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International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Recognition And Enforcement, Pedro De Miguel Asensio, Marketa Trimble

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This section of the the chapter "Recognition and Enforcement" of the International Law Association's Guidelines on Intellectual Property and Private International Law ("Kyoto Guidelines") establishes the conditions under which the effects of judgments rendered in a country may be extended to foreign jurisdictions. It seeks to favor international coordination and legal certainty by facilitating the cross-border recognition and enforcement of judgments relating to IP disputes. The Guidelines are based on a broad concept of judgment with restrictions concerning judgments not considered final under the law of the State of origin as well as certain provisional measures. The main provision of …

Territorialization Of The Internet Domain Name System, Marketa Trimble

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A territorialization of the internet – the linking of the internet to physical geography – is a growing trend. Internet users have become accustomed to the conveniences of localized advertising, have enjoyed location-based services, and have witnessed an increasing use of geolocation and geoblocking tools by service and content providers who – for various reasons – either allow or block access to internet content based on users’ physical locations. This article analyzes whether, and if so how, the territorialization trend has affected the internet Domain Name System (“DNS”). As a hallmark of cyberspace governance that aimed to be detached from …

Wrestling Tyrants: Do We Need An International Criminal Justice System?, Christopher L. Blakesley

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Prof. Christopher L. Blakesley delivered this keynote address at the Crimes Without Borders: In Search of an International Justice System Symposium, held at the McGeorge School of Law in the spring of 2016.

Patent Working Requirements: Historical And Comparative Perspectives, Marketa Trimble

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At the beginning of the 20th century, commentators referred to patent working requirements as the most contentious contemporary concept in patent law, and working requirements were at the center of discussions about revisions to the Paris Convention. By the end of the 20th century it seemed that working requirements attracted less attention; the TRIPS Agreement did not expressly mention working requirements at all. However, some TRIPS provisions do arguably relate to such requirements; in fact, some commentators believe that the TRIPS Agreement prevents countries from maintaining such requirements, at least in some forms. Although the lack of interest in working …

Legacies Of Exceptionalism And The Future Of Gay Rights In Singapore, Stewart Chang

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This article analyses how the ties between Singaporean exceptionalism and its Western colonial and neocolonial roots explain why the Singapore's legislature and judiciary have retained its anti-sodomy statute under s 377A of the Penal Code. After decolonisation, restrictive laws pertaining to sexual conduct, originally justified by colonial lawmakers as bringing superior Western moral order to the uncivilised Asian territories, evolved into an "Asian values" moral exceptionalism that distinguished Singapore from the overly liberal West. This exceptionalism, however, also illustrates an Oedipal angst of the Singaporean Government to overcome and overtake the old colonial father in its attempt to redefine itself …

Are We Serious About Performers' Rights?, Mary Lafrance

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Do performers have rights in the expressive works they help to create? Historically, the rights of performers have received far less attention that the rights of traditional authors. The law has been reluctant to recognize performers as authors and, to the extent that performers’ rights are recognized, they are secondary to, and more limited than, the rights of traditional authors. Recent developments, however, have brought performers’ intellectual property rights to the forefront. For a number of reasons, performers in the United States have increasingly begun to assert authorship rights in the works they help to create. In addition, recent international …

Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble

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The increasing frequency with which activities involving intellectual property (“IP”) cross national borders now warrants a clear definition of the territorial reach of national IP laws so that parties engaging in the activities can operate with sufficient notice of the laws applicable to their activities. Legislators, however, have not devoted adequate attention to the territorial delineation of IP law; in fact, legislators rarely draft IP statutes with any consideration of cross-border scenarios, and with few exceptions IP laws are designed with only single-country scenarios in mind. Delineating the reach of national IP laws is actually a complex matter because the …

Non-State Armed Groups And The Role Of Transnational Criminal Law During Armed Conflict, Christopher L. Blakesley, Dan E. Stigall

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With the ascendance of the terrorist group known as the Islamic State of Iraq and Syria (ISIS), the international community has struggled to adapt to the new international security context. Among the challenges that are currently being confronted are questions relating to how states may effectively facilitate international cooperation to counter ISIS (especially among countries in the Middle East and North Africa). Within this context, guidance from the United Nations on international cooperation posits that “[t]he universal counter-terrorism conventions and protocols do not apply in situations of armed conflict” – a legal position that would serve to stymie important cooperative …

