Regulating for Sustainability : Property Issues

All Australian governments recognize the need to ensure that land and natural resources are used sustainably. In this context, ‘resources’ includes natural resources found on land such as trees and other vegetation, fauna, soil and minerals, and cultural resources found on land such as archaeological sites and artefacts. Regulators use a wide range of techniques to promote sustainability. To achieve their objectives, they may, for example, create economic incentives through bounties, grants and subsidies, encourage the development of self-regulatory codes, or enter into agreements with landowners specifying how the land is to be managed. A common way of regulating is by making administrative orders, determinations or decisions under powers given to regulators by Acts of Parliament (statutes) or by regulations (delegated legislation). Generally the legislation provides for specified rights or duties, and authorises a regulator to make an order or decision to apply the legislative provisions to particular land or cases. For example, legislation might empower a regulator to make an order that requires the owner of a contaminated site to remediate it. When the regulator exercises the power by making an order in relation to particular land, the owner is placed under a statutory duty to remediate. When regulators exercise their statutory powers to manage the use of private land or natural or cultural resources on private land, property law issues can arise. The owner of land has a private property right that the law will enforce against anybody else who interferes with the enjoyment of the right, without legal authority to do so. The law dealing with the enforcement of private property rights forms part of private law. This report focuses on the relationship between the law of private property and the regulation of land and resources by legislation and by administrative decisions made under powers given by legislation (statutory powers).

The Emergence of Access Controls in Small-Scale Fishing Commons: A Comparative Analysis of Individual Licenses and Common Property-Rights in Two Mexican Communities

Addressing global fisheries overexploitation requires better understanding of how small-scale fishing communities in developing countries limit access to fishing grounds. We analyze the performance of a system based on individual licenses and a common property-rights regime in their ability to generate incentives for self-governance and conservation of fishery resources. Using a qualitative before-after-control-impact approach, we compare two neighbouring fishing communities in the Gulf of California, Mexico. Both were initially governed by the same permit system, are situated in the same ecosystem, use similar harvesting technology, and have overharvested similar species. One community changed to a common property-right regime, enabling the emergence of access controls and avoiding overexploitation of benthic resources, while the other community, still relies on the permit system. We discuss the roles played by power, institutions, socio-historic, and biophysical factors to develop access controls. © 2012 The Author(s).

The abuse of intellectual property rights and regulations in China: a law and economic analysis

From the institutional point of view, the legal system of IPR (intellectual property right, hereafter, IPR) is one of incentive institutions of innovation and it plays very important role in the development of economy. According to the law, the owner of the IPR enjoy a kind of exclusive right to use his IP(intellectual property, hereafter, IP), in other words, he enjoys a kind of legal monopoly position in the market. How to well protect the IPR and at the same time to regulate the abuse of IPR is very interested topic in this knowledge-orientated market and it is the basic research question in this dissertation. In this paper, by way of comparing study and by way of law and economic analyses, and based on the Austrian Economics School’s theories, the writer claims that there is no any contradiction between the IPR and competition law. However, in this new economy (high-technology industries), there is really probability of the owner of IPR to abuse his dominant position. And with the characteristics of the new economy, such as, the high rates of innovation, “instant scalability”, network externality and lock-in effects, the IPR “will vest the dominant undertakings with the power not just to monopolize the market but to shift such power from one market to another, to create strong barriers to enter and, in so doing, granting the perpetuation of such dominance for quite a long time.”1 Therefore, in order to keep the order of market, to vitalize the competition and innovation, and to benefit the customer, in EU and US, it is common ways to apply the competition law to regulate the IPR abuse. In Austrian Economic School perspective, especially the Schumpeterian theories, the innovation/competition/monopoly and entrepreneurship are inter-correlated, therefore, we should apply the dynamic antitrust model based on the AES theories to analysis the relationship between the IPR and competition law. China is still a developing country with relative not so high ability of innovation. Therefore, at present, to protect the IPR and to make good use of the incentive mechanism of IPR legal system is the first important task for Chinese government to do. However, according to the investigation reports,2 based on their IPR advantage and capital advantage, some multinational companies really obtained the dominant or monopoly market position in some aspects of some industries, and there are some IPR abuses conducted by such multinational companies. And then, the Chinese government should be paying close attention to regulate any IPR abuse. However, how to effectively regulate the IPR abuse by way of competition law in Chinese situation, from the law and economic theories’ perspective, from the legislation perspective, and from the judicial practice perspective, there is a long way for China to go!

GERMANY: Creating New Property Rights on the Basis of General Legal Concepts - Without Limits?

