides within reproductive justice globally. Full article

The unresolved issues between the Fourth Amendment and the third-party doctrine provide first responders with challenges in their approach to meet the needs of any emergency they may be called for. A first responder needs to provide help quickly, and often this does not leave much time to think about the legal implications of some of their actions. With the rise of the Internet, the challenges of terrorism, and WikiLeaks, first responders are no longer sheltered from the legal implications that the use of information from online and other secondary sources may have. Specifically, privacy concerns may be raised when first responders use social media either as a tool to gather information about evolving emergencies, or to engage in the process of monitoring those media to detect potential threats to the safety of the country and its citizens. This paper will address some challenges first responders face when considering the third-party doctrine principles and the Fourth Amendment in their rescue efforts. What are some liability and legal concerns in the context of what first responders encounter when responding to potential threats? The paper will also include a discussion of practical experiences with the Fourth Amendment and third-party doctrine principles and explore liability issues related to first responders’ use of information. Full article

The United Kingdom’s Data Protection Act 2018 introduces a new public interest test applicable to the research processing of personal health data. The need for interpretation and application of this new safeguard creates a further opportunity to craft a health data governance landscape deserving of public trust and confidence. At the minimum, to constitute a positive contribution, the new test must be capable of distinguishing between instances of health research that are in the public interest, from those that are not, in a meaningful, predictable and reproducible manner. In this article, we derive from the literature on theories of public interest a concept of public interest capable of supporting such a test. Its application can defend the position under data protection law that allows a legal route through to processing personal health data for research purposes that does not require individual consent. However, its adoption would also entail that the public interest test in the 2018 Act could only be met if all practicable steps are taken to maximise preservation of individual control over the use of personal health data for research purposes. This would require that consent is sought where practicable and objection respected in almost all circumstances. Importantly, we suggest that an advantage of relying upon this concept of the public interest, to ground the test introduced by the 2018 Act, is that it may work to promote the social legitimacy of data protection legislation and the research processing that it authorises without individual consent (and occasionally in the face of explicit objection). Full article

Fashion is considered an element of “cultural identity”. At the same time, it has always been a dynamic phenomenon in which different styles, designs and models converged, acting both as a source of attraction for designers as well as a source of inspiration to draw and depart from in an attempt at innovation. Influences were reciprocal, with the phenomenon of Orientalism going hand in hand with that of Occidentalism. Today’s discussion focuses on the vindication by various ethnic groups of ways to protect their own folklore as expression of their own cultural identity. The questions that arise are manifold. This contribution aims at framing the problem in the nowadays fashion industry as well as investigating the various possibilities of protecting folklore while preserving cultural identity. The discussion will deal with recent studies that have analyzed the various aspects of cultural appropriation. Intellectual property will be taken into consideration as a way to protect folklore. Nevertheless, this article suggests that other options for achieving protection of cultural heritage and folklore emerge in the field of Private Governance and Corporate Social Responsibility that will offer new opportunities to tackle the problem of cultural appropriation in the fashion world. Full article

In this paper, Photoshop is analyzed with a special focus on the bodies of models and a detailed analysis on the legal issues posed by this specific area. For the sake of a thorough development of the topic of this paper, it is necessary to define relevant concepts such as photography and personal image. Regarding the first notion, problems related to intellectual property and, more specifically, copyright are discussed in this paper. Additionally, personal image is one of the most complex and comprehensive areas of law since the protection accorded to it is not equal in different jurisdictions of the world, so its study involves an analysis that goes beyond the scope of this paper. However, various safeguard mechanisms undertaken by some legislations chosen for this purpose will be presented, while also mentioning some specific cases both in the European continental system (Spain and Argentina) and in common law (United States of America and United Kingdom). Finally, the focus is placed on the use of Photoshop for the modification of body shape, particularly that professional models, as these are the ones that work primarily with their image. There will also be a description of some new regulations and mechanisms attempting to restrict image manipulation practices and those that warn the consumers against modified images to eventually conclude on the insufficiency of the same ones and the need for new proposed actions. Full article

