Le droit de refuser un traitement psychiatrique au Québec

There are various types of incapacity in the civil law of Québec. The provisions of the Civil Code concerning the interdiction of incapable persons are now supplemented by various statutes. In all cases, a curator — and generally the public curator — is appointed to accept or refuse treatment for an incapable person. Except in cases of serious emergency, it is clearly established that any treatment, whether medical or psychiatric, must be preceeded by the patient's informed consent. While some recourses already exist to protect the rights of an incapable patient for whom a curator has been appointed, this is not the case for psychiatric patients who are of legal age and legally competent, but who refuse treatment. In these cases, it is suggested that the decisions of Québec courts that have recognized a « defacto incapacity » and, consequently, forcible treatment on the basis of the « parens patriae » doctrine, may be ill-founded. This opinion is based on the application of the principles of self-determination and the inviolability of the human person, and by establishing a parallel with constitutional rights recognized by American courts which are now echoed in the new Canadian Charter of Rights. The author suggests that all recourses involving refusal of treatment be referred to a centralized administrative tribunal, in the light of the reform of the Civil Code

The 1909 Copyright Act in International Context

The passage of the 1909 U.S. Copyright Act was embedded in a significant period of evolution for international copyright law. Just a year before, the Berne Convention had been revised for the second time. This Berlin (1908) Act of the Convention in remembered in particular for the introduction of a broad prohibition against formalities concerning the exercise and enjoyment of copyright. 1909 was also just one year before a new copyright bill was brought before the Brit-ish Parliament. This Copyright Act, finally adopted in December 1911 and which entered into force in July 1, 1912, greatly influenced laws in many countries, including Australia, Canada, Israel, New Zealand, Nigeria, and South Africa. In this Essay, I situate the Berlin Act within the framework of the evolution of the Berne Convention from 1886 until the current 1971 Act and explore the role played by the United States, not as much as a participant in the Berlin Conference but by the way its actions influenced the actions of others. To this end, I discuss sequentially the emergence and evolution of the Berne Convention, and then two areas worthy of deeper analyses when considered against the back-drop of the 1909 Act, namely the prohibition against formalities and the rule imposing retroactive application of the Convention

The Patent Option

There is a shift in the shape of intellectual property tools used to strengthen and lengthen the right of pharmaceutical companies to exclude others from making and marketing their products. Patents have traditionally been the tool of choice. Over the past two decades, however, pharmaceutical companies have increased their degree of reliance on a right known as “data exclusivity.” This right, which now exists in most major jurisdictions, is the right to prevent third parties from relying on the clinical trial data submitted by another pharmaceutical company to obtain marketing approval for a bioequivalent or biosimilar product. The right is included in most international trade agreements. The patent and data exclusivity regimes are different. The patent regime is one-size-fits-all; it protects new, useful, and nonobvious inventions subject to sufficiency of disclosure. In contrast, the data exclusivity regime has both a different target (only pharmaceuticals) and purpose (efficacy and safety). The two systems are administered independently. Yet they apply to the same products and the two rights belong to the same entities. The Article conditions the proposed extension on fuller disclosure of clinical data, which would benefit both the public and scientists. Although public disclosure of an invention is a key function of patent law, it is often of poor quality due to excessive use of “patentese.” In the specific case of pharmaceuticals, it is further weakened by the fact that patent applications are normally commenced well before human clinical trials have been concluded. Under current rules, clinical trial data submitted to governments are often not made public. Finally, the Article proposes text to be used in future trade agreements—with specific modalities for developing and least-developed countries

Traditional Knowledge: Are We Closer To The Answer(s)? The Potential Role Of Geographical Indictions

The debate concerning the protection of, and access to, traditional knowledge \u27 2 has been going on for some time

Keynote: The Landscape of Collective Management Schemes

The title for this address, suggested by Jane Ginsburg and June Besek, prompted me to take a fresh look at the rules of landscape composition. I found six major ones. The first five rules are as follows: (a) group your subjects of importance within a center of interest; (b) avoid straight lines; (c) allow the viewer to interact and become a participant; (d) make good use of contrast; and (e) add some drama and avoid kissing the edges. I can promise you two of those five, namely that we will interact later, and that I will not be kissing any edges this morning. Unfortunately, I cannot promise drama. As to the center of interest and avoidance of straight lines, let us see what we can do. The last rule is to put striking features in the foreground set against a solid background. That I think I can deliver. Let us start with the background. I will use a realist technique for this part of my talk

