(2008) 5:1 SCRIPTed 1–226

Issue DOI: 10.2966/scrip.050108

Cover

  • Ideograph
    Alistair Gentry

    Ideograph is a digital drawing originally commissioned by the ESRC Genomics Forum. With a few small exceptions, it is a single, continuous line depicting the many elements and applications of genomic technologies, which constitute some of the most exciting and controversial technologies of the early 21st century.

 

Editorial
  • Lex Personalitatis & Technology-driven Law
    Joseph A. Cannataci, pp.1-6
    PDF

Reviewed Articles
  • Trade Mark Coexistence Agreements: What is all the (lack of) fuss about?
    Matthew J Elsmore, pp.7-30
    PDF
    Traditionally, it is understood that trade mark law tackles the prospect of damage resulting from the use of confusingly similar trade marks. The aim is broadly to ensure commercial origin is differentiated and proprietary rights secured. A lot is written on this in Europe. In contrast, very little time and space is allocated to trade mark coexistence agreements. Despite a shortage of authoritative rulings, it is not immediately clear why, especially as they may be having a profound impact on the use of product markers. Coexistence agreements commonly exist between parties with at least similar trade marks who decide to formally coexist, often in the wake of legal skirmishes. In the busy European market, where Community-wide protection is available, an up-front contract may be an attractive way to avoid trade mark conflict. When these contracts work, trade mark law is effectively pre-empted as the underlying agreement, possibly remote of genuine trade mark concerns, is the real governing law. Among other things, this affects the ability of competitors to acquire rights and the quality of information available to consumers. A better understanding of these agreements is essential therefore, not least because on the limited occasions they come before trade mark bodies, the juridical response is inconsistent, though a theme that emerges is of a dismissive and unconvincing attitude. The reasons why are rarely elaborated and while this may simply reflect an awkward interplay between contracts and trade marks, the article deepens the discussion. Starting from concepts and commercial realities, the analysis proceeds to case law and underlying legal and economic rationale to determine whether the lack of fuss is justified.
  • Criminal Friends of Entertainment: Analysing Results from Recent Peer-to-Peer Surveys
    Herkko Hietanen, Anniina Huttunen, Heikki Kokkinen, pp.31-49
    PDF
    We conducted a survey to find out P2P (peer-to-peer) users attitudes toward copyright and P2P services. The survey results suggest that P2P users are aware that they are breaking the law and about half of the users even consider the use of illegal file sharing sites as morally wrong. Even though survey participants knew what amounted to copyright infringement, they had difficulties in recognising the legal uses of works that copyright law permits.
    The biggest payoff for the illegal file sharers was the immediate access to large catalogue of works which were free of charge and DRM-free. Yet nearly half of the respondents would be willing to pay monthly for a service that enabled unlimited music and video file sharing and downloading.
    Rights owners’ actions and amendments in the legislation have not had any noticeable impact on file sharing. File-sharers are aware of the punishments but the risk of getting caught was considered miniscule.
  • Entry into the Market for Online Distribution of Digital Content: Economic and Legal Ramifications
    John B. Meisel, pp.50-69
    PDF
    Consumer options for consuming creative content in digital form, such as music, movies, books, and television shows, have increased significantly with the development of the Internet. Entrants into the distribution stage of production have developed new business models to deliver digital content in general and copyrighted digital content in particular. The objective of this paper is to analyse the development of competition in the delivery of digital content to consumers. In particular, the focus is on new technologies that facilitate online dissemination of digital content to consumers through the use of peer-to-peer (P2P) networks and video hosting sites that have proliferated over the Internet since the late 1990s. The role of copyright as a potential competitive weapon by incumbent disseminators is joined in the analysis. P2P file sharing networks and video sharing web sites are viewed as entrants into the market for the dissemination of digital content to consumers. The incumbent technologies for distributing content have reacted aggressively to this new source of competition and have pursued legal, economic, and moral strategies to combat the use of authorised and unauthorised content by the distribution entrants. Perhaps the most important point to keep in mind is that online distribution, both authorised and unauthorised, is here to stay.
  • The Black Label: Trade Mark Dilution, Culture Jamming and the No Logo Movement
    Matthew Rimmer, pp.70-138
    PDF
    This article considers the ongoing debate over the appropriation of well-known and famous trade marks by the No Logo Movement for the purposes of political and social critique. It focuses upon one sensational piece of litigation in South Africa, Laugh It Off Promotions v. South African Breweries International. In this case, a group called Laugh It Off Promotions subjected the trade marks of the manufacturers of Carling Beer were subjected to parody, social satire, and culture jamming. The beer slogan “Black Label” was turned into a T-Shirt entitled “Black Labour/ White Guilt”. In the ensuing litigation, the High Court of South Africa and the Supreme Court of Appeal were of the opinion that the appropriation of the mark was a case of hate speech. However, the Constitutional Court of South Africa disagreed, finding that the parodies of a well-known, famous trade mark did not constitute trade mark dilution. Moseneke J observed that there was a lack of evidence of economic or material harm; and Sachs J held that there is a need to provide latitude for parody, laughter, and freedom of expression. The decision of the Constitutional Court of South Africa provides some important insights into the nature of trade mark dilution, the role of parody and satire, and the relevance of constitutional protections of freedom of speech and freedom of expression. Arguably, the ruling will be of help in the reformation of trade mark dilution law in other jurisdictions – such as the United States. The decision in Laugh It Off Promotions v. South African Breweries International demonstrates that trade mark law should not be immune from careful constitutional scrutiny.
  • Oscar Pistorius and the Future Nature of Olympic, Paralympic and Other Sports
    Gregor Wolbring, pp.139-160
    PDF
    Oscar Pistorius is a Paralympic bionic leg runner and record holder in the 100, 200, and 400 meters who wants to compete in the Olympics. This paper provides an analysis of a) his case; b) the impact of his case on the Olympics, the Paralympics and other –lympics and the relationships between the –lympics; c) the impact on other international and national sports; d) the applicability of the UN Convention on the Rights of Persons with Disabilities. It situates the evaluation of the Pistorius case within the broader doping discourse and the reality that new and emerging science and technology products increasingly generate internal and external human bodily enhancements that go beyond the species-typical, enabling more and more a culture of increasing demand for, and acceptance of modifications of the human body (structure, function, abilities) beyond its species-typical boundaries and the emergence of new social concepts such as transhumanism and the transhumanisation of ableism.

