(2005) 2:3 SCRIPTed 277—414
Issue DOI: 10.2966/scrip.020305
Volume 2, Issue 3, September 2005
Welcome to the September issue of SCRIPTed. This is the list of contents:
- Los contratos por adhesión en plataformas electrónicas: una mirada al caso chileno
(Adhesion Electronic Contracts: A Look at the Chilean Case)
Iñigo de la Maza Gazmuri, pp.283-299
The article takes a look at contracts of adhesion from the perspective of Chilean legislation. While this is important from a comparative law perspective, the article has relevance outside of Chile as the legislation in other Latin American countries is similar in this area.
- ‘Show me the money!’ An insight into the Copyright Licensing Agency (CLA) and its interaction with Higher Education Institutions
Dinusha Mendis, pp.300-326
The aim of this paper will be to provide a case study of the Copyright Licensing Agency (CLA) and its inter-action with Higher Education Institutions (HEIs). The paper will begin by introducing and expanding on the concept of higher education institutions and how they have had to adapt to copyright reproduction, especially from the mid twentieth century, with the advent of the photocopy machine. The paper will touch upon the copyright laws that have attempted to regulate copying within HEIs in the UK and consider whether it has been a success or not. The paper will then carry out a study in to CLA and will aim to raise and answer the following question: what really happens to the money that is collected from HEIs by the CLA and distributed through the Authors Licensing and Collecting Society (ALCS) and Publishers Licensing Society (PLS)? Is the license fee collected from HEIs fairly distributed amongst the right holders? Having looked at both HEIs and collecting societies (CLA specifically), the paper will consider whether collecting societies are the best practical solution we have or whether we are putting up with a system that we have come to know? The UUK v CLA case revealed the dangerous side of collecting societies, especially that of CLA and questioned its motives and aims. In offering a solution, the system in USA will be considered where the US law allows for two or more competing collecting societies in one area. Does competition combat an abuse of a dominant position, which is what we have in the UK and is this the way forward for the UK? Or does competition curtail creativity? Whilst some of these questions have been answered by the author, others have been left open for consideration.
- Give and Ye Shall Receive! The Copyright Implications of BitTorrent
Bob Rietjens, pp.327-344
BitTorrent is a new type of P2P technology with which users download small pieces of a file, and then start uploading these small pieces to each other. This essay analyses whether using BitTorrent amounts to infringement of copyrights or related rights in different European jurisdictions. Although the essay will look specifically at BitTorrent, the arguments in this essay may apply to other P2P programs with similar technical properties.
- Bloomsday: Copyright Estates and Cultural Festivals
Matthew Rimmer, pp.345-389
Copyright estates have been unduly empowered by the extension of the term of copyright protection in Europe, the United States, Australia and elsewhere. The Estate of the Irish novelist, James Joyce, has been particularly aggressive in policing his revived copyrights. The “keepers of the flame” have relied upon threats of legal action to discourage the production of derivative works based upon the canonical texts of the novelist. The Estate has also jealously guarded the reputation of the author by vetoing the use of his work in various scholarly productions. Most radically of all, the grandson Stephen Joyce threatened to take legal action to prevent the staging of “Rejoyce Dublin 2004”, a festival celebrating the centenary of Bloomsday. In response, the Irish Parliament rushed through emergency legislation, entitled the Copyright and Related Rights (Amendment) Act 2004 (Ireland) to safeguard the celebrations. The legislation clarified that a person could place literary and artistic works on public exhibition, without breaching the copyright vested in such cultural texts. Arguably, though, the ad hoc legislation passed by the Irish Parliament is inadequate. The Estate of James Joyce remains free to exercise its suite of economic and moral rights to control the use and adaptation of works of the Irish novelist. It is contended that copyright law needs to be revised to promote the interests of libraries and other cultural institutions. Most notably, the defence of fair dealing should be expanded to allow for the transformative use of copyright works, particularly in respect of adaptations and derived works. There should be greater scope for compulsory licensing and crown acquisition of revived copyrights.
- ‘.XXX’ Sponsored Top-Level Domain – Is it a solution to curb child abuse due to Internet Pornography?
Indranath Gupta, pp.390-396
The proposal of having a zone for adult entertainment over Internet was previously not accepted by ICANN (Internet Corporation For Assigned Names and Numbers) until the recent approval of ‘xxx’ domain for adult entertainment. Among other reasons the main reason to launch a specific domain for adult entertainment was to combat the child abuse cases due to internet pornography or child pornography in particular. This analysis is a submission of the effectiveness of ‘xxx’ domain. The effectiveness of ‘xxx’ will not depend on what ‘child abuse’ is but on the general practice of the children as to how and from where they access the Internet.
- Patents on Compatibility Standards and Open Source – Do Patent Law Exceptions and Royalty-Free Requirements Make Sense?
Mikko Välimäki and Ville Oksanen, pp.397-406
This article discusses the problem that open source software can not support compatibility standards, which have patent royalties. As the use of open source continues to grow, the article asks whether it makes sense to include a compatibility exception in patent law or require royalty-free licenses in formal standardization organizations and procurement policies. The article proposes that the answer may not be in the patent policies – be they from the government or from industry standard bodies – but perhaps in the practices of individual companies. While some companies want to collect licenses for their “intellectual property” no matter what, one can also observe that some major information technology companies have recently dedicated patents on a royalty-free basis to the use of open source developers without any standardization or regulatory pressures. Encouraging such company practices might be the best option for a government if it considers patent royalties on compatibility standards a policy problem.