Giovanni Rosadi, “antico amico” di Giacomo Puccini

Ocean law reform: A multi-level comparative law analysis of Nigerian maritime zone legislation

ABSTRACTThis article examines the way that law reform is – and has been – made in the Israeli legal system. Israel has a mixed legal system which reflects a mixture of Civil Law and Common Law traditions. This mixture is also manifested in the state's approach to law reform, as there is no permanent commission responsible for law reform and, in fact, no definition of law reform. This article reviews the historical developments of the Israeli legal system, with the absorption of the Ottoman and British Mandatory Law into the Israeli legal system, followed by major efforts in the 1960–1970s, undertaken by the legislative department in the Ministry of Justice with the assistance of ‘ad hoc’ legislative commissions, to create a ‘new’ Israeli legislation – ‘codification style’ – especially in the field of civil law. It then examines the rise of the private legislative initiatives in the early 1990s, the role of the court in judicial law-making and the role of the Ministerial Committee for Legislation.It is claimed that law reform in Israel is all but ‘systematic’. However, the authors do not call for establishing a permanent law reform commission, but rather to develop a model of law reform that would include objectives, strategies, resources, participants and their appointment and responsibilities. Additionally, the high number of private bills should be reduced and the Ministerial Committee for Legislation, which is the central obstacle for non-governmental law initiatives, must act on a transparent basis. In other word, they suggest that, in Israel, law reform needs a form.

INTRODUCTION This chapter evaluates the impact of the United Nations Convention on Rights of the Child (CRC) in a selection of Muslim States parties. It will comment on legislative reform initiatives (in addition to existing legal frameworks, statutory provisions and institutional mechanisms) undertaken in Jordan, Mauritania and Morocco affecting child rights, highlighting compatibility or otherwise with substantive provisions of the CRC. Arguing from a socio-legal and law-in-context approach, the chapter will propose a framework for enhanced convergence of the Islamic legal tradition and the CRC to create an enabling environment for child rights in these jurisdictions. THE CONTEXT FOR LEGAL REFORM ON CHILD RIGHTS IN MUSLIM JURISDICTIONS: PAST AND PRESENT An overview of the status of human rights treaties, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the CRC, presents an interesting pattern of ratification and reservations. Although many countries have ratified with reservations, Muslim countries are unique in the fact that they have specifically identified the Islamic religion and Islamic law as justification for many of these reservations. It is therefore pertinent to initiate the discussion of implementation of the CRC in Muslim jurisdictions by presenting an overview of the conceptual foundations of human rights and child rights in Islam, which to a large extent informs the legal system in Muslim countries.

In this book, Benjamin Farrand employs an interdisciplinary approach that combines legal analysis with political theory to explore the development of copyright law in the EU. Farrand utilises Foucault’s concept of Networks of Power and Culpepper’s Quiet Politics to assess the adoption and enforcement of copyright law in the EU, including the role of industry representative, cross-border licensing, and judicial approaches to territorial restrictions. Focusing in particular on legislative initiatives concerning copyright, digital music and the internet, Networks of Power in Digital Copyright Law and Policy: Political Salience, Expertise and the Legislative Process demonstrates the connection between copyright law and complex network relationships. This book presents an original socio-political theoretical framework for assessing developments in copyright law that will interest researchers and post-graduate students of law and politics, as well as those more particularly concerned with political theory, EU and copyright law.

The Kookaburra case was a tragic and controversial copyright dispute, highlighting the need for copyright law reform by the Australian Parliament. In this case, a copyright action was brought by Larrikin Records against Men at Work, alleging copyright infringement by Down Under of the Kookaburra song composed by Marion Sinclair. The dispute raised a host of doctrinal matters. There was disquiet over the length of the copyright term. There were fierce contests as to the copyright ownership of the Kookaburra song. The litigation raised questions about copyright infringement and substantiality — particularly in relation to musical works. The case highlighted frailties in Australia’s regime of copyright exceptions. The litigation should spur the Australian Law Reform Commission to make recommendations for law reform in its inquiry, Copyright and the Digital Economy. This paper provides a critical evaluation of the options of a defence for transformative use; a defence for fair use; and statutory licensing. The paper also examines the question of appropriate remedies in respect of copyright infringement. The conclusion considers the implications of the Kookaburra case for other forms of musical works — including digital sampling, mash-ups, and creative remixes. It finishes with an elegy for Greg Ham — paying tribute to the multi-instrumentalist for Men at Work.

