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There is no direct causal relationship between file-sharing and the decline in revenues in the music industry. File sharing benefits the economy in long and short term. It is estimated that file sharing injects 100 million euros a year into the economy of Holland..
According to economists from the Harvard School of Economics, filesharing has not decreased creativity nor cultural production. In 2007, the number of records released grew from 35,516 to 79,695, including 25,159 digital albums. At an international level, the number of films produced every year has increased from 3,807 in 2003 to 4,989 in 2007.
Over the past decade, the impact of file sharing networks has led to a very rapid diversification of music content and distribution, resulting in greater consumption of music in its different forms.
The report, published by the economy research center FEDEA, harshly criticizes the Government's plans to clamp down on users offile-sharing networks. The authors claim that the current proposals are a useless and an ineffective way to defend artists because they cling to an old model that has proven ineffective in fighting piracy.
Most people who “illegally” download movies, music and TV shows would pay for them if there was a cheap and legal service as convenient as file-sharing tools like BitTorrent.
“Why does the music industry persist in saying that every download is a lost sale? If you even think about it, it can’t be true. People – even downloaders – only have a finite amount of money. In times gone by, sure, they would have been buying vinyl albums. But if you stopped them downloading, would they troop out to the shops and buy those songs? I don’t think so. I suspect they’re doing something different. I think they’re spending the money on something else”.
While gains in digital sales might signal a shift away from sales of physical music, sales of vinyl albums grew by 33%, with 2.5 million vinyl units sold. Many of the top-selling vinyl artists like The Beatles, Michael Jackson and Bob Dylan are household names, but just as many are lesser-known independent artists and darlings of the indie-rock blogosphere like Animal Collective, Bon Iver and Iron & Wine who round out the top 10 with critical darlings Radiohead and Wilco. Also notable is the fact that two out of every three vinyl albums were purchased at an independent music store.
Vuze analyzes it's consumers: Heavy movie fans, Avid online video buffs (at the expense of “live” TV), trailblazing tech consumers, ultra connected online influencers and people uniquely attracted to science fiction and animation content.
U.S. Internet users watched 32.4 billion videos in January with Google Sites ranking as the top U.S. video property with 12.8 billion videos. YouTube.com accounted for nearly 99 percent of all videos viewed at the property. Hulu ranked second with 903.1 million videos, or 2.8 percent of all online videos viewed. Microsoft Sites ranked third with 491.8 million (1.5 percent), followed by Yahoo! Sites with 435.5 million (1.3 percent) and Viacom Digital with 361.2 million (1.1 percent).
This report proves that the “filesharers” are the biggest music buyers.
“Antipiracy” politic is much more expensive than industry renovation.
A number of reasons why the use of copyright filters should not be allowed, encouraged or mandated on U.S. Internet Service Provider (ISP) networks.
Changes in technologies for reproducing and redistributing digital goods (e.g., music, movies, software, books) have dramatically affected profitability of these goods, and raised concerns for future development of socially valuable digital products. However, broader illegitimate distribution of digital goods may have offsetting demand implications for legitimate sales of complementary non-digital products. We examine the negative impact of file-sharing on recorded music sales and offsetting implications for live concert performances. We find that file-sharing reduces album sales but increases live performance revenues for small artists, perhaps through increased awareness.
Sustainability, openness and p2p production in the world of fashion.
David Bahanovich and Dennis Collopy for University Of Hertfordshire, Music Experience and Behaviour in Young People, Summer 2009.
A survey among British people from 14 to 24 years old shows that music remains the most valued form of entertainment. Young people have an inherent sense of what copyright is, but choose to ignore it - the vast majority of respondents knew that sharing copyrighted content is not legal, yet continue to do so.
The short-run and long-run effects of copyright may differ substantially. In the short run, copyright benefits rights holders at the expense of users. In the long run, the benefits associated with any additional supply due to copyright protection may more than offset the access costs of users so that copyright may offer a net welfare improvement for all stakeholders (i.e. a Pareto improvement). This long-run perspective provides no comprehensive, general case for copyright, however. Because users include follow-up creators, copyright is not unequivocally beneficial to creators and excessive copyright protection could even diminish the supply of copyright works. Even if one were to disregard consumer interests - for example in some natural rights perspectives - an efficient copyright system still has to strike a balance between divergent interests.
The latest figures show that live concerts generate an annual income of 150 million euros. The number of concert goers grew by 34% to 33.4 million.
A survey promoted by industry groups in the US, including Microsoft, analysing the economic usefulness of 'fair use'.
Creative Commons. Defining “noncommercial”: A study of how the online population understands “noncommercial use”. (2009, September).
Creative Commons noncommercial licenses preclude use of a work “in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. This empirical study states that non commercial licenses are increasing to license online collaboration.
“So what is the secret origin of these ubiquitous statistics? What doomed planet’s desperate alien statisticians rocketed them to Kansas? Ars did its best to find the fountainhead. Here’s what we discovered”.
Benkler states that commons-based peer production is becoming increasingly important as a efficient and democratic form of resource management and production separate from the market and the state.
Hess, C. & Ostrom, E. (Eds.) (2007). Understanding knowledge as a commons: From theory to practice. Cambridge, Massachusetts: The MIT Press.
Hess and Ostrom (2009 Nobel Prize) argue that the commons is a more efficient form of governance for knowledge-based resources under certain conditions.
Terranova, T. (2000). Free labor: Producing culture for the digital economy. Social Text 18, 33-58.
Terranova documents how corporations (based on copyright and proprietary software) are making profit from voluntary work.
Castells, M. The rise of the network society. Malden, MA: Blackwell. (2000).
Castells argues that network-based information flows are better suited to the emerging society.
This study found (with statistical significance) that online infrastructure based on copyleft and FLOSS tend to favor higher levels of collaboration in online communities, while copyright and proprietary software are unable to generate highly collaborative interaction.
Santos, B. de S., (Ed.). (2007). Another knowledge is possible. London, UK: Verso.
Santos discusses the growing importance of a way of conceiving knowledge that is pro-public domain.
Von Hippel, E. (2005). Democratizing innovation. Cambridge, MA: MIT Press.
Von Hippel argues that user-generated content constitutes a key source of innovation.
Weber, S. The success of open source. Cambridge, MA: Harvard University Press. (2004).
Weber shows how Free and open source models are a more successful form of software production than proprietary software modlels.
Bollier offers a thorough overview of the phenomenon of the commons, from the knowledge commons to the nature commons.
Rheingold, H. The virtual community. Homesteading on the electronic frontier. Reading, MA: Addison-Wesley. (1993).
Howard Rheingold has been called the First Citizen of the Internet. In this book he tours the “virtual community” of online networking. He describes a community that is as real and as much a mixed bag as any physical community one where people talk, argue, seek information, organize politically, fall in love, and dupe others.
Stalder, F. (2010). Digital Commons. In: Hart, Keith; Laville, Jean-Louis; Cattani, Antonio David (eds). The Human Economy: A World Citizen’s Guide. Cambridge, UK, Polity Press.
Stalder's essay is one of 30 texts compiled by the editors. It explores different approaches to the formation of a “digital commons” against the forces of corporate privatization.
Subirats, J. (2002). The dilemmas of an inevitable relationship: Democratic innovation and the information and communication technology. In J. Jordana (Ed.), Governing telecommunications and the new information society in Europe (pp.228-250). Cheltenham, UK: Edward Elgar.
Joan Subirats reviews a series of different ways of approaching and conceiving of the democratic application of ICTs, taking into account political aims and also its limitations.
Popular music has defined each generation. And, as we began the next millennium, music is also shaping a new generation of technologies and laws that will have consequences far beyond this particular art form. This is a report of a conversation about music, and more particularly, how musicians should be paid for digital works.
Dans, Enrique (2010) ¿Cuadrando el círculo?
Who said “all for free”?
Becker, Konrad (2009) Strategic Reality Dictionary. Deep Infopolitics and Cultural Intelligence, Autonomedia, New York.
Moulier Boutang, Yann (2004) Cognitive Capitalism and Entrepreneurship, Decline in industrial entrepreneurship and the rising of collective intelligence Cornell University, September 28-29, 2007.
This paper analyses how the shift to a third kind of capitalism, what we call cognitive capitalim, is radically modifying the nature of enterpreneurship. This new kind of capitalism relies upon the capture of positive externalities that are increasingly produced, located and active outside of the historical boundareis of companies in order to achieve constant innovation and the production of different audiences, rather than market commodities. As a result, new models are emerging, and the extent that these new post-industrial spin-offs will become new hegemonic business models, or remain marginal, will depend largely on their relationship with the market, the State, property rights, and new ethical, communial, civic and political values.
One global ontology is not a solution to the problem and a local subdomain is not a solution either. But if each agent has uses a mix of a few ontologies of different scale, that is forms a global solution to the problem. There is some model which reasonably well described these systems, and that given that model one can show that the scale-free distribution of communities is optimal.
