Month: November 2010

I never thought I’d see the day when I’d put both the International Monetary Fund (IMF) and Irish legal education together in the title of a blogpost. But there it is, above. And this is because the summary of the the Joint EU-IMF Programme for Ireland on the Department of the Taoiseach website suggests that there will be consequences for legal education:

Competition

Removal of restrictions to competition in sheltered sectors including:

Legal profession:

– establish an independent regulator;

– implement the recommendations of the Legal Costs Working Group and outstanding Competition Authority recommendations. …

The enhancement of competition and the reduction of regulation in sheltered sectors is a standard IMF prescription, so this recommendation comes as little surprise. As for its details, the Legal Costs Working Group was established in 2004 and asked to look at the way in which legal costs are determined and assessed, and it reported in 2005 (pdf). In December 2006, as part of a series of reports on regulated professions, the Competition Authority published a Report on the Legal Professions which determined that the legal profession was in need of substantial reform. (more…)

Hart Publishing have just published Academic Freedom and the Law: A Comparative Study (cover left) by Eric Barendt:

Academic Freedom and the Law: A Comparative Study provides a critical analysis of the law relating to academic freedom in three major jurisdictions: the United Kingdom, Germany and the United States. The book outlines the various claims which may be made to academic freedom by individual university teachers and by universities and other higher education institutions, and it examines the justifications which have been put forward for these claims. Three separate chapters deal with the legal principles of academic freedom in the UK, Germany, and the USA. A further chapter is devoted to the restrictions on freedom of research which may be imposed by the regulation of clinical trials, by intellectual property laws, and by the terms of contracts made between researchers and the companies sponsoring medical and other research. The book also examines the impact of recent terrorism laws on the teaching and research freedom of academics, and it discusses their freedom to speak about general political and social topics unrelated to their work.

This is the first comparative study of a subject of fundamental importance to all academics and others working in universities. It emphasises the importance of academic freedom, while pointing out that, on occasion, exaggerated claims have been made to its exercise.

As I said my first post yesterday, last Friday morning I attended a seminar on Promoting innovation – Reshaping the Law for the Digital Economy, hosted by Google Ireland, co-sponsored by the Institute for International and European Affairs (IIEA), and chaired by TJ McIntyre. In that post, I summarized the presentations by Johnny Ryan (the internet has created a hinge in history when information is plastic and copyright law is a block upon total commerce) and Niall O’Riordan (for Google, a fair use doctrine in Ireland and Europe is an idea whose time has come). In this post, I’ll look at last Friday’s other presentations; and in tomorrow’s post, I’ll add a few comments of my own on some of the issues raised by the seminar.

Kate O’Sullivan (Director of Regulation and Public Policy, UPC Ireland) pointed out that intermediaries (such as Google, Facebook, and ISPs) are caught in the middle between content producers seeking to enforce their rights as against users, and it is not appropriate that ISPs should be judge and jury in such a cause. Section 40(3) of the Copyright and Related Rights Act, 2000 (also here) provides that the mere provision of facilities by an ISP, for example, which enable the making available to the public of copies of a work “shall not of itself constitute an act of making available to the public of copies of the work” and therefore shall not for that reason amount to a copyright infringement.

She examined the main rights of each of the three main involved: rights holders, subscribers, and intermediaries. (more…)

The title of this post is taken from the third paragraph of Milton’s Areopagitica. As I commented in an earlier post, one of the classic liberal justifications for freedom of expression was stated by John Milton (pitctured left) in his Areopagitica – A Speech for the Liberty of Unlicenc’d Printing, to the Parlament of England. According to The Writer’s Almanac with Garrison Keillor (with added links):

It was on this day in 1644 that John Milton published a pamphlet called Areopagitica, arguing for freedom from censorship. He said,

I wrote my Areopagitica in order to deliver the press from the restraints with which it was encumbered; that the power of determining what was true and what was false, what ought to be published and what to be suppressed, might no longer be entrusted to a few illiterate and illiberal individuals, who refused their sanction to any work which contained views or sentiments at all above the level of vulgar superstition.

