Statutory Rights Research Articles

United Kingdom Copyright Decisions and Legislative Developments 2016

This report highlights the main UK copyright decisions in 2016, which relate to the definition of “substantial part” in the context of copyright infringement, the interaction between the fair dealing provisions and the Information Society Directive, the relationship between copyright enforcement and competition law, the interaction between national legislation on copyright damages and the Enforcement Directive, and the effect of choice of law clauses on statutory rights conferred by the copyright legislation of other jurisdictions. It also discusses the repeal of Sec. 52 of the CDPA, which had previously limited the term of copyright protection for artistic works that had been exploited through industrial manufacturing to 25 years from the date of first marketing.

The Three Phases of the Supreme Court's Arbitration Jurisprudence: Empowered the Already-Empowered

Arbitration agreements coupled with class-action waivers and other onerous provisions have become common in employment, consumer, and other transactions. The Supreme Court’s decisions enforcing such agreements have encouraged their use. Scholars have largely critiqued the Court’s decisions. This article finds that the Court’s arbitration jurisprudence has not been so monolithic. Rather it has evolved through three phases. In Phase I, the Court overruled older case law and held that pre-dispute agreements to arbitrate statutory claims were enforceable pursuant to the Federal Arbitration Act (“FAA”). The Court’s rationale was that as long as the claimant could effectively vindicate the claims in the arbitral forum, the arbitration agreement did not amount to a waiver of the statutory rights at issue. This rationale led many to envision arbitration, with procedures effectively policed by the courts, developing into an informal, cost-effective forum that would be more accessible than the courts, particularly for low-dollar-value claims. Phase II substantially undermined the effective vindication doctrine, but state contract law doctrines used to police overreaching adhesive contracts continued to support the vision of arbitration as an accessible forum. In Phase III, however, the Court has held that the FAA mandates enforcement of class-action waivers, premising its holding on an FAA policy of enforcing arbitration agreements according to their terms. This article demonstrates how the latest phase of the Court’s arbitration jurisprudence is obliterating state contract-law doctrines that policed overreaching by dominant parties, elevating the interests of the parties imposing the terms, and enshrining the imposing party’s interests in the FAA and the Supremacy Clause of the Constitution.

Constitution of Serbia and rights of opposition

The political opposition which is primarily organized in political parties, is a condition for existence of democratic political system. Special attention should be paid to guaranties of the position of political opposition in states which have renewed their multiparty system, or just initiated it. This guaranty means protection of oppositional political parties with rights and legal mechanism, enables the same legal treatment and real equality with ruling parties. This implies constitutional, statutory and executive rights and procedures through which opposition operates. The constitutional position of opposition in the Republic of Serbia was built just with the given order. Oppositional political parties have an equal legal status and, apropos, possibility to criticize, control and change the government through the election. However, a really low level of a political culture, lack of consistency of the political ideology, readiness for all kinds of coalitions, inferiority of the underdeveloped public opinion, makes so that the political opposition has slightly worse position in the relation to position of government.

The Modern Class Action Rule: Its Civil Rights Roots and Relevance Today

The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions. First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. The article tells the story of how the drafters were united in creating a rule that would enable litigants to respond effectively to the fierce resistance to desegregation following the seminal Brown v. Board of Education decision. They deliberately crafted a rule to address desegregation obstructionism. Second, the article examines the seminal role the modern class action rule has played in the private enforcement of statutory and Constitutional civil rights. The article analyzes Supreme Court jurisprudence interpreting Rule 23(b)(2) over the course of the last fifty years, identifying three primary periods in which the pendulum has swung: from a heyday of liberal class certification for broad injunctive relief for newly created rights; to a heightened critique and retraction of class certification; to a complex gauntlet of contemporary barriers. Finally, the article critiques modern class action jurisprudence and concludes that it fails to sufficiently fulfill the drafters’ intent of creating an efficient and just procedural mechanism for challenging systemic inequality. The article urges a contemporary judicial interpretation that honors Rule 23(b)(2)’s strong civil rights mission.