Wanting large music libraries and mostly unable to afford them, we kids recorded as many albums and radio shows on cassette as we could.
The emergence of productions systems - particularly those that produce knowledge, but also products and services — based on large communities of distributed individuals who rely on digital collaboration platforms (defined as P2P systems) has challenged the basic principles of the economy. This article analyzes some of these models and introduces the principle theories that underline them.
This manifesto examines the first working years of Dyne.org reflecting on notions of collective production, creativity and freedom. It also deals with some of the problems and contradictions that affect the communities who develop free software.
This article analyzes the convenience of a guaranteed minimum income as a way to provide a retribution to cognitive work in the context of a generalized capitalist crisis. When creativity, communication, knowledge, social networks have become central elements of the business jargon, we need to alter traditional economic wisdom in order to find more sustainable models to suit this reality.
The public domain should be public by default.
Rizk and Shaver have produced a scientific report on how intellectual property frames access to knowledge in Egypt.
This study analyses different notions of culture that have been handled in cultural policy, and how it has been building up an economic sense through the 'Cultural Industries' and 'Creative Industries'. The first part focuses on understanding how neoliberal thinking and the paradigm of the creative industries have affected government policy. Through the case study of the Brazilian model, we analyze different ways of understanding cultural policy that is not solely defined by economic interests, and concludes with the possibility of replacing the discourse surrounding the 'Creative Industries' with a new coinage that takes the “Business of the commons” as an engine of a new paradigm that canweave more balanced relations between economy, culture and society.
Larkin, Brian (2008) Signal and Noise. Media, Infraestructure and Urban Culture in Nigeria. Duke University Press, London.
Lemos, Ronaldo y Castro, Oona (2008) Tecnobrega: Pará Reinventing the Music Business, Aeroplano Editora.
In the face of the music industry crisis and the “legal remedies” that aim to revitalise the sector, this book showcases emerging alternative business models. “Tecnobrega” is the main case study, which shows how the musical production generated in Brazilian favelas and distributed on the strees through non-official hawkers is an informal manufacturer of this phenomenon. The business model is mainly based on the economy of experience, the economy based on parties and concerts that has become a mass phenomenon.
Six “impossible things”: GNU/Linux, Wikipedia, the Creative Commons, the Blender Foundation, Open Hardware, and the OLPC/Sugar project. All created under free licenses for everyone to use, in defiance of our conventional ideas of business economics. Is it magic, coincidence, or just plain common sense at work here?
This article compares two visions that adress different restrictions in terms of the use of free/libre licenses. On one side, those who try to form a commons that can be used, distributed and exploited by all. On the other, those who have as their objective allowing access, and do not consider other uses. The issue is basically about what “free/libre culture” really means and how it can be sustainable.
Challenges to traditional copyright resulting from peer-to-peer applications, free software, filesharing and appropriation art have caused a wide ranging debate on the future of copyright. Dmytri Kleiner brings existing critiques of material property from the left to bear upon the realm of copyleft artistic production and asks how, within the existing copyright regime, can artists earn a living?
Howkins, John (2001) The Creative Economy.
The Creative Economy is a comprehensive analysis of the new economy, based on creative people, creative industries and creative cities. John Howkins starts with each person’s individual creativity and explores self-identity, art, business, society, and global development.
Pardo Kuklinski, Hugo Geekonomía, Un radar para producir en el postdigitalismo, Col.lecció Transmedia XXI. Laboratori de Mitjans Interactius, Publicacions i Edicions de la Universitat de Barcelona, Barcelona 2010.
An analysis of the crisis of traditional intermediaries, such as the “copyright” “, and academic and media claims that 99% of artists benefit from Internet massification, because their production costs tend to zero.
The perspective of software designer.
The former president of the spanish region of Extremadura who implement free software in the whole region.
A declaration that includes practical examples. It has been signed by organisations such as the International Music Managers' Forum (IMMF) and The Computer and Communications Industry Association, which Microsoft is also a member of. It asks Brussels for more future vision in relation to copyright legislation and a greater commitment to new economic models and remuneration for the creative community.
Musicians including Robbie Williams, Annie Lennox, Billy Bragg, Blur’s David Rowntree and Radiohead’s Ed O’Brien said last night that the public should not be prosecuted for downloading “illegal” music from the internet.
“Of course people have to have a system in place to be able to share and every country will have to do what they want surrounding that, as long as they don’t infringe on freedom of speech and access to knowledge. Which kind of sets the barrier quite high. This idea has been discussed for hundreds of years”.
Ownership” is starting to change its meaning. If you buy a movie from iTunes you “own” the right to watch it on certain devices within certain constraints. When you “own” a DVD, you have the right to watch it whenever and wherever you want. However: you must watch ten minutes of promos, trailers and anti-piracy threats. I’ll take the download, please.
The days of producers and musicians putting bands together just to get a recording deal so they can get paid by the record company for a product that usually never even gets released; those days are over. It’s time record companies went back to their roots and became what they started out to be; entities who record working acts in order to capture the performance for posterity, and make a promotional tool to get audiences to the next show.
“That’s a battle that we have a chance in. If you start talking about DRM and different technologies to try to manage it, it’s really a losing battle for us, because the community is always so much larger, and the number of people out there that want to try to counteract that technology, whether it’s because they want to “pirate” the game or just because it’s a curiosity for them, is much larger than our development teams.
John Buckman, The Founder’s Rant, Magnatune.
Peter Sunde about Flattr Social Micro Donations, 22/04/2010.
The Cosmonaut is a science fiction film of Riot Cinema Collective using the Internet for financing and distribution, collaboratively and also comes with a Creative Commons license so you can edit, copy, remix and share.
Put in perspective: a typical advance for a book of this kind is $5,000. Odds are, I wouldn't see royalties at all. So right now I'm $4600 ahead of where I would have been under the traditional “pay first” model. Also, under this system, I have a lot more readers than your typical book aimed at this market. Canadian best-sellers ship 5,000 copies. I've already done that, fifty times over.
A balancing of the rights of authors and consumers, the re-introduction of a private copying exception, a remixing permission and a new regulatory agency for copyright issues are among the core points the Brazilian Ministry of Culture has planned for the new copyright law.
This article provide the public with two possible approaches that may be taken to get the problem solved. The approaches are called “negative” and “positive” spillovers, with the first assessing a penalty, which size would depend on the piracy level defined at a certain ISP's network, while the second one would demand ISPs to voluntarily pay a fee in exchange for the right to transmit copyrighted content on their networks legally.
How to recognize non-market exchanges over the internet while funding creation.
A statement that demands the restructuring of collecting societies, and greater transparency given that they are means to manage the remuneration of creative work.
The legal battles surrounding peer-to-peer (P2P) file sharing are a losing proposition for everyone. The record labels continue to face sliding sales, while the tens of millions of American file sharers American music fans are made to feel like criminals. Every day the collateral damage mounts privacy at risk, innovation stymied, economic growth suppressed, and random unlucky individuals singled out for lawsuits by the recording industry. In the meantime, the lawsuits against music fans have not put a penny into the pockets of artists.
A voluntary collective licensing solution.
The stated purpose of the tax is to “compensate” musicians for copying done by individuals using DATs. However, 57 percent of the funds collected would go to record companies and music publishers leaving less than half to the people who participate in the creative process. Most of these remaining funds would go to musical superstars, and thus would do little to encourage musical creativity. Meanwhile, DAT users would be unable to make full use of the power of DAT technology.
The pros and cons of applying a flaat rate for access to culture administrated by collecting societies.
David Bollier and Laurie Racine Ready to Share: Fashion and the Ownership of Creativity: a global, competitive and profitable industry that does not rely upon copyright protection for its creative output.
Bauwens, M, The Political Economy of Peer Production. 1000 Days of Theory. (2005).
Bauwens provides a detailed discussion of issues introduced by the peer economy, presenting key practical experiences as well as theorical approaches to analysing it.
Copyright laws and enforcement practices around the world are changing rapidly. But most often, the changes are for the benefit of rights holders only, disregarding consumers’ interests in fair and affordable access to educational and cultural materials. To help map global trends in this area, Consumers International surveyed 34 countries for its 2010 IP Watchlist.
British Council compilation of opinions on the Future Copyright, during the 300th anniversary of the enactment of the law.
The YouTube video that Sony chose not to censure because it realized that it was full of advantages.
Empirical research on new forms of open innovation developed by companies based on an intensive use of new technologies of information and communication.
International Commons Conference in Berlin.
Often the reports by the industries are biased because they consider only part of the agents involved. For example, in their reports on the creative community they consider only the situation of the collecting societies members as an indication of the status of the whole creative community when, now day , many of the artists are not members of any collecting society. This results in distorted data reports that unfortunately are often accepted by governments. Yet few rigorous reports made at the request of cultural industries have to admit that we are facing a paradigm shift and not a “looting” as insinuating.