He compared the censoring of books to the Spanish Inquisition and claimed that the government wanted “to bring a famine upon our minds again.” (more…)

Last Friday morning, I attended a seminar on Promoting innovation – Reshaping the Law for the Digital Economy (Irish Times | SiliconRepublic here and here). It was hosted by Google Ireland and co-sponsored the by Institute for International and European Affairs (IIEA); and the morning was very ably chaired by TJ McIntyre (blog | Chair, Digital Rights Ireland | Consultant, Merrion Legal | UCD). There were five presentations; in this post, I’ll deal with the first two; in the next tomorrow’s post, I’ll deal with the remaining three; and in a third post, I’ll add a few comments of my own on some of the issues raised by the seminar.

First up was Johnny Ryan (IIEA | author A History of the Internet and the Digital Future) speaking on “A hinge in history: the conditions of the digital future and the need of rights reform”, and setting the scene for the debates that would follow. (Update: Johnny comments below that video of his presentation is now available). For him, we live in the age of the perpetual beta. Before Gutenberg‘s printing press, hand-transcribed manuscripts made information fluid. By contrast, after Gutenberg, the printed book fixed information in static form. But now, online, information is very flexible and plastic, again. Consider a wikipedia page: everything is open to challenge and experimentation – and perpetually beta. We are reverting back to the pre-Gutenberg plasticity of information. In historical terms, this is the norm. It is the post-Gutenberg era of fixed information which is the anomaly. Because of the internet, we have moved from a read-only (RO) culture to a read-write (RW) culture, a remix culture, where we can all adapt and re-invent, and this participation can be anywhere: anyone can be Andy Warhol, and the internet can be your Factory. This is the hinge in history of his title.

He argued that as we have moved from a RO to a RW culture, so can we move from RO to RW business. (more…)

Jeremy Patrick (Osgoode Hall Law School, York University) has just made an important new paper “The Curious Persistence of Blasphemy” available via SSRN.

Here is the abstract:

Despite expectations to the contrary, blasphemy laws and their modern-day counterparts persist in a surprising number of jurisdictions around the globe. This article discusses four examples: the “defamation of religion” movement at the United Nations, the surprising resurrection of blasphemy law in Ireland, the Australian trend toward enacting “religious vilification” laws, and the problem of formal illegality and private violence for blasphemous speech in Pakistan. Next, blasphemy is considered from three conceptual angles: the religious, the legal, and the secular/cultural. Last, the curious persistence of blasphemy is examined through an inquiry into why people blaspheme to begin with, and what harms (real or perceived) are caused by blasphemy. The conclusion here is that as long as societies hold something sacred – religiously or culturally – blasphemy will remain an operative concept and legal or social pressure to suppress blasphemous statements will continue to persist.

On the position here in Ireland, Patrick provides an excellent summary:

B. Ireland’s Surprising Resurrection of Blasphemy

Ireland has had a strange and surprising relationship with blasphemy laws. The earliest reported common law prosecution for blasphemy dates to 1703, and a couple of other prosecutions have been discovered dating to the mid 1800s. Despite there not having been a prosecution since 1855, the framers of the Irish Constitution of 1937 decided to include, as an exception to the document’s free speech guarantee, a statement that “[t]he publication or utterance of blasphemous . . . matter is an offence which shall be punishable in accordance with the law.” Still, the legal concept of blasphemy seemed a dead letter for decades until, a full 141 years after its last invocation, a prosecution was brought in 1996 [in Corway v Independent Newspapers [1999] 4 IR 485; [2000] 1 ILRM 426; [1999] IESC 5 (30 July 1999)] … And then, almost fifteen years after Corway and seemingly out of the blue, the Legislature suddenly decided to define the elements of blasphemy [in section 36 of the Defamation Act, 2009]. … The Minister of Justice responsible for the move, Dermot Ahern, stated that he could not “wilfully ignore the Constitution” and was “bemused” by criticism. Although the statute goes on to provide an affirmative defence for publications of “genuine literary, artistic, political, scientific, or academic value”, it provoked a counter-movement which advocated a repeal of the law and a referendum on removing the blasphemy provision from the Constitution entirely.50 In March of 2010, Minister for Justice Ahern agreed to hold a referendum on the topic by the end of the year. …

