Commentary on An Enquiry into the Nature and Origin of Literary Property (1762)

One of a number of published commentaries contributing to the mid-eighteenth century debate concerning the nature of literary property. The author of An Enquiry sought to repudiate the concept of a natural authorial property right existing at common law. In so doing, he specifically engaged with various aspects of William Warburton's earlier commentary (see: uk_1747), as well as presenting arguments that drew upon the nature of property in general, the differences between the right claimed by proponents of the common law right and other acknowledged incorporeal properties, the similarities between patents and copyright, the history of literary property, the experience of other jurisdictions (drawing upon Venice in particular), and the consequences that would follow from conceding the existence of a perpetual right both for authors in particular and society in general. This commentary, in turn, drew its own response in the guise of A Vindication of the Exclusive Rights of Authors, to their own work (1762).

Commentary on Millar v. Taylor (1769)

Decision of the Court of King's Bench providing that, regardless of the provisions of the Statute of Anne 1710 (uk_1710), an author enjoyed the exclusive right of publishing his work in perpetuity.
Lord Mansfield, leading a majority decision of the court, provides a robust and influential justification as to the existence of an author's rights in literary property at common law. Yates, J., focussing upon the potential detriment to the public that would flow from the existence of a perpetual right, provides the dissenting opinion. The commentary explores the background to the litigation, in particular the nature of the threat which the Scottish reprint industry posed to the London book trade, relevant case-law leading up to the decision, as well as the substance of the judicial opinions.

Commentary on Hinton v. Donaldson (1773)

The Scottish Court of Session, drawing upon principles of the civil law tradition, as well as arguments concerning broader national, social and cultural interests, reject the concept of copyright at common law - a decision that is in direct conflict with that of Millar v. Taylor (1769). Lord Monboddo provides the dissenting opinion, drawing upon the labour theory of property rights, and argues for a unified approach to the issue in relation to the common law of both England and Scotland.
Drawing upon Scottish Records Office archives the commentary explores the background to, and substance of, the decision. It suggests that, given the nature of the economic threat which the Scottish reprint industry posed to the London book trade, particularly in relation to an increasingly lucrative export market, Hinton undermined much of the value of the decision in Millar. The conflict between Millar and Hinton made it almost inevitable that the question of literary property would soon reach the House of Lords.

Commentary on Beckford v. Hood (1798)

Case in which the King's Bench decided that a plaintiff could recover damages at common law for copyright infringement even though his work had not been registered with the Stationers' Company in accordance with the formalities set out in the Statute of Anne 1710 (uk_1710).
The case provides the first occasion on which the judiciary revisited and reconsidered the meaning of the House of Lords' decision in Donaldson v. Becket (uk_1774). The commentary explores the substance and significance of the decision and, in particular, the influence it had upon the manner in which the decision in Donaldson was subsequently understood throughout the early nineteenth century. The commentary also details the impact the decision had upon the extent to which publishers would adhere to the library deposit provision within the copyright legislation.

Commentary on Maugham's Treatise on the Laws of Literary Property (1828)

The first British legal treatise dedicated specifically to the law of copyright written by a strong advocate of the common law rights of the author. Maugham, in addition to providing a commentary upon the law of copyright, also used his work to lobby for both an extension to the copyright term (ideally resulting in a perpetual right) and a reduction in the library deposit requirements (arguing that authors should only be required to deposit one copy of their work for the British Museum). In proselytising the need for a change to the law in both areas he drew frequent comparisons with the law of other jurisdictions (in particular France and Germany). The work became a standard point of reference for many British and American authors who followed.

Commentary on Jeffreys v. Boosey (1854)

The second decision of the House of Lords to consider the nature of copyright law. As was the case in Donaldson v. Becket (1774) (uk_1774) the law lords were in disagreement with the majority of common law judges invited to speak to the issue for the consideration of the House. In the course of their opinions, two of the law lords (Lord Brougham and Lord St Leonards) explicitly reject the concept of copyright at common law. Rather than a natural authorial property right, they present copyright as a purely statutory phenomenon specifically grounded in public interest concerns. Ultimately, the Lords decided that a foreign national, resident abroad, but first publishing in Britain, enjoys no protection in his work under British copyright law.