In two cases recently decided by two different senates of the German Federal Supreme Court (Bundesgerichtshof, BGH), the following issue was raised: To what extent can the filming of sports events organized by someone else, on the one hand, and the photographing of someone else’s physical property, on the other hand, be legally controlled by the organizer of the sports event and the owner of the property respectively? In its “Hartplatzhelden.de” decision, the first senate of the Federal Supreme Court concluded that the act of filming sports events does not constitute an act of unfair competition as such, and hence is allowed even without the consent of the organizer of the sports event in question. However, the fifth senate, in its “Prussian gardens and parks” decision, held that photographing someone else’s property is subject to the consent of the owner of the grounds, provided the photographs are taken from a spot situated on the owner’s property. In spite of their different outcomes, the two cases do not necessarily contradict each other. Rather, read together, they may well lead to an unwanted – and unjustified – extension of exclusive protection, thus creating a new “organizer’s” IP right.

Information as Property

Information is widely regarded as one of the key concepts of modern society. The production, distribution and use of information are some of the key aspects of modern economies. Driven by technological progress information has become a good in its own right. This established an information economy and challenged the law to provide an apt framework suitable to promote the production of information, enable its distribution and efficient allocation, and deal with the risks inherent in information technology. Property rights are a major component of such a framework. However, information as an object of property rights is not limited to intellectual property but may also occur as personality aspects or even tangible property. Accordingly, information as property can be found in the area of intellectual property, personality protection and other property rights. This essay attempts to categorize three different types of information that can be understood as a good in the economic sense and an object in the legal sense: semantic information, syntactic information and structural information. It shows how legal ownership of such information is established by different subjective rights. In addition the widespread debate regarding the justification of intellectual property rights is demonstrated from the wider perspective of informational property in general. Finally, in light of current debates, this essay explores whether “data producers” shall have a new kind of property right in data.

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).

The ethics, aesthetics and practical politics of ownership in co-creative media

What is ‘best practice’ when it comes to managing intellectual property rights in participatory media content? As commercial media and entertainment business models have increasingly come to rely upon the networked productivity of end-users (Banks and Humphreys 2008) this question has been framed as a problem of creative labour made all the more precarious by changing employment patterns and work cultures of knowledge-intensive societies and globalising economies (Banks, Gill and Taylor 2014). This paper considers how the problems of ownership are addressed in non-commercial, community-based arts and media contexts. Problems of labour are also manifest in these contexts (for example, reliance on volunteer labour and uncertain economic reward for creative excellence). Nonetheless, managing intellectual property rights in collaborative creative works that are created in community media and arts contexts is no less challenging or complex than in commercial contexts. This paper takes as its focus a particular participatory media practice known as ‘digital storytelling’. The digital storytelling method, formalised by the Centre for Digital Storytelling (CDS) from the mid-1990s, has been internationally adopted and adapted for use in an open-ended variety of community arts, education, health and allied services settings (Hartley and McWilliam 2009; Lambert 2013; Lundby 2008; Thumin 2012). It provides a useful point of departure for thinking about a range of collaborative media production practices that seek to address participation ‘gaps’ (Jenkins 2006). However the outputs of these activities, including digital stories, cannot be fully understood or accurately described as user-generated content. For this reason, digital storytelling is taken here to belong to a category of participatory media activity that has been described as ‘co-creative’ media (Spurgeon 2013) in order to improve understanding of the conditions of mediated and mediatized participation (Couldry 2008). This paper reports on a survey of the actual copyrighting practices of cultural institutions and community-based media arts practitioners that work with digital storytelling and similar participatory content creation methods. This survey finds that although there is a preference for Creative Commons licensing a great variety of approaches are taken to managing intellectual property rights in co-creative media. These range from the use of Creative Commons licences (for example, Lambert 2013, p.193) to retention of full copyrights by storytellers, to retention of certain rights by facilitating organisations (for example, broadcast rights by community radio stations and public service broadcasters), and a range of other shared rights arrangements between professional creative practitioners, the individual storytellers and communities with which they collaborate, media outlets, exhibitors and funders. This paper also considers how aesthetic and ethical considerations shape responses to questions of intellectual property rights in community media arts contexts. For example, embedded in the CDS digital storytelling method is ‘a critique of power and the numerous ways that rank is unconsciously expressed in engagements between classes, races and gender’ (Lambert 117). The CDS method privileges the interests of the storyteller and, through a transformative workshop process, aims to generate original individual stories that, in turn, reflect self-awareness of ‘how much the way we live is scripted by history, by social and cultural norms, by our own unique journey through a contradictory, and at times hostile, world’ (Lambert 118). Such a critical approach is characteristic of co-creative media practices. It extends to a heightened awareness of the risks of ‘story theft’ and the challenges of ownership and informs ideas of ‘best practice’ amongst creative practitioners, teaching artists and community media producers, along with commitments to achieving equitable solutions for all participants in co-creative media practice (for example, Lyons-Reid and Kuddell nd.). Yet, there is surprisingly little written about the challenges of managing intellectual property produced in co-creative media activities. A dialogic sense of ownership in stories has been identified as an indicator of successful digital storytelling practice (Hayes and Matusov 2005) and is helpful to grounding the more abstract claims of empowerment for social participation that are associated with co-creative methods. Contrary to the ‘change from below’ philosophy that underpins much thinking about co-creative media, however, discussions of intellectual property usually focus on how methods such as digital storytelling contribute to the formation of copyright law-compliant subjects, particularly when used in educational settings (for example, Ohler nd.). This also exposes the reliance of co-creative methods on the creative assets storytellers (rather than on the copyrighted materials of the media cultures of storytellers) as a pragmatic response to the constraints that intellectual property right laws impose on the entire category of participatory media. At the level of practical politics, it also becomes apparent that co-creative media practitioners and storytellers located in copyright jurisdictions governed by ‘fair use’ principles have much greater creative flexibility than those located in jurisdictions governed by ‘fair dealing’ principles.