Canadian copyright law and the Charter of Rights and Freedoms : Statutory property rights trump constitutionally guaranteed expression

Copyright law has always been surrounded by controversy. It is arguable that the reason why copyright can be a sensitive issue is not simply because it is difficult to create laws for intangible pieces of property, but perhaps because copyright is so widespread it has the ability to affect a substantial number of individuals, whether users or rightholders. The constant state of flux that surrounds copyright law also adds a level of complexity. With technology constantly changing, new issues arise as a result. Freedom of expression adds another realm of complexity. The Canadian Charter of Rights and Freedoms1 acknowledges the importance of free expression in society. Section 2(b) of the Charter provides a constitutionally guaranteed freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. Section 2(b) has already been referred to as the Charter right that has had the biggest influence in Canadian society.2 In Edmonton Journal v Alberta (Attorney General), Cory J stated that it ‘is difficult to imagine a guaranteed right more important to a democratic society’.3

PRAWO PIERWOKUPU A SĄDOWY PODZIAŁ MAJĄTKU WSPÓLNEGO MAŁŻONKÓW

RIGHT OF FIRST REFUSAL AND THE DIVISION OF JOINT MATRIMONIAL PROPERTYSummaryThe aim of this article is to answer the question whether a court ruling awarding a particular asset of the joint matrimonial property to one of the spouses automatically means the expiry of the right of first refusal. The author’s position is that neither the contractual nor the statutory right of first refusal is extinguished by a court ruling on the division of the spouses’ jointly held assets. A legal decision whereby a particular asset is awarded to one of the spouses does not mean the cessation of the right of first refusal. The court conducting the division of joint matrimonial assets does not rule on the spouse’ liabilities or debts. Hence spouses who share liabilities cannot apply to a court to have the right of first refusal revoked.

Citizen attitudes toward errors in criminal justice: Implications of the declining acceptance of Blackstone's ratio

The “Blackstone ratio,” positing that “it is better that ten guilty individuals escape, than that one innocent suffer,” is a well-known principle of criminal justice. The methods of implementing the legal policy of maximum possible certainty of guilt congruent with Blackstone's ratio consists of a constellation of constitutional and statutory rights, as well as rules of procedure and evidence. However, what if the public shifts its view of the Blackstone's ratio and becomes less supportive of this principle? This paper reports the results of a cross-national study of public opinion regarding whether it is worse to wrongfully convict the innocent, or erroneously acquit the guilty. Reanalysis of the results of four different surveys of citizens in different countries conducted from 1985 to 2006 reflects a significant and growing rejection of the Blackstone ratio principle over the time period studied. We discuss one implication of these findings relating to the standard of proof in criminal cases, and suggest directions for future research.

Appraisal Rights Limitations Coming to Delaware

Private equity firms and other investors in Delaware-based companies have, with increasing frequency, employed a strategy in which they vote against mergers or consolidations and then exercise their statutory appraisal rights provided under the Delaware Code. This profit-maximizing strategy, colloquially known as “appraisal arbitrage,” can work in cases where an investor believes the “fair value” of its shares is worth more than the price offered by the transaction. Some investors may have to rethink these strategies as Delaware Governor Markell recently signed a bill amending the appraisal rights statute, effective August 1, 2016. The amendments limit the ability of certain investors to engage in appraisal arbitrage following a merger. Only investors holding more than 1% of a company’s shares or shares valued at over $1 million dollars will have appraisal rights.

The “further fair participation” provision in Art. 32 a (2) German Copyright Act – Claims against a third-party exploiter of a work

I would like to talk today about an intriguing subject of German copyright contract law. Intriguing not only because Dutch copyright legislators recently implemented regulations on “fair compensation” and a new “bestseller clause”. At the EU level it is likely that further statutory remuneration rights will be proposed for the digital single market. Furthermore, in late 2014 the French government adopted legislation containing regulations on fair compensation for e-books. Copyright provisions for the adequate participation of creators in the revenues obtained by the users of works already exist in several EU Member States such as France, Spain and Greece. Currently, the German legislator intends to improve the German copyright contract law1 first introduced in 2002, which to a certain extent constitutes a role model for other countries in the EU. The regulations comprise an author's claim for “fair compensation” (Art. 32 German Copyright Act - CA) and a claim for “further fair participation” in the revenues if the work is particularly successful (Art. 32 a CA). Regulations on joint remuneration agreements were also introduced in 2002. They stand apart from the collective bargaining agreements of the unions. These regulations constitute another field of sometimes fierce disputes between authors and exploiters of works.2

Towards a Contextual Conception of Social Integration in eu Immigration Law. Comments on P & S and K & A

Integration policy instruments disclose how European societies define themselves in response to migration. Pre-departure civic integration tests are emblematic of a new focus on social cohesion and have been a bone of contention in political and academic circles. That is why the ecj’s long-awaited verdicts on Dutch integration requirements for spouses and long-term residents are a milestone in the construction of an EU immigration policy. This contribution critically analyses the rationale and implications of the P & S and K & A rulings at different levels starting with doctrinal ambiguities on the part of judges when interpreting secondary legislation. On this basis, it relates the outcome of both cases to the broader constitutional context in terms of human rights, the doctrine of individual statutory rights and non-discrimination guarantees – together with a contextual outlook on factors influencing the reorientation of integration policies.