What is the Point of Copyright History?

Copyright history has long been a subject of intense and contested enquiry, and has once again become the subject of critical scrutiny with the publication of "Copyright at Common Law in 1774" by Prof Tomas Gomez-Arostegui in the Connecticut Law Review ((2014) 47 Conn. L. Rev. 1).
This online resource documents two events organised to explore the impact of "Copyright at Common Law in 1774". It incorporates a public lecture by Prof Gomez-Arostegui, and the full record of a one-day symposium of international experts debating the implications of Gomez-Arostegui's scholarship in this domain.

Beyond the ‘Tomlinson Trap’: Analysing the Effectiveness of Section 1 of the Compensation Act 2006

One of the intentions underpinning section 1 of the Compensation Act 2006 was to provide reassurance to individual volunteers, and voluntary organisations, involved in what the provision called ‘desirable activities’ and including sport. The perception was that such volunteers, motivated by an apprehension about their increased vulnerability to negligence liability, and as driven by a fear of a wider societal compensation culture, were engaging excessively in risk-averse behaviour to the detriment of such socially desirable activities. Academic commentary on section 1 of the Compensation Act 2006 has largely regarded the provision as unnecessary and doing little more than restating existing common law practice. This article argues otherwise and, on critically reviewing the emerging jurisprudence, posits the alternative view that section 1, in practice, affords an enhanced level of protection and safeguarding for individuals undertaking functions in connection with a desirable activity. Nonetheless, the occasionally idiosyncratic judicial interpretation given to term ‘desirable activity’, potentially compounded by recent enactment of the Social Action, Responsibility and Heroism Act 2015, remains problematic. Two points of interest will be used to inform this debate. First, an analysis of the then House of Lords’ decision in Tomlinson and its celebrated ‘balancing exercise’ when assessing reasonableness in the context of negligence liability. Second, a fuller analysis of the application of section 1 in the specific context of negligence actions relating to the coaching of sport where it is argued that the, albeit limited, jurisprudence might support the practical utility of a heightened evidential threshold of gross negligence.

Capital 2.0 capital formation and legal risk in a new global economic order from fiat to exit: including case studies of the proposed transatlantic trade and investment partnership between the United States and the European Union and the financing relation between the United States and the People’s Republic of China