Analysis
  • Genetic Models of Disease Resistance in Livestock: “What Does Our Conscience Want?”
    Kenneth M Boyd, pp.161-167
    PDF
    This paper derives from a 2007 European Science Foundation Workshop on genetic models of disease resistance in livestock. Research in this area, enabled by ‘expanding knowledge of the genomics of key livestock diseases, together with the latest techniques on genetic modification,’ the organisers stated, is likely to have a ‘major impact on animal welfare, food safety, the economy of the sector and human health.’ What ethical issues are raised by this? The author was invited to discuss them by addressing the question: “What does our conscience want?”
  • Corporate Counsel’s New Dance Partner: “Criminal Lawyers Teach the Limbo Dance”
    Maureen Duffy-Lewis and Daniel B. Garrie, pp.168-175
    PDF
    One of the unintended consequences of the influx of corporate electronic information is the potential liability it poses for today’s corporations. The way companies retain (or in some instances, fail to retain) electronically created information subjects them to not only possible civil but potential criminal liability as well. Magnifying this potential liability are the United States Courts’ efforts to modernize the rules of procedure related to discovery. Corporations are well advised to add another set of eyes to the liability issues created by the new technological sophistication. This paper looks at recent developments in the United States and provides some comparisons to European law.
  • A Modest Proposal for Annotating the Dialectical State of a Dispute
    Ronald P. Loui, pp.176-197
    PDF
    This essay reports on the evolution of our computer-supported argument diagramming and argument visualisation practices, as scholars of argument, and also as computer scientists interested in supporting the diagramming of argument. We begin with the Toulmin diagram, describe efforts to avoid boxes and arrows by using encapsulation, and efforts to depict the logic of legal argument from precedent. Our aim is to provide a theory of argumentation and a theory of legal precedent, and to provide visual correspondences for the logical rules. It is not our principal aim to provide tools for persuasive use, e.g. in a court of law. In the end, new possibilities for using text decoration and markup, dynamic text animation and interaction, and visual metaphor are envisioned. The possibilities are so rich that the final examples border on satire.

Reports
  • TILT – Tilburg Institute for Law, Technology, and Society
    Paul de Hert, pp.198-204
    PDF

Book Reviews
  • The Global Technology Revolution 2020: In Depth Analysis – Bio/nano/materials/information Trends, Drivers, Barriers, and Social Implications
    by Richard Silberglitt et al.
    Reviewed by Carolina Botero
    , pp.205-207
    PDF
  • The Ethics and Governance of Human Genetic Databases: European Perspectives
    by Matti Hayry, Ruth Chadwick, Vilhjalmur Arnason and Gardar Arnason (eds.)
    Reviewed by Adrienne Hunt
    , pp.208-213
    PDF
  • Bioethics and Armed Conflict: Moral Dilemmas of Medicine and War
    by Michael L. Gross
    Reviewed by Michael H. Kottow
    , pp.214-217
    PDF
  • How Universities Promote Economic Growth
    by By Shahid Yusuf and Kaoru Nabeshima (eds)
    Reviewed by G Narasimha Raghavan
    , pp.218-219
    PDF
  • Crossing Borders: Cultural, Religious, and Political Differences concerning Stem Cell Research. A Global Approach
    by Wolfgang Bender, Christine Hauskeller, Alexandra Manzei (eds)
    Reviewed by Michael Steinmann
    , pp.220-223
    PDF
  • Broadcasting Pluralism and Diversity: A Comparative Study of Policy and Regulation
    by Lesley Hitchens
    Reviewed by Eliza Varney
    , pp.224-226
    PDF