Copyright Exhaustion Rationales and Used Software: A Law and Economics Approach to Oracle v. UsedSoft

This article aims to provide courts and policymakers with an analytical framework that, building upon the traditional rationales of IP exhaustion doctrine, identifies factors which advocate for a modulation or flexibilization of the role of exhaustion in copyright law. Factors include (i) the personal features of acquirers of copies of copyrighted works, distinguishing between consumers and commercial users; (ii) whether post-sale restrictions have been adequately communicated to acquirers and have been agreed in the contract or license; (iii) the degree of complexity of the acquired goods and their prospects of productive uses and interoperability; (iv) the role of other exclusive rights in providing rightholders with indirect control over uses of the copies in the aftermarket; (v) the impact of post-sale restraints in preventing opportunism in long-term contracts and in reducing deadweight losses created by IP pricing; and (vi) the temporal scope of post-sale restraints. After setting out this analytical framework, the ECJ Judgement in Oracle v. UsedSoft is discussed.

EU Data Protection Law and Targeted Advertising: Consent and the Cookie Monster - Tracking the crumbs of online user behaviour

This article provides a holistic legal analysis of the use of cookies in Online Behavioural Advertising. The current EU legislative framework is outlined in detail, and the legal obligations are examined. Consent and the debates surrounding its implementation form a large portion of the analysis. The article outlines the current difficulties associated with the reliance on this requirement as a condition for the placing and accessing of cookies. Alternatives to this approach are explored, and the implementation of solutions based on the application of the Privacy by Design and Privacy by Default concepts are presented. This discussion involves an analysis of the use of code and, therefore, product architecture to ensure adequate protections.

O estabelecimento virtual na sociedade técnica: a necessária busca de segurança jurídica nas transações comerciais

Pós-graduação em Direito - FCHS

Victims of War must be loyal to deserve protection: International law and national legislation on enemy aliens 1907-1918

In international law the internment of civilians has only been regulated in writing in the context of the 4th Geneva Convention of 1949. Nevertheless this did not mean that civilians were not protected by at least some rules of customary international law before that date and especially in World War I. Furthermore specialists of international law expected states – at least those considered to be part of the community of civilized nations – to continue to treat all men equal before the law even in wartime. As research already conducted (Bird, Panayi, Fischer) has shown, this was not the case during World War I. Based on these findings the presentation proposed here wants to look into the development of international law and into some national preparations for treating so called “enemy aliens” in the period before 1914 (Austria-Hungary, Australia, United Kingdom), in order to see to what extent principles of international law protecting civilians from the consequences of war can be detected in the pre-war preparations. As far as can be judged so far the issue of loyalty was central in this context. Looking at the war itself, the presentation proposed here will try to look at how far the principles of international law alluded to above continued to influence the policies on “enemy aliens” in the countries mentioned and to see, how the International Committee of the Red Cross tried to use them to legitimize and expand its protective policies in regard to civilians interned in belligerent as well as neutral countries throughout the war.

The placebo effect: international patent law and the protection of traditional plant medicine

Une préoccupation essentielle traverse cette thèse: l'indifférence systémique de la Loi internationale sur la propriété intellectuelle a l'égard des savoirs traditionnels autochtones. De manière générale, un écart semble d'ailleurs croissant entre l'importance des accords internationaux sur les questions d'intérêt commercial et ceux de nature sociale. Les savoirs traditionnels autochtones sur les plantes médicinales sont particulièrement désavantagés dans ce système dichotomique puisqu'ils sont non seulement à l'origine d'énormes profits commerciaux mais se trouvent aussi au cœur de multiples croyances propres à ces sociétés. L'Accord sur les aspects des droits de propriété intellectuelle qui touchent au commerce (ADPIC) de l'Organisation mondiale du commerce (OMC) a cristallisé le souci de la législation internationale à l'égard d'une protection efficace des intérêts commerciaux. Deux années auparavant, la Convention sur la diversité biologique (CDB) était signée, traduisant une préoccupation à l'égard du développement durable, et elle devenait le premier accord international à tenir compte des savoirs traditionnels autochtones. On considère souvent que ces deux accords permettent l'équilibre du développement commercial et durable, requis par l'économie internationale. Après plus ample examen, on a plutôt l'impression que l'idée d'une CDB défendant, avec succès et efficacité, la nécessité du développement durable et des savoirs traditionnels autochtones contre les pressions opposées de l'ADPIC et de l'OMC est, au mieux, simpliste. La thèse explore également la fonction de la Loi sur les brevets dans la création d’industries, notamment pharmaceutique, et la manière dont ces industries influencent la législation nationale et en particulier internationale. De même, elle traite du rôle que jouent les brevets dans l'affaiblissement et la dépossession des peuples autochtones dotés de savoirs traditionnels sur les plantes médicinales, conduisant à une situation ou ces savoirs sont marginalisés ainsi que leurs détenteurs. La thèse aborde les failles institutionnelles du système juridique international qui permet une telle situation et indique l'urgente nécessité d'examiner attentivement les inégalités économiques et sociales au Nord comme au Sud, et non seulement entre eux. Finalement, la thèse suggère que la législation internationale gagnerait à s'inspirer des diverses traditions juridiques présentes à travers le monde et, dans ce cas particulier, peut être les détenteurs des connaissances traditionnelles concernant les plantes médicinales seront mieux servi par le droit des obligations.