The Marrakesh Puzzle, Marketa Trimble

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This article analyzes the puzzle created by the 2013 Marrakesh Treaty in its provisions concerning the cross-border exchange of copies of copyrighted works made for use by persons who are “blind, visually impaired, or otherwise print disabled” (copies known as “accessible format copies”). The analysis should assist executive and legislative experts as they seek optimal methods for implementing the Treaty. The article provides an overview of the Treaty, notes its unique features, and examines in detail its provisions on the cross-border exchange of accessible format copies. The article discusses three possible sources for implementation tools – choice of law rules, …

Book Review: "Die Gemeinfreiheit: Begriff, Funktion, Dogmatik (The Public Domain: Concept, Function, Dogmatics)" By Alexander Peukert, Marketa Trimble

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The reviewer considers a recent book by Alexander Peukert, the professor of civil and commercial law who specializes in international intellectual property law at Goethe University in Frankfurt am Main, Germany. Peukert has devoted the book to defining the limits of the public domain – the realm of intellectual activity in which works are free for anyone to use because the works are not protected by intellectual property rights, are protected but the protection has expired, are subject to an exception to the rights under the law, or are unprotected because the owner of the rights chooses not to enforce …

Wag The Dog: Using Incidental Intellectual Property Rights To Block Parallel Imports, Mary Lafrance

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Federal law grants owners of intellectual property rights different degrees of control over parallel imports depending on the nature of their exclusive rights. While trademark owners enjoy strong control over unauthorized imports bearing their marks, their protection is less comprehensive than that granted to owners of copyrights and patents. To broaden their rights, some trademark owners have incorporated copyrighted material into their products or packaging, enabling them to block otherwise lawful imports in contravention of the policies underlying trademark law. A 2013 Supreme Court decision has significantly narrowed the importation ban of copyright law, but there may be pressure to …

The Patent System In Pre-1989 Czechoslovakia, Marketa Trimble

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The chapter analyzes patent law in Czechoslovakia in the period from 1945 until the end of communist rule in 1989. In addition to reviewing the legislative development of patent law – the laws on the books – the chapter explains the law in action, which includes the application of the law in practice and the attitudes of Czechoslovak society toward inventive activities and patenting. The chapter shows that post-1945 Czechoslovak patent law drew on a highly developed pre-1940 Czechoslovak patent law and practice that was based on the Austrian patent law inherited by Czechoslovakia in 1918 when it split from …

The Role Of Foreign Authorities In U.S. Asylum Adjudication, Fatma E. Marouf

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U.S. asylum law is based on a domestic statute that incorporates an international treaty, the U.N. Protocol Relating to the Status of Refugees. While Supreme Court cases indicate that the rules of treaty interpretation apply to an incorporative statute, courts analyzing the statutory asylum provisions fail to give weight to the interpretations of our sister signatories, which is one of the distinctive and uncontroversial principles of treaty interpretation. This Article highlights this significant omission and urges courts to examine the interpretations of other States Parties to the Protocol in asylum cases. Using as an example the current debate over social …

Proposal For An International Convention On Online Gambling, Marketa Trimble

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The proposal, which will be published as a chapter in a volume from the Internet Gaming Regulation Symposium co-organized by the William S. Boyd School of Law of the University of Nevada, Las Vegas, in May 2012, presents the outline of an international convention ('Convention') that will facilitate cooperation among countries in enforcement of their online gambling regulations while allowing the countries to maintain their individual legal approaches to online gambling. Countries continue to vary in their approaches - some permit and regulate, and others prohibit online gambling, and even countries that permit and regulate online gambling approach the issue …

The Future Of Cybertravel: Legal Implications Of The Evasion Of Geolocation, Marketa Trimble

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Although the Internet is valued by many of its supporters particularly because it both defies and defeats physical borders, these important attributes are now being exposed to attempts by both governments and private entities to impose territorial limits through blocking or permitting access to content by Internet users based on their geographical location—a territorial partitioning of the Internet. One of these attempts, for example, is the recent Stop Online Piracy Act (“SOPA”) proposal in the United States. This article, as opposed to earlier literature on the topic discussing the possible virtues and methods of erecting borders in cyberspace, focuses on …