The TERA Report is one of the most famous. Remember how it was used to victimize the situation of cultural industries with the pathos of lost jobs. But reading it in depth (23.25.27.29.31 pages), we can see that it had to admit that, while the conventional models have losses of between 6 and 35%, the digital business model has up to 1130% increases. So could it be that the jobs are not lost but merely generate elsewhere?
The music industry is growing like never before.
In 2009, four out of ten viewers preferred to watch a Spanish film rather than a foreigner one. This contradicts the minister of Culture, Gonzalez Sinde, who blamed the crisis affecting national cinema partly on 'piracy' on the Internet.
Although the survey, commissioned by the Canadian government, unintentionally shows that P2P networks provide benefits to music.
Spanish collecting societies enjoy a monopoly position. This reduces their incentive to operate efficiently and can lead to problems regarding fee levels, as shown by several cases of unfair and/or discriminatory fees examined by Spanish antitrust authorities. The aim of this Report is to explore problems regarding fees and restrictions on competition in this sector, by analysing the current regulatory framework and certain practices carried on by collecting societies, in order to make recommendations for achieving a more competitive model of collective rights management.
The difficulty concert venues have in finding time to seek alternatives and / or solutions to correct the detected errors often coincides with a lack of cooperation and the unwillingness of collecting societies to negotiate specific rates and conditions for this sector.
TorrentWatch is a virtual snapshot of the world’s P2P file sharing community that illustrates the ratio of up-loaders (seeders) to down-loaders (leechers) of globally-popular movies by simultaneously comparing the users' physical locations by location and during a standardized 24 hour period of time.
Aicholzer, G. & Burkert H. (2004). Public Sector Information in the Digital Age. Between Markets, Public Management and Citizen's Right. Celtenham, Edward Elgar Publishing.
The volume reviews key issues and developments in the controversial area of public sector information (PSI). It addresses the fundamental themes, challenges and conflicts surrounding the access to, and use of, PSI in the new digital era. Using detailed empirical analyses and case studies from across Europe and the USA, the book focuses on the crucial policy, economic, legal and social issues.
Bruguiere J.M. (2002). Les donn√©es publiques et le droit. Paris, Editions Litec.
This work studies the Public Sector Information, which is defined as the information produced within the public service and involve many different stakeholders. The analysis is lead in the perspective of the European information market, but it takes also into account the impact of PSI on social values. In addition the work studies the public bodies having the mission to inform and the information spreading activities limited by security reasons. More generally the work analyses the legal issues related to the dissemination of these public data.
Burkert H. (1993). The Law and Policies of Commercialization of Public Sector Information in the EC. Stockholm, Institutet f√∂r r√§ttsinformatik.
The research focuses on the legal framework and policies of PSI re-use in a market perspective before the issuing and implementation of the PSI Directive of 2003.
Derclaye E. (2008). Does the Directive on the Re-use of Public Sector Information affect the State's database sui-generis right ? In: Gaster J., Schweighofer E. & Sint P. Knowledge Rights - Legal, societal and related technological aspects. Austrian Computer Society.
The Database Directive, which created a new database sui generis right and harmonised the copyright provisions for databases, does not exclude “state databases” from protection. The question is whether the state should benefit from such intellectual property protection. De lege ferenda, it has been advocated that neither copyright nor sui generis right should protect such databases for several reasons, a major one being that they are financed by taxpayer's money. Several solutions exist de lege lata to try and curtail this negative aspect of the Database Directive as applicable to “state databases” (mainly the human right to information and competition law). One solution, specific to the situation of the state, has not been discussed in depth yet. It is provided by the Public Sector Information (PSI) Directive which grants the possibility for anyone to re-use public sector information (and therefore data from state databases) free of charge or at minimal cost, even for commercial purposes. Therefore, even if the state could claim sui generis right on some of its databases, the PSI Directive appears to reduce this right quite substantially. The paper examines in detail whether the PSI Directive does actually do so and analyses some national implementation laws which further highlight its ineffectiveness in curtailing the sui generis right in state databases. It then proposes solutions to remedy this problem.
The Directive provides with the current European legal framework on PSI. It defines the subject matter and explains the general principles on PSI re-use, without imposing any obligations of re-use to the member states. It is complemented by the more recent INSPIRE Directive.
The Communication of the European Commission on the digital agenda for Europe refers also to public sector information defining it as an important source of potential growth of innovative online services (see in particular pages 6-7; 9-10 and 31-32).
Janssen K. & Dumortier J. (2003). Towards a European Framework for the Re-Use of Public Sector Information: A Long and Winding Road. International Journal of Law & Information Technology, vol. 11, n. 2.
Information owned by public sector bodies has, next to democratic importance, a considerable economic value for the industry in general and the information industry in particular. Since the 1980s, the European Commission has tried to stimulate the public sector to make its information available for re-use. In June 2002, it finally presented a proposal for a directive on this subject. The article gives an overview of events and documents leading to this proposal and attempts to make an assessment of the proposal.
Longhorn R.A. & Blakemore M. (2008). Geographic Information. Value, Pricing, Production, and Consumption. Celtenham, Edward Elgar Publishing. Boca Raton, CRC Press.
Bringing producer and consumer debates together, the book provides a coherent perspective on what have become emotional and territorial issues of IPR protection and liberation. It addresses a range of issues relating to GI, from its definition, purpose, and use to how GI affects individuals, organizations, and governments. It examines business issues including pricing, exploitation, competition, and IPR in private, commercial, and public domain environments. It also introduces a detailed case study that shows how the GI collection and dissemination policies affect regional and global environmental monitoring programs.
The study has analyzed the impact of adopting different models for the provision of public sector information by trading funds. Its basic task has been to examine the cost and benefits for society, and the effects on government revenue, of four different charging policies: profit-maximization, average cost (cost-recovery), marginal cost and zero cost; both on their own and when interacted with various data distinctions such as raw versus value-added, and unrefined versus refined. The study focused on the six largest trading funds by data provision: the Met Office, Ordnance Survey, the UK Hydrographic Office, the Land Registry, Companies House and the Driver Vehicle Licensing Agency.
This report analyses the growing importance of public sector information (PSI) and content as part of the digital broadband content work programme, following studies on scientific publishing, music, online computer and video games and mobile content and analysis setting out digital content strategies and policies. It suggests to define public sector information in broader terms compared to the European Directive.
The Recommendation indicates the principles for enhancing access and more effective use of PSI for public and private sectors; an optimization of access and re-use of PSI would have a positive impact on total returns on public investments and economic and social benefits through a more efficient distribution, an enhanced innovation, a development of new uses, a market-based competition. International policy principles would contribute to the global exchange and re-use of public sector information.
Pas J. & De Vuyst B. (2004). Re-Establishing the Balance Between the Public and the Private Sector: Regulating Public Sector Information Commercialization in Europe. The Journal of Information, Law and Technology, n. 2.
The paper describes the economic value of government information and documents, and its potential and actual commercial use. It then analyzes the conceptually different approaches in Europe and the United States towards a legal framework for the commercial use of public sector documents and government information. The commercialization by governments of their own information and the arguable difficulties it creates for fair competition with the private sector are indicated with some policy and ethical considerations. Finally, a short analysis of the new EU directive is included and some conclusions are drawn.
Pollock R. (2009). The Economics of Public Sector Information. University of Cambridge, Faculty of Economics, Cambridge Working Papers in Economics.
The paper gives an overview of the economics of 'public sector information' (PSI) focusing on the question of funding and regulatory structure. That is: who should pay to maintain public sector information and what regulatory structure should be put in place to support this.
Ponti B. (2008). Il Regime dei Dati Pubblici. Esperienze europee e ordinamento nazionale. Maggioli Editore.
This work is a collection of papers on (mainly) legal issues such as access and re-use of public sector information in several European countries (Germany, UK, France, Spain and Italy). A particular focus is on Italy.
Van Eechoud M. & Van Der Wal B. (2008). Creative Commons licensing for Public Sector Information: Opportunities and Pitfalls. University of Amsterdam, Institute for Information Law.
The Creative Commons model seems an attractive instrument for public sector bodies that seek to enhance transparent access to their information, be it for purposes of democratic accountability or re-use for economic or other uses. The study examined that hypothesis and highlights the major opportunities and pitfalls of the Creative Commons model for public sector information. It assesses where there is a match between the creative commons model and the principles of freedom of information law and the Public Sector Information Directive (EC Directive 2003/98 on the re-use of public sector information) as implemented in the new chapter V-A of the Dutch Freedom of Information Act (Wet Openbaarheid van Bestuur). The assessment was made not only at the more principled, abstract level, but also at the level of the individual licensing terms. It is preceded by an analysis of government information as subject of intellectual property rights, under the Dutch Copyright Act and the Database Act.