Following the intrinsically linked balance sheets in his Capital Formation Life Cycle, Lukas M. Stahl explains with his Triple A Model of Accounting, Allocation and Accountability the stages of the Capital Formation process from FIAT to EXIT. Based on the theoretical foundations of legal risk laid by the International Bar Association with the help of Roger McCormick and legal scholars such as Joanna Benjamin, Matthew Whalley and Tobias Mahler, and founded on the basis of Wesley Hohfeld’s category theory of jural relations, Stahl develops his mutually exclusive Four Determinants of Legal Risk of Law, Lack of Right, Liability and Limitation. Those Four Determinants of Legal Risk allow us to apply, assess, and precisely describe the respective legal risk at all stages of the Capital Formation Life Cycle as demonstrated in case studies of nine industry verticals of the proposed and currently negotiated Transatlantic Trade and Investment Partnership between the United States of America and the European Union, TTIP, as well as in the case of the often cited financing relation between the United States and the People’s Republic of China. Having established the Four Determinants of Legal Risk and its application to the Capital Formation Life Cycle, Stahl then explores the theoretical foundations of capital formation, their historical basis in classical and neo-classical economics and its forefathers such as The Austrians around Eugen von Boehm-Bawerk, Ludwig von Mises and Friedrich von Hayek and most notably and controversial, Karl Marx, and their impact on today’s exponential expansion of capital formation. Starting off with the first pillar of his Triple A Model, Accounting, Stahl then moves on to explain the Three Factors of Capital Formation, Man, Machines and Money and shows how “value-added” is created with respect to the non-monetary capital factors of human resources and industrial production. Followed by a detailed analysis discussing the roles of the Three Actors of Monetary Capital Formation, Central Banks, Commercial Banks and Citizens Stahl readily dismisses a number of myths regarding the creation of money providing in-depth insight into the workings of monetary policy makers, their institutions and ultimate beneficiaries, the corporate and consumer citizens. In his second pillar, Allocation, Stahl continues his analysis of the balance sheets of the Capital Formation Life Cycle by discussing the role of The Five Key Accounts of Monetary Capital Formation, the Sovereign, Financial, Corporate, Private and International account of Monetary Capital Formation and the associated legal risks in the allocation of capital pursuant to his Four Determinants of Legal Risk. In his third pillar, Accountability, Stahl discusses the ever recurring Crisis-Reaction-Acceleration-Sequence-History, in short: CRASH, since the beginning of the millennium starting with the dot-com crash at the turn of the millennium, followed seven years later by the financial crisis of 2008 and the dislocations in the global economy we are facing another seven years later today in 2015 with several sordid debt restructurings under way and hundred thousands of refugees on the way caused by war and increasing inequality. Together with the regulatory reactions they have caused in the form of so-called landmark legislation such as the Sarbanes-Oxley Act of 2002, the Dodd-Frank Act of 2010, the JOBS Act of 2012 or the introduction of the Basel Accords, Basel II in 2004 and III in 2010, the European Financial Stability Facility of 2010, the European Stability Mechanism of 2012 and the European Banking Union of 2013, Stahl analyses the acceleration in size and scope of crises that appears to find often seemingly helpless bureaucratic responses, the inherent legal risks and the complete lack of accountability on part of those responsible. Stahl argues that the order of the day requires to address the root cause of the problems in the form of two fundamental design defects of our Global Economic Order, namely our monetary and judicial order. Inspired by a 1933 plan of nine University of Chicago economists abolishing the fractional reserve system, he proposes the introduction of Sovereign Money as a prerequisite to void misallocations by way of judicial order in the course of domestic and transnational insolvency proceedings including the restructuring of sovereign debt throughout the entire monetary system back to its origin without causing domino effects of banking collapses and failed financial institutions. In recognizing Austrian-American economist Schumpeter’s Concept of Creative Destruction, as a process of industrial mutation that incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creating a new one, Stahl responds to Schumpeter’s economic chemotherapy with his Concept of Equitable Default mimicking an immunotherapy that strengthens the corpus economicus own immune system by providing for the judicial authority to terminate precisely those misallocations that have proven malignant causing default perusing the century old common law concept of equity that allows for the equitable reformation, rescission or restitution of contract by way of judicial order. Following a review of the proposed mechanisms of transnational dispute resolution and current court systems with transnational jurisdiction, Stahl advocates as a first step in order to complete the Capital Formation Life Cycle from FIAT, the creation of money by way of credit, to EXIT, the termination of money by way of judicial order, the institution of a Transatlantic Trade and Investment Court constituted by a panel of judges from the U.S. Court of International Trade and the European Court of Justice by following the model of the EFTA Court of the European Free Trade Association. Since the first time his proposal has been made public in June of 2014 after being discussed in academic circles since 2011, his or similar proposals have found numerous public supporters. Most notably, the former Vice President of the European Parliament, David Martin, has tabled an amendment in June 2015 in the course of the negotiations on TTIP calling for an independent judicial body and the Member of the European Commission, Cecilia Malmström, has presented her proposal of an International Investment Court on September 16, 2015. Stahl concludes, that for the first time in the history of our generation it appears that there is a real opportunity for reform of our Global Economic Order by curing the two fundamental design defects of our monetary order and judicial order with the abolition of the fractional reserve system and the introduction of Sovereign Money and the institution of a democratically elected Transatlantic Trade and Investment Court that commensurate with its jurisdiction extending to cases concerning the Transatlantic Trade and Investment Partnership may complete the Capital Formation Life Cycle resolving cases of default with the transnational judicial authority for terminal resolution of misallocations in a New Global Economic Order without the ensuing dangers of systemic collapse from FIAT to EXIT.

