(2011) 8:2 SCRIPTed 120–225

Issue DOI: 10.2966/scrip.080211

Cover

  • Normality
    Lasani S Wijetunge

    Neuroimaging has become a sophisticated tool that can be used to understand how our brain activities lead to higher order cognitive functions, such as thoughts and perceptions, as well as to examine what happens in the diseased state. In the future, if a neuroimage of your brain were to be used as a signature of you, your thoughts and actions-whose neuroimage would you compare yours against to determine whether your brain activities are ‘normal’?

Editorial

  • Twitter Chip
    Simon Biggs, pp.120-123
    PDF
    Simon Biggs gives an interesting perspective about cyborg-like technology, such as brain implants and augmented reality spectacles. It may seem like science fiction, but these are technologies that are closer than you imagine.

Reviewed Articles

  • Does Technology Trump Intellectual Property?: Re-framing the Debate About Regulating New Technologies
    Michael Anthony C. Dizon, pp.124-137
    PDF
    Does technology trump intellectual property rights (IPR)? In the Metro-Goldwyn-Mayer Studios v Grokster case, Justice Breyer believes this to be so. This article will analyse whether Justice Breyer’s belief has valid legal and empirical bases in light of the different cases and legislations that seek to resolve the challenges brought about by new technologies vis-à-vis IPRs. This article argues that the proposition that law favours technology over IPRs requires further qualification in order to prevent one from falling into the traps of technological determinism, instrumentalism and the belief in the neutrality of technology. A re-framing of the debate is needed which goes beyond the traditional technology versus IP dichotomy and focuses on the main goal of technological development and IP protection, which is to advance innovation in its broadest sense.
  • Arguments in Considering the Similarity of Algorithms in Patenting
    Kenneth Oksanen, Perttu Virtanen, Eljas Soisalon-Soininen, Jukka Kemppinen, pp.138-153
    PDF
    The determination as to whether or not two algorithms in a computer programme are similar enough to be considered ‘the same’ algorithm can be crucial in patent prosecution and other legal disputes, from theft of trade secrets to patent infringement. Establishment of prior art by the responsible court involves consideration of the contemporary practices of software engineers and computer scientists who develop and implement algorithms. This paper, co-authored by two computer scientists and two legal professionals, reviews those arguments that can be used to assess the similarity of algorithms, in relation to the criteria of novelty for a grant of patent.
  • Liability of Internet Intermediaries: a Slippery Slope?
    Maurice Schellekens , pp.154-174
    PDF
    Should Internet intermediaries do more to prevent illegal and harmful content than they do now? A negative answer to this question is sometimes underpinned by a slippery slope argument. This posits that an intermediary cannot begin doing more, for once he gives in to demands for new duties of care, the range of demands will quickly increase and it may be hard to identify a plausible cut-off point where the intermediary can begin to refuse accepting further duties of care. So, according to the argument, the intermediary is better off not accepting duties of care at all. But is this slippery slope argument valid in the context of liability of Internet intermediaries? Is it really applicable? Is there evidence that a slide would occur? This article examines one such duty of care, viz. a monitoring duty, asks how this duty of care could fit in the relevant European regulation of e-commerce and analyses whether a slippery slope argument for fending off monitoring duties has merit. In doing so, a framework for testing slippery slope arguments is distinguished and applied to the case of monitoring duties. Case law from a number of European countries is analysed to shed light on the likelihood that well-known slippery slope mechanisms can work in the context of Internet intermediary liability.
  • Ethical Implications of Brain Imaging in Psychosis and Psychopathy
    Emma Sprooten, Louise Robinson and Stephen M Lawrie, pp.175-183
    PDF
    In recent decades, advances in structural and functional brain imaging have identified brain abnormalities associated with psychiatric disorders. This surge in knowledge about the biological underpinnings of psychiatric constructs including psychosis and psychopathy is potentially useful for improving treatment and diagnosis, but also necessitates the consideration of its ethical implications. More recent studies highlight the power of brain imaging as a potential early diagnostic aid for schizophrenia, raising issues about the desirability of this information for individuals, services and society. More fundamentally, the increasing emphasis on the biological component of psychiatric disorders may change the way patients view themselves and their potential for recovery, and alter stigmatisation by others. The association of particular imaging findings with psychopathy and antisocial personality disorder gives rise to even more complex ethical implications involving accountability and diminished responsibility. Mitigating evidence based on brain scans is being used in court cases already, despite several methodological and fundamental problems. These include the translation from scientific group-bases analysis to individuals, the misleading and “seductive allure” of brain images to the layperson, and the difficulty of providing definitive evidence for brain-behaviour causality. In sum, progress in brain imaging alters our notion of psychiatric disorders and opens new possibilities for applications, whether or not ethically or scientifically justified. In order to avoid hampering a potentially positive impact of this progress on patients and wider society, it is important that the ethical implications are considered in time, by all parties involved.
  • Responsibility and the Automaticity Threat
    Tillman Vierkant, pp.184-191
    PDF
    There is a common perception that brain imaging poses a great threat to our ability to control our own minds and hence to our ability to have a whole cluster of abilities (autonomy, responsibility, culpability) relevant in the context of the law. It is said that brain imaging in the future will give scientists the ability to get direct access to our inner most selves possibly even against our will. Equally, it is claimed that brain imaging might allow for mind reading and make us fully predictable, thereby rendering us helpless to thwart the predictions. In this paper I want to debunk these myths. I argue that brain imaging only seems more worrying than behavioural sciences, because it taps into a folk reductionist view of the mind according to which the mind is the brain. Secondly, I argue that predictability in the relevant sense is a myth for conceptual reasons. Nevertheless, I think there is a real threat to our ability to control our own minds that comes from the cognitive sciences that deal with the cognitive unconscious. I end with some suggestions how this challenge can be transformed into a chance.

Analysis

  • India’s new Data Protection Legislation
    Raghunath Ananthapur, pp.192-203
    PDF
    With the increase in importance of the outsourcing business in India, there has been extensive discussion regarding the absence of Indian data protection legislation, and how this may impact the flow of business from European Union companies. India has, in the past, attempted to enact data protection legislation, but for some reason it has never seen the light of day. India has recently notified regulations relating to protection of sensitive personal data. This article examines the Indian regulations, contrasting their provisions, at certain points, with the UK Data Protection Act 1998.
  • Brain imaging, the legal process and neurofantasy; can it be cured (by applying the principles of evidence – based medicine)?
    Peter Sandercock and Joanna Wardlaw, pp.204-211
    PDF
    Advanced brain imaging techniques, originally designed for medical and basic science research purposes, are now being applied in a much wider range of settings for very diverse purposes. There is a concern that some of the exaggerated claims for the utility of these technologies in these new settings, combined with their inappropriate use (or uncritical interpretation) may lead to a variety of unintended and sometimes adverse consequences. We propose that the principles of critical appraisal, developed for assessing medical technologies (so called ‘evidence-based medicine’), might usefully be applied to reduce the risk of such unintended consequences. In this article, we discuss how these principles might be relevant to the application of neuroimaging techniques to various aspects of the law and the legal process.

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