Free software and the law. Out of the frying pan and into the fire: How shaking up intellectual property suits competition law just fine

Free software is viewed as a revolutionary and subversive practice, and in particular has dealt a strong blow to the traditional conception of intellectual property law (although in its current form could be considered a 'hack' of IP rights). However, other (capitalist) areas of law have been swift to embrace free software, or at least incorporate it into its own tenets. One area in particular is that of competition (antitrust) law, which itself has long been in theoretical conflict with intellectual property, due to the restriction on competition inherent in the grant of ‘monopoly’ rights by copyrights, patents and trademarks. This contribution will examine how competition law has approached free software by examining instances in which courts have had to deal with such initiatives, for instance in the Oracle Sun Systems merger, and the implications that these decisions have on free software initiatives. The presence or absence of corporate involvement in initiatives will be an important factor in this investigation, with it being posited that true instances of ‘commons-based peer production’ can still subvert the capitalist system, including perplexing its laws beyond intellectual property.

The Law and Economics of the Civil Law of Mandate

Présentation à la Annual Law & Economics Conference 2007, Université de Bologne.

On cultural property and its protection: a law-and-economics comment

The term cultural property seems to have come into vogue after the Second World War as part of efforts to prevent the recurrence of the massive war-time destruction of objects of cultural significance to various groups and, in some cases, to all of humanity. The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict symbolises those efforts. Destruction is not the only doomsday scenario for cultural property. Removal of objects from their owners or region of origin is another concern. This, too, had occurred during the Second World War with the nazis’ looting treasures of all kinds from occupied territories, not to mention the massive confiscation of the property of their Jewish victims everywhere. But the concern was older, as Merryman for one shows in the story of the Elgin marbles, brought from Greece to England during the 19th century. This concern has found expression in a 1970 UNESCO treaty and in a 1995 Unidroit Convention seeking to halt international traffic in cultural property.

Association between neighbourhood socioeconomic characteristics and high-risk injection behaviour amongst injection drug users living in inner vs. other city areas in Montréal, Canada

Ce manuscrit est une pré-publication d'un article paru dans International Journal of Drug Policy 2010; 21(1): 49-55.

Whales Get Beached, Don't They? An Essay on the Law and Economics of Copyrights in Music

L’auteur fonde son argument sur l’importance déterminante des conséquences économiques de la numérisation sur l’évolution des droits d’auteur afférant à la musique. La musique numérisée correspondant à un bien public, les prix de sa négociation tendent vers 0, et seules les contraintes légales telles que les droits d’auteur ou les ententes sur les prix, qui sont généralement proscrites par les lois sur la concurrence, peuvent sauver l’entrant intrépide ou l’opérateur mis sur le sable. Alors que les propriétaires de droits d’auteur maximisent leurs profits en prônant l’extension de leur champ d’application et en poursuivant leur application par les tribunaux, leur valeur sociale est mesurée en termes d’efficacité pour la promotion de l’innovation. L’industrie de la musique a projeté le champ d’application des droits d’auteur si grossièrement loin au–delà des limites de la raison par rapport à la musique numérisée que leur position légale sera attaquée inlassablement sur tous les fronts, que ce soit par une banalisation des infractions, ou par la résistance devant les tribunaux ou par des campagnes visant une réforme législative.

“People’s law” and restorative justice: the success of circle sentencing in New South Wales

Informal sentencing procedures in remote Indigenous communities of Australia have been occurring for some time, but it was in the late 1990s that formalization of the practice began in urban areas with the advent of Indigenous sentencing and circle courts. These circle courts emerged primarily to address the over-representation and incarceration of Indigenous people in the criminal justice system. The first Indigenous urban court was assembled in Port Adelaide, South Australia in June 1999 and was named the Nunga Court. Courts emerging since in other states are based on the Nunga Court model, although they have been adapted to suit local conditions. The practice of circle sentencing was introduced in New South Wales (NSW) in Nowra in February 2002.

Law and economics in the civil law world: the case of Brazilian Courts

Conventional wisdom holds that economic analysis of law is either embryonic or nonexistent outside of the United States generally and in civil law jurisdictions in particular. Existing explanations for the assumed lack of interest in the application of economic reasoning to legal problems range from the different structure of legal education and academia outside of the United States to the peculiar characteristics of civilian legal systems. This paper challenges this view by documenting and explaining the growing use of economic reasoning by Brazilian courts. We argue that, given the ever-greater role of courts in the formulation of public policies, the application of legal principles and rules increasingly calls for a theory of human behavior (such as that provided by economics) to help foresee the likely aggregate consequences of different interpretations of the law. Consistent with the traditional role of civilian legal scholarship in providing guidance for the application of law by courts, the further development of law and economics in Brazil is therefore likely to be mostly driven by judicial demand.