Incidencia de la prueba pericial en el derecho de contradicción de los sujetos procesales en el proceso civil conforme al CÓDIGO General del Proceso Colombiano

Esta investigación apunta a despejar o clarificar algunos interrogantes que surgen ante las variaciones en la contradicción de la prueba pericial, acorde a la nueva normativa; pues, aun cuando no es del todo innovadora la aportación privada del dictamen pericial, ni la contradicción repentina en audiencia de éste, como se hacía en los procesos verbales reglados conforme al código de procedimiento civil; si resulta relevante, la decapitación que sufre la pericia, pues la ausencia de la objeción por error grave, aunado al debate en audiencia del dictamen dadas las posibilidades existentes desde el cuestionamiento de la idoneidad e imparcialidad del perito y sobre el contenido del dictamen, se ha generado un cambio de paradigma en el dialéctico debate del medio probatorio.

Privity of Contract and Third Party Rights in European Construction Projects

Privity of contract has lately been criticized in several European jurisdictions, particu-larly due to the onerous consequences it gives rise to in arrangements typical for the modern exchange such as chains of contracts. Privity of contract is a classical premise of contract law, which prohibits a third party to acquire or enforce rights under a contract to which he is not a party. Such a premise is usually seen to be manifested in the doctrine of privity of contract developed under common law, however, the jurisdictions of continental Europe do recognize a corresponding starting point in contract law. One of the traditional industry sectors affected by this premise is the construction industry. A typical large construction project includes a contractual chain comprised of an employer, a main contractor and a subcontractor. The employer is usually dependent on the subcontractor's performance, however, no contractual nexus exists between the two. Accordingly, the employer might want to circumvent the privity of contract in order to reach the subcontractor and to mitigate any risks imposed by such a chain of contracts. From this starting point, the study endeavors to examine the concept of privity of con-tract in European jurisdictions and particularly the methods used to circumvent the rule in the construction industry practice. For this purpose, the study employs both a com-parative and a legal dogmatic method. The principal aim is to discover general principles not just from a theoretical perspective, but from a practical angle as well. Consequently, a considerable amount of legal praxis as well as international industry forms have been used as references. The most important include inter alia the model forms produced by FIDIC as well as Olli Norros' doctoral thesis "Vastuu sopimusketjussa". According to the conclusions of this study, the four principal ways to circumvent privity of contract in European construction projects include liability in a chain of contracts, collateral contracts, assignment of rights as well as security instruments. The contempo-rary European jurisdictions recognize these concepts and the references suggest that they are an integral part of the current market practice. Despite the fact that such means of circumventing privity of contract raise a number of legal questions and affect the risk position of particularly a subcontractor considerably, it seems that the impairment of the premise of privity of contract is an increasing trend in the construction industry.