Van Eechoud M. (2006). The Commercialization of Public Sector Information. In: Hugenhoz B. & Guibault L. The Future of the Public Domain. Identifying the Commons in Information Law. The Hague, Kluwer Law International.
This research studies the public sector information market re-uses in a legal perspective, focusing on the exercise of rights existing over it.
Uhlir P. (2009). The socioeconomic Effect of Public Sector Information on Digital Networks. Toward a Better Understanding of Different Access and Reuse Policies. Workshop Summary. Washington, The National Academy Press.
While governments throughout the world have different approaches to how they make their public sector information (PSI) available and the terms under which the information may be reused, there appears to be a broad recognition of the importance of digital networks and PSI to the economy and to society. However, despite the huge investments in PSI and the even larger estimated effects, surprisingly little is known about the costs and benefits of different information policies on the information society and the knowledge economy. By understanding the strengths and weaknesses of the current assessment methods and their underlying criteria, it should be possible to improve and apply such tools to help rationalize the policies and to clarify the role of the internet in disseminating PSI. The workshop that is summarized in the volume was intended to review the state of the art in assessment methods and to improve the understanding of what is known and what needs to be known about the effects of PSI activities.
Chapter by Gabriel Acquistapace (Usuarios de Software Libre Argentina – USLA) about Cloud Computing in the recent book Argentina Copyleft: “Turbulencias en la Nube”. Avalaible also in German.
Wheeler declaration, including the meaning of “open access” and similar terms in the declaration itself. The meaning of “open access” and other terms in the declaration might put light in what could be defined open/free infrastructure.
Lawrence Lessig – Free Culture.
Towards a core common infrastructure √Ç¬ª, mars 2001, White Paper for the Brennan Center for Justice.
Philippe Aigrain, “Declouding freedom: reclaiming servers, data and services”, FLOSS Roadmap 2010 edition, pages 15-18.
Phillipe Airgrain keynote for the International Commons Conference in Berlin (1-2 November): 9 schemes for the relations between the economy and the commons.
Taking about platforms, and even if openness is frequently neglected, it might be good to read the literature about two-sided-markets – the stuff of Rochet and Tirole is very interesting. Even if – at first glance – you may think that this literature is too theoretic and not related to communities online, that’s not entirely true, once you get the crucial intuitions. This article might be also a good reading in the direction of these intuitions: http://wikis.fu-berlin.de/download/attachments/59080767/Arribas-Paper.pdf?version=1&modificationDate=1285065630000 (Federico Morando).
The literature about the economics of open source software offers some examples (e.g. an old but not yet completely obsolete paper is “The Simple Economics of Open Source” from Josh Lerner and Jean Tirole) (Federico Morando).
Fuster Morell, Mayo (2010). Commercial providers of infrastructure for collective action online Case studies comparison Flickr – Corporation model and Wikihow – Enterprise model. 3rd Free culture research conference – Berlin, October 2010.
Michel Bauwens: An Introduction to Open Business Models. OSBR, April 2008.
Rappa, Michel. Bussiness models on the web.
Aigrain, Philippe (2010). Notes for translators on intervention at the International Commons Conference. November 1, 2010 .
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1. DIVORCE — MODIFICATION OF ORDER OF CHILD SUPPORT — CHANGE OF CIRCUMSTANCES REQUIRED. — A change in circumstances must be shown before a court can modify an order regarding child support, and the party seeking modification has the burden of showing a change in circumstances; the assumption is that the chancellor correctly fixed the proper amount in the original divorce decree; in determining whether there has been a change in circumstances warranting adjustment in support, the court should consider remarriage of the parties, a minor reaching majority, change in the income and financial conditions of the parties, relocation, change in custody, debts of the parties, financial conditions of the parties and families, ability to meet current and future obligations, and the child support chart. 2. DIVORCE — CHANCELLOR'S DETERMINATION AS TO CHILD SUPPORT A FINDING OF FACT — DECISION REVERSED ONLY IF CLEARLY ERRONEOUS. — A chancellor's determination as to whether there are sufficient changed circumstances to warrant an increase in child support is a finding of fact, and this finding will not be reversed unless it is clearly erroneous. 3. DIVORCE — CHANGED CIRCUMSTANCES SHOWN — CHANCELLOR ERRED IN NOT SO FINDING. — Where the appellee admitted that his take-home pay had doubled since the parties' divorce, appellant testified that the costs of rearing the child had increased during the eleven years between the date of the divorce decree and the hearing on the petition to increase support and that the child had medical problems; only a percentage of which expenses were covered by the health insurance provided for the child by appellant's husband, the chancellor erred in refusing to find a change in circumstances since the entry of the 1981 divorce decree. 4. DIVORCE — CHILD SUPPORT — DETERMINATION OF AMOUNT. — In determining the amount of child support to be awarded reference to the child support chart is mandatory, and the chart itself establishes a rebuttable presumption of the appropriate amount which can only be explained away by written findings stating why the chart amount is unjust or inappropriate; the chancellor, in his discretion, is not entirely precluded from adjusting the amount as deemed warranted under the facts of a particular case; the presumption may be overcome if the chancellor determines, upon consideration of all the relevant factors, that the chart amount is unjust or inappropriate. 5. DIVORCE — DETERMINATION OF CHILD SUPPORT — FACTORS TO BE CONSIDERED. — Factors to be considered by the court in determining appropriate amounts of child support include: food, shelter and utilities, clothing, medical expenses, educational expenses, dental expenses, child care, accustomed standard of living, recreation, insurance, transportation expenses, and other income or assets available to support the child from whatever source. 6. DIVORCE — REQUEST FOR MODIFICATION OF CHILD SUPPORT — CONSIDERATIONS. — In determining requested modifications of child support orders the trial court should consider the totality of the present circumstances of the parties and avoid modifications that would work undue hardship on the parties or any persons presently dependent thereon. 7. DIVORCE — SUPPORT CHART NOT CONSULTED — CASE REMANDED. — Although it was permissible for the chancellor to consider the effect of an increase in appellee's child support obligation on his ability to pay his bills and to support his other children in making his determination to deny the petition for increased support, where there was no indication that the chancellor referred to the family support chart in making his determination, given the presumption that the chart amount was reasonable, it was incumbent on the chancellor to give a fuller explanation of his reasons for rejecting the chart and so the case was remanded for a determination of child support in accordance with Ark. Code Ann. 9-12-312 (Supp. 1991).
Appeal from Lonoke Chancery Court; Lance L. Hanshaw, Chancellor; affirmed in part; reversed and remanded in part.
Appellant, Deborah Ann Roland, and appellee, Jeffery Neil Roland, were divorced by a decree of the Lonoke County Chancery Court in May 1981. In the divorce decree, appellant was awarded custody of the parties' twenty-one-month-old child and appellee was ordered to pay appellant $100.00 per month in child support. In March 1992, appellant filed a motion to increase appellee's child support obligation, and appellee responded with a motion to change custody. Following a hearing, the chancellor denied both motions. On appeal, appellant argues that the chancellor erred in failing to find a change in circumstances and in not following the family support chart.
At the hearing, evidence was introduced that appellee's weekly take-home pay is $249.50; in 1981, he made $125.00 in take-home pay per week. Appellee testified that he has remarried and has two children from his second marriage. His wife does not work. He also testified that he pays approximately $700.00 per month for his Ford truck, his furniture, and his mobile home. On cross-examination in regard to his request for a change of custody, however, appellee testified that he could adequately support the child on his present income.
Appellant testified that she has also remarried and does not work. Her husband is employed and provides medical insurance for the child. She testified that she has not had an increase in child support since 1981, when the child was twenty-one months old. Appellant stated that the costs associated with rearing the child (who was thirteen at the time of the hearing) have increased. She stated that his clothes cost more; it costs more to feed him; and his activities, such as baseball, are more expensive. She also testified that, every winter, the child is ill with allergies and respiratory problems.
We're working with very, very limited resources here. Seems to me like — of course, I can understand there's probably some bitterness here. You attorneys probably weren't able to even talk with each other about this, I don't know, but there has to be significant changes in income and other things.
Mr. Roland does have two other children that he's also supporting now, and this has been over a period of twelve years, limited income. Mrs. Archer stated that she — there's no reason why she's not able to work. And I know that you can't raise a child on a Hundred Dollars a month, but I don't know what I can do. I can't make something out of nothing.
In the order, the chancellor stated that he was denying appellant's motion for an increase in child support because "it would be an undue burden upon the [appellee] to pay an additional amount of child support, based upon the Affidavit of Financial Means entered herein." The chancellor ordered appellee to be responsible for one-half of the child's medical expenses not covered by insurance. Appellee has not cross-appealed from that part of the order denying his request for a change of custody.
Appellant argues on appeal that the chancellor erred in refusing to find a material change in circumstances; in failing to refer to the family support chart; and in not making a specific written finding as to why he deviated from the family support chart.
