Author: City Law Forum

The Curious Case of Computer-Generated Works (CGW) in THJ Systems v Sheridan

By Dr Patrick Goold

A few years ago, I wrote a short article arguing that the section on computer-generated works in the Copyright, Designs and Patents Act 1988 (CDPA) is either meaningless or lacking justification. At the end of December 2023, the Court of Appeal took a step toward the position I outlined in that article.

As many readers will know, copyright is a property right which subsists, primarily, in ‘original literary, dramatic, musical or artistic works’ (s1(1)(a) CDPA). ‘Originality’ in this sense refers to the relationship between the author and the work. In modern EU and UK jurisprudence, a work is original if it is the ‘personal intellectual creation’ of an author and flows form their ‘free and creative choices’. In such cases, copyright vests initially in the author. There is, however, an exception in s9(3) CDPA. If a work is computer-generated – that is, not authored by a human – then copyright ought to be vested in the person who made the ‘arrangements necessary for the creation of work’. In the only case to interpret this provision (Nova Productions Ltd v Mazooma Games Ltd & Ors [2006] EWHC 24 (Ch)), the programmer of the computer was held to be such a person.

In The Curious Case of Computer-Generated Works under the Copyright, Designs and Patents Act 1988, I argued the s9(3) provision makes little sense. Broadly, the section could be interpreted in two ways. For simplicity, I will refer to them here as options A and B. Under option A, s9(3) must be interpreted consistently with s1(1)(a), meaning that such works must be original to enjoy copyright. Under option B, s9(3) is an exception to s1(1)(a), meaning that such works do not need to be original to be protected. However, if option A is selected, then the provision is incoherent. In that case, the statute dictates that where there is no human author, then the work should only receive protection if there is an author who supplies the necessary originality (!).  Furthermore, in this eventuality, s9(3) is meaningless because the person supplying the necessary originality would be entitled to claim copyright in the normal manner. In the alternative option B interpretation, then the provision is not meaningless, it is just a bad law. It is no longer meaningless in this scenario because it expands the scope of copyrightable subject matter. It is a bad idea because there has never been a particularly good reason for doing so.

Continue reading

Warming up to Arctic Shipping?

By Dr Pia Rebelo

Diminishing ice shelves in the Arctic caused by climate change are allowing for new maritime routes in previously unnavigable marine spaces. This coincides with increasing oil and gas exploration plans in the arctic region which will no doubt require maritime services. The shipping industry may also want to capitalise on these newly opened routes as they provide shorter sailing times which can eventually result in fuel savings and less time at sea for seafarers. In a recent article authored by Dr Pia Rebelo and Mr Cyril Uchenna Amaefule published in the Environmental Law Review (ELR), the unique risks and hazards of Arctic shipping are discussed from a marine insurance perspective. While the authors do not necessarily advance an argument for increased economic activity in this ecologically sensitive region, nor is climate change viewed as an economic advantage, they do posit that insurers require better risk management frameworks to safeguard against the multitude of risks that are associated with artic shipping and to address some of the gaps in existing regulatory frameworks.

It is argued in the ELR article that in order for arctic shipping to become commercially practical, marine insurers require improved data and risk management methodologies in order to better calculate the premiums of Hull & Machinery (H&M) and Protection & Indemnity (P&I) insurance policies for ships travelling through the Arctic. Until such risks can be assessed, evaluated, and managed; marine insurers are likely to be cautious gatekeepers of arctic shipping pursuits. To date, insurers have paid out more in ship damage that has occurred in the Arctic than they have collected in premiums, which in itself is problematic. For Hull & Marine (H&M) insurers, bespoke policy plans will need to consider challenges caused by the extreme environment. Navigational concerns include, uncertain ice conditions, rapidly changing weather, extremely low temperatures, extended periods of darkness, communication failures due to high latitude, remoteness, emergency preparedness, and limited access to salvage services (Arctic Council, 2020). All of these factors can result in structural damage due to collisions (both ice and ship-to-ship), loss of propulsion, restrictions on manoeuvrability, and loss of entire ship. From a Protection and Indemnity (P&I) insurance standpoint, arctic shipping poses a number of problems with respect to crew safety and occupational hazards, major pollution incidents, wreck removal and salvage, and the impact on third party communities living in remote arctic regions.

Continue reading

The Commercial Activity Exception to State Immunity, An introduction

By  Katherine Reece Thomas, Associate Professor at the City Law School

 

My book entitled “The Commercial Activity Exception to State Immunity, An introduction “has recently been published by Edward Elgar. Having practised the law of state immunity (a bit) and taught it a lot over many years, I was delighted when Edward Elgar asked me to write an introduction to the topic for their series ‘Principles of International Law’.