A Patchwork of memories 1911-1997

Memoir describes her life in Germany, her decision to leave Germany after the death of her parents, and to work in the United States in 1934. Detailed description of every day life in Germany (after World War I) and in the United States, and later of various travels all over the world. Also mentions her German-Jewish ancestors on her maternal side (great-great-grandparents: Moritz and Fanny Hertz, great-grandmother: Helene Hertz nee Orthenberger), who had a textile business.

Legal Status of Research Data in the four partner countries

This report compares the legal status of research data in the four KE partner countries. The report also addresses where European copyright and database law poses flaws and obstacles to the access to research data and singles out pre-conditions for openly available data. Background of the study Intellectual property right regulations regarding primary research data are a recurrent topic in the discussion on the improvement of access to research data. In fact in the final report of the High Level Expert Group on Scientific Data ‘Riding the Wave’ creating clarity on this was considered very important in improving awareness for all parties involved. According to the recommendations of the report legal issues should be “worked out so that they encourage, and not impede, global data sharing” http://cordis.europa.eu/fp7/ict/e-infrastructure/docs/hlg-sdi-report.pdf. While open access to research data is a widely recognised goal, achieving it remains a challenge. As European national laws still diverge and sometimes remain unclear it can be difficult for interested parties to fully comprehend in which ways open access to research data can be legally obtained. Based on these discussions the Knowledge Exchange working group on primary research data has commissioned a comparative report on the legal status of research data in the four KE partner countries. The study has been conducted by the Centre for Intellectual Property Law (CIER) at Utrecht University. The report aims at informing Knowledge Exchange and associated stakeholders on the state of the law concerning access to research data in the KE partner countries (Germany, Denmark, the Netherlands, and the United Kingdom) and to give an insight in how these laws work in practice. This is explained in several characteristic situations pertaining to open access to research data. The purpose of the report is to identify flaws and obstacles to the access to research data and to single out pre-conditions for openly available data. This is in view of the current discussions concerning open access to research data, especially those originating from publicly funded research. The report intends to be both a description of the status quo of the legislation and a practical instrument to prepare further activities in raising awareness on the potential benefit of improved access to research data, and developing means to support the improved access for research purposes

A Usucapião nos Privilégios de Invenção: a apropriabilidade originária pelo uso reiterado

O presente trabalho enfoca a possibilidade de uma usucapião de patentes, uma usucapião inclusiva, a incidência da supressio à conduta omissiva do titular, a carnellutiana servidão empresarial e, por último, o usufruto de direitos. Para tanto, foi tangenciada a alteração conceitual dos termos bem, coisa, posse e propriedade de modo a contextualizar significados, estáticos, trazidos desde o direito romano. Contempla a figura da posse de direitos ou da posse como exercício fático de um poder sobre um bem, além do eventual substitutivo de tal requisito usucapiente pelo uso qualificado. Abrange, ainda, uma análise crítica à ausência de disposições normativas específicas sobre a apropriabilidade originária, o que acaba elevando, desproporcionalmente, os poderes do titular da patente. A aquisição originária de bens incorpóreos permite, portanto, acesso igualitário aos bens imateriais, além de estimular o exercício da função social pelo titular. Na hipótese da usucapião inclusiva, atende-se, concomitantemente, ao direito de propriedade e à livre iniciativa e concorrência, disponibilizando opções de produtos no mercado, derivados de players diferentes, advindos da mesma tecnologia interditada.