A change in circumstances must be shown before a court can modify an order regarding child support, and the party seeking modification has the burden of showing a change in circumstances. Reynolds v. Reynolds, 299 Ark. 200, 771 S.W.2d 764 (1989); Ross v. Ross, 29 Ark. App. 64, 776 S.W.2d 834 (1989). The assumption is that the chancellor correctly fixed the proper amount in the original divorce decree. Id.
In determining whether there has been a change in circumstances warranting adjustment in support, the court should consider remarriage of the parties, a minor reaching majority, change in the income and financial conditions of the parties, relocation, change in custody, debts of the parties, financial conditions of the parties and families, ability to meet current and future obligations, and the child support chart. Thurston v. Pinkstaff, 292 Ark. 385, 730 S.W.2d 239 (1987).
Reynolds v. Reynolds, 299 Ark. at 202, 771 S.W.2d at 765. There is no hard and fast rule concerning the specific nature of the changed circumstances. Arkansas Dep't of Human Servs. v. Brown, 35 Ark. App. 11, 811 S.W.2d 326 (1991).
A chancellor's determination as to whether there are sufficient changed circumstances to warrant an increase in child support is a finding of fact, and this finding will not be reversed unless it is clearly erroneous. See Freeman v. Freeman, 29 Ark. App. 137, 778 S.W.2d 222 (1989).
We agree with appellant that the chancellor erred in refusing to find a change in circumstances since the entry of the 1981 divorce decree. Although it does not compel a determination of changed circumstances, we note that a change of ten percent in the payor's income can be sufficient to support such a finding. Ark. Code Ann. 9-14-107(a) (Supp. 1991). At the hearing, appellee admitted that his take-home pay of $125.00 per week has doubled since the parties' divorce. His affidavit of financial means showed his weekly take-home pay to be $249.50. Additionally, appellant testified that the costs of rearing the child have increased during the eleven years between the date of the divorce decree and the hearing on the petition to increase support. She testified that the child has additional expenses resulting from his participation in school activities. She further testified that the child has medical problems; only a percentage of these expenses are covered by the health insurance provided for the child by appellant's husband.
In her brief, appellant also argues that, because a change in circumstances was proven, the chancellor erred in failing to modify the child support in accordance with the family support chart (which is $54.00 weekly, based on appellee's take-home pay). Appellant also argues that the chancellor was required to give a fuller explanation for his deviation from the chart.
In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the support chart, shall the presumption be rebutted.
"Reference to the chart is mandatory, and the chart itself establishes a rebuttable presumption of the appropriate amount which can only be explained away by written findings stating why the chart amount is unjust or inappropriate." Black v. Black, 306 Ark. 209, 214, 812 S.W.2d 480, 482 (1991). The chancellor, in his discretion, is not entirely precluded from adjusting the amount as deemed warranted under the facts of a particular case. Waldon v. Waldon, 34 Ark. App. 118, 806 S.W.2d 387 (1991). The presumption may be overcome if the chancellor determines, upon consideration of all the relevant factors, that the chart amount is unjust or inappropriate. Id.
In adopting this per curiam, the Court creates a rebuttable presumption that the amount of child support calculated pursuant to the most recent revision of the Family Support Chart is the amount of child support to be awarded in any judicial proceeding for divorce, separation, paternity, or child support.
It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support Chart is correct, if the court enters in the case a written finding or specific finding on the record that the amount so calculated, after consideration of all relevant factors, is unjust or inappropriate. The court may grant less or more support if the evidence shows that the needs of the dependents require a different level of support.
1. Food; 2. Shelter and utilities; 3. Clothing; 4. Medical expenses; 5. Educational expenses; 6. Dental expenses; 7. Child care; 8. Accustomed standard of living; 9. Recreation; 10. Insurance; 11. Transportation expenses; and 12. Other income or assets available to support the child from whatever source.
1. The procurement and/or maintenance of life insurance, health insurance, dental insurance for the children's benefit; 2. The provision or payment of necessary medical, dental, optical, psychological or counseling expenses of the children (e.g. orthopedic shoes, glasses, braces, etc.); 3. The creation or maintenance of a trust fund for the children; 4. The provision or payment of special education needs or expenses of the child; 5. The provision or payment of day care for a child; and 6. The extraordinary time spent with the non-custodial parent, or shared or joint custody arrangements.
Id. at 616-17, 804 S.W.2d at XXVI-XXVII.
In this per curiam, the supreme court stated: "In determining requested modifications of child support orders entered prior to the effective date hereof, the trial court should consider the totality of the present circumstances of the parties and avoid modifications that would work undue hardship on the parties or any persons presently dependent thereon." 305 Ark. at 618, 804 S.W.2d at XXVIII. In this case, the chancellor stated that, based upon appellee's affidavit of financial means, it would be an "undue burden" to order him to pay more child support. In that affidavit, appellee listed his monthly bills and his children born of his second marriage. According to the per curiam quoted above, it was certainly permissible for the chancellor to consider the effect of an increase in appellee's child support obligation on his ability to pay his bills and to support his other children.
Nevertheless, from the chancellor's remarks at trial and the order denying appellant's petition for increased support, there is no indication that the chancellor referred to the family support chart. Given the presumption that the chart amount is reasonable, it is incumbent on the chancellor to give a fuller explanation of his reasons for rejecting the chart. See Cochran v. Cochran, 309 Ark. 604, 832 S.W.2d 252 (1992), where the chancellor had observed at the conclusion of the hearing that, if he followed the family support chart, the amount of child support would double, a result which he considered to be unreasonable. The supreme court reversed on appeal, stating that the chancellor's observation that the chart amount of child support was unreasonable is not an adequate explanation for his deviation from the family support chart. It stated: "If appellate review is to have much significance, a greater account of why the chart amount is inappropriate under the circumstances of the case is essential." Id. at 607, 832 S.W.2d at 254.
On appeal, this court has the power to decide chancery cases de novo on the record before us, but in appropriate cases, we also have the authority to remand such cases for further action. See Black v. Black, 306 Ark. 209, 812 S.W.2d 480 (1991). We therefore remand this case to the chancellor for a determination of child support in accordance with Ark. Code Ann. 9-12-312 and the guidelines for child support enforcement. Because this case requires a remand, we leave it to the discretion of the chancellor to decide whether a more detailed and explanatory opinion will suffice to meet the requirements of the supreme court's per curiam order and Ark. Code Ann. 9-12-312(a)(2) or whether further proof from the parties is necessary on the applicable factors and other relevant matters. We affirm that part of the order denying appellee's petition for a change of custody and ordering appellee to be responsible for one-half of the child's medical needs not covered by insurance.

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Overview (table of contents) Chapter 1 Chapter 2 Chapter 3 Administration of scheme content eligible projects Chapter 4 conditions of subsidy Chapter 5 eligible project expenditure Chapter 6 amendment of the project and entry into commitments Chapter 7 Calculation of subsidy Chapter 8 payment of subsidy Chapter 9 obligation Chapter 10 cancellation and repayment of the subsidy Chapter 11 Force majeure Chapter 12 appeals Chapter 13 entry into force of The full text of the Decree on subsidies for measures to protect and develop aquatic fauna and flora in under section 3 of the basic regulation. § 2, nr. 3 (b), section 4, paragraph 2, § 5, article 7, paragraph 4, article 11, paragraph 4, and section 13, paragraph 1, of the lov nr. 1552 of 20. December 2006 on the development of the fisheries and aquaculture sector (Fisheries Development Act) be established under the authority of scheme content: Chapter 1 section 1. Food Business can within the allotted frameworks promise grants to initiatives of common interest intended to protect and develop aquatic fauna and flora while the aquatic environment be improved.
(2). Commitments for grants can be given to public institutions, authorities and organisations in the fisheries sector or self-governing institutions, as the Ministry of food, agriculture and fisheries has approved for the purpose.
(3). Food Industries can apply the available frames in one filing period or distribute it to multiple filing periods.
Chapter 2 Administration authorities and control section 2. Food business shall take a decision in accordance with this Ordinance.
(3). After authorization may be another authority under the Ministry of food, agriculture and fisheries, the physical control and the subsequent accounting control.
(4). In paragraphs 1 to 3 shall control authorities need to control can obtain information from other authorities, as necessary, in accordance with the Fisheries Development Act § 12.
Grant application section 4. Application for grant commitments are submitted to Food Profession on a special table, which can be obtained from the food industry or Food business via website.
(2). Application may be submitted from 1. February and must be received in the Food Business by 1. April in the application year. However, the application can be filed in 2010 from the 20. may and must be received in the Food Business by 20. June 2010. Food Industries may provide additional application periods that will be published on the Food Business website no later than 4 weeks before the application deadline. In cases where the last day of the application deadline is a Saturday, Sunday, Monday, or a public holiday, the deadline shall expire on the second working day (Saturday excluded) that follows thereafter.
(3). Food Business shall acknowledge of receipt of the application and may in this connection grant permission to launch the project.
