A Primer on ACTA What Europeans Should Fear about the Anti-Counterfeiting Trade Agreement

The European Commission recently published the first official draft of the Anti-Counterfeiting Trade Agreement (ACTA). The article describes the institutional background of the negotiations on ACTA and its relationship to the existing legal framework. The civil enforcement provisions and the Internet chapter are compared with the international and European instruments in the field. For the most part, ACTA will not oblige EU member states to enact rules that go beyond the already established European standards. But stricter rules could be implemented regarding injunctions against non-infringing intermediaries, strict liability rules for damages, and ex parte measures in preliminary proceedings. According to the published draft, the termination of user accounts in the case of repeated intellectual property infringement will not be mandatory for member ACTA states.

EU Commission: Comments on the “Opinion of European Academics on Anti-Counterfeiting Trade Agreement”

The “Opinion of European Academics on Anti-Counterfeiting Trade Agreement” (ACTA) of February 11, 2011, was published in 2 JIPITEC 65 (2011). Signed by more than 25 law professors and academics from across Europe who specialize in the field, this opinion addressed the following concern: Although it is uncontested that the infringement of intellectual property rights, especially in the Internet, prejudices the legitimate interests of right holders, it is still very controversial in Europe and abroad whether the enforcement standards of ACTA are balanced. The European Commission, DG Trade, has now published a document with detailed comments on the Opinion. The comments, which are also available on the website of the European Commission [http://trade.ec.europa.eu/doclib/ html/147853.htm], are republished here with the kind permission of the European Commission.

Orphanhood, Poverty and the Care Dilemma: Review of Global Policy Trends

The care and protection of children experiencing orphanhood presents a major child-care policy challenge. This paper draws on a review of the literature to document divergent conceptualizations of orphanhood, how the hurdles for the care of orphans reflect wider issues of poverty and inequality, as well as the ways in which different care interventions (familial, institutional, community-based and rights-based) might be appropriated for children in need. It is argued that the map of contemporary orphanhood overlaps with the contours of global poverty, inequality, age-based deprivations and marginalization. An example of a ‘globalised’ model of orphan care, namely SOS Children’s Villages, is presented and its implications for policy are examined. The paper highlights the significance of fighting poverty and enhancing the care-giving capabilities of extended families in the care and protection of children from a rights-based perspective. It suggests that external interventions should primarily address the structural causes of poverty and marginality, rather than amplifying inequalities through the selective support of orphans in economically vulnerable communities.

Clausewitz’s “Wondrous Trinity” as a Coordinate System of War and Violent Conflict

Rather than discarding Clausewitz’s theory of war in response to the revolutionary changes in modern warfare, this article articulates a broader theory of war based on his concept of the “wondrous trinity,” identifying it as his true legacy. The author shows that the concept of trinitarian war attributed to Clausewitz by his critics, which seems to be applicable only to wars between states, is a caricature of Clausewitz’s theory. He goes on to develop Clausewitz’s theory that war is composed of the three tendencies of violence/force, fighting, and the affiliation of the combatants to a warring community. Each war can be analyzed as being composed of these three tendencies and their opposites.

The Implementation of Full-time Schools: The Situation in the Federal State of Sao Paulo (Brazil)

During the past years, Brazil has been mentioned internationally as a one of the so-called BRICs (Brazil, Russia, India and China). These countries have been taking increasing space in the economical and political global scenarios in the XXI century. The facts that they possess a vast territory and stand among the highest populated countries increase their relevance within the United Nations. Besides, three of them constitute nuclear powers and two of them belong to the United Nations Security Council. Brazil has significantly participated in forums such as WTO and UNO, representing central political articulation and stability to Latin America and in the structuring and growth of MERCOSUL (Brazil, Argentina, Uruguay, Paraguay and Venezuela). Once again among the ten greatest economies of the world, the country has launched ambitious poverty-fighting programs helping more than 20 million people in the last years, such as the “Bolsa Família” (Familienstipendium) Program or and its complements). Nevertheless, Latin American countries are far from generating structural funds as the “European Social Fund” to assist specific demands of big cities as Sao Paulo and Buenos Aires. The commitments are restricted to commercial areas and bring nothing but slow and scarce advances to education or infra-structure and to the integration of systems related to these areas.

Integrierte Sicherheitsmerkmale als Schutz vor Produktpiraterie im Maschinen- und Anlagenbau

Die Bedrohung durch Produktpiraterie wächst ständig, besonders der deutsche Maschinen- und Anlagenbau ist mehr und mehr davon betroffen. Um Komponenten und Ersatzteile zu schützen, wurde ein technisches Konzept zur Abwehr von Produktpiraterie entwickelt. In diesem System werden Teile mit kopiersicheren Echtheitsmerkmalen gekennzeichnet, welche an diversen Identifikations- und Prüfpunkten entlang der Supply-Chain und besonders beim Einsatz in der Maschine ausgelesen und geprüft werden. Die Prüfergebnisse werden in einer zentralen Datenbank gespeichert, um neue Services zu ermöglichen und die Kommunikation zwischen Hersteller und Kunde zu erleichtern.

