Month: April 2010

At Ignite Dublin #4, held in TCD’s Science Gallery as part of last week’s Trinity Week celebrations, I gave a 20-slides-in-5-minutes presentation on Ten Copyright Myths, in part because the previous weekend saw the 300th anniversary of the first modern copyright statute, the Statute of Anne, 1710 (fascimile | transcript | wikipedia). For the day that’s in it, here’s a YouTube video of my presentation:





For those who don’t have 5 minutes to watch, here are the myths debunked:

1. You don’t need to put the copyright symbol © on a text to claim copyright. All that matters is that the work is original.
2. You don’t need to put it in an envelope and send it to yourself. If the work is original, then copyright just vests.
3. There is no doctrine of fair use outside of the United States. Instead, there is a much more limited doctrine of fair dealing for the purposes of research or criticism.
4. Just because something has been published on the internet doesn’t mean that it’s in the public domain. There’s a lot less in the public domain than you might think.
5. Taking a work, and transforming it, still infringes copyright.
6. Giving credit is important; but if the taking is a copyright infringement, giving credit doesn’t change that fact.
7. Taking a copyright work, but not charging for your use, will still be an infringement if the taking is a copyright infringement.
8. The fact that the original author is dead doesn’t mean the work is out of copyright. The copyright term is the life of the author plus seventy years.
9. Creative Commons is a good development, but it’s just a system of licences or permissions, and it won’t change the copyright world.
10. Finally, just because Google are copying books doesn’t mean the rest of us can: they have permission pursuant to a court settlement.

So, there you have it, ten copyright myths debunked. What others would you add to the list?

The Council of Europe has just published the Venice Commission‘s Report on Blasphemy, insult and hatred – Finding answers in a democratic society (Science and Technique of Democracy No 47, 2010) (cover left) (earlier related publications here). Religious accommodation, mutual understanding, and social diversity constitute a significant challenge for modern western democracies. This report argues that “diversity is undoubtedly an asset, but cohabiting with people of different backgrounds and ideas calls for a new ethic of responsible intercultural relations”. The recent Irish response has been to introduce an offence of blasphemy in the Defamation Act, 2009. At its conference last weekend, the Labour Party debated and passed three motions (111, 112, 113) which condemned the introduction of the offence of blasphemy, and called for its repeal, and called for a referendum proposing to delete the word “blasphemous” from the Constitution (presumably as part of its wholesale constitutional revision). This is welcome, but doesn’t go far enough: the entire free speech clause should be thoroughly reformed (especially if there is to be a convention to develop a new constitution). Of course, this might not be necessary in the short term, since the provisions might very well conflict with the current text of the constitution in any event.

This is not the case in Indonesia. On Monday, that country’s Constitutional Court held that a controversial 45-year-old law banning religious blasphemy was constitutional. Mahfud CJ held that the law did not contradict the country’s 1945 Constitution or its national ideology, known as Pancasila, which nominally guarantee freedom of religion.

Later in the week, Islamists – to predictable controversy – warned the creators of provocative TV show South Park that they could face violent retribution for depicting the Prophet Muhammad in a bear suit (BBC | Guardian here and here | Independent | Irish Independent | Irish Times | LA Times | The Daily Show with John Stewart). On Human Rights in Ireland, Liam Thornton considered whether such gratuitous mocking of religion is permitted under human rights law. Starting from David Keane “Cartoon Violence and Freedom of Expression” (2008) 30 (4) Human Rights Quarterly 845, and observing that South Park purposefully courts controversy and seeks to mock all religions and atheism in a gratuitous fashion, he concludes that the purpose of the controversial episodes

… was to show the mental acrobatics which have to be gone through to justify the limitation of freedom of expression from mocking of one groups beliefs, yet allowed to freely ridicule the religious beliefs of others. In the words of the South Park creators, they are “equal opportunity offenders”. To those who are offended by shows like South Park, which does not provoke hatred on the ground of religious belief, the solution is simple, change the channel.

I couldn’t agree more.

Section 41(3) (also here) of the Broadcasting Act, 2009 provides:

A broadcaster shall not broadcast an advertisement which is directed towards a political end or which has any relation to an industrial dispute.