Towards Womenns Equal Right to Property - Recent Judicial Developments in India

This article investigates judicial developments in the Indian law of succession whereby laws have recently been interpreted by the courts to grant more property rights to Indian women. Tribal women who had been denied inheritance rights under their customary laws have been judicially granted rights in their favour. Also, the applicability of coparcenary claims by Hindu daughters, granted under the Hindu Succession (Amendment) Act, 2005 (IND), has now been finally settled by the Supreme Court of India. Applying legal maxims for recognising the right of a Hindu widow to claim partition of her deceased husband’s share in coparcenary property, in the absence of a definite statutory right, is another judicial development; while the interpretation of Hanafi law to grant inheritance rights to a sister in the presence of daughters of the deceased shows a judicial approach of uplifting the position of women even under uncodified Muslim personal law. At the same time, however, restricting the right of a Hindu daughter to claim her coparcenary right only after a certain date, when no such limitation has been fixed for a male coparcener; and the courts’ affirmation of granting preferential rights to agnates over cognates under Hindu inheritance law, appear to promote gender inequality without any justification. More than a decade after the passing of the Constitution, the courts continue to adopt a cautious approach when considering the constitutional validity of personal laws. With the increase in social integration, economic independence and reform movements, there needs to be a further call for the improvement of the woman’s position in Indian society with respect to equal property rights.

Image rights: Exploitation and legal control in English and Hungarian law

In the past decades due to changed technical advances, features of the personality have become economically exploitable to an extent not previously known. Pop stars, TV celebrities as well as famous athletes have sought protection against the commercial use of their images, names and likenesses without their consent.1 Despite the economic value of personality and image rights, there is currently no international standard or agreed legal concept for recognising an image right. While many jurisdictions, for example, the US, Germany, France and Hungary offer express statutory protection against the unauthorised commercial use of an individual’s image by a third party in the context of publicity or personality rights, English law provides no cause of action for the infringement of image rights as such. Although a celebrity may currently obtain protection through various statutory and common law rights, such as the developing law of privacy, trade mark law breach of confidence and, in particular, the tort of passing off, none of these rights were designed to protect image or personality rights.2 In this context, this article explores the potentially enforceable rights, their benefits and practical strategies to protect name and image rights in the UK3 and Hungary.

Between ideals and reality in home-based rehabilitation

Setting and objective The growing elderly population and the rising number of people with chronic diseases indicate an increasing need for rehabilitation. Norwegian municipalities are required by law to offer rehabilitation. The aim of this study was to investigate how rehabilitation work is perceived and carried out by first-line service providers compared with the guidelines issued by Norway’s health authorities. Design and subjects In this action research project, qualitative data were collected through 24 individual interviews and seven group interviews with employees – service providers and managers – in the home-based service of two boroughs in Oslo, Norway. The data were analysed using a systematic text-condensation method. Results The results show that rehabilitation receives little attention in the boroughs and that patients are seldom rehabilitated at home. There is disagreement among professional staff as to what rehabilitation is and should be. The purchaser–provider organization, high speed of service delivery, and scarcity of resources are reported to hamper rehabilitation work. Conclusion and implications A discrepancy exists between the high level of ambitious goals of Norwegian health authorities and the possibilities that practitioners have to achieve them. This situation results in healthcare staff being squeezed by the increasing expectations and demands of the population and the promises and statutory rights coming from politicians and administrators. For the employees in the municipalities to place rehabilitation on the agenda, it is a requirement that authorities understand the clinical aspect of rehabilitation and provide the municipalities with adequate framework conditions for successful rehabilitation work.Key pointsHome-based rehabilitation is documented to be effective, and access to rehabilitation has been established in Norwegian law.The purchaser–provider organization, high rate of speed, and a scarcity of resources in home-based services hamper rehabilitation work.Healthcare providers find themselves squeezed between the health authorities’ overarching guidelines and requirements and the possibilities of achieving them.Rehabilitation must be placed on the agenda on the condition that authorities understand the clinical aspect of rehabilitation.