The concept that states should be treated differently to ordinary litigants has grated over the years. Ever since I attended Hazel Fox’s lectures on the then new UK State Immunity Act and subsequently played a small role as a most junior lawyer in the Tin Council litigation in the late 1980s, the question of state accountability in domestic courts has intrigued me. The geopolitical ramifications of the doctrine and the multi-jurisdictional aspect of the relevant litigation have added to the attraction.

If a state descends into the marketplace (as Lord Denning put it in the 1970s) should it not be subjected to the same rules as an ordinary litigant? Does international law require that states be afforded special treatment? Of course, it does because states are sovereign, independent and equal but it is that just? What are the exceptions and how do they operate in practice?

Continue reading

Climate Change Litigation and International Courts: Navigating Challenges and Imperatives

By Engin Firat

Recent years have seen rapid and widespread climate changes, driven by human activities, notably greenhouse gas emissions (GHGs), as highlighted in the latest findings from the Intergovernmental Panel on Climate Change (IPCC). With temperatures already surpassing 1.1°C above pre-industrial levels and projections indicating a looming 1.5°C increase, urgent action is imperative to mitigate emissions and adapt to inevitable changes. Despite the severity of this environmental threat, political efforts to tackle GHGs remain insufficient. Litigation has emerged as a notable strategy in recent endeavours to address the climate crisis, underscoring the need for more robust action.

Given the gravity of these sobering realities, the recent event organised by International Law and Affairs Group (ILAG) and the City Sustainability Society, ‘Climate Change Litigation and International Courts’, held on March 14, 2024, and hosted by the City Law School, assumed a heightened significance. Chaired by Dr Jed Odermatt, Reader at the City Law School, the event brought together legal experts from legal practice and academia, including Mr Paul Clark, Barrister at Garden Court Chambers, Ms Monica Feria-Tinta, Barrister at Twenty Essex, and Dr Yusra Suedi, Lecturer at the University of Manchester. Their aim was to scrutinise the role played by international courts in tackling climate change, thereby providing invaluable insights into the nexus of international law, domestic law, policy, and climate urgency.

Continue reading

Not What the Bus Promised: Health Governance after Brexit

The Institute for the Study of European Laws hosted a book launch for Hervey, Antova, Flear and Wood’s Not What the Bus Promised: Health Governance after Brexit, on 21 February 2024. People joined in person and online, from several countries, and including representatives from the third sector and private sector. The launch was chaired by Adrienne Yong, and speakers were co-authors Tamara Hervey and Mark Flear, with Charlotte Godziewski and Francesca Strumia as discussants.

The book is an output from several overlapping projects, especially an ESRC Governance after Brexit grant, led by Tamara Hervey, who is now Jean Monnet Professor of EU Law at City, University of London. Mark Flear and Matthew Wood were co-investigators on the project; Ivanka Antova was the project’s post-doctoral research fellow. Charlotte Godzieski commented favourably on the scope, scale and amount of data reported on in the book, the levels and layers of the book, and the interdisciplinary approach. Despite all this complexity, she found the book very approachable, and remarkably easy to follow, even for non-experts.

The book’s core research questions include the following: The Leave Campaign’s implicit promise included that Brexit would involve improvements to the NHS. To what extent is this the case? To the extent that this is not the case, who should be held accountable, and how? What would make for a legitimate post-Brexit health governance?

Continue reading

Kylian Mbappé has trademarked his iconic goal celebration – why a pose can form part of a player’s protected brand

By Dr Enrico Bonadio and Dr Andrea Zappalaglio

French football superstar Kylian Mbappé celebrates most of his goals by crossing his arms and tucking his hands underneath his armpits. It has become one of the most iconic goal celebrations in the world.

Mbappé, who is due to move to Spanish giants Real Madrid at the end of this season, has already taken steps to register a logo depicting his celebration as a trademark in several countries, as well as in the European Union. He has done the same for his surnameinitials and most famous quotes.

The black-and-white logo depicts a smiling Mbappé, celebrating in his usual fashion.

Continue reading

A Political Question Doctrine at the International Court of Justice?

By Dr Jed Odermatt and Dr Bilyana Petkova

At the end of January 2024, the US District Court in Northern California applied the political question doctrine to dismiss a suit brought against the US President and the Secretary of Defense based on alleged violations of international law. The Plaintiffs, a group of Palestinian human rights organizations and activists including Defense for Children International-Palestine and Al-Haq, alleged that the US government breached its duty to prevent genocide “by providing diplomatic, financial, and military support to Israel, are complicit in Israel’s purported commission of genocide, in violation of Article III(e) [of the Genocide Convention] and its implementing legislation, which makes genocide a federal crime”. The Plaintiffs sought an injunction enjoining the provision of any further military or financial support or any form of assistance to Israel by the United States. The District Court went on to extensively cite the recent order on provisional measures of the International Court of Justice (ICJ) in Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). However, the Court found that the case was inadmissible, as “any determination to challenge the decision of the executive branch of government on support of Israel is fraught with serious political questions”.

