Playing Poohsticks with the British Constitution? The Blair Government\u27s Proposal to Abolish the Lord Chancellor

This paper critically assesses a recent and significant constitutional change to the British judicial system. The Constitutional Reform Act 2005 swept away more than a thousand years of constitutional tradition by significantly reforming the ancient office of Lord Chancellor, which straddled all three branches of government. A stated goal of this legislation was to create more favorable external perceptions of the British constitutional and justice system. But even though the enacted legislation does substantively promote this goal, both by enhancing the separation of powers and implementing new statutory safeguards for judicial independence, the process of constitutional reform did not comport with it. The reform process suffered from undue speed, excessive secrecy, and failure to ensure adequate consultation and debate on the reform proposals. It also created an atmosphere of distrust that not only forced the government\u27s retreat from its initial goal of entirely abolishing the office of Lord Chancellor, but also failed to achieve public confidence that the reforms were needed as a matter of reasoned principle. Like the game of Poohsticks, chance played too great a role in the constitutional reforms. This flawed process is inconsistent with the goal of improving external perceptions of justice, fairness, and judicial independence from political pressure. These recent constitutional reforms in the United Kingdom are worthy of American attention because external perceptions of the justice and fairness of the American constitutional system are growing in importance in an era in which the United States, like the United Kingdom, seeks to export its democratic values across the globe and struggles to ensure the appropriate level of judicial independence. Increasingly, it matters not only that justice be done, but also that it must be seen to be done

Dick Whittington and Creativity: From Trade to Folklore, From Folklore to Trade

In this essay, I consider whether increased intellectual property protection for stories and folktales is a wise policy course. I argue that greater intellectual property protections risk serious harm to innovation and creativity by narrowing the public domain and are not the best means to achieve these desired ends. To make my argument, I draw on the Dick Whittington story as both an example of a folktale in danger of overprotection by expanded intellectual property regimes and also as an analogy to the legal treatment of folklore over the past several decades. Part II focuses on the Dick Whittington story as an example of folklore that has spawned a wealth of creative works. It traces how the life of a real historical figure, Sir Richard Whittington, became a folktale. Just as the real Richard Whittington\u27s money still funds many charities, for hundreds of years the folktale based on his life has served as the basis for many new creative works, especially children\u27s books and pantomimes. The remainder of the essay draws parallels between the Dick Whittington folk tale and the legal protection of folk stories at the national, regional, and international level. Part III shows how traditional western copyright law doctrines bar protection for many folk stories handed down orally from generation to generation like Dick Whittington. Part IV delineates early efforts from the late 1960s to early 1980s to establish stronger national and international intellectual property protections for folklore despite the doctrinal problems posed by traditional copyright law. These efforts culminated in joint UNESCO-WIPO Model Provisions, which, although not law themselves, were designed to be incorporated into national laws to give sui generis intellectual property protection to folk stories and other kinds of folklore. Part V shows how these efforts did not succeed in broadly implementing intellectual property protections for folklore in national laws across the globe, although the Model Provisions did influence some jurisdictions, including a majority of African countries, to incorporate greater intellectual property protections for folk stories and other expressions of folklore into their laws. Part VI describes the latest attempts to set up an international regime for intellectual property protection for folklore, which is currently under discussion in a World Intellectual Property Organization (WIPO) committee as well as, to a more limited extent, in the World Trade Organization (WTO). Part VII contends that implementing specific intellectual property protections such as the current draft principles and objectives under consideration in WIPO are not clearly a happy ending for folklore because of the impossibility of determining what is protectable and the serious danger of hindering future creativity and artistic development. The essay concludes by advocating a cautious approach to the problem that will better respect the importance of a robust public domain

Does the Children’s Internet Protection Act Induce Public Libraries to Violate the First Amendment?

The Children\u27s Internet Protection Act contains filtering provisions for public libraries that condition the receipt of federal assistance for Internet access and related services on libraries\u27 operation of technologi­cal measures that block all patrons\u27 access to obscene and pornographic materials and also block minor patrons\u27 access to material that is harmful to minors. Now the Supreme Court has agreed to review a trial court\u27s decision that enjoined the government from enforcing these filtering provisions on the basis that they are facially invalid under the First Amendment

Saving Rosencrantz and Guildenstern in a Virtual World? A Comparative Look at Recent Global Electronic Signature Legislation

This piece focuses on recent global legislative initiatives designed to establish a legal framework supporting electronic signatures. As many governments worldwide increasingly seek to encourage the growth of e-commerce, the enactment of such legislation has become a priority