Prioritization and decision section 5. Food Industries Announces the commitment of grant for applications received before the deadline and which meet the conditions for reimbursement referred to in article 6. Cape. 1 and 3, after giving priority on the basis of project activities and expected effects, as referred to in paragraphs 2 to 4 shall be taken into account when prioritising relations.
(2). For projects on restoration of watercourses, see. § 8, nr. 1, is included in the context of the priority given to an assessment of whether the project is expected to contribute in the following areas: 1) Improved spawning conditions or reproductive opportunities for fish.
2) Improved passage for migratory species.
3) More and better Habitat for aquatic fauna and flora.
4) contribution to the objectives of the Ministry of food, agriculture and Fisheries action plan for fish care.
5) Positive effects for affected aquaculture facilities.
(3). For projects within the framework of NATURA 2000, see. § 8, nr. 2, are included in the context of the priority given to an assessment of the following: 1) If the project is expected to contribute to reducing the impact on the environment in Natura 2000 areas and optimizing the exploitation of fisheries and aquaculture resources.
2) About the fishing activities covered by the project, has a certain economic or social importance.
3) about the project contributes to the knowledge base, which is included in the development of fisheries management measures in Natura 2000 areas.
(4). For projects relating to direct the release of living aquatic organisms, see. § 8, nr. 3, to be laid in connection with priority emphasis on whether the project contributes to the achievement of a conservation measure in accordance with the terms of a Community instrument.
(5). Fisheries Directorate shall issue at the request of the Food Profession opinion on applications concerning the of section 8, no. 2, referred to project type, including on the activities of the projects are eligible.
§ 6. Food Business can establish one or more undertaking frameworks for each of the project types, see. Cape. 3. Food Business can establish, on the one hand, an undertaking framework, where funding is derived from the Food Ministry's budget appropriation and from EU co-financing from the European Fisheries Fund, on the other hand, an undertaking framework for funds from the European Fisheries Fund for projects co-financed with other public funding than funds from the Ministry of Food Budget appropriation for the implementation of the programme for the development of the Danish fisheries and aquaculture sector.
§ 7. If the application can be accepted providing Food Business commitments for grants.
(2). Food Profession can give whole or partial rejection of the applications with reference to a priority undertaking frames that are set aside for each of the project types for that filing period. Food industries can also refuse the applications when the food Profession believes that the effect of the applied project did not adequately contribute to the scheme's purpose.
Chapter 3 eligible actions § 8. Commitments on subsidies may be granted for: 1) Projects concerning the restoration of watercourses, including migratory species spawning and nursery grounds and migration routes for.
2) comprehensive studies on knowledge building Projects or the development of measures relating to fisheries which can be included in the efforts to improve the State of the environment in Natura 2000 areas, if the projects directly include possible commercial fishing activities.
3) projects for direct restocking of living aquatic organisms, regardless of whether they are produced in hatcheries or fished elsewhere, provided that the release is part of a conservation measure in accordance with the terms of a Community instrument.
Chapter 4 conditions governing grants section 9. It is a condition of grants, 1) to the total eligible cost of the project amounts to at least 50000 DKK, 2) to the necessary authorisations from public authorities achieved 3) that the applicant shall deliver the information that Food Business requests for use of the procedure, 4) that the project be completed at the latest at the time specified in the application, but not later than 18 months after the date of the undertaking unless Food Business shall grant derogations, 5) that undertaking gardens submit final withdrawal request and project report in due time, without prejudice. section 15 (3), (6)) that the project is maintained by undertaking gardens for a period of at least five years from the date of the commitment, and 7) that the withdrawal request and the original accounting documents shall be kept available until 31. December 2021.
Chapter 5 eligible project costs section 10. Eligible expenditure may include 1) investment costs for the recovery of streams, including the setting up of spawning grounds and migration routes for, 2) expenditure relating to the preparation of studies in NATURA 2000 areas that have an impact on commercial fishing, 3) the cost of the architectural and engineering fees and other costs of the design, 4) the cost of the certificate of paid expenses, 5) the cost of procurement, production and transport of aquatic organisms in connection with reimbursement for direct restocking , 6) the cost of project reporting, and 7) other expenses, such as food Industries assesses to be necessary in order to implement the project.
5) expenditure relating to activities in which the undertaking gardens is committed to implement pursuant to other legislation, 6) financial, audit, legal and banking costs, unless these are due to demands from undertaking-making authority, 7) VAT, unless this definitively borne by undertaking gardens, and 8) acquisitions of aquaculture facilities with a view to closing the production.
(2). Notwithstanding paragraph 1, no. 4, the candidate may, for applications relating to projects subject to section 8, no. 3 made in 2010 in the section 4, paragraph 2 2. sentence stipulated application period, get approved eligible expenditure incurred on or after 1. April 2010 or later.
Chapter 6 amendment of the project and entry into the commitments section 12. Modification of a project may be approved by the Food Business on the condition that the change in accordance with the Food Business assessment is in accordance with the purpose of the project. Application for amendment of a project must be approved by the Food Profession before the change is implemented.
§ 13. Food Profession may on application allow, to another, which, according to section 1, paragraph 2, may be undertaking gardens, occurs in an undertaking for reimbursement. The occurring in the undertaking, assuming rights and obligations after the undertaking.
Chapter 7 Calculation of reimbursement section 14. Food Business after this Ordinance can provide a grant of up to 50 per cent of the eligible costs for the projects of river restoration, see. § 8, nr. 1, and for projects involving the deliberate release, see. § 8, nr. 3. For projects on NATURA 2000 see. § 8, nr. 2, grant can cover up to 100% of approved eligible expenses.
(2). Grants for River restoration, see. § 8, nr. 1, and grants for deliberate release, see. § 8, nr. 3 shall be granted only if the applicant can demonstrate that the subsidy granted by other public funds of at least the same amount as grant after this notice constitutes.
Chapter 8 payment of the grants section 15. Payment of grants on the basis of the undertaking ' s statement of paid eligible project costs must be documented. Request for payment of the reimbursement shall be made on a special form and be accompanied by a declaration from a registered public accountant or certified public accountant. Forms and form to the auditor's statement are available by contacting the Food Profession or via Food Business website.
(2). Grants may be paid in until 2 installments. The individual instalments must represent at least 20 per cent of the total amount of the undertaking.
(3). Request for final payment must be Food Business not later than three months after the project is completed. Food Industries can in special cases, grant a derogation from this deadline. Final withdrawal request must be accompanied by a project report.
(4). The grant is transferred to the undertaking's NemKonto.
Chapter 9 obligation § 16. Undertaking Gardens must throughout the period in which the conditions for reimbursement must be met, upon request, declare to the Food Profession about whether conditions for the grants continue to be met.
(2). Undertaking gardens is in the whole period in which the conditions for reimbursement must be fulfilled, committed to without undue delay, to give Food business notification of conditions that can result in cancellation of commitments for reimbursement or repayment of grants under section 17.
Chapter 10 cancellations and repayment of grants section 17. The commitment of grant shall lapse if 1) undertaking gardens have given false or misleading information or has concealed information in relation to the merits of the decision, 2) undertaking his duties after fisheries development overrides Gardens section 11 (2), (3)) the undertaking does not comply with his obligation after Gardens § 16, 4) the project is not carried out in accordance with the approved application, or 5) conditions for reimbursement are not met.
Chapter 11 Force majeure § 18. Food Profession recognizes the following events as force majeure: 1) if such Expropriation could not be foreseen by the undertaking period.
§ 19. If undertaking gardens wants to invoke force majeure, it shall be communicated to the Food Industries in writing within 10 working days after the date on which the undertaking gardens is able to do it. the communication must be accompanied by adequate documentation.
Chapter 12 redress section 20. Decisions of the Food Profession by virtue of this order can be appealed to the Minister of food, agriculture and fisheries.
(3). Food Business can reopen a case, after which is lodged a complaint.
Chapter 13 the date of entry into force of § 21. The notice shall enter into force on the 20. May 2010.


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On July 8, 2016, the Supreme Court of Canada Released its decision R. v. Jordan, 2016 SCC 27. It was a close decision with a 5-4 majority written by Justices Moldaver, Karakatsanis and Brown.
The issue in the case was whether or not there was too much delay in the criminal proceedings against the accused. The Charter of Rights and Freedoms gives everyone the right to be tried within a reasonable time under section 11(b). This is a critical right in a fair justice system to prevent the government from intentionally dragging a case along while an accused is detained in custody. For Mr. Jordan, his case took 49.5 months (just over 4 years) to finish from the time when he was charged. The lower courts determined the delay was not unreasonable and denied Mr. Jordan's earlier applications for unreasonable delay.
