| Cover |
- Deer III
Jeremy Mayer
Technologies in the hands of people, particularly creators of popular culture, including art, can be used for all manner of things not intended or anticipated by the technology-producer. In this case, the artist has reassembled typewriters. In doing so, he has not used any solder, glue, or welds, nor has he employed any components or means of fastening that do not come from typewriters. (Given the notional association between a deer and a llama, we at SCRIPTed thought this an appropriate cover image to celebrate the work of our longtime Technical Editor, Andres Guadamuz, who is author of the Technollama blog.)
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| Editorial |
- Cellular Therapies: Regulating A Sector In Turmoil
Aidan Courtney, pp.1-7
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Aidan Courtney provides a sober look at the problematic regulatory framework surrounding cellular therapies from an industry perspective.
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| Reviewed Articles |
- The Path Dependence of European Copyright
Stefan Larsson, pp.8-31
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This article analyses the path
dependence of European copyright. It shows how copyright is
legally constructed, is harmonised through international
treaties and European regulatory efforts in terms of InfoSoc
Directive and the IPRED, and is also affected by the Data
Retention Directive and the Telecommunications Reform package.
Furthermore, the “secretly” negotiated ACTA agreement is
discussed as it may impose stronger copyright on Member States.
This means that the formulations and metaphors of how copyright
is constructed and conceptualised contribute towards various
lock-in effects as the dependence on the given path increases.
The strong path dependence of European copyright law results in
regulation that suffers from legitimacy issues. Copyright
construction is a legal complex that in general is based on
ideas of the conditions of an analogue world for distribution
and production of copies, but it is armed with increasingly
protective measures when faced with human conduct in the context
of digital networks. To some extent, this most probably involves
the expansion of the concepts and metaphors that once described
only non-digital practice. The trend in European copyright is
therefore strongly protectionist, through the expanding and
strengthening of rights and their enforcement, and in that it is
self-reinforcing, being locked into certain standards. The path
dependence of European copyright serves as a strong argument for
those who benefit from its preservation, signalling that there
are power structures supporting the colonisation by this
specific legal path of other legal paths that protect other
values, such as consumer privacy or versions of integrity. There
is a clear tendency in targeting the ISPs and other
intermediaries in attempts to keep the copyright path intact.
The development of European copyright, in its broad sense, not
only re-builds the Internet in terms of traceability, but also
law enforcement in terms of mass-surveillance. The
digitalisation of society requires that new questions be asked
as to how legal enforcement is or can be performed with regard
to the mass-surveillance of the multitude of habits and secrets
in our everyday lives. This means that there is a growing
political responsibility for balancing privacy concerns and new
and extreme possibilities for recording behaviour by means of
data logs and digital supervision, all of which is part of the
enforcement of copyright as a result of its strong path
dependence. Thus, the path dependence of copyright leads to an
imbalance of principal importance between the interests at
stake. The imbalance lies in that a special interest is allowed
to modify methods of legal enforcement from the reactive and
particular to the pre-emptive and general. The special copyright
interest gains at the expense of the privacy of everyone.
- Soft Law for the Internet, Lessons from International Law
Andrew Power and Oisín Tobin, pp.32-45
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This article begins with the
international legal environment and the differences between
international law and domestic law. Although the state is still
the central subject of international law, the sovereignty of the
state has been under challenge since the latter part of the 20th
century. Developments in international law have resulted in the
opening of the legal system of the international community to
entities beyond the state. The inclusion of non-state actors in
a system of international governance may provide lessons for the
governance of the international “virtual” environment. Much
current thinking about Internet law is either of the “Grand
Internet Treaty” variety, in which the online environment is a
simple extension of the territory of a state, or sees the
Internet as a libertarian “lawless” environment, unhindered by
any restrictions. These views are examined and the nature of the
law of the Internet considered in light of the lessons from
international “soft” law.
- Should the English Legal System Adopt the US Law of
Cyber-trespass?
