Tuesday, November 25, 2014
Eleonora Rosati, University of Southampton School of Law, is publishing Just a Matter of Laugh? Why the CJEU Decision in Deckmyn is Broader than Parody in the Common Market Law Review (2015). Here is the abstract.
On 3 September 2014 the Grand Chamber of the Court of Justice of the European Union (‘CJEU’) issued its decision in Case C-201/13 Johan Deckmyn and Another v Helena Vandersteen and Others (‘Deckmyn’). This was a reference for a preliminary ruling from the Brussels court of appeal, seeking clarification as to the notion of parody under Article 5(3)(k) of Directive 2001/29 (the ‘InfoSoc Directive’). This provision allows Member States to introduce into their own copyright laws an exception or limitation to the rights of reproduction, communication and making available to the public, and/or distribution, for the purpose of caricature, parody or pastiche. It does so without providing a definition of these concepts.
Having clarified that ‘parody’ is an autonomous concept of EU law, in its ruling the CJEU held that this must be understood according to its usual meaning in everyday language. A parody has just two essential characteristics: first, to evoke an existing work while being noticeably different from it and, secondly, constitute an expression of humour or mockery. The CJEU also stated that the person who owns the copyright to a work has a legitimate interest in ensuring that this is not associated with the message conveyed by its parody if it is discriminatory/racist.
This decision is topical to EU debate on copyright exceptions and limitations in Article 5 of the InfoSoc Directive, as well discourse around activism – rather than mere activity – of the CJEU in this area of the law. Thus, the relevance of the Deckmyn decision is not confined to the sole topic of parody. Similarly to what has happened in relation to other aspects of copyright, e.g. the originality requirement and the notion of work – also in this case the Court might have pursued some sort of de facto harmonization, notably with regard to moral rights.
The present contribution is structured as follows. The first part explains the background to this reference, and summarizes the Opinion of Advocate General (‘AG’) Cruz Villalón on 22 May 2014 and the subsequent findings of the CJEU. The second part discusses specific aspects of the Opinion and the ruling. First, the practical implications of the decision are reviewed. Secondly, the systematic impact of the Deckmyn case is addressed, including the actual harmonizing force of Article 5 of the InfoSoc Directive, as well as whether this ruling has introduced trade marks concepts into EU copyright (notably tarnishment), or even harmonized moral rights.
Download the article from SSRN at the link.
Katri Havu, University of Helsinki, is publishing Unfair Commercial Contracts and Online Content Distribution: Insights into Problems, Regulation and Potential of European Harmonization in Tidskrift utgiven av Juridiska Föreningen i Finland, 6/2014 (forthcoming). Here is the abstract.
Commercial online content (e. g. music, video, e-books), distribution is growing in economic significance and consuming online content plays a remarkable role in the everyday life of many. The characteristics of online content distribution markets appear to underline concerns about unfair trading. The European Commission has expressed willingness to establish European business-to-business unfair trading rules. While the business fields that the Commission intends as subjects of possibly rather generally applicable rules remain open, and while inclusion of digital content products in the scope of applicability is unclear, the initiative serves as a useful basis for discussion of justifications for and challenges to addressing business-to-business unfair trading matters in online content distribution by means of EU legislation. This article highlights issues where discussion and particular care in possible harmonization are advisable. These matters include aspects of the interface between potential European rules on the one hand and national contractual and procedural law and enforcement systems on the other.
Download the article from SSRN at the link.
David Erdos, University of Cambridge Faculty of Law, has published Fundamentally Off Balance: European Union Data Protection Law and Media Expression as University of Cambridge Faculty of Law Research Paper No. 42/2014. Here is the abstract.
The European Data Protection Directive 95/46/EC requires all European Economic Area (EEA) jurisdictions to provide an equivalent regime protecting the privacy and other fundamental rights and freedoms of natural persons in relation to personal data processing, whilst also shielding media expression from the default substantive requirements as necessary to ensure a balance between fundamental rights. Through a comprehensive coding of the derogations set out in each jurisdiction’s data protection laws, this paper provides the first systematic analysis whether this has in fact been achieved. It is demonstrated that there is a total lack of even minimal harmonization in this area, with many laws providing for patently unbalanced results especially as regards the publication of sensitive information, including criminal convictions and political opinion, and the collection of information without notice direct from the data subject. This reality radically undermines European data protection’s twin purposes of ensuring the free flow of personal data and protecting fundamental rights, an outcome which remains unaddressed by the current proposed new Data Protection Regulation. Practical suggestions are made to ameliorate these troubling inconsistencies within the current process of reform.Download the paper from SSRN at the link.