The Legal Protection of Fundamental Human Values in Central and Eastern Europe and Modern Biotechnology: Towards European Harmonization

The protection of the fundamental human values (life, bodily integrity, human dignity, privacy) becomes imperative with the rapid progress in modern biotechnology, which can result in major alterations in the genetic make-up of organisms. It has become possible to insert human genes into pigs so that their internal organs coated in human proteins are more suitable for transplantation into humans (xenotransplantation), and micro-organisms that cam make insulin have been created, thus changing the genetic make-up of humans. At the end of the 1980s, the Central and Eastern European (CEE) countries either initiated new legislation or started to amend existing laws in this area (clinical testing of drugs, experiments on man, prenatal genetic diagnosis, legal protection of the embryo/foetus, etc.). The analysis here indicates that the CEE countries have not sufficiently adjusted their regulations to the findings of modern biotechnology, either because of the relatively short period they have had to do so, or because there are no definite answers to the questions which modern biotechnology has raised (ethical aspects of xenotransplantation, or of the use of live-aborted embryonic or foetal tissue in neuro-transplantation, etc.). In order to harmonise the existing regulations in CEE countries with respect to the EU and supranational contexts, two critical issues should be taken into consideration. The first is the necessity for CEE countries to recognise the place of humans within the achievements of modern biotechnology (a broader affirmation of the principle of autonomy, an explicit ban on the violation of the genetic identity of either born or unborn life, etc.). The second concerns the definition of the status of different biotechnological procedures and their permissibility (gene therapy, therapeutic genomes, xenotransplantation, etc.). The road towards such answers may be more easily identified once all CEE countries become members of the Council of Europe and express their wish to join the EU, which in turn presupposes taking over the entire body of EU legislation.

Not for Designers: On the Inadequacies of EU Design Law and How to Fix It

Design rights represent an interesting example of how the EU legislature has successfully regulated an otherwise heterogeneous field of law. Yet this type of protection is not for all. The tools created by EU intervention have been drafted paying much more attention to the industry sector rather than to designers themselves. In particular, modern, digitally based, individual or small-sized, 3D printing, open designers and their needs are largely neglected by such legislation. There is obviously nothing wrong in drafting legal tools around the needs of an industrial sector with an important role in the EU economy, on the contrary, this is a legitimate and good decision of industrial policy. However, good legislation should be fair, balanced, and (technologically) neutral in order to offer suitable solutions to all the players in the market, and all the citizens in the society, without discriminating the smallest or the newest: the cost would be to stifle innovation. The use of printing machinery to manufacture physical objects created digitally thanks to computer programs such as Computer-Aided Design (CAD) software has been in place for quite a few years, and it is actually the standard in many industrial fields, from aeronautics to home furniture. The change in recent years that has the potential to be a paradigm-shifting factor is a combination between the opularization of such technologies (price, size, usability, quality) and the diffusion of a culture based on access to and reuse of knowledge. We will call this blend Open Design. It is probably still too early, however, to say whether 3D printing will be used in the future to refer to a major event in human history, or instead will be relegated to a lonely Wikipedia entry similarly to ³Betamax² (copyright scholars are familiar with it for other reasons). It is not too early, however, to develop a legal analysis that will hopefully contribute to clarifying the major issues found in current EU design law structure, why many modern open designers will probably find better protection in copyright, and whether they can successfully rely on open licenses to achieve their goals. With regard to the latter point, we will use Creative Commons (CC) licenses to test our hypothesis due to their unique characteristic to be modular, i.e. to have different license elements (clauses) that licensors can choose in order to adapt the license to their own needs.”