SOFRIMENTO CRÔNICO: PERCEPÇÃO DE MÃES DE CRIANÇAS DEPENDENTES DE VENTILAÇÃO MECÂNICA

Objective: To know the mothers’ perception of the main difficulties in the care of children with special needs dependent on mechanical ventilation. Methods: A qualitative research conducted from August to November 2013 at the Dr. Waldemar Alcântara Hospital in Fortaleza, CE. Respondents were seven mothers of children under mechanical ventilation. Data were collected using sociodemographic questionnaires and guiding questions, from which emerged thematic categories that underwent content analysis, with data being discussed in the light of the relevant literature. Results: The average age of mothers ranged 18-36 years. Six were married or had formed a common-law marriage. Education level ranged from illiteracy to complete secondary education. Family income was up to one minimum wage. Mothers reported anguish and fear regarding the initial impact of the diagnosis, with little understanding of the biomedical language and a lot of questions during the whole period after diagnosis and during hospitalization. Conclusion: Difficulties involve aspects related to family abandonment, the distancing from the other children at the expense of the care of the disable child, the difficulty in engaging in social relationships, and the prognosis and care of their child. The hospital environment generates psychological repercussions on the expectation and hopelessness regarding the cure of their child, as they know they might die. Healthcare professionals can favor incredible transformations, generating a new “care”, broader and humanized, facilitating the recovery/restructuring of the family within this new universe.

Les droits réels et personnels sur les titres détenus auprès d'un intermédiaire : analyse comparative en droit québécois interne et international privé

Les transactions sur les valeurs mobilières ainsi que leur mise en garantie se font bien au-delà des frontières nationales. Elles impliquent une multitude d’intervenants, tels que l’émetteur, un grand nombre d’intermédiaires disposés en structure pyramidale, un ou des investisseurs et, bien évidemment, les bénéficiaires desdites valeurs mobilières ou garanties. On peut aussi signaler l’existence de nombreux portefeuilles diversifiés contenant des titres émis par plusieurs émetteurs situés dans plusieurs états. Toute la difficulté d’une telle diversité d’acteurs, de composantes financières et juridiques, réside dans l’application de règles divergentes et souvent conflictuelles provenant de systèmes juridiques d’origines diverses (Common Law et civiliste). De nombreux juristes, de toutes nationalités confondues, ont pu constater ces dernières années que les règles de création, d’opposabilité et de réalisation des sûretés, ainsi que les règles de conflit de lois qui aident à déterminer la loi applicable à ces différentes questions, ne répondaient plus adéquatement aux exigences juridiques nationales dans un marché financier global, exponentiel et sans réelles frontières administratives. Afin de résoudre cette situation et accommoder le marché financier, de nombreux textes de loi ont été révisés et adaptés. Notre analyse du droit québécois est effectuée en fonction du droit américain et canadien, principales sources du législateur québécois, mais aussi du droit suisse qui est le plus proche de la tradition civiliste québécoise, le tout à la lueur de la 36e Convention de La Haye du 5 juillet 2006 sur la loi applicable à certains droits sur des titres détenus auprès d'un intermédiaire. Par exemple, les articles 8 et 9 du Uniform Commercial Code (UCC) américain ont proposé des solutions modernes et révolutionnaires qui s’éloignent considérablement des règles traditionnelles connues en matière de bien, de propriété, de sûreté et de conflits de lois. Plusieurs autres projets et instruments juridiques dédiés à ces sujets ont été adoptés, tels que : la Loi uniforme sur le transfert des valeurs mobilières (LUTVM) canadienne, qui a été intégrée au Québec par le biais de la Loi sur le transfert de valeurs mobilières et l’obtention de titres intermédiés, RLRQ, c.T-11.002 (LTVMQ) ; la 36e Convention de La Haye du 5 juillet 2006 sur la loi applicable à certains droits sur des titres détenus auprès d'un intermédiaire; la Loi fédérale sur le droit international privé (LDIP) suisse, ainsi que la Loi fédérale sur les titres intermédiés (LTI) suisse. L’analyse de ces textes de loi nous a permis de proposer une nouvelle version des règles de conflit de lois en matière de sûretés et de transfert des titres intermédiés en droit québécois. Cette étude devrait susciter une réflexion profonde du point de vue d’un juriste civiliste, sur l’efficacité des nouvelles règles québécoises de sûretés et de conflit de lois en matière de titres intermédiés, totalement inspirées des règles américaines de Common Law. Un choix qui semble totalement ignorer un pan du système juridique civiliste et sociétal.