Monday, November 24, 2014
Martin Senftleben, VU University Amsterdam Faculty of Law, has published Copyright and Creators' Interests – Rights and Remuneration in the Light of Bourdieu's Analysis of the Field of Literary and Artistic Production. Here is the abstract.
The present copyright system is intended to provide an incentive for authors to invest more time and effort in the creation of literary and artistic works (utilitarian argument), recognize the acquisition of a property right as a result of creative labour (natural law argument) and enhance authors’ freedom of expression by offering a source of income that is independent of patronage and sponsorship (free expression argument). These arguments may be combined with considerations of industry policy, such as the growth of the creative and telecommunication industries, and the creation of jobs in these industries. The basis of all these lines of reasoning, however, is the individual creator. Without the constant efforts of creators, there would be no new literature and art to fuel the publication and dissemination machinery of the industry. A focus on the position of the individual creator also ensures the acceptance of copyright law in society. It adds social legitimacy. Who would be against remunerating authors for the time and effort spent on the creation of a new work?
Given the core rationale to encourage and reward creators, the question arises whether the present copyright system is sufficiently aligned with creators’ interests. To lay theoretical groundwork for this inquiry, Pierre Bourdieu’s sociological analysis of the field of literary and artistic production will be taken as a starting point. This sociological analysis yields important insights into the interests of different groups of creators. On this basis, the various arguments for copyright protection will be revisited before embarking on a critical analysis of the present system of authors’ exclusive rights and copyright’s remuneration mechanisms. The analysis will finally trace the conceptual contours of a copyright system in which creators’ interests feature more prominently than in the present system.
Download the paper from SSRN at the link.
Andrew Dyer, University of Sydney, Faculty of Law, is publishing Freedom of Expression and the Advocacy of Violence: Which Test Should the European Court of Human Rights Adopt? in the Netherlands Quarterly of Human Rights (2015). Here is the abstract.
This article examines the European Court of Human Rights’ violent advocacy jurisprudence. It observes that, since the decision in Leroy v France was delivered in October 2008, there has emerged some confusion concerning what the applicable test is in cases where it is alleged that a member state’s proscription of such speech amounts to a breach of Article 10 of the European Convention on Human Rights. In particular, there has been growing support in the Strasbourg case law for tests that are similar to the U.S. Supreme Court’s ‘clear and present danger’ standard. The argument presented here is that the European Court should adopt a test under which there is but one enquiry: ‘did the impugned speech create a real risk of violence?’ However, in answering that question, the Court, in every such case, should consider five further matters: ‘did the speech create an imminent risk of harm?’; ‘did the applicant intend to cause violence or foresee the possibility that his/her speech would cause violence?’; ‘did he/she occupy a position of influence in society?’; ‘was the advocacy disseminated widely?’; and (where applicable) ‘did the speech occur close to the ‘centre of violence’?’ If faithfully applied, this test would achieve a proper balance between, on one hand, protecting the community from violence, and, on the other, preventing states from placing unnecessary restrictions on those who impart and receive information relevant to political and other decision-making. That is, it would ensure that the Court upholds only those restrictions on violent advocacy that fulfill a ‘pressing social need.’
Download the article from SSRN at the link.
Thursday, November 20, 2014
A Swedish court has turned down Wikileaks founder Julian Assange's appeal against a detention order. His attorneys had argued that because he is currently in the Ecuadorian Embassy in London, the order cannot be enforced against him. The court disagreed. Swedish authorities want to interview Mr. Assange concerning sexual assault allegations made against him four years ago. More here from the New York Times.
Tuesday, November 18, 2014
Aaron Perzanowski, Case Western Reserve School of Law, and Jason Schultz, New York University School of Law, are publishing Reconciling Intellectual & Personal Property in volume 90 of the Notre Dame Law Review. Here is the abstract.
