International Convergence on the Need for Third Parties to Become Internet Copyright Police (But Why?)

By: Dennis S. Karjala

 

The inexpensive, rapid, and massive copying possibilities that digital technologies and the Internet make available have brought issues of enforcement of copyright and related intellectual property rights into strong focus. Rightowners, of course, retain all of the rights they have always had against infringers whom they can identify and who are amenable to enforcement measures, such as litigation. The infringers are often not so easy to find, however, so rightowners would like to be able to engage the assistance of other participants in the processes in which infringements are taking place. Most of the initial focus was on Internet Service Providers (ISPs) and website operators, but recently banks, advertisers, and other participants in Internet commerce have been the object of judicial and legislative attention aimed at inducing greater responsibility on the part of these participants to uncover and prevent copyright infringement on the Internet. Governments, too, have been active in both civil and criminal enforcement.

The fundamental question is the extent to which copyright owners should be able to enlist the assistance of third parties or government in the enforcement of their rights under copyright law. In the United States, a major “hook” for inducing private enforcement activity by third parties is the notion of secondary liability: contributory infringement and vicarious liability. Applying law from the analog world, courts have developed a kind of “rule of reason” approach to secondary liability, which is now partially codified and supplemented in the case of ISPs by § 512 of the U.S. Copyright Act. Courts in other countries, however, have addressed many of the same issues as the U.S. courts and largely seem to be arriving at similar conclusions. Courts everywhere are trying to balance the interests of content owners in intellectual property rights enforcement against user interests in matters like privacy, free expression, transparency in regulatory processes, and third party interests in being free to adopt business models with minimal interference from government. In that sense, we are seeing something of an international “convergence” in the approach to third party liability. The question then arises, however, why we are involved in this kind of policy balancing at all: How did it become accepted that private third parties should be part of the copyright enforcement scheme?

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Beyond Labor Rights: Which Core Human Rights Must Regional Trade Agreements Protect?

By: Stephen Joseph Powell and Trisha Low

 

As World Trade Organization (“WTO”) Members relentlessly pursue new regional trade agreements to achieve even faster economic growth than the extraordinary numbers posted by global trade rules, the smaller number of parties and their greater cultural affinity have led negotiators to address the intersection of trade and human rights to an extent unparalleled in the culturally disparate and near-unmanageable, 150-plus member WTO itself. These new provisions have used trade’s huge power to improve worker rights, secure environmental protections, and make initial inroads toward defending indigenous populations from trade’s adverse effects. Employing the perspectives both of trade negotiators and students of this halting progress toward the integration of trade and human rights, we have concluded that the single greatest barrier to engaging in regional trade agreements (“RTAs”) openly and unequivocally to reduce global poverty through human rights implementation is the near-impenetrable complexity of human rights norms.

 

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Chinese Border Disputes Revisited: Toward a Better Interdisciplinary Synthesis

By: Roda Mushkat

 

China has long been embroiled in a wide array of territorial disputes and has occasionally flexed its military muscle in the process. Its conduct in such situations has been of great theoretical and practical relevance and has attracted considerable attention from scholars across the socio-legal spectrum. Researchers in the field of international law have carefully surveyed official and semi-official Chinese pronouncements and practices, while their social science counterparts have rigorously dissected key behavioral patterns. This is an inherently complex subject that this two-pronged approach has not yet been able to comprehensively address, however, because scholars engaged in the enterprise have only completed a partial exploration of a multifaceted phenomenon and insufficient interdisciplinary alignment. A potentially richer investigative platform, and more effective conceptual bridge building, may help narrow the gaps in the explanatory architecture.

 

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IOSCO: The World Standard Setter for Globalized Financial Markets

By: Antonio Marcacci

 

As the current endless crisis clearly proves, world financial markets are closely interconnected. In order to provide a legal backdrop, a soft-law body, named the International Organisation of Securities Commissions (IOSCO), was established and tasked with encouraging an efficient flow of capital. Funded as a Pan-American, and subsequently worldwide, forum more than thirty years ago, IOSCO is a multilateral regulatory network whose members are the public regulators of more than ninety percent of the world’s securities and futures markets. It is devoted to promoting common and efficient regulations, setting the floor for the exchange of information between its members, improving the effective surveillance of international securities transactions, and increasing the mutual assistance necessary for the integrity of global financial markets, valued at over $800 trillion. IOSCO is now the primary institution through which international standards, memoranda, and guidelines concerning the securities markets are promulgated. This paper examines the way this relatively hidden organisation works by trying to figure out its regulatory role in the international financial arena.