'Balance of Terror' -- Rival Militias and Vigilantes in Nigeria

Militias and vigilantes that assume public authority by fighting crime reject the laws of the state, yet they have no other set of rules to regulate their activities. Many of them claim to be accountable to their ethnic or religious community on whose behalf they operate. But their communities have found no means to institutionalise control over them. Moreover, there are no institutions to settle conflicts between different militias and vigilantes. On a local level, rival groups have reached informal arrangements. However, these compromises are unstable, as they reflect fragile alliances and shifting balances of power. Leaders of militias and other 'self-determination groups' have suggested organising a conference of all ethnic nationalities in Nigeria in order to design a new constitution that would give militias and vigilantes a legal role and define their authority. But the groups compared in this article – Oodua People's Congress, Sharia Vigilantes, Bakassi Boys, MASSOB, and Niger Delta militias – pursue very divergent interests, and they are far from reaching a consensus on how to contain violence between them.

On the Role of Copyright Protection in the Information Society

In January 2012, Poland witnessed massive protests, both in the streets and on the Internet, opposing ratification of the Anti-Counterfeiting Trade Agreement, which triggered a wave of strong anti-ACTA movements across Europe. In Poland, these protests had further far-reaching consequences, as they not only changed the initial position of the government on the controversial treaty but also actually started a public debate on the role of copyright law in the information society. Moreover, as a result of these events the Polish Ministry for Administration and Digitisation launched a round table, gathering various stakeholders to negotiate a potential compromise with regard to copyright law that would satisfy conflicting interests of various actors. This contribution will focus on a description of this massive resentment towards ACTA and a discussion of its potential reasons. Furthermore, the mechanisms that led to the extraordinary influence of the anti-ACTA movement on the governmental decisions in Poland will be analysed through the application of models and theories stemming from the social sciences. The importance of procedural justice in the copyright legislation process, especially its influence on the image of copyright law and obedience of its norms, will also be emphasised.

UsedSoft and the Big Bang Theory: Is the e-Exhaustion Meteor about to Strike?

Since the UsedSoft ruling of the CJEU in 2012, there has been the distinct feeling that – like the big bang - UsedSoft signals the start of a new beginning. As we enter this brave new world, the Copyright Directive will be read anew: misalignments in the treatment of physical and digital content will be resolved; accessibility and affordability for consumers will be heightened; and lock-in will be reduced as e-exhaustion takes hold. With UsedSoft as a precedent, the Court can do nothing but keep expanding its own ruling. For big bang theorists, it is only a matter of time until the digital first sale meteor strikes non-software downloads also. This paper looks at whether the UsedSoft ruling could indeed be the beginning of a wider doctrine of e-exhaustion, or if it is simply a one-shot comet restrained by provisions of the Computer Program Directive on which it was based. Fighting the latter corner, we have the strict word of the law; in the UsedSoft ruling, the Court appears to willingly bypass the international legal framework of the WCT. As far as expansion goes, the Copyright Directive was conceived specifically to implement the WCT, thus the legislative intent is clear. The Court would not, surely, invoke its modicum of creativity there also... With perhaps undue haste in a digital market of many unknowns, it seems this might well be the case. Provoking the big bang theory of e-exhaustion, the UsedSoft ruling can be read as distinctly purposive, but rather than having copyright norms in mind, the standard for the Court is the same free movement rules that underpin the exhaustion doctrine in the physical world. With an endowed sense of principled equivalence, the Court clearly wishes the tangible and intangible rules to be aligned. Against the backdrop of the European internal market, perhaps few legislative instruments would staunchly stand in its way. With firm objectives in mind, the UsedSoft ruling could be a rather disruptive meteor indeed.

Enforcing Copyright Infringements Online: In Search of Balanced Private International Law Rules

Enforcement of copyright online and fighting online “piracy” is a high priority on the EU agenda. Private international law questions have recently become some of the most challenging issues in this area. Internet service providers are still uncertain how the Brussels I Regulation (Recast) provisions would apply in EU-wide copyright infringement cases and in which country they can be sued for copyright violations. Meanwhile, because of the territorial approach that still underlies EU copyright law, right holders are unable to acquire EU-wide relief for copyright infringements online. This article first discusses the recent CJEU rulings in the Pinckney and Hejduk cases and argues that the “access approach” that the Court adopted for solving jurisdiction questions could be quite reasonable if it is applied with additional legal measures at the level of substantive law, such as the targeting doctrine. Secondly, the article explores the alternatives to the currently established lex loci protectionis rule that would enable right holders to get EU-wide remedies under a single applicable law. In particular, the analysis focuses on the special applicable law rule for ubiquitous copyright infringements, as suggested by the CLIP Group, and other international proposals.