Mass digitization of texts, images, and other creative works promises to unprecedentedly enhance access to culture and knowledge. With the electronic ‘library of Alexandria’ having started to materialize, a number of legal and policy issues have emerged. The book develops an extended conceptual account of the ways in which mass digital projects challenge the established copyright norms through the wholesale copying of works, their storage in cloud environments, and their automated processing for purposes of data analytics and text mining. As individual licensing is not compatible with the mass scale of these activities, alternative approaches have gained momentum as effect of judicial interpretation, legislative initiative, and private-ordering solutions. The book queries the normative and policy implications of this newly emerging framework in copyright law. Adopting a cross-jurisdictional perspective, it concludes that lack of clarity as to the scope of authorial consent does not only bear the risk of legal uncertainty, but can also lead to the creation of new and not readily transparent monopolies on information and knowledge. In this respect, a new regulatory framework is outlined drawing from the insights developed in areas of law where the concept of consent in the use of data has been thoroughly elaborated. Illustrating how mass digitization unveils a number of unsettled theoretical issues within copyright, the book builds a sophisticated case that digital repositories in the mass digital age should be and remain fully-fledged public goods to the benefit of future generations.

The purpose of this article is to examine the issue of ‘lobbying’ in the EU legislative process, using an interdisciplinary analysis of the development of copyright laws as a way of explaining why some lobbyists are more successful than others in having their preferences taken into account in legislation, and how this success is achieved. As this article will demonstrate, the keys to successful lobbying in this field are information exchange, the ability to frame issues at an early stage in the legislative process (agenda setting), and the political salience of an issue. By assessing not only where legislative initiatives in copyright reform have been successful, such as the passing of the Information Society, Enforcement and Term Extension Directives, but also where legislative initiatives fail, as in the case of ACTA, it will be demonstrated that legislative success is not a simple case of ‘big business getting what it wants’, but of varying levels of political salience. Where the salience of an issue is low and voters consider that issue comparatively unimportant to other issues, industry representatives are able to effectively frame legislative outcomes. Where salience is high, and an issue important to voters, this ability is substantially reduced. By approaching copyright law development in this way, it is possible to reconceptualise the role of lobbying in the EU legislative process.

This article presents the findings of a survey of unionized professors and professional librarians at a public university in Southern Ontario to examine their views on the prospect and desirability of “right-to-work” legislation and “paycheck protection” laws. The purpose of the study is twofold: first, to assess the level of opposition to such legislative initiatives among unionized faculty, and, second, to determine the extent to which the passage of such laws would undermine the dues base of the faculty union. Based on the findings of a mixed methods survey, we found that a strong majority of the university professors and professional librarians surveyed were opposed to “right-to-work” and “paycheck protection” laws and that their passage would not deter them from paying dues or authorizing expenditures for political action.

This article provides a comparative historical examination of the unanticipated consequences of labor law reforms in capitalist democracies during the twentieth century. The study of unexpected effects has a long history in sociology, and the cases analyzed here prove particularly instructive. Primary attention is given to earlier labor law projects in Germany and France that targeted the role of organized labor within industrial relations. Though divergent in political aims, legal reforms in the two countries converged in that the outcomes proved contrary to state intentions. Specifically, whereas postwar German conservatives had hoped to weaken labor unions with the Works Constitution Act of 1952 and French socialists aimed to strengthen organized labor by implementing the Auroux Laws during the 1980s, the legislative initiatives in the two nations ultimately had unexpected impacts. Analysis of what caused these unanticipated effects points toward two common factors: strategic actions (or inactions) by relevant social agents and the indeterminate nature of legal discourse itself. This article concludes with a consideration of the possibilities for labor law reform in the United States.