 

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Is the Middle East Moving Toward Islamism After the Arab Spring? The Case Study of the Egyptian Commercial and Financial Laws

By: Radwa S. Elsamen and Ahmed Eldakak

 

The first parliamentary elections that followed the Egyptian Revolution witnessed an unprecedented success for Islamists as they secured an overwhelming majority of seats in parliament, suggesting that they may intend to amend many laws to bring parliament into compliance with Islamic Shari’a. This article addresses legal challenges that will face the new majority if they decide to Islamize laws and regulations related to business and finance. Particularly, the article discusses Islamic money theory, trade, banking systems, consumer protection, insurance, competition, and tax systems. The article analyzes Egyptian business and finance laws to examine whether they comply with Islamic law. It then proceeds to explain the alternative Islamic principles that may replace several current rules. The article concludes that while some changes are foreseeable, there can be no expectation of radical change in the near future. Although the authors come to this conclusion, they analyze the legal issues without judging, supporting, or opposing the imposition of Islamic law.

 

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Business Insolvency And The Irish Debt Crisis

By: Paul B. Lewis

 

Among the volume of material written about the Irish debt crisis and its impact over the past few years, strikingly little has been written about the ability to save a financially distressed company under Irish law and whether corporate restructuring could have mitigated some of the financial damage to Irish companies, particularly those in the property and construction industries. There is a reason for this. The number of filings under the Examinership law – the rough equivalent of Chapter 11 in the United States – remained small and relatively constant during both the recent boom and the more immediate bust periods of the Irish economy. This article examines the Irish approach to corporate restructuring and questions whether the law could have been put to good effect over the past couple of years.

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Arbitration Agreements That Discriminate In The Selection And Appointment Of Arbitrators

By: Jeff Dasteel

 

In 2010, an English appellate court rocked the world of international arbitration when it declared that a provision in an arbitration agreement restricting the selection of arbitrators to members of a particular religious group violated European Union laws banning discrimination in employment.2 While the case of Jivraj v. Hashwani was on appeal to the United Kingdom Supreme Court, there was concern in the international arbitration community that more common restrictions on the qualifications of arbitrators related to national origin might also be subject to challenge. In that regard, two major international arbitration rule sets give preference to the appointment of arbitrators who are not of the same national origin as any of the parties.3 These international rule sets may have needed to change, at least when used in England, if Jivraj v. Hashwani had withstood appeal to the Supreme Court.

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Targeting Demand: A New Approach To Curbing Human Trafficking In The United States

By: Morgan Brown

 

On December 6, 1865, Congress ratified the Thirteenth Amendment to the United States Constitution, and with it, released the last 40,000 slaves in the U.S. South. And yet today, 150 years after Abraham Lincoln gave notice of the Emancipation Proclamation, it is estimated that as many as 27 million individuals are trafficked around the world, and between 14,500 and 17,500 of those individuals are trafficked into the United States each year for purposes ranging from domestic servitude and forced labor, to prostitution and other forms of sexual exploitation, to organ harvesting.2 Although human trafficking dates back to the slave trade, improvements in communication and transportation in recent decades, combined with the latest global financial crisis, have led to an exponential increase in the number of people traded around the world each year. Advances in transportation have increased the ease and decreased the time required to move human cargo from one side of the world to the other, privatization and liberalization of markets have created more accessible marketplaces, and improvements in technology have increased the volume and complexity of international financial transactions.

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Jus Post Bellum In Iraq: The Development Of Emerging Norms For Economic Reform In Post Conflict Countries

By: Christina C. Benson

 

The Mesopotamian valley between the Tigris and Euphrates rivers once served as a cradle of civilization, and grew into a crossroads of commerce and culture at the intersection of strategic international trade routes.4 Today, Iraq stands at a geographic, historic, and economic crossroads. Finally emerging from decades of conflict and isolation, the country has endured three devastating wars, the demise of the Saddam Hussein regime, the end of international economic sanctions, and the protracted process of approving a constitution and forming a new democratically elected government.5 Iraq still faces massive challenges for rebuilding its legal and economic institutions and infrastructure internally, while re-engaging with regional and multilateral trading partners externally. The nation’s emergence from war, and efforts to build the foundations of stable governance and economic growth, provides a fascinating case study for analyzing new international norms espoused by the United Nations and international economic organizations promoting the “rule of law” in post-conflict countries.

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Opportunistic Discipline: Using Eurasian Integration To Improve Sanctions Against Belarus

By: Ilya Zlatkin

 

“The last true dictatorship in the heart of Europe.”1 Since former United States Secretary of State Condoleeza Rice coined this phrase in 2005, this less than flattering title has clung to Belarus.2 For its part, however, the former Soviet republic’s government has done enough to maintain the moniker. Under President Alexander Lukashenko’s rule, the authorities have quashed nonviolent demonstrations, imprisoned political adversaries, and dominated media outlets. 3 After thousands of Belarusians protested Lukashenko’s reelection in December 2010, the Belarusian president further clamped down on the public’s right to assemble.4 In addition, seven opposing candidates found themselves behind bars.

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