Part of the problem with unreasonable delay is that the only remedy or the only way to fix/address it is by a judge entering a stay of proceedings. In other words, the judge decides to drop the charges. The judge cannot decide to, instead, reduce a sentence for unreasonable delay. That would be an improper and illegal remedy. In other situations, where your right to counsel or your right to be free from unreasonable search and seizure are violated, the judge must decide what evidence, if any, ought to be excluded from a trial. Even if evidence is obtained illegally, the judge may determine to still allow the evidence in. There is another Supreme Court of Canada case that deals with that issue called R. v. Grant, 2009 SCC 32. So, judges may feel that the burden for unreasonable delay should be very high because there is only one remedy and it is a significant one.
Our system, however, has come to tolerate excessive delays. The circumstances in this appeal are illustrative. Notwithstanding a delay of over four years in bringing a drug case of modest complexity to trial, both the trial judge and the Court of Appeal were of the view that the appellant was tried within a reasonable time. Their analyses are reflective of doctrinal and practical difficulties plaguing the current analytical framework governing s. 11 (b). These difficulties have fostered a culture of complacency within the system towards delay.
The Supreme Court had problems with the previously existing approach and framework laid out in R. v. Morin,  1 S.C.R. 771. The Court outlined the framework from R. v. Morin at paragraph 30 and commented it was too unpredictable, too confusing, and too complex.
The Morin framework requires courts to balance four factors in determining whether a breach of s. 11 (b) has occurred: (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused’s interests in liberty, security of the person, and a fair trial. Prejudice can be either actual or inferred from the length of the delay.
 At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).  If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.
the case took markedly longer than it reasonably should have.
So, we have a new framework for looking at institutional and systemic delay in the criminal justice system in Canada. In Manitoba, there was a recent decision (that was before R. v. Jordan) that dealt with this exact issue of unreasonable delay. In R. v. Vandermeulen (M), 2015 MBCA 84, the Manitoba Court of Appeal heard a motion for delay after the accused was convicted after a trial. The Court agreed the delay was excessive and entered a stay of proceedings. Manitoba Justice appealed the decision but leave to the Supreme Court of Canada was denied.
the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more."
The Supreme Court considered the tertiary ground in the 2002 decision R. v. Hall, and it refers to that earlier decision throughout this one. The Supreme Court reminded us that the Charter of Rights and Freedoms guarantees us all the right to "not be denied reasonable bail without just cause." This court held this means two things: "(1) the right to “reasonable bail” in terms of quantum of any monetary component and any other conditions that might be imposed; and (2) the right not to be denied bail without “just cause" at paragraph 27.
The court also clarified that in order for the tertiary ground to be relied upon, the crime does not have to be horrific, heinous, or unexplained. Justice Wagner held, "In my view, the question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide justices in their analysis under s. 515(10) (c)" at paragraph 47. Also, the rarity of a certain crime is not something to consider because the court held "I am of the view that a “rareness” of circumstances criterion would be vague and unmanageable in practice" at paragraph 52.
the fact that the trial of the accused will be held at a much later date.
Overall, it seems like the Supreme Court is trying to open the door for judges to rely upon the tertiary ground in more cases. That may have been the original intent of Parliament when the legislation was enacted, but the way judges in provincial and superior courts have interpreted the law over time may have slowly changed how we thought the tertiary ground was supposed to work. It was obviously an issue important enough that the court heard the case in the first place. We now have to wait and see how it has an impact on a day to day basis when we apply for a client's release from custody.
Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
In Manitoba, there were already two decisions from judges in the Court of Queen's Bench about minimum sentences for firearms offences and how they were unconstitutional. First, Justice Suche held the minimum sentence in section 95 violated sections 7, 12, and 15 of the Charter in R. v. Adamo, 2013 MBQB 225. An appeal has been filed by the Crown Attorney's office in this case and it was still pending at the time of this blog post but given the decision from the Supreme Court, I would think the appeal may be withdrawn.
Shortly after this, in October 2013, Justice Menzies concluded the section 12 was violated by a minimum sentence for a different firearm charge in the Criminal Code under section 244 of intentionally discharging a firearm into a place knowing that or being reckless as to whether another person was in that place under section 244 in R. v. McMillan, 2013 MBQB 229. An appeal has been filed by the Crown Attorney's office in this case and it was still pending at the time of this blog post. But this is about a different section of the Criminal Code than what R. v. Nur decided.
At the end of the day, removing the minimum sentence allows the sentencing judge to have discretion to impose a fit and appropriate sentence. In some cases, a 3 year jail sentence or more may still be appropriate. But minimum sentences turn the process into a one-size-fits-all when we know that sentencing is incredibly unique to each case and each set of facts. In fact, sentencing an accused is often described as an art more than a science. Removing minimum sentences allows judges to exercise their discretion and show mercy in cases that warrant it.


The Supreme Court should affirm the Ninth Circuit—but it should require that the noncitizen seeking release must show colorable grounds for contesting removal or obtaining other relief under the INA. Application of this substantive stake test will avoid constitutional problems while vindicating Congress’s concern with noncitizens’ appearance in immigration court.
The INA provision at issue in Preap is 8 U.S.C. §1226(c)(1), which requires immigration detention “when the alien is released” from prison or other custody where the noncitizen had been held based on conviction for a wide range of crimes, from crimes of violence and theft to possession of marijuana above a set threshold. Under the INA, each of these convictions can result in the noncitizen’s removal. As Justice Brett Kavanaugh noted during last week’s argument, Congress enacted the provision in 1996, as part of the Illegal Immigration Reform and Immigrant Responsibility Act, because legislators believed that some noncitizens had failed to appear at removal hearings, thereby frustrating immigration enforcement. Section 1226(c)(1) mandates detention of any lawful permanent resident (LPR) such as Mony Preap—the child of Cambodians fleeing the Khmer Rouge regime—who was born in a refugee camp and became an LPR in 1981. Immigration officials detained Preap some time after his convictions for possession of marijuana.
While Congress’s concern with some noncitizens’ failure to appear was legitimate, mandatory detention has also had harsh consequences. At last week’s argument, virtually every justice acknowledged that immigration officials have on occasion detained noncitizens for lengthy periods—sometimes stretching into years. Because of the vast sweep of Section 1226(c)(1), detention has extended even to noncitizens with colorable arguments that their criminal convictions were not in fact grounds for removal or that they were eligible for relief such as cancellation of removal, which the INA provides to LPRs who have committed certain crimes but who also have accrued specific periods of time in continuous residence and LPR status.
The purpose and operation of cancellation of removal illustrate the harsh effects of mandatory detention on longtime LPRs like Preap, who in fact ultimately received cancellation of removal. (Other members of the plaintiff class in Preap continued his challenge). Cancellation recognizes longtime LPRs’ deep ties to the United States. Based on these compelling equities, cancellation is available as long as a noncitizen has not been convicted of serious charges such as theft, crimes of violence or drug-trafficking crimes that constitute “aggravated felonies” under the INA.
Defining an aggravated felony under the INA can be challenging; in last term’s Sessions v. Dimaya, the Supreme Court held that one prong of the definition of “crimes of violence” was unconstitutionally vague. (In Dimaya, Justice Elena Kagan wrote for the Court, joined by the three other liberal justices and Justice Neil Gorsuch). Under Section 1226(c)(1), a noncitizen may have to litigate this complex question while detained in a remote location, with reduced prospects for obtaining legal representation. That litigation may take years, particularly when, as in Dimaya, the Supreme Court ultimately has to decide the contested legal issue. In a perverse effect of the mandatory detention regime, noncitizens with the best cases on the merits may spend the longest time in detention.
In Preap, the noncitizen class members argue that Section 1226(c)(1)’s “when released” language tempers the harshness of mandatory detention. According to the Preap class members, the provision’s mandatory detention requirement does not apply unless immigration officials detain the noncitizen immediately upon his or her release from criminal custody. The Ninth Circuit decision in Preap held that the government had to “promptly” detain the noncitizen after release, reading a durational limitation into Section 1226(c)(1). This limit would benefit noncitizens whom the government failed to detain immediately, including those who have lived for years in the community without further encounters with the criminal justice system. Under the Ninth Circuit’s view, when immigration officials finally arrested those noncitizens and issued a Notice to Appear (NTA) for removal proceedings in immigration court, the respondents in those proceedings would be eligible for bond based on their showing that they did not constitute a flight risk and posed no danger to the community. At oral argument, Justice Sonia Sotomayor and Justice Kagan seemed most intent on retaining the Ninth Circuit’s immediacy standard.
The Ninth Circuit supported this view by invoking the text of 8 U.S.C. §1226 as a whole. Subsection (a) of this provision states that immigration officials generally have discretion regarding whether to release a noncitizen, subject to the limitations in subsection (c), which includes both the “when released” language and a list of criminal convictions that trigger mandatory detention. For mandatory detention to apply, according to the 9th Circuit, a noncitizen had to have been convicted of one of the crimes specified and have been arrested promptly upon release.