Japan is in the midst of massive law reform. Mired in ongoing recession since the early 1990s, Japan has been implementing a new regulatory blueprint to kickstart a sluggish economy through structural change. A key element to this reform process is a rethink of corporate governance and its stakeholder relations. With a patchwork of legislative initiatives in areas as diverse as corporate law, finance, labour relations, consumer protection, public administration and civil justice, this new model is beginning to take shape. But to what extent does this model represent a break from the past? Some commentators are breathlessly predicting the Americanisation of Japanese law. They see the triumph of Western-style capitalism - the End of History, to borrow the words of Francis Fukuyama - with its emphasis on market-based, arms-length transactions. Others are more cautious, advancing the view that there new reforms are merely creative twists on what is a uniquely (although slowly evolving) strand of Japanese capitalism. This paper takes issue with both interpretations. It argues that the new reforms merely follow Japan's long tradition of 'adopting and adapting' foreign models to suit domestic purposes. They are neither the wholesale importation of Anglo-Saxon regulatory principles nor a thin veneer over a 'uniquely unique' form of Confucian cultural capitalism. Rather, they represent a specific and largely political solution (conservative reformism) to a current economic problem (recession). The larger themes of this paper are 'change' and 'continuity'. 'Change' suggests evolution to something identifiable; 'continuity' suggests adhering to an existing state of affairs. Although notionally opposites, 'change' and 'continuity' have something in common - they both suggest some form of predictability and coherence in regulatory reform. Our paper, by contrast, submits that Japanese corporate governance reform or, indeed, law reform more generally in Japan, is context-specific, multi-layered (with different dimensions not necessarily pulling all in the same direction ­ for example, in relations with key outside suppliers), and therefore more random or 'chaotic'.

"This contribution focuses on the new legislation on the publishing license agreement in the Czech Republic. Given the legislative history and its importance in the copyright obligation area, this type of agreement occupies an essential position. The publishing license agreement is the oldest kind of license agreement. It dates back more than sixty years to earlier of the Czech legislation. Since 1953, it has been embedded in the the copyright law as a special subtype of copyright agreements. After the recent reform of the Czech private law, this legal body underwent a fundamental legislative change consisting of the transfer of this piece of legislation from the copyright law to the New Civil Code in order to unify the duality of the previous license agreement legislation formerly embedded in two legal norms of the Czech legal system. While the license provisions for literary, artistic and scientific works were contained in the copyright law provisions, the legal protection for industrial property objects, including corresponding license provisions, were subject to the commercial code. In connection with the private law reform, the New Civil Code came into effect on 1 January 2014 and its framework provided the lawmakers with a chance to unify the previously fragmented license agreement legislation into a single legal provision, while at the same time respecting the particularities of the license under copyright law. The unified license agreement legislation for commercial and civil relations in connection with the reform of local private law is newly defined in Sec. 2358 and 2389 of New Civil Code (Act No. 89/2012 Sb.), while the publishing license agreement provisions are defined in a special provision in Sec. 2384 and 2386 thereof. The new legislation has adopted the previous legislation from both special acts without any fundamental changes. However, minor changes are introduced to licensing law in the Czech Republic which are further specified in this paper. The issue under review is set in a theoretical framework and simultaneously depicted in a historical context. This paper presents the topic in its complexity by highlighting the overlap of the introduced changes in license agreement legislation with other provisions of the private law."

Purpose – High-speed internet and digital technology offer new ways of accessing and interpreting collection material in our cultural institutions. The ability of cultural institutions to unlock access to their collections online is constrained by copyright law. This paper examines the push in Australia for cultural institutions to “set collections free” online, and copyright law reform developments that hinder or facilitate making comprehensive online experiences of collections a reality. Design/methodology/approach – It considers constraints in Australian copyright law following the adoption of increased IP enforcement and protection standards under the Australia-US Free Trade Agreement, in light of internationalisation of these standards through recent multi-lateral trade agreements. Finally, it considers copyright law reform options to better “unlock” or “set free” collections in cyberspace. Findings – It recommends the inclusion of safeguards for copyright exceptions and limitations in trade agreements, and reaffirmation of user and public institution rights of access to information. It warns against the adoption of onerous anti-circumvention provisions. It also recommends various domestic law reform options to free up access to cultural collections. Originality/value – Australia was one of the early adopters of the US-IP model that is fast becoming the international standard for enforcement and protection of IP rights. As such, looking at current Australian copyright law may help us better understand the effect IP-maximalist chapters being promoted in multilateral trade agreements may have on similar net-IP importing countries.