Earlier this week, at the annual conference of the Independent Broadcasters of Ireland, the Chairman of the IBI and CEO of Today FM, Willie O’Reilly called for the repeal of this provision, saying that it was open to challenge in the European Courts. According to the IBI press release:

The ban on paid political advertising applies not just to political parties and election candidates but also to organizations, such as trade unions, promoting issues which are considered to be of a political nature.

There is arguably a strong legal case at European level against Ireland’s current ban in the context of freedom of expression as laid down in the European Convention of Human Rights. The current law is outmoded and inappropriate and it is questionable as to whether it is robust enough to withstand a legal challenge in the European Court.

The simple fact is that the internet has made the ban irrelevant. The Obama campaign was won online and all the party’s in the British election are committed to campaigning intensively online. It is ludicrous that a political party can advertise on a radio station’s website but cannot advertise on the radio itself. Moreover, we are seeing political parties in Ireland use the internet and sites such as you tube to upload professional video content that is to all intents and purposes political advertising. The arbitrary exclusion of some electronic media including radio, but not others, from paid political campaigning is nonsense and it is time for our laws to be brought up to date. …

I do not understand, and I do not accept, that it is fair, or reasonable, or right that either audiences or broadcasters should be excluded from paid political broadcasts. What is acceptable in newspapers, and what is available online, should be allowed to air on radio and on television in a free and functioning media. If the government refuses to look at this issue seriously we may be left with no option but to take a challenge to the courts ourselves.

At the end of last year, Dr Kevin Rafter, Head of the Department of Film and Media, in the School of Creative Arts, at the Dun Laoghaire Institute of Art, Design and Technology wrote a fascinating report on Political Advertising: The regulatory Position and the Public View (here) for the Broadcasting Authority of Ireland (BAI) which I discussed here, here and here. According to the IBI press release, Rafter told the conference that the time had come to look again at the laws governing political broadcasting:

It is timely to examine whether political advertising should be allowed on television and radio, especially with the rise of these type of adverts on the web and also doubts about the legality of the current outright ban in Ireland.

I have long argued that this ban is questionable in the light of the decisions of the European Court of Human Rights. The point is most strongly emphasised by the decision of the Grand Chamber in Verein gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) 32772/02, [2009] ECHR 1025 (30 June 2009). In the first part of the case, (VgT (No 1) 24699/94, (2002) 34 EHRR 159, [2001] ECHR 412 (28 June 2001)) the Court had found that the prohibition of a political advertisement violated Article 10 of the Convention. Switzerland ultimately failed to remedy the situation, in particular because the Federal Court subsequently dismissed VgT‘s application to reopen the proceedings, so the matter returned to the Court. A Chamber (32772/02, 4 October 2007) held that this amounted to a further infringement of Article 10, and the case was referred to the Grand Chamber. In turn, the Grand Chamber (32772/02, [2009] ECHR 1025 (30 June 2009)) held that the continuing failure to respect the earlier decision constituted a fresh violation of the Convention’s freedom of expression guarantee:

[92] The Court reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or, as in this case, on debate of questions of public interest. … This applies all the more in the instant case, having regard to the Court’s judgment of 28 June 2001 [in VgT (No 1)]. Moreover, the television commercial concerned battery pig-farming. Accordingly, as it related to consumer health and to animal and environmental protection, it was undeniably in the public interest.

[93] The Court further notes that the television commercial was never broadcast, even after the Court’s judgment had found that the refusal to broadcast it infringed freedom of expression. However, prior restraints on publication entail such dangers that they call for the most careful scrutiny …

[94] Furthermore, the Court has already found, in its judgment of 28 June 2001 [in VgT (No 1)], that the interference in issue was not necessary in a democratic society, among other reasons because the authorities had not demonstrated in a relevant and sufficient manner why the grounds generally advanced in support of the prohibition of “political” advertising could serve to justify the interference in the particular circumstances of the case (see VgT (No 1) [75]). …

[95] … the public interest in dissemination of a publication does not necessarily decrease with the passing of time … Moreover, the Federal Court did not offer its own explanation of how the public debate on battery farming had changed or become less topical since 1994, when the commercial was initially meant to have been broadcast. Nor did it show that after the Court’s judgment of 28 June 2001 [in VgT (No 1)] the circumstances had changed to such an extent as to cast doubt on the validity of the grounds on which the Court had found a violation of Article 10. Lastly, the Court must also reject the argument that the applicant association had alternative options for broadcasting the commercial in issue, for example via private and regional channels, since that would require third parties, or the association itself, to assume a responsibility that falls to the national authorities alone: that of taking appropriate action on a judgment of the Court.