Also relevant to the Supreme Court’s consideration of Preap is the avoidance canon, which requires reading a statute to preserve its constitutionality when a fair reading of the legislation permits that result. In last term’s Jennings v. Rodriguez, the Supreme Court, in an opinion by Justice Samuel Alito, held that the INA required mandatory detention for noncitizens whose immigration arrest occurred immediately after their release from criminal custody. In contrast, for noncitizens who were not arrested by immigration officials immediately upon their release from criminal custody and thereby arguably fall outside Section 1226(c)(1)’s “when released” language, the statute is at least ambiguous. This creates room for the avoidance canon. At last week’s oral argument, Justice Stephen Breyer highlighted this feature of the case, which virtually every justice agreed was at least part of the backdrop for the court’s deliberations.
The government’s arguments against the Ninth Circuit’s holding invoked legislative text and purpose. In considering purpose, Justice Kavanaugh succinctly stated Congress’s view that the flight risk and dangerousness criteria routinely used in criminal bail and immigration bond proceedings were too amorphous to assure that the maximum possible number of noncitizens who had received NTAs would show up for their merits hearings in immigration court. Justice Kavanaugh noted that Congress was surely aware that requiring immediate arrest by immigration officials upon an individual’s release from criminal custody would often be impracticable, since many persons convicted of statutorily qualifying crimes, such as marijuana possession, might take a plea deal requiring little or no prison time. Because state and local authorities do not routinely notify federal immigration authorities in such cases, arresting that person immediately upon release would impose an onerous burden on strapped immigration officials that Congress may well not have intended. Strictly as a matter of statutory construction—leaving constitutional issues aside—it seems odd to assume that Congress went to the trouble of including a range of qualifying convictions that would trigger mandatory detention, only to set up immigration officials to fail in this effort.
Moreover, Justice Kavanaugh suggested, the Ninth Circuit’s rosy view of noncitizens’ appearance at trial did not adequately address Congress’s concerns. The length of time that noncitizens have spent in the community prior to receipt of an NTA for a removal hearing is not always a reliable indicator of a noncitizen’s actions post-NTA. Confronted with the real risk of removal, some noncitizens might elect to abscond rather than appear in immigration court. While monitoring and other alternatives to detention might work in the majority of cases, some noncitizens would fall through the cracks. The temptation to abscond might be particularly appealing to noncitizens without a colorable argument against removal on the merits. Facing the virtually certain outcome of removal, those individuals might choose flight.
Addressing this concern, Zachary Tripp of the Justice Department argued that Section 1226(c)(1)’s “when released” language merely requires that the immigration arrest should take place at some point after release from criminal custody, without the narrow focus on immediacy of the plaintiffs. Under the plaintiffs’ argument, even 48 hours would be too long an interval between release from criminal custody and immigration arrest. Justices Gorsuch, Kavanaugh and Alito, as well as Chief Justice John Roberts, pushed the plaintiffs’ attorney, Cecilia Wang of the ACLU, on this point.
Supporting this argument, the government relied heavily on United States v. Montalvo-Murillo, a Supreme Court decision holding that the government’s failure to meet a particular statutory deadline did not trigger a wholesale “loss of authority” to detain a suspect who was both dangerous and a flight risk. To hold otherwise would have granted that dangerous defendant a “windfall” that Congress did not intend. According to this view, the government’s authority to require the detention of a noncitizen under Section 1226(c)(1) would not lapse merely because the government could not immediately arrest the noncitizen. Responding to this point, Justice Breyer asserted that under the Ninth Circuit’s decision in Preap, a noncitizen would not get a “windfall” at all. The noncitizen would not be automatically released; to obtain bond, he or she would still have to show that he was not dangerous or a flight risk. In that sense, the Ninth Circuit’s decision was entirely consistent with Montalvo-Murillo.
Importantly, the justices did not appear to view the court’s decision in Chevron v. Natural Resources Defense Council as controlling. In Chevron, the court held that it would defer to an agency interpretation if, 1) the statute was ambiguous, and, 2) the agency interpretation was reasonable. In Preap, the government strenuously argued that application of Chevron would require deference to its position. Either the statute unambiguously supported the government’s position, or in the alternative the statute was at least ambiguous and the government was reasonable in asserting that the statutory phrase “when … released” means any time after release. However, the justices asked virtually nothing about Chevron deference; they appeared to think that their task was to determine for themselves what the statute meant, against the backdrop of the Constitution if that turned out to be applicable.
Predicting how the Supreme Court will rule based on oral argument is perilous, and Preap is no exception. A majority of justices seemed concerned that accepting either the plaintiffs’ or the government’s stark preferred positions would create problems. Chief Justice Roberts and Justices Kavanaugh, Gorsuch and Alito (possibly joined by Justice Clarence Thomas, who as usual remained silent) were troubled by the plaintiffs’ argument that arrest had to be immediate to justify mandatory detention. Yet each justice also acknowledged potential problems with protracted mandatory detention of noncitizens apprehended years after their release. Justice Breyer sought a middle course, suggesting either that the government should have a reasonable time to arrest (e.g., six months) or that any period of mandatory detention should end after six months, allowing the noncitizen to then make an individualized showing in favor of release. Justice Alito mused about the possibility of an as-applied challenge to the constitutionality of the statute by a noncitizen whose long period of time in the community presented a particularly compelling factor weighing against mandatory detention.
Based on my experience with immigration law, I’d suggest that the court could vindicate Congress’s concern and the constitutional rights of the LPRs affected by Section 1226(c)(1) by reading the provision as requiring immediate arrest, but then tailoring the determination of flight risk to Congress’s concerns. This approach would require that the noncitizen first show a substantive stake in immigration court proceedings on the merits. An individual could demonstrate such a stake by making a colorable argument that his conviction was not for an “aggravated felony” (such as a “crime of violence,” “theft offense,” or drug trafficking crime) and that he or she met the other requirements for cancellation of removal (involving time in the United States).
Noncitizens with such a substantive stake would be virtually assured to show up at their immigration court merits hearings. If they prevailed, as Preap ultimately did, they would no longer face the risk of removal. Absconding would trigger an in absentia removal order and the consequent loss of LPR status, along with a grim future of perpetually looking over their shoulders for immigration officials in pursuit. No reasonable noncitizen would embrace that trade-off.
Having shown a substantive stake in the immigration court merits hearing, a noncitizen would then move to the ordinary criteria for showing lack of dangerousness and absence of flight risk, including a track record of law-abiding behavior, a job, family ties, and other familiar factors. But the threshold inquiry into substantive stake would protect against needlessly long stays in detention while firming up the flight risk and dangerousness inquiries that Congress had believed were too open-ended to deliver consistent results.
The substantive stake approach would involve some tweaking of the traditional open-ended flight-risk and dangerousness determination entail in bail and bond hearings. That modest change is less disruptive to the statutory scheme than terminating mandatory detention after a period not chosen by Congress—such as six months in Justice Breyer’s formulation. Similarly, a substantive stake approach is superior to reading the “when released” language in Section 1226(c) to include a specific time interval for immigration arrest that the Supreme Court designates as “reasonable,” even though Congress again did not provide any such limit. Avoiding this judicial rewriting of the statute, the substantive stake approach also sidesteps the constitutional difficulties with requiring detention of LPRs who have clear incentives to appear and colorable arguments on the merits. Minimizing both constitutional difficulties and statutory disruption makes a strong case for the substantive stake approach.
Court-watchers will know by the end of June if the Supreme Court opts for this path, selects Justice Breyer’s “reasonable time” approach, or accepts the government’s position. The interplay of statutory, administrative law, and constitutional issues makes the precise outcome more unpredictable than in other cases with fewer variables. For example, Justices Thomas, Alito, Gorsuch, and Kavanaugh, joined by Chief Justice Roberts, could decide that Chevron deference applied after all, and determine that the statute was ambiguous and the government’s view was reasonable. That result would signal deference in the immigration realm, although the result’s relevance in other settings, such as government efforts to regulate the environment, might be more uncertain. The court could postpone decision of constitutional issues and rule only on the statutory issue, as Justice Alito seemed to favor.
Alternatively, the four liberal Justices and at least one of the conservatives could form a majority favoring Justice Breyer’s “reasonable time” argument. That outcome would suggest that at least one of the conservative Justices was open to reading some conception of reasonableness into the statute. Under this approach, a “textualist” reading of statutes starts with statutory language but can also then import background understandings such as reasonableness.
Adopting the “substantive stake” test suggested in this post would read the statutory phrase “when … released” narrowly as meaning immediate arrest, but would then interpret the traditional factor of flight risk more strictly to require that the noncitizen as a threshold matter show a colorable case on the merits of removal. That approach would signal a commitment to individualized adjudication, but inform that adjudication with an appreciation for the practicalities of immigration law and enforcement. In any case, the court’s outcome and reasoning will tell us much about decisionmaking in the post-Kennedy Supreme Court.