A legitimação do direito de propriedade

A partir da identificação de fraturas no discurso dogmático do direito de propriedade, o trabalho propõe uma nova sistematização em torno do marco teórico da legitimação. Para tanto, serão utilizados as metodologias da análise do discurso, do estruturalismo e do funcionalismo. Num primeiro momento, haurem-se as estruturas que emolduram a discussão dominial no discurso ideológico de legitimação da propriedade. Tais estruturas servirão, numa etapa final, para dar coerência ao novo discurso dogmático. Após, apresenta-se o conflito entre o discurso dogmático tradicional do direito de propriedade, descrito conforme as lições dos manuais e tratados clássicos, e os elementos indicativos de um novo discurso. Embora a infiltração dos novos elementos discursivos tenha ocorrido de forma difusa, tenta-se traçar suas relações ocultas. Por fim, apresenta-se uma proposta de novo discurso dogmático, mais adequado às estruturas do discurso ideológico e ao atual contexto social, baseado, principalmente, em dois fatores de legitimação: a função individual e a função social da propriedade.

Aquisição social onerosa e privada da propriedade: artigo 1228, 4 e 5 do código civil

A pesquisa proposta pretende esclarecer os pontos obscuros e controvertidos do artigo 1228, 4 e 5 do Código Civil, tendo por finalidade a busca da efetividade de tal dispositivo legal, que possui, na sua essência, o reconhecimento do direito fundamental de moradia e, ainda, tutela o direito ao trabalho. O dispositivo em questão rompe com o paradigma da posse como mera sentinela avançada do direito de propriedade e reconhece a defesa da posse autônoma exercida por aqueles que realmente cumprem com a sua função social. A partir do preenchimento dos requisitos previstos na lei, concede-se a legitimação da posse aos possuidores e, com o pagamento da indenização ao proprietário, converte-se a posse em direito de propriedade. Dessa forma, o instituto visa não apenas à regularização fundiária de áreas urbanas ou rurais, mas, principalmente, à efetividade dos direitos fundamentais de moradia e trabalho, que dão substância ao principio norteador de qualquer sociedade civilizada: o princípio da dignidade da pessoa humana. Assim sendo, na busca pela efetividade do dispositivo, o estudo tem ainda como finalidade desenvolver a natureza jurídica específica do instituto, reconhecendo-o como um modo autônomo de aquisição onerosa do direito de propriedade, não se equiparando a formas de desapropriação ou de usucapião do direito de propriedade.

集体林权制度改革对社会经济的影响——以辽宁省为例

由于大部分集体山林由集体统一经营，存在林木产权不明晰、经营机制不灵活、利益分配不合理等突出问题，林农作为集体林业经营主体的地位没有得到有效落实，严重制约了林业生产力的进一步发展。为解放林业生产力，就迫切需要对集体林权制度进行深化改革。为此，辽宁省自2005年3月1日在本溪市开展集体林权制度改革试点工作，至11月份在全省推开。目前辽宁省林权改革的主体改革已经基本完成，工作的重点已经转向了配套改革。 本文采用问卷调查、专家座谈、统计资料相结合的方式，主要从林农家庭尺度入手，分析了改革对当地居民和社会的影响；在此基础上，比较分析了辽宁省各种改革经营模式的特点；综合当地政府、金融、协会等机构在技术、政策、资金等方面的支撑，将尺度上推到区域尺度，分析了林权改革后林业产业的发展进程，为产业集群和区域经济的发展提供建议；分析改革过程中出现的问题和困难，并提出相应的整改方案和优化对策，从而为各方面利益关系的梳理和林业的健康发展提供建议。 结果表明，改革工作已取得一定积极成效：1）林权改革有效激发了林农的生产积极性，加速了林业投资。从2005年开始林业投资额增速明显加快，尤其是2004-2005和2007-2008年间，增长率分别达到了75.88%和39.42%。2）促进了林业增收。2004年后林业收入增长明显加速，尤其是2007年林业收入增长幅度达到57.44%。3）促进了林农就业。90.42%的林农表示从事林业生产的劳动时间有所增加。从2006年开始，外出务工人员增长率明显放缓，研究区在2005-2008年共有9.85万外出务工林农返乡务林。4）促进了当地公益事业的发展与社会和谐。辽宁省用于公益事业的资金占林权改革直接经济收益的9.30%；改革在一定程度上缩小了贫富差距，促进了农村民主进程、经济发展与和谐稳定。5）“林权交易中心”成立后，林权交易蓬勃发展，联户经营的林农户数和林地面积分别占调查总数的14.65%和25.44%，从而为林业产业的发展创造了条件。6）根据各地的资源特点，改革发展了不同特色的经营模式。辽东以抚顺、本溪、丹东为代表，主要经营模式有林下参、五味子、细辛等中草药，红松果和核桃等经济林，山野菜，柞蚕，用材林，鹿业养殖等；辽中以铁岭为代表，主要经营模式有中草药、山野菜、榛子和梨等经济林等；辽西以朝阳为代表，经营模式以山杏、大扁杏、大枣、梨、桃、苹果等经济林为主。 但在改革的过程中也出现了一些问题，这些问题主要表现为：1）由于利益分配等的不同，不同利益主体对林权改革的关注和认知存在一定差异，有些差异可能影响林权改革工作的推进。2）许多林农即使获得了林业资源的经营权，自身也难有财力支撑其经营投入，林权改革工作资金缺口大。有林业贷款的林农仅占调查总数的15.71%，而最近几年有林业贷款意愿的林农却占调查总数的32.95%。3）在金融借贷、林业保险和生态补偿机制、法律规章制度、协会等合作机制等方面，改革配套措施进展缓慢。4）市场培育和产业发展太慢。仅有34.97%和88.56%的林农和林业工作人员表示对当地林产品的市场走向有所了解，且其所掌握的市场信息往往比较简单和模糊，远远不能准确、及时和充分满足市场需求。5）林业部门职责转变太慢。林权改革前后，林农从林业部门获得的主要服务基本上没有什么变化。 针对改革过程中遇到的困难，只有适时跟进配套改革措施，采取有效方法和机制梳理各方面利益关系，才能实现林业的大发展。 林权改革突破了林业发展长期以来的体制障碍和产权禁区，实现了林地所有权与林木所有权的分离，对林地资源、农村就业和经济、产业发展、生态安全等方面都将产生重大而深远的影响。加强对林权改革的长期监测和持续评价工作，具有积极意义。