[96] Furthermore, the argument that the broadcasting of the commercial might be seen as unpleasant, in particular by consumers or meat traders and producers, cannot justify its continued prohibition. The Court reiterates in this connection that freedom of expression is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”.

[97] The Court notes, lastly, that the Contracting States are under a duty to organise their judicial systems in such a way that their courts can meet the requirements of the Convention … This principle also applies to the execution of the Court’s judgments. Accordingly, it is equally immaterial in this context to argue, as the Government did, that the Federal Court could not in any event have ordered that the commercial be broadcast following the Court’s judgment. The same is true of the argument that the applicant association should have instituted civil proceedings.

[98] Having regard to the foregoing, the Court considers that the Swiss authorities failed to comply with their positive obligation under Article 10 of the Convention in the instant case. There has therefore been a violation of that Article.

Section 44 (also here) of the Defamation Act, 2009 (also here) provides that the Minister for Justice may by recognise a body as the “Press Council” , and Schedule 2 (also here) to the Act sets out the minimum requirements such a body must meet to be so recognised. The Irish media established a Press Council of Ireland and the Office of the Press Ombudsman with effect from 1 January 2009. Last month, the Minister announced that this would be recognised as the Press Council for the purposes of the Act. To achieve that end, on Tuesday of this week, both the Dáil and the Seanad approved the draft Defamation Act 2009 (Press Council) Order 2010. The full recognition of the Press Council is now simply the stroke of a Ministerial pen away from being achieved.

According to the Irish Times, the Chairman of the Press Council, Prof Tom Mitchell, said the move would greatly benefit the operations of the Press Council, the Office of the Press Ombudsman and the press generally:

This development will strengthen the council’s capacity to work effectively and will allow the press industry to participate fully without fear of legal risk. Formal recognition of the council should serve to encourage more newspapers and publications to become member publications of the council, leading to wider adherence to its code of practice.

At the Irish Jurisprudence Society (IJS) Symposium, the final paper is being delivered by Eoin Daly (UCC) on Non-domination as a primary good: re-thinking the frontiers of the ‘political’ in Rawls’s political liberalism. His main focus is the work of John Rawls, but he also engages with the criticisms of Rawls in John Maynor “Without Regret: the Comprehensive Nature of Non-domination” (2002) 22 Politics 51 and Phillip Pettit Republicanism: A Theory of Freedom and Government (Clarendon Press, Oxford, 1997); and, along the way, there are references to Bentham, Berlin, Hegel and Rousseau. In the end, he presents and defends a radical view of Rawls’s conception of liberty.

How far is state power precluded from certain social realms; conversely, how interventionist can the state be in protecting and supporting liberty? John Rawls seeks to provide answers to this question in A Theory of Justice and in Political Liberalism. On the one hand, principles of “neutrality” supposedly ground the legitimacy of the politically-liberal state. On the other hand, can the emancipatory goals of the republican state, in the guise of the politics of liberty as non-domination, be interpreted as spilling over into a realm of “comprehensive” values? Daly argues that the underlying idea of “justice as fairness” in Rawls work does not necessarily preclude the republican goal of non-domination. In his view, confinement of state power to the realm of the “political” (as Rawls defines it) does not translate into an assiduously non-interventionist, even “neutral” state, where “political” justice is excluded from “non-political” social spheres.

For Daly, under Rawls’s theory, “political” justice may require the state to endow its citizens with a range of capacities and powers that guarantees them the conditions necessary to enable them to pursue and revise their conceptions of the good. In particular, virtues, habits and attitudes may be constitutive of, rather than merely instrumental to liberty. Hence, “political” justice may consistently warrant radical changes across much of citizens’ lives, endowing them with certain resources and capacities, as long as it remains open to the “final ends” towards which these capacities might be directed. As a consequence, Daly argues that Rawls’s theory not only accommodates the premise of non-domination, it also extends beyond it, requiring the development of certain faculties and powers in citizens – not merely as instrumental to non-domination – but such as are necessary to enable them to realise their capacity to have and pursue a conception of the good. From his conclusion:

The anti-perfectionism of Rawlsian liberalism lies not, therefore, in its rejection that liberty may consist in the attainment of self-mastery or self-realisation per se, but in its rejection that liberty consists in the realisation or attainment of any particular set of ends. It is particularly concerned, however – and this is where it extends quite far beyond neo-republicanism in its radical ambition – that we master (“adequately develop”) as well as attain the capacity to pursue and realise indeterminate “final” ends which it itself does not specify. Rawlsian liberalism does not translate as a non-interventionist liberalism that precludes the inculcation of republican virtues, capacities and resources; and these goods in fact enjoy a less obviously instrumental role in this radical project of liberty than they do in neo-republicanism itself.

At the Irish Jurisprudence Society (IJS) Symposium, the fifth paper is being delivered by Thomas Patrick Murray (UCD) on The Politics of Property and Principle: Economic Rights in the Drafting of the Irish Free State Constitution. It is a fascinating use of archival material to underpin a theoretical discussion of the deliberations of the committee drafting the IFS constitution concerning the possibilities of constitutional engineering to create economic constraints and guarantees. In particular, he compares various drafts of various committee members on various issues, and locates their perspectives in their life experiences, religious convictions, and political beliefs. His conclusion is that an initial radical draft of socio-economic rights fell foul of external vested interests and the belief-systems of the majority of the committee.

Murray shows that it is clear from the archives and memoirs that, at the outset, the drafting committee paid significant attention to the economic foundations of the emerging Free State. Although economic freedom was to be secured in the first instance through formal democratic mechanisms, the framers also canvassed a number of binding economic provisions for inclusion. In particular, their focus was upon the principle of economic sovereignty, concerning land (especially farm land) and other natural resources (especially for energy generation) and the right to free elementary education.

Murray the demonstrates that the committee’s sphere of action was quite bounded and indeed subject to influence from outside interests. The main interest of the provisional government was in maintaining social and political order and avoiding controversy. Countervailing economic interests featured too, especially the opposition of the farming lobby to any re-distribution of land. Moreover, the Catholic Church was unhappy with the socio-economic rights proposals, especially the provisions relating to education. The committee therefore kept the constitutional text to the bare minimum to ensure its success; controversial provisions were carefully curtailed; and established interests were assuaged. Murray concluded on this point, then, that, faced with the need to establish the legitimacy of the state, any innovation that might threaten established property-holders or any moral principle that might deny a hierarchical role for the Church was deemed ‘controversial’ and accordingly postponed.

But Muarry goes further. He argues that the members were not only constrained by various social boundaries, they were also necessarily constrained by their own boundaries of thought. In other words, various features of the prevailing discourse facilitated the diminution of the committee’s initial economic provisions. Most members of the committee were in thrall to the assertive Catholic-Nationalist ethos of early twentieth-century Dublin, and this prevailing ‘Irish Ireland’ discourse imposed significant limitations on the possibilities of embedding socio-economic rights in the constitution. Although those few members of the committee from outside of this political culture appear to have been more open to the lived experience of poverty and were more amenable to the substantive promotion of economic rights, their views did not prevail against the established discourse. Murray concluded on this point, then, that the pursuit of ‘Irish Ireland’ amounted to something very like an official othodoxy. Conversely, egalitarian discourses, envisioning a society based on principles of rational-legal equality and interdependent citizenship, came to be suppressed. Consequently, the committee’s initial economic rights proposals greatly watered down; prevailing ‘Irish Ireland’ discuorse meant this was not seen as wrong.

At the Irish Jurisprudence Society (IJS) Symposium, the fourth paper is being delivered by my colleague (and recently-elected Fellow) Dr Oran Doyle (TCD) on True Morality and the No Necessary Connection Thesis.