Following the big wave of 1990s-early 2000s EU copyright reforms (Directive 2001/29/EC—the so called InfoSoc Directive—was adopted in 2001), over the past few years the main feature of EU Commission’s copyright policy has probably been consulting with interested stakeholders about the need for further updates or major reforms of the acquis. It is however difficult to think of consultations that have translated to actual reform proposals. The 2008 Green Paper on Copyright in the Knowledge Economy included a call for comments (there were about 350 in the end) on issues pertaining to exceptions and limitations in Article 5 of the InfoSoc Directive. Nothing changed as a result of this stakeholder exercise, unless you consider the creation of the Content Online Platform, ie a “stakeholders’ discussion and cooperation platform”, an actual step forward for EU copyright reform debate. The outcome of the 2009 Consultation on Creative Content Online was not more encouraging. Despite being aimed at discussing the challenges facing digitization of content and distribution channels, it attracted around 200 responses (which is over 40% less than its 2008 predecessor), and passed unnoticed outside niche—possibly too niche—circles. Switching for a moment away from public consultations, in its 2011 blueprint ambitiously titled A Single Market for Intellectual Property Rights boosting creativity and innovation to provide economic growth, high quality jobs and first class products and services in Europe, the Commission anticipated a number of (minor, I think) legislative initiatives (on orphan works and collective rights management) and—again—a new round of consultations on two topical copyright issues, ie further harmonization of copyright laws of Member States, and re-opening the InfoSoc Directive. While the EU has adopted specific directives on orphan works (Directive 2012/ 28/EU) and collective rights management (Directive 2014/26/ EU), no progress has been made on the front of the two really big policy issues identified in the blueprint. Proof of the above is the most recent Public Consultation on the Review of EU Copyright Rules that ran between December 2013 and March 2014. Again, the Commission asked about deepening the harmonization of the copyright laws of EU Member States and the need for changing/ clarifying/updating key provisions of the InfoSoc Directive with regard to both exclusive rights and related exceptions and limitations. Following the conclusion of this last consultation, there should be (or rather: should have been, considering that current Commission’s term of office will end in October this year?) a White Paper aimed at identifying potential areas for legislative intervention, and an Impact Assessment. Draft versions of both documents have been already leaked, and do not look particularly ambitious. All this creates the impression that—also this time—no real copyright reform will occur. This may not be the worst case scenario though. What is most worrisome is in fact the high—and at times fairly intolerable—degree of partisanship of those involved in the copyright debate and the instrumental use that the Commission itself has made of the instrumental data thus collected. In a recent briefing prepared for the European Parliament and entitled Adapating the EU Copyright Rules to the Digital Transformation, Stephane Reynolds reviewed the implementation, application and effectiveness of EU copyright policy over the past few years. He observed that public consultations have featured prominently and have essentially served to gather and confirm qualitative—rather than quantitative—data. In other words, you were not mistaken in thinking that all those stakeholder exercises looked like sort of a deja-vu: they were. To this add the sudden rise in the numbers of participation: the 2013–14 Public Consultation received 9,500 responses. This was not because Europe has been recently invaded by armies of copyright enthusiasts, but rather because popular stakeholder-driven initiatives such as Fix Copyright!, Creators for Europe and Copywrongs.eu really boosted participation by providing pre-filled response forms. While this is good for creating a copyright culture also among non-specialists, it also strengthens the impression that consultations are bound to become even more repositories of sclerotized data that can hardly be considered economic evidence (apparently the only real, acceptable type of evidence), if evidence at all. Besides well-known refrains on competitiveness and effectiveness of the EU single market, it is still unclear where EU copyright policy is heading. Moreover, it seems that asking repeatedly the same people might not help see the way. The next Commission will hopefully appreciate the actual legacy—if any—of these years spent consulting, as well as the quality of the data used to carry out the most recent (minor) reform agenda. But will it?

In Chinese law, the seemingly transparent condition of originality has been used to classify audiovisual productions into two categories: videograms protectable by neighboring rights and cinematographic works protectable by copyright, the latter of which benefit from a higher level of protection. However, the reality is that audiovisual productions often involve the intellectual efforts of their production teams, as shown through the live broadcasting of sporting events, such that one cannot completely deny the absence of originality therein. In addition, considering that the legitimate interests of TV and broadcasting organizations are justified by their significant investments and the need to prohibit rampant retransmission of their broadcasts on the Internet, it is no longer possible to maintain the distinction between cinematographic works and non-copyrightable audiovisual productions. In these circumstances, a series of famous cases and doctrinal debates regarding live broadcasting of sporting events have triggered the revolutionary reform of the Copyright Law of China in 2020, in which the statutory category of cinematographic works has been replaced by audiovisual works. This reform has not only granted copyright protection to all audiovisual productions but has also adopted the minimum threshold requirement for which copyrightable works may qualify for originality. This minimum threshold will likely further open the door of copyrights to encompass all productions vital to industries.