油气勘探风险评价与决策技术研究

PetroChina and other national petroleum incorporations need rigorous procedures and practical methods in risk evaluation and exploration decision at home and abroad to safeguard their international exploration practice in exploration licence bidding, finding appropriate ratio of risk sharing with partners, as well as avoiding high risk projects and other key exploration activities. However, due to historical reasons, we are only at the beginning of a full study and methodology development in exploration risk evaluation and decision. No rigorous procedure and practical methods are available in our exercises of international exploration. Completely adopting foreign procedure, methods and tools by our national incorporations are not practical because of the differences of the current economic and management systems in China. The objective of this study is to establish a risk evaluation and decision system with independent intellectual property right in oil and gas exploration so that a smooth transition from our current practice into international norm can take place. The system developed in this dissertation includes the following four components: 1. A set of quantitative criteria for risk evaluation is derived on the basis of an anatomy of the parameters from thirty calibration regions national wide as well as the characteristics and the geological factors controlling oil and gas occurrence in the major petroleum-bearing basins in China, which provides the technical support for the risk quantification in oil and gas exploration. 2. Through analysis of existing methodology, procedure and methods of exploration risk evaluation considering spatial information are proposed. The method, utilizing Mahalanobis Distance (MD) and fuzzy logic for data and information integration, provides probabilistic models on the basis of MD and fuzzy logic classification criteria, thus quantifying the exploration risk using Bayesian theory. A projection of the geological risk into spatial domain provides a probability map of oil and gas occurrence in the area under study. The application of this method to the Nanpu Sag shows that this method not only correctly predicted the oil and gas occurrence in the areas where Beibu and Laoyemiao oil fields are found in the northwest of the onshore area, but also predicted Laopu south, Nanpu south and Hatuo potential areas in the offshore part where exploration maturity was very low. The prediction of the potential areas are subsequently confirmed by 17 exploration wells in the offshore area with 81% success, indicating this method is very effective for exploration risk visualization and reduction. 3. On the basis of “Methods and parameters of economic evaluation for petroleum exploration and development projects in China”, a ”pyramid” method for sensitivity analysis was developed, which meets not only the need for exploration target evaluation and exploration decision at home, but also allows a transition from our current practice to international norm in exploration decision. This provides the foundation for the development of a software product “Exploration economic evaluation and decision system of PetroChina” (EDSys). 4. To solve problem in methodology of exploration decision, effort was made on the method of project portfolio management. A drilling decision method was developed employing the concept of geologically risked net present value. This method overcame the dilemma of handling simultaneously both geological risk and portfolio uncertainty, thus casting light into the application of modern portfolio theory to the evaluation of high risk petroleum exploration projects.