Copyright law sets up an inevitable tension between the intellectual property of creators and the personal property of consumers — in other words, between copyrights and copies. For the better part of the last century, copyright law successfully mediated this tension through the principle of exhaustion — the notion that once a rights holder transfers a copy of a work to a new owner, its rights against that owner are diminished.
Rather than an idiosyncratic carveout or exception, exhaustion is an inherent part of copyright law’s balance between the rights of creators and the rights of the public. Nonetheless, many rights holders and some courts see exhaustion as nothing more than a loophole or market inefficiency that allows consumers to make unauthorized uses of intellectual property rightly controlled by the copyright owner. Two developments threaten to curtail exhaustion and consumer interests. First, content owners have endeavored to eliminate the personal property interests of consumers, redefining the notion of ownership by characterizing their transactions with consumers as licenses. Second, the tangible copy is rapidly disappearing as copyright markets shift from the distribution of physical products to exchanges of networked information.
In short, the equilibrium between personal and intellectual property that exhaustion enabled depends on doctrinal assumptions about the copyright marketplace that are quickly becoming outdated. By examining the basic functions of copy ownership, this Article will attempt to construct a notion of consumer property rights in digital media that acknowledges the shift away from tangible artifacts while preserving exhaustion’s central role in the intellectual property system.
Download the article from SSRN at the link.
The Guardian notes that Julian Assange's legal troubles are now fodder for a new BBC4 comedy called (of course) Asylum. Kayvan Novak will play the Assange character (it's not clear to me if that character will actually be Mr. Assange or simply be "inspired by" Mr. Assange). Asylum joins a lot of other BBC programming as part of the network's 2015 "Taking Liberties" season, inspired by the 800th anniversary of the signing of Magna Carta.
For more about Magna Carta, check out
J. C. Holt, Magna Carta, 2d ed. (Cambridge University Press, 1992).
A. E. Dick Howard, Magna Carta: Text and Commentary, rev. ed. (University of Virginia, 1998).
A. L. Poole, From Domesday Book to Magna Carta, 2d ed. (OUP, 1955).
Thursday, November 13, 2014
Richard Delgado and Jean Stefancic, both University of Alabama School of Law, have published Hate Speech in Cyberspace in volume 49 of the Wake Forest Law Review (2014). Here is the abstract.
Co-authored with Jean Stefancic, Hate Speech in Cyberspace analyzes why hate speech and other expressions of contempt are so ubiquitous on the Internet. Building on our previous work on hate speech, we identify features of cyberspace that predispose users to communicate in this fashion, and suggest a number of remedies.Download the article from SSRN at the link.
Irving Azoff, who represents a number of popular musicians as diverse as George and Ira Gershwin and Pharrell Williams, says YouTube hasn't obtained proper licensing for its new services. Mr. Azoff says he is ready to make his clients' works unavailable to YouTube users until the company, owned by Google, makes the proper arrangements. Like artist Taylor Swift, Mr. Azoff is arguing that current royalty payment arrangements for streamed music are not high enough to compensate artists. Eriq Gardner covers the issue in depth here for The Hollywood Reporter.
According to an article published today in the New York Times, web retailer giant Amazon and publisher Hachette have come to an agreement (terms undisclosed) that allows the publisher to set ebook prices and (presumably) will make customers happy. Consumers and Hachette had complained that Amazon was delaying the shipping on some Hachette titles while it feuded with the publisher over pricing terms during a dispute that began earlier this year.
Wednesday, November 12, 2014
Ronald A. Cass, Center for the Rule of Law, Cass & Associates, PC; Boston University School of Law, is publishing Weighing Constitutional Anchors: New York Times Co. v. Sullivan and the Misdirection of First Amendment Doctrine in volume 12 of the First Amendment Law Review (Winter 2014). Here is the abstract.