Towards equivalent health care of prisoners: European soft law and public health policy in Geneva.

Prisoners have a right to health care and to be protected against inhumane and degrading treatment. Health care personnel and public policy makers play a central role in the protection of these rights and in the pursuit of public health goals. This article examines the legal framework for prison medicine in the canton of Geneva, Switzerland and provides examples of this framework that has shaped prisoners' medical care, including preventive measures. Geneva constitutes an intriguing example of how the Council of Europe standards concerning prison medicine have acquired a legal role in a Swiss canton. Learning how these factors have influenced implementation of prison medicine standards in Geneva may be helpful to public health managers elsewhere and encourage the use of similar strategies.

The Ontario Municipal Freedom of Information and Protection of Individual Privacy Act: an analysis of its application to school boards

In Canada freedom of information must be viewed in the context of governing -- how do you deal with an abundance of information while balancing a diversity of competing interests? How can you ensure people are informed enough to participate in crucial decision-making, yet willing enough to let some administrative matters be dealt with in camera without their involvement in every detail. In an age when taxpayers' coalition groups are on the rise, and the government is encouraging the establishment of Parent Council groups for schools, the issues and challenges presented by access to information and protection of privacy legislation are real ones. The province of Ontario's decision to extend freedom of information legislation to local governments does not ensure, or equate to, full public disclosure of all facts or necessarily guarantee complete public comprehension of an issue. The mere fact that local governments, like school boards, decide to collect, assemble or record some information and not to collect other information implies that a prior decision was made by "someone" on what was important to record or keep. That in itself means that not all the facts are going to be disclosed, regardless of the presence of legislation. The resulting lack of information can lead to public mistrust and lack of confidence in those who govern. This is completely contrary to the spirit of the legislation which was to provide interested members of the community with facts so that values like political accountability and trust could be ensured and meaningful criticism and input obtained on matters affecting the whole community. This thesis first reviews the historical reasons for adopting freedom of information legislation, reasons which are rooted in our parliamentary system of government. However, the same reasoning for enacting such legislation cannot be applied carte blanche to the municipal level of government in Ontario, or - ii - more specifially to the programs, policies or operations of a school board. The purpose of this thesis is to examine whether the Municipal Freedom of Information and Protection of Privacy Act, 1989 (MFIPPA) was a neccessary step to ensure greater openness from school boards. Based on a review of the Orders made by the Office of the Information and Privacy Commissioner/Ontario, it also assesses how successfully freedom of information legislation has been implemented at the municipal level of government. The Orders provide an opportunity to review what problems school boards have encountered, and what guidance the Commissioner has offered. Reference is made to a value framework as an administrative tool in critically analyzing the suitability of MFIPPA to school boards. The conclusion is drawn that MFIPPA appears to have inhibited rather than facilitated openness in local government. This may be attributed to several factors inclusive of the general uncertainty, confusion and discretion in interpreting various provisions and exemptions in the Act. Some of the uncertainty is due to the fact that an insufficient number of school board staff are familiar with the Act. The complexity of the Act and its legalistic procedures have over-formalized the processes of exchanging information. In addition there appears to be a concern among municipal officials that granting any access to information may be violating personal privacy rights of others. These concerns translate into indecision and extreme caution in responding to inquiries. The result is delay in responding to information requests and lack of uniformity in the responses given. However, the mandatory review of the legislation does afford an opportunity to address some of these problems and to make this complex Act more suitable for application to school boards. In order for the Act to function more efficiently and effectively legislative changes must be made to MFIPPA. It is important that the recommendations for improving the Act be adopted before the government extends this legislation to any other public entities.

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.

“Rights of Women against Domestic Violence - The Law and Emerging Challenges”

Domestic violence is a gender based violation of human rights having multi- dimensional repercussions in the well- being of individuals in family and society. The Indian legislation to protect the women from domestic violence is significant in providing a mechanism for enforcing positive civil rights of protection and injunction orders to the victims of domestic violence along with the existing remedies of criminal sanctions. However the Act was brought in the backdrop of an established tradition of cohesive and stable family setting. This, in turn, results in the emergence of new issues and challenges which necessitates deeper understandings of indigenous sociocultural institutions in India i.e., marriage and family. This study is an attempt to analyse the Indian law on domestic violence and to assess whether the law addresses and answers the problems of domestic violence effectively in the culture specific setting of India