The Effectiveness of the Clean Development Mechanism – A law and economics analysis

Climate change has been acknowledged as a threat to humanity. Most scholars agree that to avert dangerous climate change and to transform economies into low-carbon societies, deep global emission reductions are required by the year 2050. Under the framework of the Kyoto Protocol, the Clean Development Mechanism (CDM) is the only market-based instrument that encourages industrialised countries to pursue emission reductions in developing countries. The CDM aims to pay the incremental finance necessary to operationalize emission reduction projects which are otherwise not financially viable. According to the objectives of the Kyoto Protocol, the CDM should finance projects that are additional to those which would have happened anyway, contribute to sustainable development in the countries hosting the projects, and be cost-effective. To enable the identification of such projects, an institutional framework has been established by the Kyoto Protocol which lays out responsibilities for public and private actors. This thesis examines whether the CDM has achieved these objectives in practice and can thus be considered an effective tool to reduce emissions. To complete this investigation, the book applies economic theory and analyses the CDM from two perspectives. The first perspective is the supply-dimension which answers the question of how, in practice, the CDM system identified additional, cost-effective, sustainable projects and, generated emission reductions. The main contribution of this book is the second perspective, the compliance-dimension, which answers the question of whether industrialised countries effectively used the CDM for compliance with their Kyoto targets. The application of the CDM in the European Union Emissions Trading Scheme (EU ETS) is used as a case-study. Where the analysis identifies inefficiencies within the supply or the compliance dimension, potential improvements of the legal framework are proposed and discussed.

The Law and Economics of Eco-labels

Eco-labels and certification are one of the many environmental policy tools that have been under scrutiny in recent years. This is because the damages of environmental degradation are becoming more apparent over time. Hence there is a pressure to come up with tools that help solve even small parts of the problem. Eco-labels have been around for over 30 years. However the market, the environment and eco-labels have changed drastically during this period. Moreover, in the last 5 years there has been a sudden increase in eco-labels making them more visible in the market and to the average consumer. All this has made evident that little is known about the effectiveness of eco-labels as environmental policy tools. Hence, there is a call to find answers regarding the actual effects of eco-labels on the market and on the environment. While this work cannot address whether eco-labels have an environmental impact it addresses the effects of eco-labels on the markets. Moreover, this work aimed to find the role of law in eco-labelling. In addition, it aims to find a legal solution that would improve the performance of eco-labelling and certification.

A Law and Economics Analysis of Lobbying Regulation Towards an optimal structure through the Cost Indicator Index

This research primarily represents a contribution to the lobbying regulation research arena. It introduces an index which for the first time attempts to measure the direct compliance costs of lobbying regulation. The Cost Indicator Index (CII) offers a brand new platform for qualitative and quantitative assessment of adopted lobbying laws and proposals of those laws, both in the comparative and the sui generis dimension. The CII is not just the only new tool introduced in the last decade, but it is the only tool available for comparative assessments of the costs of lobbying regulations. Beside the qualitative contribution, the research introduces an additional theoretical framework for complementary qualitative analysis of the lobbying laws. The Ninefold theory allows a more structured assessment and classification of lobbying regulations, both by indication of benefits and costs. Lastly, this research introduces the Cost-Benefit Labels (CBL). These labels might improve an ex-ante lobbying regulation impact assessment procedure, primarily in the sui generis perspective. In its final part, the research focuses on four South East European countries (Slovenia, Serbia, Montenegro and Macedonia), and for the first time brings them into the discussion and calculates their CPI and CII scores. The special focus of the application was on Serbia, whose proposal on the Law on Lobbying has been extensively analysed in qualitative and quantitative terms, taking into consideration specific political and economic circumstances of the country. Although the obtained results are of an indicative nature, the CII will probably find its place within the academic and policymaking arena, and will hopefully contribute to a better understanding of lobbying regulations worldwide.

Judges and Mass Litigation - a (Behavioural) Law and Economics Perspective

Judicial duties have for decades extended far beyond the scope of traditional adjudication, judges being progressively called upon to occupy the role of social engineers. Meanwhile, contexts in which judges evolve have transformed: mass damage nowadays tends to multiply and create new challenges not only for legal actors, but also for society at large. In spring 2011, the replies received by the European Commission to its public consultation on collective redress indicated European stakeholders’ strong interest in seeing judiciaries play prominent and leading roles in the supervision and monitoring of procedures which enable groups of claimants to seek together compensation for damage caused by mass events. Judges are thus expected to be neutral and robust agents while assuming heavy responsibilities under a considerable burden. Insights from social sciences however invite us to revisit policymakers expectations and may shed new light on current debates about mass litigation.