The political question doctrine is a controversial legal mechanism for docket management in the toolbox of the US Supreme Court and – more recently – lower US courts. According to the broader, “functional” view of the doctrine, courts should abstain from deciding on a question that is likely to be better decided by the executive or legislative branch or that the courts abstain from deciding when they lack sufficient expertise and information to make a reasoned legal judgment. According to the “prudential” rationale, the Court should apply the doctrine to promote its reputation and legitimacy by avoiding questions that are essentially non-legal in nature.

Continue reading

The UK’s Withdrawal from the Energy Charter Treaty Poses Risks for Energy Affordability and Security

By Professor David Collins, The City Law School

Scarcely covered by the mainstream media, this Thursday (22 Feb 2024) the UK announced the withdrawal from the controversial Energy Charter Treaty (ECT), following nine EU Member States, including G7 countries France, Germany and Italy.

Entering into force in 1998 and signed by the UK in 1994, the ECT is an international investment agreement (IIA) designed to encourage foreign direct investment in the energy sector by providing protection to foreign investors against excessive governmental interference, such as expropriation or the denial of justice in administrative or legal proceedings. The ECT has been perhaps the most significant of all the IIAs, spawning more investor-state dispute settlement (ISDS) claims than any other single treaty and with it, a host of awards issued by ad hoc tribunals. By falling under the protection of the ECT, foreign investors were granted assurances that they could rely on international law rather than the unfamiliar and unstable legal systems in host countries. Investment in the energy sector is especially needful of stable and reliable legal protections because of the extended period between making an investment and achieving a return. Under the ECT, investors may seek compensation for the loss of their future profits, not merely sustained losses. Many of the investment projects facilitated by the ECT related to infrastructure privatization projects in former Soviet countries.

Very much a product of its time, the ECT faced growing criticism for its continued encouragement of investment into energy derived from fossil fuels, paying insufficient attention to the modern fixation on climate change mitigation via renewable sources. Announcing the UK’s withdrawal, the Minister of State for Energy Security and Net Zero stated that continued ECT membership was incompatible with the country’s transition towards Net Zero. With this justification in mind, the UK’s withdrawal from the ECT could not have come at a worse time; it was acknowledged recently that the true costs of the UK’s Net Zero transition were wildly understated – costing trillions of pounds more than had been reported to parliament. Government ministers were accused by former Chancellor of the Exchequer of being ‘systematically dishonest’ about the costs of the plans.

Continue reading

City-EIAG Seminar

REBUILDING RELATIONS BETWEEN THE UK AND THE EU

A Security Cooperation Pact and Other Ideas for Strengthening the Relationship

City Law School

28 February 2024 at 6pm

The City Law School, City, University of London and the European and International Analysts Group (EIAG), supported by Henderson Chambers, invite you to a seminar to discuss a possible security pact between the UK and the EU and other ideas for strengthening the post-Brexit relationship.

A background paper to the seminar by Sir Julian King, and published by the EIAG, can be found here.

The world has changed since Brexit. Security and defence challenges have become more urgent and more diverse. Russia is waging a relentless war of conquest against Ukraine and there are grounds for uncertainty as to the long-term commitment of the United States to European defence. Add to that, increasing instability in the Middle East, spilling over into the interruption of the economically vital trade-route through Suez, and an increasingly aggressive international stance by the world’s authoritarian powers. Taking all this into account, the security situation in Europe is arguably more perilous than at any time since the end of World War II.

The UK and the EU face the same challenges, and could face them with more confidence together. With Brexit behind us, how should the UK set about re-framing its relationship with its neighbourhood, as one rooted in and justified by the reality of today’s challenges?

The seminar will explore the prospects for developing a new security pact between the UK and the EU, and other practical opportunities there may be for moving towards a closer and more structured relationship in the future.

Continue reading

London Universities 14th Annual Maritime Law and Policy Postgraduate Research Conference

The London Universities Maritime Law and Policy Research Group (LUMLPG) provides a network of mutual support and a forum for the exchange and promotion of ideas and information on maritime law and policy. In this vein, the LUMLPG will hold its 14th annual place on Friday, 24 May 2024.

The conference brings together academics, postgraduate researchers, practitioners and other industry professionals to present their research, areas of work, and opinions. This is an opportunity to engage with an informed audience from various parts of the maritime sector.

This year’s conference will take place at the City Law School. The venue address is TLG11, The City Law School, Sebastian St, London EC1V 7HD.

Continue reading

© 2024 City Law Forum

Theme by Anders NorenUp ↑

Skip to toolbar