Ford’s ‘Comments (Laws 2018, 7(4), 34; https://doi.org/10.3390/laws7040034, https://www.mdpi.com/2075-471X/7/4/34)’ are biased by a partisan approach to the issues at stake and cannot be based on scientific evidence. The article “A Counterfactual Impact Analysis of Fair Use Policy on Copyright Related Industries in Singapore”, which Gibert and Gafelle wrote together nearly a decade ago, came under heavy criticism by George S. Ford from an organization named the Phoenix Centre for Advanced Legal and Economic Public Policy Studies in an article ‘A Counterfactual Impact Analysis of Fair Use Policy on Copyright Related Industries in Singapore: A Critical Review’. (subsequently ‘the fair use study’) The Fair use study was peer reviewed by LAWS and supports the hypothesis that a more flexible fair use policy is correlated with faster growth rates in private copying technology industries and fewer negative consequences than copyright holders may desire to see. The findings of the Fair use study upset Ford as well as a host of different institutions advocating for copyright owners, such as International Federation of Reproduction Rights Organizations; Motion Picture Association; Publishers Association of Australia; New Zealand Society of Authors or Recorded Music NZ-RMNZ. Ford’s article, however, neither contains novel research, nor is it an effort to update this fairly dated analysis, which reflects data nearly twenty years of age. Rather, it is an unnecessary duplication of an old analysis with only some minor modifications, which serve to show that fair use is actually not beneficial to the economy. At the end of this peculiar exercise, Ford himself admits that this analysis is meaningless. The rest of Ford’s article consists of discussing potential limitations of the Fair use study, in a manner which suggests the authors had never disclosed them (which however they had) and thus is misleading. Ford’s most fundamental point of criticism is hinged on a supposed lack of evidence regarding the parallelism assumption, which he himself admits is impossible to offer. Contrary to Ford’s analysis, the Fair use study has the merit of being fully reproducible, which is not the case for Ford’s article. Also, contrary to Ford’s article, the Fair use study has the advantage of carefully drafted limitations and of offering genuine research insights. Full article

Raphael Lemkin, the man who founded the term ‘genocide,’ did so with a view to protecting not only physical beings from systematically imposed extinction, but also protecting their cultures from the same fate. However, in the wake of the atrocities and bloodshed of WWII, cultural genocide was omitted from the 1948 Genocide Convention, and as a result, does not constitute an international crime. This omission has left a lacuna in international law which threatens minority groups. Not a threat of loss of life but rather loss of the culture that distinguishes them and identifies them as a minority. Powerful States with indifferent attitudes towards their international obligations face no significantly harsher punishment for cultural genocide than they do for other human rights transgressions. Consequently, cultural genocide continues as minority cultures are rendered extinct at the hands of States. The Case Study of this article investigates the present-day example of the Uyghur minority in China and analyzes whether this modern cultural genocide can pave the way for the recognition of cultural genocide as an international crime or whether the Uyghur culture will become a cautionary tale for minorities in the future. Full article

Feminist legal theorists have had something of an uneasy relationship with law reform. Although feminist academics and lawyers have contributed much to law reform efforts that have sought to improve women’s lives, feminists have nonetheless taken divergent positions regarding the extent to which these efforts can truly dismantle the masculinist character of law through law reform projects. This article revisits these tensions and, in so doing, seeks to better understand the extent to which feminists can meaningfully contribute to law reform projects. The criminalisation of image-based sexual abuse in New South Wales (Australia) serves as a case study to examine and re-examine these tensions. In September 2016, the New South Wales government announced that it was proposing to criminalise the distribution of certain images without consent. Following a public consultation process, the government legislated for a new offense directed at the distribution of these images. Although there is certainly not one all-encompassing feminist understanding of image-based sexual abuse, the importance of understanding this practice as abuse and as existing within a culture that normalises and sustains nonconsensual activity nonetheless has been a key feminist concern in agitating for law reform in this area. This article examines the extent to which the legislative response took seriously the harms engendered by image-based sexual abuse. Full article

Sexual harassment across multiple grounds, including race, disability, sexuality and age, remains an entrenched problem that is poorly dealt with in law. Prevalence rates for intersectional sexual harassment are higher for certain groups, while legal redress is low. This paper examines case law on sexual harassment in Australia where there are intersectional factors and asks whether the “intersectionality” section inserted into the federal Sex Discrimination Act in 2011 has impacted legal practice and decision-making. In particular, it considers the situation of sexual harassment claimants with behavioural and personality traits that are considered “disordered” and the specifically gendered disability stereotypes that shape their treatment in law. Recent cases in Australia dealing with the sexual harassment of people with personality disorders show that intersectionality provisions of sexual harassment laws may in fact be used to undermine a legal claim by a person with disability rather than strengthen it. This article argues that an intersectional legal feminist perspective on harassment is needed for the law to work. Full article