This essay explains why so many law professors, most notably Harry Kalven (my own First Amendment teacher at the University of Chicago) were excited by the U.S. Supreme Court’s decision in New York Times Co. v. Sullivan (announced 50 years ago), why it was so widely embraced as a triumph for the soul of constitutional governance, and why ― despite its virtues ― the New York Times decision was a mistake in constitutional jurisprudence that set First Amendment doctrine down a path that threatened to undermine the very values Kalven embraced. It is an essay not about Harry Kalven, but about constitutional values, interpretive virtues, and unintended consequences.
Download the essay from SSRN at the link.
A South African court has told puppeteer Conrad Koch to keep his puppet, Chester Missing, quiet on the subject of Steve Hofmeyr. Chester has been tweeting from his personal account comments about Mr. Hofmeyr that Mr. Hofmeyr considers racism; Chester considers Mr. Hofmeyr's behavior racist. The court, apparently not disturbed at all by whether the puppet has rights, has granted Mr. Hofmeyr's request for a gag order, telling Mr. Koch that Chester must not mention Mr. Hofmeyr in his tweets. Mr. Koch says he will challenge the order in court at the end of November. Meanwhile, some companies, including Woolworth's, seem to be disassociating themselves from Mr. Hofmeyr.
Commentary and coverage here from Eyewitness News (South Africa).
William Haltom, University of Puget Sound, and Michael McCann, University Washington, Department of Political Science, have published Litigation, Mass Media, and the Campaign to Criminalize the Firearms Industry in volume 4 of the Oñati Socio-Legal Series, Vol. 4, No. 4, 2014. Here are the abstracts in English and Spanish.
This article extends the co-authors’ researches on mass media coverage of crusades against manufacturers and marketers of tobacco products in the United States to media coverage of similar crusades against manufacturers and marketers of firearms in the United States. The major contention of the article is that firearms-reformers have used civil suits and allied publicity outside courts to depict firearms producers and retailers as criminals. A major tactic that has unified reformers’ efforts inside and outside courts is deployment of crimtorts, civil litigation for torts that includes elements of criminal prosecution. Crimtorts and publicity through entertainment media enabled opponents of firearms companies to lose case after case yet to damage the reputations or brands of firearms makers and marketers. The firearms interests fended off crusaders in civil action after civil action yet became portrayed as outright criminals owing mostly to crimtorts.
Este artículo amplia las investigaciones de los autores sobre la cobertura mediática de las cruzadas contra productores y vendedores de tabaco en los Estados Unidos hacia la cobertura mediática de cruzadas similares contra productores y vendedores de armas de fuego en Estados Unidos. El argumento principal del artículo sostiene que los que buscan la reforma de la legislación sobre armas de fuego han utilizado las demandas civiles y la publicidad externa a los tribunales para representar a los productores y vendedores de armas de fuego como criminales. Una táctica principal que ha unido los esfuerzos de los reformistas dentro y fuera de los tribunales es el uso de crimtorts, juicios civiles para acciones por responsabilidad civil extracontractual que incluyen elementos de procesos criminales. A pesar de perder caso tras caso, los crimtorts y la publicidad en los medios de entretenimiento permitió a los oponentes a las compañías armamentísticas perjudicar la reputación o las marcas de los fabricantes y vendedores de armas. Los intereses de las armas de fuego se defendieron de sus oponentes mediante una acción civil tras otra, sin embargo, se les representó como verdaderos criminales debido, en mayor parte, a los crimtorts.
Download the article from SSRN at the link.
Tuesday, November 11, 2014
Leslie J. Moran, School of Law, Birkbeck College, University of London, has published Managing the News Image of the Judiciary: The Role of Judicial Press Officers as Oñati Socio-Legal Series, Vol. 4, No. 4, 2014. Here are English language and Spanish language abstracts.
Image making and image management is a major dimension of judicial activity. But the judiciary are not the only or today even the most influential judicial image makers and managers. Journalists play an important image making role. Their objective is to produce news reports of court and judicial activity for mass consumption. The existence of multiple image makers potentially makes the judicial work of making and managing judicial representations more complex, fraught and problematic. This paper examines one judicial initiative produced in response to this state of affairs: judicial press officers. Building upon my previous research, examining how the courts and the judiciary in particular are represented in the press the paper explores the role of judicial press officers, supporting the judiciary, working with the media and facilitating communication between the two. It uses a case study approach. The point of departure of the first case study is news reports of a criminal case in the lowest criminal court, the magistrates’ court. These reports provide an opportunity to examine the work of the press office that is part of the judicial communications office for England and Wales. The point of departure for the second case study is press reports about a decision of the Supreme Court of the United Kingdom. The work of the press team within the communications office of the Supreme Court will be the focus. The study draws upon data generated by interviews with judicial press officers. These have been generated as part of a multi-jurisdictional study of the work of judicial communication initiatives. It also draws upon a range of official publications about the work of these two judicial press initiatives and court press materials relating to particular cases.