The Un "Surrogate State" And The Foundation Of Refugee Policy In The Middle East, Michael Kagan

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Many challenges surrounding refugee protection relate to a de facto shift of responsibility from sovereign governments to the UN Refugee Agency (UNHCR) to directly administer refugee policy. This phenomenon is legally anomalous, and it is UNHCR policy to avoid the operation of such "parallel structures." Yet the existence of a UN "surrogate state" offers important advantages to some host governments, which makes state-to- UNHCR responsibility shift difficult to reverse. Using the Arab Middle East as a case study, this article argues that, while not ideal, UNHCR's state substitution role offers important symbolic and material benefits to governments that host refugees …

Gat, Solvay, And The Centralization Of Patent Litigation In Europe, Marketa Trimble

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No abstract provided.

We Live In A Country Of Unhcr: The Un Surrogate State And Refugee Policy In The Middle East, Michael Kagan

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Many gaps in the protection of refugees can be connected to a de facto transfer of responsibility for managing refugee policy from sovereign states to United Nations agencies. This phenomenon can be seen in dozens of countries in the Middle East, Africa and Asia, where the UN High Commissioner for Refugees (UNHCR) or the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) manage refugee camps, register newly arrived asylum-seekers, carry out refugee status determination, and administer education, health, livelihood and other social welfare programs.

In carrying out these functions, the UN acts to a great …

Is The Attorney-Client Privilege Under Attack?, Nancy B. Rapoport, Jennifer Gross

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This short article discusses the Textron case and attorney-client privilege in foreign jurisdictions.

Reimagining Human Rights Law: Toward Global Regulation Of Transnational Corporations, Rachel J. Anderson

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This article takes a new look at a perennial question of human rights: how to prevent corporate-related human rights abuses and provide remedies for victims. It argues that transnational corporations require specialized and targeted regulations and laws, and that the conflation of human rights law and international human rights law should be reversed to allow the advancement of other forms of human rights law. It makes two proposals. First, reimagine human rights law and international human rights law as separate categories. Specifically, classify international human rights law as a sub-category of human rights law. This distinction highlights the need to …

Promoting Distributional Equality For Women: Some Thoughts On Gender And Global Corporate Citizenship In Foreign Direct Investment, Rachel J. Anderson

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This essay applies a legal theory of global corporate citizenship to the question of women’s distributional equality in foreign direct investment. It proposes ways that a legal theory of mandatory global corporate citizenship can expand the ways we think about regulating transnational corporations and promoting gender equality.

Human Rights And Military Decisions: Counterinsurgency And Trends In The Law Of, Dan E. Stigall, Christopher L. Blakesley, Chris Jenks

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The past several decades have seen a Copernican shift in the paradigm of armed conflict, which the traditional Law of International Armed Conflict (LOIAC) canon has not fully matched. Standing out in stark relief against the backdrop of relative inactivity in LOIAC, is the surfeit of activity in the field of international human rights law, which has become a dramatic new force in the ancient realm of international law. Human rights law, heretofore not formally part of the traditional juridico-military calculus, has gained ever increasing salience in that calculus. Indeed, human rights law has ramified in such a manner that …

Toward Global Corporate Citizenship: Reframing Foreign Direct Investment Law, Rachel J. Anderson

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This article argues that modern foreign direct investment law is a vestige of the colonial era during which early forms of transnational corporations emerged. Unlike international trade law and despite the dramatic developments of the twentieth century, foreign direct investment law remains largely unchanged. Due to a lack of political will, prior multilateral efforts to implement comprehensive foreign direct investment law reforms have been largely unsuccessful. However, in recent years, growing political will has emerged under the umbrella of Global Corporate Citizenship and related movements. This article posits that Global Corporate Citizenship is an opportunity to reframe and reform foreign …

Cross-Border Injunctions In U.S. Patent Cases And Their Enforcement Abroad, Marketa Trimble