Against the trend of roll-backs of pro-feminist initiatives by right-wing governments, feminist-led reforms to the law of murder deserve accolades as hard-fought feminist victories. For three decades, feminist analysts have critiqued the operation of provocation defences in intimate partner femicide cases. Their work has been rewarded with the implementation of reforms in several anglophone jurisdictions that have abolished or curtailed that defence. This article focuses on the revolutionary impact of the reform implemented in England and Wales. It argues for the continuing purchase for feminist legal scholars of a methodology championed by Carol Smart in her seminal 1989 text, Feminism and the Power of Law. She counselled feminist law scholars to read law as a site for contesting law’s truth about gendered relationships. This methodology has not only been critical in exposing the misogyny and injustice embedded in traditional provocation by infidelity defences; it also enables researchers to chart shifts in law’s discursive constitution of truth in the post-reform era. Full article

The growing need for water has pressured society and governments to focus more on preservation, planning and management of this natural resource, which is fundamental to ecosystems, especially to humans. Therefore, the goal of this study was to analyze the national policies of water resources in Brazil and Italy, searching for aspects that could promote improvement, aiming at the preservation of water sources, guaranteeing satisfactory quantity and quality. In 2019, studies were carried out by environmental agencies of both countries, listing the main disciplinary regulations. Results show that although both countries have different realities, they have similarities in managerial aspects of water resources, with legislation addressing qualitative and quantitative aspects of water, with guiding principles, instruments and actions aimed at the defense of this natural resource. Full article

This paper proposes a critical analysis of the innovative jurisprudential approaches taken by the Inter-American Court of Human Rights in integrating the content and scope of protection of the human rights of children, in the context of migration processes. How might one provide an effective protection to unaccompanied children that enter irregularly into the territory of a given country, when the safeguards guaranteed at the national level are elusive or inefficient? By focusing on the pioneering jurisprudence developed by the Inter-American Court of Human Rights in recent years, this paper intends to unveil how a systemic integration of children’s rights, under the light of the current international law developments, could provide an effective protection for the rights of children in the context of migration processes. In fact, as a result of an evolutive, dynamic and effective interpretation, the regional tribunal has expanded the scope of protection of the American Convention on Human Rights, by taking into consideration and making known, references to instruments and provisions enshrined within the corpus juris of international human rights law, such as the UN Convention of the Rights of the Child, and—consequently—improving the level of protection of millions of children in the Americas. Full article

This article examines how international law in form of treaties deals with the intersection of the three concepts. Our hypothesis is that international law, in the form of treaties, has been reluctant to engage with national security when dealing with migration, leaving this to national law. Instead, the intersection of national security—most commonly in the form of concerns about terrorism and migration—takes place in political discourse, which acts as a passerelle for various types of state violence against people classified or suspected of being migrants. We examine this mechanism that we call an insecurity continuum driven by the politics of fear in a European context. This is a politics that takes place outside of international law but has the effect of limiting access by individuals to international law protections, particularly in the case of people who claim international protection against persecution or torture. Full article

The history of fashion shows goes back more than a century, and over the years, catwalks have gone from being private sales channels for a few wealthy customers to pure entertainment shows promoted globally. In this article, we analyze both national and international laws dealing with the protection of fashion shows in order to establish how fashion shows could be protected under intellectual property laws in Italy, with specific regard to copyright. The possibility for fashion shows to access copyright protection opens up a list of interesting questions: Who is the author of the work? Are models to be considered as performers? This scenario gets even more complicated if we consider how fashion shows have been changing in the last few years, turning to new technologies such as holograms, augmented reality, and drones. Further, copyright protection could be accompanied by further tools, such as registered or unregistered designs for the single elements of a scene and choreography or unfair competition if the general look and feel of a former fashion show has been slavishly imitated. A final section of this article is dedicated to the use of cultural heritage and historical museums, which are increasingly chosen by fashion houses for the settings of their shows. Full article

This introduction provides a snapshot on cultural expertise as an emergent concept in the socio-legal studies and evolving practices in the formulation of rights and the resolution of conflicts in and out of court. It starts with the definition of cultural expertise and the need for an integrated and broad conceptualization that includes all the arrays of socio-legal instruments that use knowledge from the social sciences to assist decision-making authorities in the settlement of conflicts. It then mentions the wide span of fields of cultural expertise going from the recognition of the rights of autochthone minorities and the First Nations to the politics of cultural expertise in modern reformulations of customs, vis-à-vis gender rights, including the revisitation of socio-legal instruments such as the cultural test and the scrutiny of psychiatric evaluation in criminal trials. It concludes by offering short descriptions of the papers included in the Special Issue, which include judicial practices involving cultural experts and surveys of the most frequent fields of expert witnessing that are related to the culture. In addition, it interrogates who the experts are; how cultural expert witnessing has been received; how cultural expertise has developed across the sister disciplines; and finally, it asks whether academic truth and legal truth are commensurable. Full article