The Protection of Performers Under U.S. Law in Comparative Perspective

The majority opinion of the Ninth Circuit panel in Garcia v. Google, Inc. stands for the proposition that an actor has copyright in her performance. The case was described as horrific and generated a significant amount of traffic on listservs and social media. In the opinion, Chief Judge Kozinski made three key points. First, that there was originality in the performance, as required under Feist. The Feist court found that creative choices were necessary to generate sufficient originality to warrant copyright protection. Using Feist as backdrop, the Garcia majority found that: An actor’s performance, when fixed, is copyrightable if it evinces “some minimal degree of creativity . . . ‘no matter how crude, humble or obvious’ it might be.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., . . . . That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all. Second, Chief Justice Kozinski found that a performance could be a derivative work of the script, noting that an unauthorized derivative received no copyright protection. Third, he dismissed what might seem like a Coasean argument on the impossibly high transaction costs if a thicket of copyrights were recognized in film because: As the above discussion makes clear, any analysis of the rights that might attach to the numerous creative contributions that make up a film can quickly become entangled in an impenetrable thicket of copyright. But it rarely comes to that because copyright interests in the vast majority of films are covered by contract, the work for hire doctrine or implied licenses. The dissent also makes interesting points, in particular in drawing a clear distinction between a performance and a work in a copyright context—a distinction which, the dissent opines, is solidly anchored in the text of the statute: Section 101 of the Act is also instructive, because it differentiates a work from the performance of it. It defines “perform a ‘work’” to mean “to recite, render, play, dance or act it.” 17 U.S.C. § 101 (emphasis added). Given this provision, it is difficult to understand how Congress intended to extend copyright protection to this acting performance. . . . An acting performance resembles the “procedure” or “process” by which “an original work” is performed. . . . Therefore, “[i]n no case does copyright protection” extend to an acting performance, “regardless of the form in which it is described, illustrated, or embodied in” the original work. Wherever this case ends up in the courts, it raises fundamental questions about US law as it applies to performed works. This Essay uses a comparative lens to shed some hopefully useful light on the debate. The Essay proceeds essentially in two parts. First, the Essay explores and critiques the international protection of performers’ rights using both history and policy as focal points. The following part describes the protection of performers and other owners of “related rights” in US law and explains the differences that adopting a related rights regime would bring about in the United States

The Protection of Performers Under U.S. Law in Comparative Perspective

The majority opinion of the Ninth Circuit panel in Garcia v. Google, Inc. stands for the proposition that an actor has copyright in her performance. The case was described as horrific and generated a significant amount of traffic on listservs and social media. In the opinion, Chief Judge Kozinski made three key points. First, that there was originality in the performance, as required under Feist. The Feist court found that creative choices were necessary to generate sufficient originality to warrant copyright protection. Using Feist as backdrop, the Garcia majority found that: An actor’s performance, when fixed, is copyrightable if it evinces “some minimal degree of creativity . . . ‘no matter how crude, humble or obvious’ it might be.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., . . . . That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all. Second, Chief Justice Kozinski found that a performance could be a derivative work of the script, noting that an unauthorized derivative received no copyright protection. Third, he dismissed what might seem like a Coasean argument on the impossibly high transaction costs if a thicket of copyrights were recognized in film because: As the above discussion makes clear, any analysis of the rights that might attach to the numerous creative contributions that make up a film can quickly become entangled in an impenetrable thicket of copyright. But it rarely comes to that because copyright interests in the vast majority of films are covered by contract, the work for hire doctrine or implied licenses. The dissent also makes interesting points, in particular in drawing a clear distinction between a performance and a work in a copyright context—a distinction which, the dissent opines, is solidly anchored in the text of the statute: Section 101 of the Act is also instructive, because it differentiates a work from the performance of it. It defines “perform a ‘work’” to mean “to recite, render, play, dance or act it.” 17 U.S.C. § 101 (emphasis added). Given this provision, it is difficult to understand how Congress intended to extend copyright protection to this acting performance. . . . An acting performance resembles the “procedure” or “process” by which “an original work” is performed. . . . Therefore, “[i]n no case does copyright protection” extend to an acting performance, “regardless of the form in which it is described, illustrated, or embodied in” the original work. Wherever this case ends up in the courts, it raises fundamental questions about US law as it applies to performed works. This Essay uses a comparative lens to shed some hopefully useful light on the debate. The Essay proceeds essentially in two parts. First, the Essay explores and critiques the international protection of performers’ rights using both history and policy as focal points. The following part describes the protection of performers and other owners of “related rights” in US law and explains the differences that adopting a related rights regime would bring about in the United States

Towards a New Core International Copyright Norm: The Reverse Three-Step Test

This paper argues that international copyright treaties, such as the WTO TRIPS Agreement, should no longer be developed as sets of minimum standards with a standardized exception filter, namely the three-step test, but rather include a normative standard for the copyright rights themselves. In seeking harmony between rights and exceptions, and in light of copyright haphazard evolution (by simply adding new rights when a new way of using protected content was invented), a single new core norm is proposed: the reverse three-step test

Transmissions of Music on the Internet

This Article examines the status of copyright laws in several countries as they pertain to transmissions of music on the Internet. Because the exact legal ramifications of music transmissions over the Internet are currently unclear, the Author compares copyright laws of six major markets and examines the potential application of the copyright laws and other rights that may apply. The Article also discusses rules concerning which transborder transmissions are likely to be covered by a country\u27s national laws, as well as specific rules applying to the liability of intermediaries. Next, the Article summarizes the comparative findings and discusses the relevant nuances that exist among the countries covered. Finally, the Article applies its findings to several real-life examples and details the practical impact of current and future copyright laws on the varying fact patterns

The Protection of Databases

In Parts I and II of this Paper, the author analyzes the legal protection of databases first in international treaties, in particular the Berne Convention and the WTO TRIPS Agreement, and second under national and regional copyright, sui generis, or other (e.g., tort) law in Europe (both the European Directive on the legal protection of databases of 1996, which was under review, and a number of relevant national laws), the United States, and a number of foreign jurisdictions (Australia, Canada, China, Nigeria, Russia, and Singapore). In Part III, the author provides a critical analysis of the effort to expand the legal protection of databases from both theoretical and empirical perspectives. In his conclusion, the author suggests three paths for the future evolution of the protection of databases at the international level