Changing treaty and changing economic context:the dynamic relationship of the legislature and the judiciary in the pursuit of capital liberalisation

Introduction For a significant period of time (the late 1950s--1980s), a lack of capital freedom was a major obstacle to the progress of the internal market project. The free movements of goods, persons and services were achieved, and developed, primarily through the case law of the Court of Justice of the European Union (CJEU). On the other hand, the Court played a (self-imposed) limited role in the development of the free movement of capital. It was through a progressive series of legislation that the freedom was finally achieved. John Usher has noted that the consequence of this is that ‘free movement of capital thus became the only Treaty “freedom” to be achieved in the manner envisaged in the Treaty’. For this reason, the relationship of the Court and legislature in this area is of particular importance in the broader context of the internal market. The rest of this chapter is split into four sections and will attempt to describe (and account for) the differing relationships between the legislature and the judiciary during the different stages of capital liberalisation. Section 2 will deal with the situation under the original Treaty of Rome. Section 3 will examine a single legislative intervention: Directive 88/361. It was this intervention that contained the obligation for Member States to fully liberalise capital movements. It is therefore the most important contribution to the completion of the internal market in the capital sphere. An examination will be made of whether the interpretation of the Directive demonstrates a changed (or changing attitude) of the Court towards the EU legislature. Section 4 will examine the changes brought about by the Treaty on European Union in 1993. It was at Maastricht that the Member States finally introduced into the Treaty framework an absolute obligation to liberalise capital movements. Finally, Section 5 will consider the Treaty of Lisbon and the possibility of future interventions by the legislature. By looking at the patterns that run through the different parts, this chapter will attempt to engage with the question of whether the approaches were products of their historical context, or whether they can be applied to other areas within the capital movement sphere.

The economics of copyright

The copyright industries — such as music, film, software and publishing — occupy a significant and growing share of economic activity. Current copyright law protects the creator for up to 70 years after their death, significantly longer than patent protection (20 years after invention). Copyright law aims to balance the incentive to create new work against the costs associated with high prices and restricted access to this work. This paper reviews the economic issues behind copyright and how these are challenged by changes in technology and market structure. While economics provides a powerful conceptual framework for understanding the trade-offs involved, the paper argues that our empirical knowledge base is very weak. Much more empirical analysis is needed to understand the impacts of changes to copyright legislation. Without such analysis, policy and legal debates will continue to be based largely on anecdote and rhetoric.

Digital Right Management (DRM) and Library Copyright Policy

The purpose of this paper is to introduce Digital Rights Management (DRM) and its implications for content producers, consumers, and libraries. Simply stated, DRM is a technology that allows copyright owners to regulate and manage their content when it is disseminated in a digital format, and it is the reason why some patrons cannot access some of the downloadable digital content provided by libraries. In the first part of this paper, we provide a short introduction to DRM by outlining the entities, the various technologies used as well as usage restrictions that come with DRM. In the second part of the paper are discussed the alternatives for the libraries, using DRM as a tool for library copyright policy and the main documents, which present the position of library organizations towards information legislation.

Business Models for Open Access. Copyright and Licensing under Open Access

The lecture analyses the traditional business model in scientific communication and describes the new emerging models in the context of Open Access. Copyright and licensing part provides an overview of the legal issues and copyright at the heart of Open Access.

The external dimension of EU justice and home affairs after the Lisbon Treaty::analysing the dynamics of expansion and diversification

The article introduces a research framework for analysing the external dimension of EU Justice and Home Affairs after the Lisbon Treaty. The dynamics of expansion and diversification, discernable for both the EU policy-making and the scholarly work dedicated to it, are at the centre of the article and constitute a common reference point for the present Special Issue. These dynamics have been triggered through deliberate decisions of involved policy-makers as well as through unintended spillover effects from other policy areas and/or decisions. The article also engages with the theoretically informed literature on the subject, which struggles with the definition of what this dimension actually constitutes, as well as how to best capture the practices of this field.We take stock of the scholarly debates by comparing the diverse approaches and discussing how much they complement each other and/or present different dimensions of a single ‘policy universe’.

Copyright law as a matter of (inter)national security? – The attempt to securitise commercial infringement and its spill-over onto individual liability

This article evaluates the way in which copyright infringement has been gradually shifting from an area of civil liability to one of criminal penalty. Traditionally, consideration of copyright issues has been undertaken from a predominantly legal and/or economic perspectives. Whereas traditional legal analysis can explain what legal changes are occurring, and what impact these changes may have, they may not effectively explain ‘how’ these changes have come to occur. The authors propose an alternative inter-disciplinary approach, combining legal analysis with critical security studies, which may help to explain in greater detail how policies in this field have developed. In particular, through applied securitisation theory, this article intends to demonstrate the appropriation of this field by a security discourse, and its consequences for societal and legal developments. In order to explore how the securitisation framework may be a valid approach to a subject such as copyright law and to determine the extent to which copyright law may be said to have been securitised, this article will begin by explaining the origins and main features of securitisation theory, and its applicability to legal study. The authors will then attempt to apply this framework to the development of a criminal law approach to copyright infringement, by focusing on the security escalation it has undergone, developing from an economic issue into one of international security. The analysis of this evolution will be mainly characterised by the securitisation moves taking place at national, European and international levels. Finally, a general reflection will be carried out on whether the securitisation of copyright has indeed been successful and on what the consequences of such a success could be.