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In surveying recent literature on difficulties with cross-border injunctions in patent cases, one may conclude that the problem appears to be limited to the phenomenon of pan-European injunctions granted by some courts in Europe in cases concerning infringements of foreign patents. However, even in cases concerning domestic patents, injunctions reaching beyond national borders can be issued; the empirical evidence presented in the paper demonstrates a variety of such instances in U.S. patent cases. Certainly the existence of such injunctions in the U.S. raises concerns about their enforceability in other countries, particularly when they are issued against a foreign entity that …

The Public Policy Exception To Recognition And Enforcement Of Judgments In Cases Of Copyright Infringement, Marketa Trimble

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In recent years proposals have been made for an international convention that would facilitate a smooth recognition and enforcement of foreign judgments in intellectual property matters. Like all of these proposals, the American Law Institute’s preliminary version, short titled "Draft Principles" published in March 2007, strives to eliminate most hurdles to recognition and enforcement by providing rules for jurisdiction, choice of law and coordination of multi-territorial actions. As long as the rules are applied by the court that issues a judgment (the “rendering court”), most of the obstacles to recognition and enforcement − differing jurisdictional rules and choice of law …

Identical Cousins? On The Road With Dilution And The Right Of Publicity, Mary Lafrance

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The dilution doctrine and the right of publicity have a great deal in common, because both represent property-like rights that have evolved from legal doctrines largely unrelated to property concerns. Although both doctrines have engendered controversy in the United States, the dilution doctrine generally evokes greater skepticism and confusion. This Article evaluates how these concepts are viewed in a number of jurisdictions outside the United States. From this examination, two conclusions emerge. First, despite the similarities between the doctrines, countries do not tend to adopt or reject them in tandem. Second, the degree to which each doctrine achieves widespread and …

Restitution As A Remedy For Refugee Property Claims In The Israeli-Palestinian Conflict, Michael Kagan

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This Article examines restitution as an autonomous human right for refugees displaced in the Israeli-Palestinian conflict, and assesses the implications of taking such a rights-based approach. The author concludes that the refugees have a strong legal claim to restitution. In international law, compensation is relevant only when restitution is materially impossible, where property has been damaged or declined in value so that restitution is not a complete remedy for the victim's loss or where a refugee chooses not to seek restitution. Current empirical research about land usage in Israel indicates that a great deal, and possibly the majority, of lost …

The Myopia Of U.S. V. Martinelli: Extraterritorial Jurisdiction In The 21st Century, Christopher L. Blakesley

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Beginning in January 1999 and continuing through January 2000, a U.S. soldier began frequenting an off-post Internet cafe in Darmstadt, Germany, called the Netzwork Café. There he would download images of child pornography and search Internet websites, logging onto Internet chat rooms in order to communicate with individuals willing to send him images of naked children and children engaged in sex acts.

Specialist Martinelli was eventually caught and charged with various violations of 18 U.S.C. § 2252A for knowingly mailing, transporting or shipping child pornography in interstate or foreign commerce (by computer); knowingly receiving child pornography that had been mailed, …

Destructive Ambiguity: Enemy Nationals And The Legal Enabling Of Ethnic Conflict In The Middle East, Michael Kagan

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In the course of the Middle East conflict since 1948, both the Arab states and Israel have tended to take harsh measures against civilians based on their national, ethnic, and religious origins. This practice has been partially legitimized by a norm in international law that permits states to infringe the liberty and property interests of enemy nationals during armed conflict. Middle Eastern governments have misused the logic behind this theoretically exceptional rule to justify far-reaching measures that undermine the “principle of distinction” between civilians and combatants and erode the principle of non-discrimination that lies at the center of human rights …

Frontier Justice: Legal Aid And Unhcr Refugee Status Determination In Egypt, Michael Kagan

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Where UNHCR conducts refugee status determination (RSD), its reactions to legal aid for asylum-seekers have been mixed. Statistical evidence collected from Egypt in 2002 indicates a correlation between receiving some form of legal aid service and an asylum-seeker's increased chances of gaining refugee protection from UNHCR. Unconventional forms of legal aid, including limited services by supervised non-lawyers (including volunteers from the refugee community) showed a positive impact on first instance cases, while traditional legal aid models showed an impact at the appeal stage. Legal aid should form an essential part of UNHCR's RSD procedures, and NGOs should work to expand …