HLA Hart, in his seminal article “Positivism and the Separation of Law and Morals” 71 Harvard Law Review 593 (1958), famously asserted that there was no necessary connection between law and morality (the No Necessary Connection Thesis: NNC). Discussion of this point has been marred by much confusion, which can be traced to the ambiguous fashion in which Hart referred to “morality” in this article. At its most basic, the word carries two meanings which are best understood by contrasting “moral” with its two antonyms, “immoral” and “amoral”. “Immoral” means something that is contrary to true morality; on the other hand, “amoral” means something that has nothing to do with morality. Conversely, therefore, the word “moral” has two meanings: it can refer to true morality and it can also connote any other assertion about morality. Doyle’s view is that a clearer view on the merits of NNC can be obtained if we limit it to apply simply to true morality and not to asserted morality. Hence, in his view, no legal positivist should be concerned to defend and no natural lawyer should be concerned to rebut NNC if it relates to any assertion about morality. Moreover, on a close reading of Hart, Doyle argues that that NNC as conceived by Hart is concerned to deny necessary connections between law and true morality, not between law and asserted morality:

… although Hart’s various formulations of (NNC) may just about be ambiguous as between true morality and asserted morality, in every context in which he assesses challenges to NNC, his focus is unremittingly on true morality, not asserted morality.

Doyle then looks to the various critiques of NNC, especially Leslie Green and John Gardner. He says that Green, in “Positivism and the Inseparability of Law and Morals” 83 NYU L Rev 1035 (2008), conflates the distinction between true and asserted morality and ascribes this inaccurate conflation to Hart. Gardner, in “Legal Positivism: 5½ Myths” 46 American Journal of Jurisprudence 199 (2001) restates NNC as asserting

In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits (where its merits, in the relevant sense, include the merits of its sources).

Doyle acknowledges that this is probably a better representation of the position held by Hart in his article than is way Hart himself stated NNC, but he points out that Gardner’s reference to “merits” nevertheless ensures that the focus is true morality, as well as other meritorious standards, which is consistent with Hart’s general approach.

He concluded by conceding that, for the purposes of the paper, he assumes that there is a “true morality” but makes no argument as to what its content might be, and he further assumes that it is useful to the concept of true morality in an analytical scheme without necessarily specifying its content.

Against this background, the problems with the analysis of Hart are twofold. First, an ambiguity in our vocabulary about morality has led to a mistaken interpretation and appraisal Hart’s thesis. Second, this ambiguity exacerbated by the tendency for legal positivists committed to NNC to assert that it does not matter – for present purposes – what true morality it is. It is an approach which, Doyle argues, considerably blurs the distinction between true morality and asserted morality and perhaps explains how easy it is in this context to slide between different meanings of the word “morality” without realising it. Nevertheless, Doyle asserted that there are such different meanings, and that it is better to understand NNC as a thesis about true morality.

At the Irish Jurisprudence Society (IJS) Symposium, the third paper is being delivered Dr Seán Patrick Donlan (UL | Comparative Law Blog | ESCLH | ISCL | Juris Diversitas) on “The drunkenness of things being various”: legal theory in historical and comparative perspective.

The title quote is from “Snow” by Louis McNeice, and the key word is “various”. His background is a jurist from a mixed jurisdiction working with the comparative method, and his text is was replete with variety, in his sources, in his language, and in his theoretical perspective. Donlon began with the assertion that anglophone legal theory frequently lacks historical and comparative perspective, and his paper represents one strand of theory providing that perspective. He explores the historical ‘hybridity’ (rather than ‘pluralism’) and ‘diffusion’ of Western law, that is, the mixtures and movements of law and non-state norms. His argument is that the historical and comparative fact of hybridity – the diverse instantiation of law historically and, more often, comparatively – forces a major re-evaluation of the goals of legal theory. He began with a tour de theatre of comparative legal history and comparative modern legal systems, and moved to an analysis of the theoretical and normative underpinnings of this diversity. He looked at metaphors provided by Watson (transplant), Örücü (blogged here) (transmigration), Monateri (contamination), Garziadei (reception) Teubner (irritant), and Twining (diffusion). From his conclusion:

The observation that both past and present laws are hybrids has profound implications. Most obviously, it undermines the conjoined ideas of legal nationalism, positivism, and monism spawned by nineteenth-century shifts in Western social and intellectual history. The ‘state’ has been historically, and in much of the world remains, only the most obvious and formalised creator of norms. It had, and increasing has, competitors. Both legal and social norms have composite origins and move in complex channels. The dissection of plural and dynamic traditions into discrete, closed legal families or systems is undermined. The Western past may tell us much about the global present. The historical and comparative fact of hybridity also forces a major re-evaluation of the goals of legal theory, though there is much to do to understand the mixtures and movements of our modern legalities. Such an understanding will prepare us for the new – and old – challenges ahead.