La Cour suprême se prononce sur le poids des ententes alimentaires de divorce

Article publié avec l'autorisation de la Chambre des notaires du Québec

Country of Origin and Internet Publication : Applying the Berne Convention in the Digital Age

Historically, determining the country of origin of a published work presented few challenges, because works were generally published physically – whether in print or otherwise – in a distinct location or few locations. However, publishing opportunities presented by new technologies mean that we now live in a world of simultaneous publication – works that are first published online are published simultaneously to every country in world in which there is Internet connectivity. While this is certainly advantageous for the dissemination and impact of information and creative works, it creates potential complications under the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”), an international intellectual property agreement to which most countries in the world now subscribe. Under the Berne Convention’s national treatment provisions, rights accorded to foreign copyright works may not be subject to any formality, such as registration requirements (although member countries are free to impose formalities in relation to domestic copyright works). In Kernel Records Oy v. Timothy Mosley p/k/a Timbaland, et al. however, the Florida Southern District Court of the United States ruled that first publication of a work on the Internet via an Australian website constituted “simultaneous publication all over the world,” and therefore rendered the work a “United States work” under the definition in section 101 of the U.S. Copyright Act, subjecting the work to registration formality under section 411. This ruling is in sharp contrast with an earlier decision delivered by the Delaware District Court in Håkan Moberg v. 33T LLC, et al. which arrived at an opposite conclusion. The conflicting rulings of the U.S. courts reveal the problems posed by new forms of publishing online and demonstrate a compelling need for further harmonization between the Berne Convention, domestic laws and the practical realities of digital publishing. In this article, we argue that even if a work first published online can be considered to be simultaneously published all over the world it does not follow that any country can assert itself as the “country of origin” of the work for the purpose of imposing domestic copyright formalities. More specifically, we argue that the meaning of “United States work” under the U.S. Copyright Act should be interpreted in line with the presumption against extraterritorial application of domestic law to limit its application to only those works with a real and substantial connection to the United States. There are gaps in the Berne Convention’s articulation of “country of origin” which provide scope for judicial interpretation, at a national level, of the most pragmatic way forward in reconciling the goals of the Berne Convention with the practical requirements of domestic law. We believe that the uncertainties arising under the Berne Convention created by new forms of online publishing can be resolved at a national level by the sensible application of principles of statutory interpretation by the courts. While at the international level we may need a clearer consensus on what amounts to “simultaneous publication” in the digital age, state practice may mean that we do not yet need to explore textual changes to the Berne Convention.

Human rights, the law, cyber-security and democracy : after the European Convention

Many commentators have treated the internet as a site of democratic freedom and as a new kind of public sphere. While there are good reasons for optimism, like any social space digital space also has its dark side. Citizens and governments alike have expressed anxiety about cybercrime and cyber-security. In August 2011, the Australian government introduced legislation to give effect to Australia becoming a signatory to the European Convention on Cybercrime (2001). At the time of writing, that legislation is still before the Parliament. In this article, attention is given to how the legal and policy-making process enabling Australia to be compliant with the European Convention on Cybercrime came about. Among the motivations that informed both the development of the Convention in Europe and then the Australian exercise of legislating for compliance with it was a range of legitimate concerns about the impact that cybercrime can have on individuals and communities. This article makes the case that equal attention also needs to be given to ensuring that legislators and policy makers differentiate between legitimate security imperatives and any over-reach evident in the implementation of this legislation that affects rule of law principles, our capacity to engage in democratic practices, and our civic and human rights.

Early-mid Cretaceous tectonic evolution of eastern Gondwana : from silicic LIP magmatism to continental rupture

The Early–mid Cretaceous marks the confluence of three major continental-scale events in eastern Gondwana: (1) the emplacement of a Silicic Large Igneous Province (LIP) near the continental margin; (2) the volcaniclastic fill, transgression and regression of a major epicontinental seaway developed over at least a quarter of the Australian continent; and (3) epeirogenic uplift, exhumation and continental rupturing culminating in the opening of the Tasman Basin c. 84 Ma. The Whitsunday Silicic LIP event had widespread impact, producing both substantial extrusive volumes of dominantly silicic pyroclastic material and coeval first-cycle volcanogenic sediment that accumulated within many eastern Australian sedimentary basins, and principally in the Great Australian Basin system (>2 Mkm3 combined volume). The final pulse of volcanism and volcanogenic sedimentation at c. 105–95 Ma coincided with epicontinental seaway regression, which shows a lack of correspondence with the global sea-level curve, and alternatively records a wider, continental-scale effect of volcanism and rift tectonism. Widespread igneous underplating related to this LIP event is evident from high paleogeothermal gradients and regional hydrothermal fluid flow detectable in the shallow crust and over a broad region. Enhanced CO2 fluxing through sedimentary basins also records indirectly, large-scale, LIP-related mafic underplating. A discrete episode of rapid crustal cooling and exhumation began c. 100–90 Ma along the length of the eastern Australian margin, related to an enhanced phase of continental rifting that was largely amagmatic, and probably a switch from wide–more narrow rift modes. Along-margin variations in detachment fault architecture produced narrow (SE Australia) and wide continental margins with marginal, submerged continental plateaux (NE Australia). Long-lived NE-trending cross-orogen lineaments controlled the switch from narrow to wide continental margin geometries.