La creación y gestión de la imagen es una dimensión importante de la actividad judicial. Sin embargo, el poder judicial no es el único creador y gestor de imágenes, y hoy en día ni siquiera el más influyente. Los periodistas juegan un papel importante en la creación de imagen. Su objetivo es producir noticias sobre los tribunales y la actividad judicial, para el consumo de las masas. La existencia de múltiples creadores de imágenes hace, potencialmente, más compleja, tensa y problemática la labor judicial de crear y gestionar las representaciones judiciales. Este artículo analiza una iniciativa judicial puesta en marcha para responder a esta situación: los responsables de prensa judiciales. A partir de una investigación previa, y analizando cómo se representa en la prensa a los tribunales y el poder judicial en particular, el artículo estudia el papel de los responsables de prensa judiciales, apoyando al poder judicial, trabajando con los medios y facilitando la comunicación entre ambos. Utiliza una aproximación por caso práctico. El punto de partida del primer caso práctico son las noticias de un caso criminal en los tribunales de primera instancia. Estos reportajes ofrecen la oportunidad de analizar el trabajo de la oficina de prensa que es parte de la oficina de comunicaciones judiciales de Inglaterra y Gales. El punto de partida del segundo caso práctico son los informes de prensa sobre una decisión del Tribunal Supremo del Reino Unido. La atención se centrará en el trabajo del equipo de prensa dentro de la oficina de comunicaciones del Tribunal Supremo. El estudio utiliza datos generados en entrevistas con responsables de la oficina de prensa judicial. Estos datos se han generado como parte de un estudio multijurisdiccional del trabajo de iniciativas de comunicación judicial. También emplea diversas publicaciones oficiales sobre el trabajo de estas dos iniciativas de prensa judicial y los materiales de prensa de los tribunales, relacionados con casos particulares.
Download the text of the article at the link.
Guillaume Laroche, York University, Osgoode Hall Law School; McGill University; Harvard University, Graduate School of Education, has published Settling the Score: Copyright in Modern Editions of Public Domain Musical Works at 26 Intellectual Property Journal 83 (2013).
Modern sheet music publishers regularly assert copyright claims over their new editions of public domain compositions by long-deceased composers like Mozart and Chopin, yet the legal basis for these claims remains untested. This inquiry argues that most such claims are untenable, and outlines a doctrinal copyright analysis supporting this conclusion in Canadian law and jurisprudence. Following a brief overview of the sheet music publishing industry’s copyright practices and some recent challenges to its preferred status quo, two doctrinal approaches are tested using various editions of Frédéric Chopin’s “Raindrop Prelude”. First, an application of the doctrine of originality, as described in CCH v. Law Society of Upper Canada, reveals that editors’ original expression in most new editions of public domain compositions is difficult to discern. Although some editions meet the required standard, this finding nonetheless jeopardizes many publishers’ copyright claims. Second, the inquiry briefly investigates the nature of musical scores as works, concluding that, contrary to what publishers have sometimes argued, a proper application of the Copyright Act should classify them as musical works in- stead of artistic works. Finally, the findings of the court in the British case Sawkins v. Hyperion are applied to the Canadian context. The article concludes by discussing some of the policy implications of its findings, contrasting the benefits accruing to musicians with the potentially harmful decisions that some music publishers might make if the Canadian standard were adopted more widely.Download the article from SSRN at the link.
Annabelle Lever, University of Geneva, Department of Political Science, is publishing Privacy, Democracy and Freedom of Expression in The Social Dimensions of Privacy (Beate Roessler and Dorota Mokrosinska, eds.; Cambridge University press, 2015). Here is the abstract.