Darren Read, pp.46-68
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It has become quite common for
old legal rules to be used to regulate new technologies. A key
example of this is the resurrection of the rarely used trespass
to chattels in the US to cover unauthorised access to computer
and networks. However, this judicially constructed law has yet
to be exported to other common law jurisdictions. This article
considers whether the doctrine of “cyber-trespass” should be
copied by the English legal system. Although the law of trespass
to chattels is similar both sides of the Atlantic, there are
certain underlying differences which are critical in the
adoption of cyber-trespass, the most notable being the
differences in the need for damage to be proved. Towards the end
of 2008 there was a flurry of cases against Electronic Arts in
the US courts over the use of the digital rights management
system SecuROM, the first of these cases includes, amongst other
things, that the use of SecuROM constitutes cyber-trespass. This
goes beyond the previous uses of cyber-trespass as protecting
networks from a very direct trespass to a trespass by means of a
CD- or DVD-ROM. This newer use of cyber-trespass will be taken
as the point of departure with the article using it to
illustrate the suitability of cyber-trespass as a legal doctrine
in England. To form a considered conclusion other legal avenues
for regulating unauthorised computer and network access in
England are discussed, most notably Section 3 of the Computer
Misuse Act 1990.
- IP Address Allocation through the Lenses of Public Goods
and Scarce Resources Theories
Rolf H. Weber and Ulrike I. Heinrich, pp.69-92
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The current Internet Protocol
(IP) addressing system, Internet Protocol version 4 (IPv4), is a
resource with limitations. All IPv4 address blocks have now been
allocated, posing a risk that not all IP address requests will
be satisfied. As IP addresses may be considered public goods, it
is important that they are allocated efficiently in order to
comply in an equitable manner with the demands of all Internet
participants. At the moment it is uncertain as to when, or even
whether, Internet Protocol version 6 (IPv6) will replace IPv4.
This article looks at the current system of IP address
allocation and the risks and benefits of introducing an IP
address transfer market in compliance with constitutional
principles.
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| Analysis |
- Limiting the IPRs of Pharmaceutical Companies through EU
Competition Law: The First Crack in the Wall
Dimitris Xenos, pp.93-98
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The exclusivity granted to
pharmaceutical companies through intellectual property rights
(IPRs) may in certain circumstances run counter to the main
objectives for which these rights are intended. EU competition
law has stepped in to correct systemic failures that have
adversely affected the competitiveness of the sector and the
public interest of individuals in access to improved and
affordable medicines. In the case of AstraZeneca v Commission,
the General Court of the European Union found, for the first
time, that a pharmaceutical company had abused its dominant
position by (mis)using regulatory patent procedures to eliminate
or restrict the market entry of competitors of generic
medicines. To understand the way by which EU competition law
intersects with IPRs and safeguards (patent regulations)
requires an appreciation of the tensions (Part I) that underlie
the expansive application of competition rules in the
pharmaceutical sector (Parts II, III) as well as of the new
policies that have emerged (Part IV).
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| Reports |
- Ethical and Legal Aspects of Human Tissue and Biobank
Research in Europe: Report of the Tiss.EU Project and its
Results
Katharina Beier and Silvia Schnorrer, pp.99-105
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- The Human Fertilisation and Embryology Act 2008: A
Multidisciplinary Workshop
Dr Christine Knight and Dr Malcolm Smith, pp.106-111
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ESRC Genomics Policy and
Research Forum, University of Edinburgh, 20 January 2011.
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| Book Reviews |
- Rights of Personality in Scots Law: A Comparative
Perspective
By Niall R Whitty and Reinhard Zimmermann (eds)
Reviewed by Kathryn Pickard, pp.112-115
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- Global Pharmaceutical Policy: Ensuring Medicines For
Tomorrow’s World
By Frederick M Abbott and Graham Dukes
Reviewed by Gerard Porter, pp.116-119
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