And he concludes:

Blasphemy laws in some form or another remain a part of most legal systems around the world. They may be changed, renamed, deemphasized, or revitalized, but they will not disappear anytime soon. As the threshold between the sacred and the profane, the concept of blasphemy — religious, legal, or cultural — expresses something fundamental about human nature. The drive to push against boundaries, to provoke thoughts which at first seem abhorrent and then become accepted, to express truth in the face of pain, imprisonment, and death, always remains present in some members of a society, whether that society be democratic or totalitarian. Similarly, the fear of blasphemy — incarnated as the risk of angering God, disrupting society, hurting minorities, or something else — points to the drive for conformity and unity by societies and institutions, be they State, Church, Community, or Family. The need to blaspheme and the need to suppress blasphemy continue to persist, and perhaps the only truly curious aspect is why we ever thought they would fade away to begin with.

On Wikipedia’s Portraits of Shakespeare page, there is a painting called “The Chess Players” attributed to Dutch painter Karel van Mander (1548 – 1606):

Wikipedia says that this was identified in 1916 (New York Times, 12 March 1916) as an image of Ben Jonson (left; white) and William Shakespeare (right; black) playing chess. It seems that this claim that had been floating around in chess circles for a year or so, but most subsequent scholars seem to have considered this to be pure speculation. However, the claim was revived in 2004 by Jeffrey Netto, who argued that the chess game symbolises “the well known professional rivalry between these figures in terms of a battle of wits” (See Jeffrey Netto “Intertextuality and the Chess Motif: Shakespeare, Middleton, Greenaway” in Michele Marrapodi Shakespeare, Italy and Intertextuality (Manchester University Press, 2004) 218). As he puts it elsewhere:

This painting clearly evokes the theme of intellectual virtuosity. The two giants of British Renaissance literature are enmeshed in an intellectual contest that allegorically represents their well-known literary rivalry. Chess here iconographically depicts their battle of artistic wits, a battle before which the world can only marvel.

It looks as though Shakespeare is about to win the game, whatever about the artistic battle of wills.

Are you a Law student, undergraduate or postgraduate? Would you like to present a short paper or give a presentation on a legal topic of your choice at a colloquium in Trinity College Dublin? If so, then the third annual Law Student Colloquium is for you. Kindly sponsored by Allen & Overy, it will take place in the Graduates’ Memorial Building, TCD (map) and the Law School, TCD (map), on Saturday 19 February 2011. Posts about the previous colloquia are here.

This conference brings together law students from Ireland and abroad to present papers on a wide variety of legal topics. The ethos of the Colloquium is one of re-thinking law. Papers which demonstrate originality, engage with current developments and challenge existing understandings of distinct legal issues are especially welcome.

Law students, both undergraduate and postgraduate, as well as researchers and recent graduates from all institutions, are invited to attend and participate. The Colloquium will consist of several panels on thematic areas of law with individual presentations of approximately fifteen minutes duration. An expert in the relevant area of law will chair each panel. There is some excellent advice here about the art of the conference paper; the article was written for US graduate students but it contains much that will be very helpful indeed for anyone interested in participating in the Colloquium. It will provide an excellent opportunity to explore current and future developments in law, to obtain feedback on your ideas and research, as well to experience presenting and participating at a law conference. There will be prizes for the best undergraduate presentations.

To submit an application to present a paper at the Colloquium, please use the online submission form before 3 December 2010 at 5pm. For answers to queries regarding submissions, please consult the FAQs, or email the Colloquium Committee. Finally, there are detailed regulations here (pdf).

It’s going to be interesting and lot of fun, honest! (And there’s a wine reception at the end). So, what are you waiting for? Fill in that form or send that email now! Indeed, it’s so much fun that even if you are not presenting a paper, you should turn up anyway and enjoy the papers and the fun. Attendance is free, but registration via email will be required.