What’s the story? The instability of the Australasian bills of rights

The three Australasian statutory human rights charters have proved surprisingly unstable in their interpretation and application. In the New Zealand context, a reason that has been suggested for this is that there are two competing explanatory narratives underlying the instrument, neither of which has been able to achieve ascendency. This article adopts that account and suggests that it also has explanatory power in the Australian context. The article then uses this “two stories” analysis to explore similarities and differences between the two jurisdictions and, in particular, to reflect on the broader constitutional cultures in which the Australasian statutory human rights charters must operate.

The rights of victims according to the criminal procedure act of Republic of Croatia - needs of the victim and practical experience from the perspective of the victim and witness support offices

The subject of this paper is to analyze the provisions of the Criminal Procedure Act relating to the general rights of victims and the rights of victims of criminal offenses against sexual freedom and human trafficking. The goal was to determine the relationship between the statutory rights of the victims and their needs, as well as to analyze how the application of these rights affects the victim?s status, a sense of security and protection. Intention was to analyze whether the Act contributes to the prevention of retraumatization and revictimization of victims and if it increases confidence in the judicial system. These effects can be achieved primarily by timely informing victims about their rights, and then by providing those rights in the practice. The analysis made is based on the experience of officials from Victims and Witnesses Support Offices. The purpose of this paper is to promote the implementation of the rights that victims have according the Criminal Procedure Act in order to enable their wellbeing.

Image Rights: Exploitation and Legal Control in English and Hungarian Law

In the past decades due to changed technical advances, features of the personality have become economically exploitable to an extent not previously known. Pop stars, TV celebrities as well as famous athletes have sought protection against the commercial use of their images, names and likenesses without their consent. Despite the economic value of personality and image rights, there is currently no international standard or agreed legal concept for recognizing an image right. While many jurisdictions, for example, the US, Germany, France and Hungary offer express statutory protection against the unauthorized commercial use of an individual's image by a third party in the context of publicity or personality rights, English law provides no cause of action for the infringement of image rights as such. Although a celebrity may currently obtain protection through various statutory and common law rights, such as the developing law of privacy, trade mark law breach of confidence and, in particular, the tort of passing off, none of these rights were designed to protect image or personality rights. In this context, this article explores the potentially enforceable rights, their benefits and practical strategies to protect name and image rights in the UK and Hungary.

Antitrust Arbitration and Merger Approval

INTRODUCTIONIn a string of recent opinions, the Supreme Court has made it harder for consumers to avoid arbitration clauses, even when businesses strategically insert provisions in them that effectively prevent consumers from being able to bring any claim in any forum. For example, when firms engage in illegal conduct that extracts small amounts of ill-gotten gains from millions of consumers, individual litigation (or arbitration) may cost more than the maximum possible recovery. In these scenarios, class action litigation or class-wide arbitration may be the only viable mechanisms for consumers to seek recovery. Yet, in AT&T Mobility LLC v. Concepcion,1 the Supreme Court held that the Federal Arbitration Act preempted state laws that rendered class arbitration waivers in arbitration clauses unconscionable and, thus, unenforceable. In American Express Co. v. Italian Colors Restaurant,2 an antitrust case, the Court held that class action waivers embedded in mandatory arbitration clauses were enforceable even when they had the effect of making it economically irrational for the victims of antitrust violations to pursue their claims.3Part I of this Article examines how courts initially treated antitrust claims as nonarbitrable. For decades, courts considered antitrust claims to be too complex and too important to trust to private arbitrators. By the 1980s, the Supreme Court permitted federal statutory rights, including antitrust claims, to be arbitrated so long as the plaintiffs could effectively vindicate their rights in the alternative forum (the so-called Effective Vindication Doctrine). In 2013, the Supreme Court in Italian Colors fundamentally weakened the Effective Vindication Doctrine when it held that arbitration clauses that precluded class actions and class-wide arbitration were enforceable even when they effectively prevented any victim from actually bringing an individual case.Part II details the problems of mandatory arbitration of antitrust claims. Arbitration differs from litigation in ways that harm the interests of consumer-plaintiffs. For example, arbitration limits discovery and has no meaningful appeals process. Furthermore, defendants draft arbitration clauses to prevent class actions and to undercut the pro-plaintiff features of antitrust law, including mandatory treble damages, meaningful injunctive relief, recovery of attorneys' fees, and a lengthy statute of limitations. With the Court's undermining of the Effective Vindication Doctrine in Italian Colors, defendants' efforts to dismantle these pro-plaintiff components of antitrust law may prove more successful in the future.Part III shows how the problems associated with antitrust arbitration are magnified in concentrated markets. Supporters of enforcing arbitration clauses assume that these contractual provisions are the result of an informed, voluntary bargain. But when a market is dominated by a single supplier or a small group of firms, consumers often find it impossible to purchase a necessary product while retaining the right to sue, especially since arbitration clauses are generally embedded in contracts of adhesion. This means that in the markets most likely to be affected by antitrust violations, consumers are least likely to be able to avoid mandatory arbitration clauses. Furthermore, when mergers result in concentrated markets, they can increase the problems explored in Part II.Finally, Part IV explains how antitrust authorities can address the problem of proliferating arbitration clauses. When evaluating mergers, officials at the Federal Trade Commission and the Antitrust Division of the Department of Justice can threaten to challenge the merger unless the merging parties agree to specified conditions, such as the divestiture of certain assets. Because those mergers that pose the greatest risk of anticompetitive effects also magnify the problems associated with mandatory arbitration clauses, antitrust officials would be wise to condition merger approval on the merging parties' agreement to not require arbitration of antitrust claims. …