Examining the process of regime change in the North Atlantic Treaty Organization: The divide between rhetoric and reality

The North Atlantic Treaty Organization (NATO) is a product of the Cold War through which its members organized their military forces for the purpose of collective defense against the common threat of Soviet-backed aggression. Employing the terminology of regime theory, the creation of NATO can be viewed as the introduction of an international security regime. Throughout the Cold War, NATO member states preserved their commitment to mutual defense while increasingly engaging in activities aimed at overcoming the division of Europe and promoting regional stability. The end of the Cold War has served as the catalyst for a new period of regime change as the Alliance introduced elements of a collective security regime by expanding its mandate to address new security challenges and reorganizing both its political and military organizational structures. ^ This research involves an interpretive analysis of NATO's evolution applying ideal theoretical constructs associated with distinct approaches to regime analysis. The process of regime change is investigated over several periods throughout the history of the Alliance in an effort to understand the Alliance's changing commitment to collective security. This research involves a review of regime theory literature, consisting of an examination of primary source documentation, including official documents and treaties, as well as a review of numerous secondary sources. This review is organized around a typology of power-based, organization-based, and norm-based approaches to regime analysis. This dissertation argues that the process of regime change within NATO is best understood by examining factors associated with multiple theoretical constructs. Relevant factors provide insights into the practice of collective security among NATO member states within Europe, while accounting for the inability of the NATO allies to build on the experience gained within Europe to play a more central role in operations outside of this region. This research contributes to a greater understanding of the nature of international regimes and the process of regime change, while offering recommendations aimed at increasing NATO's viability as a source of greater security and more meaningful international cooperation.^

O direito penal do inimigo na atualidade: Mutual Legal Assistance Treaty – MLAT, em matéria penal, celebrado entre a República Federativa do Brasil e os Estados Unidos da América bem como seus reflexos na jurisdição brasileira

In view of the climate of instability and deep social inequalities, it has been evident in the Brazilian reality, a new way to punish systematic already developed and consolidated in other countries, in which, among other things, the criminality is anticipated only by danger that the individual sports. It appears, therefore, that the theory developed by Günter Jakobs, nominated Criminal Law of the Enemy, became subtly inserted in the Brazilian reality as well as in international relations signed. In this sense, the Brazilian State, in order to carry out the international legal cooperation in the criminal field, signed a mutual assistance agreement with the government of the United States of America. Forward the conclusion of Mutual legal Assistance Treaty (MLAT), the signatory countries voiced a desire to cooperate in order to facilitate the implementation of tasks of the authorities responsible for law enforcement in both countries, comprising research, investigation, prosecution and prevention of crime, said internalized adjustment in the Brazilian legal system by means of Decree No. 3810 of 02 May 2001. Alongside these considerations, the present study aims to analyze the Criminal law of the Enemy today, seeking to find evidence of that theory in the MLAT, international legal cooperation instrument signed between the government of the Federative Republic of Brazil and the government of the United States of America. Moreover, it has the objective to describe its effects on the Brazilian jurisdiction, especially as concerns the relativity and the suppression of human rights. Once done the introit, analysis will be carried out in the first chapter, on the definition and main features of the theory of Criminal Enemy of the law, it is imperative to approach the humanistic aspect that preceded the theory as well as the dealings given to some controversial issues surrounding it, such as the anticipation of the enemy's punishment and the disproportionality of the penalties imposed. In the second chapter will present the conceptual assumptions, historical evolution and the positives aspects, as well as the barriers and the pursuit of effectiveness of international legal cooperation. In the chapter, bedroom effective analysis of specific modality of cooperation will be held, the Mutual legal Assistance Treaty - MLAT in criminal matters, signed between the Federative Republic of Brazil and the United States of America, in which the general aspects will be addressed and the MLAT reflections on the Brazilian jurisdiction, which includes analysis about the relativity or suppression of human rights, future trends and creating stricter laws, followed by the presentation of the seized conclusion on the subject, in which, among other approaches, will be voiced understanding about the unconstitutionality certain service requests that, from these, there is the bad use of the agreed instrument.

Dynamics of investment negotiations between China and Japan : the China-Japan-Korea trilateral investment treaty and beyond

The investment agreement relationship between China and Japan is complex. The many intersecting and overlapping agreements can rightly be described as a "noodle bowl of agreements." The 1989 bilateral investment treaty (BIT) between China and Japan still stands. Japan can also free-ride on the negotiation outcome of China's BITs and free trade agreements (FTAs) with other countries by using the most-favored-nation (MFN) provision in the 1989 China-Japan BIT, which does not contain regional economic integration organization (REIO) exception rules. However, because the China-Japan BIT does not have investor-state dispute settlement (ISDS), it may face implementation problems. The China-Japan-Korea trilateral investment treaty (CJK TIT), in force since 2014, made improvements upon the 1989 BIT, but Japan is not entirely satisfied with the outcome. For Japan, pre-establishment national treatment (NT) and prohibition of various types of performance requirements are the most important negotiation items, but the CJK TIT insufficiently addressed those problems. Moreover, because the CJK TIT has MFN provisions with an REIO exception rule, better access to investment markets brought about by future FTAs such as the China-Korea FTA and the EU-China FTA cannot be imported into CJK TIT. Hence, in the long run, Japan needs to pursue an FTA investment chapter with China that covers both MFN and ISDS.

Copyright and the creative commons

News, Crime and Law: Copyright and the creative commons