This case turns on whether the Supreme Court’s 1984 decision in Sony conclusively resolves at the summary judgment stage the present dispute – involving strikingly different technology that was unimaginable at the time that the Sony case was decided. Although some of the language used in the Sony decision – stating that providers of technology that is capable of substantial noninfringing uses cannot be subject to contributory infringement liability – appears to predetermine the outcome of this matter, such a far-reaching, prospective rule goes well beyond the language or intent of the Copyright Act and misconstrues the proper judicial function in copyright adjudication. Over the course of nearly two centuries, courts have evolved, with tacit legislative consent, a rich infringement jurisprudence that balances a range of considerations on a case-by-case basis. This jurisprudence has long recognized indirect as well as direct infringement. In its comprehensive reform and codification of copyright law in the 1976 Copyright Act, Congress purposefully reaffirmed the continued applicability and evolution of this jurisprudence. At the same time, Congress established various express immunities, compulsory licenses, and other categorical limitations on liability. It would be incongruous, therefore, for courts to read additional categorical immunities into the Copyright Act’s liability regime. Congress has since added numerous other limitations to copyright liability, none of which bar a finding of infringement in the present case. Several amendments prohibit trafficking of particular classes of technology capable of substantial non-infringing uses. The Sony Court derived its “staple article of commerce” standard by analogizing to the Patent Act. Transplanting such a rule from the Patent Act, however, misapprehends critical differences between the two legal regimes. Whereas patent law seeks to promote technological innovation and evolved a staple article of commerce doctrine primarily out of concern for unduly expanding patent scope, copyright law seeks to promote cultural and social progress, manifesting a more cautious stance toward technological dissemination, particularly where a technology threatens widespread piracy of expressive works. Furthermore, amendments to the Copyright Act since the Sony decision demonstrate that Congress does not believe that dual-use technology – i.e., technology that is capable of both infringing and substantial non-infringing uses – should be treated as inviolate under copyright law. Rather, Congress has shown that it sees a need to balance the efficacy of the copyright system for promoting creative expression against social interests in technological innovation and consumer autonomy. Consequently, this Court should clarify that indirect copyright infringement liability requires a balancing of factors based on the protection of copyright owners’ rights and other recognized interests and concerns undergirding copyright law. Adverse effects of potential liability on incentives to innovate can and should be considered in such a balance, but no judicially established safe harbors should be recognized or imposed. Any such prospective, categorical safe harbors are properly within the exclusive power of Congress. Until such time as Congress establishes a staple article of commerce immunity to copyright liability, courts should continue to evolve balanced infringement standards that respond to new technologies guided by the text, structure, and purposes of copyright law. For the present case this means that the Ninth Circuit’s decision to affirm summary judgment dismissing the plaintiffs’ cause of action should be overturned and the case remanded for a full trial applying an appropriate balancing test. This Court should clarify that copyright liability extends to acts inducing copyright infringement and that contributory and vicarious liability should be judged on the basis of traditional criteria, including considerations of causation, knowledge, and intent. Given the policies animating copyright law, the standard for indirect liability should balance the harm to copyright owners against adverse effects on consumers from the loss of non-infringing uses from dual-use technologies. Such a balance should consider the full range of factors, including the relative magnitudes (present and foreseeable) of infringing and non-infringing use, the degree of control exercised by manufacturers and distributors of means for reproducing and distributing works of authorship, the intent of such enterprises, the extent to which noninfringing uses can be continued without the technologies at issue, and the extent to which copyright owners can limit unauthorized uses of their works (without undue expense or loss of market). Such an approach would continue the judiciary’s vital role as a flexible and responsive institution for addressing evolving challenges to the copyright system. Until such time as Congress expressly enacts a safe harbor in the Copyright Act analogous to patent law’s staple article of commerce doctrine, the distributor of technology that is merely capable of substantial non-infringing uses (but is in fact used predominantly to facilitate massive infringement) should not be categorically immune from copyright liability.