Dick Whittington and Creativity: From Trade to Folklore, From Folklore to Trade

In this essay, I consider whether increased intellectual property protection for stories and folktales is a wise policy course. I argue that greater intellectual property protections risk serious harm to innovation and creativity by narrowing the public domain and are not the best means to achieve these desired ends. To make my argument, I draw on the Dick Whittington story as both an example of a folktale in danger of overprotection by expanded intellectual property regimes and also as an analogy to the legal treatment of folklore over the past several decades. Part II focuses on the Dick Whittington story as an example of folklore that has spawned a wealth of creative works. It traces how the life of a real historical figure, Sir Richard Whittington, became a folktale. Just as the real Richard Whittington\u27s money still funds many charities, for hundreds of years the folktale based on his life has served as the basis for many new creative works, especially children\u27s books and pantomimes. The remainder of the essay draws parallels between the Dick Whittington folk tale and the legal protection of folk stories at the national, regional, and international level. Part III shows how traditional western copyright law doctrines bar protection for many folk stories handed down orally from generation to generation like Dick Whittington. Part IV delineates early efforts from the late 1960s to early 1980s to establish stronger national and international intellectual property protections for folklore despite the doctrinal problems posed by traditional copyright law. These efforts culminated in joint UNESCO-WIPO Model Provisions, which, although not law themselves, were designed to be incorporated into national laws to give sui generis intellectual property protection to folk stories and other kinds of folklore. Part V shows how these efforts did not succeed in broadly implementing intellectual property protections for folklore in national laws across the globe, although the Model Provisions did influence some jurisdictions, including a majority of African countries, to incorporate greater intellectual property protections for folk stories and other expressions of folklore into their laws. Part VI describes the latest attempts to set up an international regime for intellectual property protection for folklore, which is currently under discussion in a World Intellectual Property Organization (WIPO) committee as well as, to a more limited extent, in the World Trade Organization (WTO). Part VII contends that implementing specific intellectual property protections such as the current draft principles and objectives under consideration in WIPO are not clearly a happy ending for folklore because of the impossibility of determining what is protectable and the serious danger of hindering future creativity and artistic development. The essay concludes by advocating a cautious approach to the problem that will better respect the importance of a robust public domain

The Global Digital Divide: Focusing on Children

This article addresses the global aspect of the digital divide in two ways. First, I will focus primarily on the issue of school-aged children\u27s access to information and communications technologies (ICT) globally. My focus is on children for the simple reason that children embody the future. Second, I will limit my assessment of this issue to a comparison of children\u27s access to ICT in six countries around the world. Located on five continents, these six countries range from highly developed OECD countries to lesser developed countries. They are the United States, the United Kingdom, France, Australia, Mongolia, and Tanzania

Catholic Social Teaching, The Rule of Law, and Copyright Protection

The rule of law is currently under grave threat in cyberspace. Even as copyright laws have been strengthened in many ways in response to new digital technologies, these laws are widely disrespected and cannot be effectively enforced against all those who willfully flout them. The legislative response has been to strengthen copyright laws more and more, including expanding copyrightable subject matter, giving copyright owners new rights, and lengthening the copyright term. One example is the Copyright Term Extension Act of 1998. This amendment to federal copyright law retroactively extended the duration of copyright protection by twenty years. The judicial response to challenges to these strengthened laws has often been to insist that the threat to the rule of law requires interpreting the law to give broad rights to copyright owners, while narrowly construing the rights of others who seek to use copyrighted works. Justice Ginsburg took this approach in her majority (7-2) opinion of the U.S. Supreme Court in Eldred v. Ashcroft, a constitutional challenge to the Copyright Term Extension Act. Yet these legislative and judicial responses have not succeeded in establishing a culture of respect for copyright law

Threatening the Founding Ideal of a Republic of Letters: An Assessment of the Supreme Court\u27s Copyright Decisions Over the First Decade of the Twenty-First Century

Disregard for the social value of a modern Republic of Letters like that so revered by Madison and Jefferson is a conspicuous hallmark of the Supreme Court\u27s recent copyright case law. The four decisions in which the Court has issued full opinions since 2001 (New York Times Co. v. Tasini (2001), Eldred v. Ashcroft (2003), MGM Studios, Inc. v. Grokster, Ltd. (2005), and Reed Elsevier, Inc. v. Muchnick (2010)) indicate that a majority of the Court does not share with Jefferson and Madison a belief in the civic importance of protecting widespread public access to creative works and knowledge. In these recent copyright decisions, the Court has either ignored this value or has weighed it as less important than ensuring financial rewards for authors. Part II shows how the writings of Jefferson and Madison on the dissemination of knowledge and the Copyright Clause reveal how highly both men valued the ideal of public access to knowledge and creative works as a bulwark of republican government. Part III points out that the Court\u27s copyright decisions over the past decade have not shared Madison and Jefferson\u27s solicitude for the value of public access to knowledge and the Republic of Letters. Part IV concludes by warning that the Court\u27s disregard for the public interest in the dissemination of knowledge and creative works risks eroding respect for the rule of law