Revisiting the Remedies of Unfair Dismissal at the Workplace

Dismissal would be considered unfair if the adjudicating institution finds that the dismissal was harsh, unjust or unreasonable and unjustifiable. An unfairly dismissed employee has statutory rights to challenge the dismissal in order to reverse the decision or to be compensated. This paper revisits statutory remedies available to an unfairly dismissed employee by examining factors that influence the adjudicating authority to exercise discretion in favour of a particular remedy when it finds that a dismissal has been unfair. The paper concludes that a verdict of unfair dismissal is a 'condition precedent' for ordering a remedy in terms of section 193 of the South African Labor Relations Act 66 of 1995, as amended.

Labor, Exclusion, and Flourishing in Property Law

This Article presents a natural rights justification for property rights in a theory called “productive labor theory.” Productive labor theory sets forth a Lockean, labor-based case for property. It links property to human interests in flourishing — specifically in interests in using ownable resources to produce constituent elements of survival or rational improvement. On this foundation, “labor” means intelligent and purposeful activity producing goods contributing to survival or rational improvement.This Article presents productive labor theory as an alternative to the two families of normative theories that currently loom large in contemporary property scholarship — economic theories of exclusion, and progressive theories. Each of these theory-families unsettles property in an important respect; productive labor theory shores up each of the foundations unsettled by exclusion and progressive theories. Like progressive theories, productive labor theory links property on a satisfying moral foundation, namely human flourishing. Unlike progressive theories, productive labor theory doesn’t denigrate or undermine the role that exclusive control plays in property. Like leading economic theories, productive labor theory justifies strong rights of exclusive control and possession. Yet it avoids standard criticisms about normative foundations of law and economic analysis, and it identifies moral boundaries within which efficiency analyses might be normatively defensible.The Article illustrates using: the prima facie case for trespass to land; the common law privilege for necessity and the defense for adverse possession; Allemansratt and statutory rights to roam; state and local landmark schemes (as exemplified in Penn Central Transportation Co. v. New York City); and regulatory schemes authorizing the use of eminent domain to condemn and reassign private land for commercial redevelopment (as exemplified in Kelo v. City of New London).

Outgrowing Copyright: The Effect of Market Size on Copyright Policy

Does copyright protection offer the best means of stimulating the production of expressive works? Perhaps, at the moment, it does. If so, however, copyright protection will probably become inefficiently over-protective as the market for expressive works grows. With such growth, copyright holders will find it increasingly remunerative to focus on customers willing to pay a premium for particular expressive works. In a larger, more finely segmented market, copyright holders will find that their statutory rights generate larger monopoly rents. Yet copyright holders will suffer no corresponding increase in production or distribution costs; thanks to technological advances, we can expect those costs to continue to decline. The private benefits of copyright protection will rise. So, too, will its social costs. Holding all else equal, therefore, growth in the market for expressive works will make copyright policy inefficient. This paper explains that effect and discusses how policymakers should respond.