Towards an affirmative public domain
Two competing and yet complementary philosophical concepts form the foundation for the legal protection of intellectual property – ‘competing’ in that created works protected by copyright are unavailable for unrestricted use by others as a result of the economic monopoly given to the works’ owners, and ‘complementary’ in that the presumption is that works no longer protected by copyright serve as the basis for the creation of new copyrightable works. These unprotected works comprise the ‘public domain,’ which has never been affirmatively defined. In Golan v. Holder (2012), the US Supreme Court concluded that such a realm is constitutionally unimportant. This research contends, however, that the Court's decision is incorrect, that Golan, federal legislation, and international treaties threaten to bring larger and larger portions of cultural and intellectual content under the control of a property regime that does not understand the contradiction inherent in the notion of absolute property rights in intangible goods. The result is that the public domain is under tremendous pressure from those entities which have the most to gain from expanded authorial rights and from a weakened and less inclusive public domain. Citizens thus will have fewer rights to access and freely use their culture as they choose. The eventual significance of this evolution will be that further creativity and innovation will be stifled, the opposite of the intention of intellectual property law. In this article, we develop an affirmative definition of the public domain, which we believe will correct the imbalance in current intellectual property law.
America's `special relationships' : foreign and domestic aspects of the politics of alliance
Introduction: The Politics of Special Relationships John Dumbrell and Axel R. Schafer 1. Model Nations: US Allies and Partners in the Modernizing Imagination Nick Cullather 2. Old World, New World: Great Britain and America From the Beginning Kathleen Burk 3. Hating Bush, Supporting Washington: George W. Bush, Anti-Americanism and the US-UK Special Relationship John Dumbrell 4. The US-Canada Relationship: How 'Special' Is America's Oldest Unbroken Alliance? David G. Haglund 5. Australia, the US and the Unassailable Alliance Mark Beeson 6. Yearning and Spurning: New Zealand's Special Relationships with Britain and the United States Dolores E. Janiewski 7. Testing the Limits of a Special Relationship: US Unilateralism and Dutch Multilateralism in the Twenty-first Century Giles Scott-Smith 8. An Aborted Special Relationship: US-Russian Relations in the Post-Cold War World, 1989-2007 Alex Marshall and J. Simon Rofe 9. The Ecstasy and the Agony: The Rise and Fall of US-Iranian Relations Donette Murray 10. America's Israel/ Israel's America Ian J. Bickerton 11. US-Israel Relations: A Special Friendship Lee Marsden 12. The Death of a Peculiar Special Relationship: Myron Taylor and the Religious Roots of America's Cold War Andrew Preston 13. 'What Marx, Lenin, and Stalin needed was...to be born again': Evangelicals and the 'Special Relationship' between Church and State in US Cold War Foreign Policy Axel R. Schafer
Law in a law-governed union (Recht in einer Rechtsunion) : the Court of Justice of the European Union and the free law doctrine
The Court of Justice of the European Union characterizes the Union as a Rechtsunion: a law-governed union. The conception of “the law” in Article 19 paragraph 1 of the Treaty on European Union transcends the Treaties, according to the Vice-President of the Court of Justice, Koen Lenaerts. This thesis demonstrates with reference to the work of Georg Jellinek that the Union is a non-sovereign state and, with reference to the work of Eugen Ehrlich in particular, that the state-based perception of law is a misperception. Not all production of law is reserved to the state and not all law is state-recognized law. There is extra-state law. It has been alleged that the Court of Justice of the European Union has had “a free law attitude”. The author discusses the free law doctrine developed at the beginning of the twentieth century and has made literal translations of writings in German, French and Italian by the main representatives of the free law movement. The free law doctrine provides a descriptive framework for the case-law of courts. The author describes the creation by the Court of Justice of four constitutional principles of Union law through its case-law. He concludes that every court is, to quote Hermann Kantorowicz, praeter legem law-creatively active and has, in that sense, a free law attitude. The decisions of judges are often volitional decisions. How the law will be applied should be predictable but volitional decisions, because they are unpredictable, are inconsistent with the principle of legal certainty. In the Union and its member states the judiciary and not the statute or “the law” is pre-eminent. The author suggests how the concept of law should be defined in a material Rechtsunion. He argues that societal legal norms could be provided with an appropriate position consistent with the principle of legal certainty by making the validity of a societal legal norm contingent on its material lawfulness.