How do supercontinents break up? — assessing the continental large igneous province (LIP) record of the break-up of Pangea

LIP emplacement is linked to the timing and evolution of supercontinental break-up. LIP-related break-up produces volcanic rifted margins, new and large (up to 108 km2) ocean basins, and new, smaller continents that undergo dispersal and potentially reassembly (e.g., India). However, not all continental LIPs lead to continental rupture. We analysed the <330 Ma continental LIP record(following final assembly of Pangea) to find relationships between LIP event attributes (e.g., igneous volume, extent, distance from pre-existing continental margin) and ocean basin attributes (e.g., length of new ocean basin/rifted margin) and how these varied during the progressive break up of Pangea. No correlation exists between LIP magnitude and size of the subsequent ocean basin or rifted margin. Our review suggests a three-phased break-up history of Pangea: 1) “Preconditioning” phase (∼330–200 Ma): LIP events (n=7) occurred largely around the supercontinental margin clustering today in Asia, with a low (<20%) rifting success rate. The Panjal Traps at ∼280 Ma may represent the first continental rupturing event of Pangea, resulting in continental ribboning along the Tethyan margin; 2) “Main Break-up” phase (∼200–100 Ma): numerous large LIP events(n=10) in the supercontinent interior, resulting in highly successful fragmentation (90%) and large, new ocean basins(e.g., Central/South Atlantic, Indian, >3000 km long); 3) “Waning” phase (∼100–0 Ma): Declining LIP magnitudes (n=6), greater proximity to continental margins (e.g., Madagascar, North Atlantic, Afro-Arabia, Sierra Madre) producing smaller ocean basins (<2600 km long). How Pangea broke up may thus have implications for earlier supercontinent reconstructions and LIP record.

Implementation of the MARPOL Convention in developing countries

Over the years a large set of international conventions have been adopted under the auspices of the International Maritime Organization for prevention of vessel-source marine pollution. However, most of developing countries failed to effectively implement these conventions. Against this backdrop, this article aims to assess the inherent suitability of the MARPOL Convention for implementation in developing countries. It also examines the role of global community for effective implementation of the MARPOL Convention and identifies the legal and institutional bottlenecks in the current implementation regime.

Implementation of the MARPOL Convention in Bangladesh

Vessel-source marine pollution is one of the main sources of marine pollution in Bangladesh. Due to unfettered operation of vessels, the country has been exposed to massive pollution that is causing a serious imbalance in the marine environment. Against this backdrop, this article seeks to demonstrate that the regulatory system of Bangladesh should be strengthened and made more effective in the light of international instruments to ensure the conservation and sustainable management of its marine environment. With this aim the article examines the present status of implementation of the MARPOL Convention in Bangladesh

Continuity, Rupture, or just more of the 'Volatile and Contradictory': Glimpses of New South Wales' Penal Practice behind and through the Discursive

Throughout much of the western world more and more people are being sent to prison, one of a number of changes inspired by a 'new punitiveness' in penal and political affairs. This book seeks to understand these developments, bringing together leading authorities in the field to provide a wide-ranging analysis of new penal trends, compare the development of differing patterns of punishment across different types of societies, and to provide a range of theoretical analyses and commentaries to help understand their significance. As well as increases in imprisonment this book is also concerned to address a number of other aspects of 'the new punitiveness': firstly, the return of a number of forms of punishment previously thought extinct or inappropriate, such as the return of shaming punishments and chain gangs (in parts of the USA); and secondly, the increasing public involvement in penal affairs and penal development, for example in relation to length of sentences and the California Three Strikes Law, and a growing accreditation of the rights of victims. The book will be essential reading for students seeking to understand trends and theories of punishment on law, criminology, penology and other courses.

Protecting World Heritage sites from the adverse impacts of climate change : obligations for States Parties to the World Heritage Convention

Through its mandate to protect and preserve places of ‘outstanding universal value’, the World Heritage Convention provides an unlikely yet effective tool in global efforts to mitigate climate change. The practical efficacy of the Strategy to Assist States Parties to Implement Appropriate Management Responses (‘the Strategy’), which represents the World Heritage Committee’s primary response to the threats posed by climate change to World Heritage sites, is undermined by its weak stance on mitigation. This paper argues that the World Heritage Convention imposes stronger obligations on States Parties than those contained in the Strategy, including a duty on States Parties to commit to ‘deep cuts’ in greenhouse gas emissions. In order to ensure the continuing success of the World Heritage Convention States Parties must engage in extensive mitigation strategies without delay.

Equal shared parental responsibility and shared care post-return to Australia under the Hague Child Abduction Convention

This article explores the outcomes experienced by abducting primary carer mothers and their children post-return to Australia under the Hague Convention on Civil Aspects of International Child Abduction.1 The circumstances faced by families that experience international parental child abduction are examined by considering how part VII of the Australian Family Law Act 1975 (Cth) is applied to resolve parenting disputes post-return. At present, the statutory criteria found in part VII encourage an equal shared parental responsibility and shared care parenting approach.2 This emphasis aligns children’s best interests with collaborative parenting3 and their parents living within close geographical proximity of each other to facilitate the practicalities of the approach.4 Arguably, these statutory criteria guide the exercise of judicial discretion to determine a child’s best interests towards a parenting arrangement that is incompatible with the lifestyle and functional characteristics of these families.