Must privacy and freedom of expression conflict? To witness recent debates in Britain, you might think so. Anything other than self-regulation by the press is met by howls of anguish from journalists across the political spectrum, to the effect that efforts to protect people’s privacy will threaten press freedom, promote self-censorship and prevent the press from fulfilling its vital function of informing the public and keeping a watchful eye on the activities and antics of the powerful.[Brown, 2009, 13 January] Effective protections for privacy, from such a perspective, inevitably pose a threat to democratic government via the constraints that they place on the press.
Such concerns with privacy must be taken seriously by anyone who cares about democratic government, and the freedom, equality and well-being of individuals. But if it is one thing to say that privacy and freedom of expression cannot always be fully protected, it is another to suppose that protections for the one must always come at the expense of the other. Revising our ideas about privacy and its protection cannot alone reduce the tensions between freedom of expression and personal privacy typical of our societies, necessary though such revision may be. Moreover, this paper can only touch on some aspects of the ways in which we need to rethink our interests in privacy, in order adequately to reflect people’s diverse interests in freedom of expression, and the important role of a free press to democratic government. Nonetheless, I hope to suggest ways of thinking about people’s claims to privacy which can be generalised fairly readily, and can help us to think constructively about the nature, causes and solutions to some important social and political problems, even if, in its nature, philosophical analysis rarely tells us what to do.
More specifically, this paper argues that people are entitled to keep some true facts about themselves to themselves, should they so wish, as a sign of respect for their moral and political status, and in order to protect themselves from being used as a public example in order to educate or to entertain other people. The “outing” - or non-consensual public disclosure - of people’s health records or status, or their sexual behaviour or orientation is usually unjustified, even when its consequences seem to be beneficial. Indeed, the paper claims, the reasons to reject outing, as inconsistent with democratic commitments to freedom and equality, are reasons to insist on the importance of privacy to freedom of expression. While a free press is of the utmost importance to democratic government, it is not identical with the free expression of individuals and, on occasion, the former may have to be constrained in order to protect the latter. [Barendt, 2007, 231]. Hence, the paper concludes, we should distinguish the claims of individuals to publish reports about their lives – even if this necessarily involves revealing the private lives of others – from journalistic claims to publish information about the sex lives of consenting adults. I will start by briefly situating my argument within a democratic approach to privacy, before using the “outing” of Oliver Sipple to examine people’s claims to privacy and their implications for freedom of expression and of the press. I will be assuming that some forms of privacy are legitimate, in order to focus more closely on the question of what information, if any, people may keep to themselves.
Download the essay from SSRN at the link.
Monday, November 10, 2014
Josef Drexl, Max Planck Institute for Innovation and Competition; Ludwig-Maximilians-Universität München, has published Competition Law in Media Markets and its Contribution to Democracy – A Global Perspective as Max Planck Institute for Innovation & Competition Research Paper No. 14-16. Here is the abstract.
Beyond regulating markets, competition law also has a political dimension. This is especially the case in media markets, where competition policy may produce particular trade-offs for the development of democracy. Yet it is a different question whether competition law enforcement should take democracy into account as a goal and, even more so, whether this goal should influence the analytical framework for applying competition law. By putting a focus on emerging and developing economies, this article answers this question in the affirmative. It thereby builds on a recent study conducted for the World Intellectual Property Organization (WIPO) on the application of competition laws around the world to copyright-related markets. Whereas, in the past, the interface of competition law and democracy was mostly discussed with regard to media mergers, an analysis of some unilateral conduct cases shows that the ‘democratic goal’ can argue either for or against intervention. Yet promoting the goal of democracy will not conflict with an economics-based analysis of competition law if, based on an evolutionary concept of competition, enforcers promote diversity of content and ideas in copyright-related media markets. In addition, the article highlights the need of independent agencies to guarantee credibility of competition law enforcement in media markets.
Download the paper from SSRN at the link.
CNN is abandoning broadcast in Russia, according to the Hollywood Reporter. The change in policy is apparently the result of new legislation that prohibits commercials on Russian pay TV beginning next year. More coverage here from Mashable, here from the Bangkok Post.