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Edited by Johanna Gibson

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Jani McCutcheon

Abstract

Photographs of cultural collections are an essential means of disseminating art and democratizing access to culture. This article reviews the policies of five major Australian galleries on access to their collections. It finds they tend to claim copyright in photographs of their collections, including of public domain works. This reflects a perceived entitlement to control access to their digital collections, often bolstered by a misstatement of copyright exceptions, restrictive quasi-copyright contract terms, licensing practices, and physical property rights in photography's appurtenances. This curbs the emancipatory potential of digitization, generating a conflict between the property interests of cultural institutions and the public interest in enhanced access to culture. The problem is particularly acute with respect to images of public domain art, exclusive control over which diminishes the public domain. This article considers the novel question of whether copyright subsists in photographs of two-dimensional art under Australian law, arguing that such photographs lack the originality indispensable to copyright subsistence. This conclusion significantly undermines cultural institutions’ licensing models and challenges misconceptions of property rights in the photographic surrogates of two-dimensional cultural objects. The article urges cultural institutions to liberate the digital surrogates of public domain art to enhance access to cultural capital.

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OVERVIEW

Law and Practice

Jeffrey Belson

Certification and collective marks are special forms of trademarks that ab initio are for the use of multiple sources, subject to the proprietor’s authorization. These marks engender particular issues of law and policy that are related to but distinct from the law and policy of ordinary (or ‘individual’) trademarks. A certification mark indicates that certain characteristics of the marked goods or services conform to particular standards. Collective marks attest primarily to membership of the individual source of the marked goods or services in a particular association such as a trade association. The ensuing chapters explore the historical development of both these types of marks, the connections between them, pertinent trademark law and practice, certifiers’ and membership associations’ liability, legal and commercial significance, use in regulatory and technical standardization frameworks, and emergent sui generis forms of certification, namely ecolabels and electronic authentication marks in digital content. Key words: certification mark; collective mark; law; policy

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EXTENDED CONTENTS

Law and Practice

Jeffrey Belson

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Qian Zhan

A consumer survey, as an instrument used to gather data on the beliefs and attitudes of consumers towards trademarks or products, is considered to have vital influence in trademark litigation. In recent years, courts have come to rely increasingly on the results of surveys conducted by one or both litigants in trademark lawsuits. The practical issue for trademark litigants is determining whether, when and how to develop survey evidence, given the cost, time, and other constraints. To shed light on this specific issue, we undertook a statistical analysis of trademark infringement cases in China. By examining 17 836 cases decided by China's courts over a 16-year period from 2001 through 2016, this article presents an empirical study assessing the statistical relationship between the presentation of survey evidence and case outcomes. The goal of our study is to help trademark litigants to determine the importance and value of presenting consumer surveys in trademark infringement case and make more informed decisions about their litigation strategies.

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Edited by Johanna Gibson

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Shubha Ghosh

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Fenghua Li

At the centre of the controversy surrounding the reversal of awards in the Yukos cases is the provisional application laid down in Article 45 of the Energy Charter Treaty (ECT), which allows a signatory to unilaterally undertake to give affirmative legal effect to the obligations under the ECT on a voluntary and provisional basis. The paper examines the two disparate approaches adopted by the Arbitral Tribunal and the Hague District Court in interpreting the provisional application, namely the ‘all-or-nothing’ approach which necessitates an analysis and determination of whether the principle of provisional application per se is inconsistent with national laws of a signatory and the ‘piecemeal’ approach that requires provisional application to be dependable on the consistency of each provision of the ECT with national laws. The paper further scrutinises the effect that should be given to the provisional application of the ECT and maintains that the controversy has the potential to generate intricate tensions between the finality and rectification of arbitral awards and between international arbitral autonomy and judicial scrutiny instrument, and will have a conclusive impact on the fate of the petition of the Russian Federation.

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Helin M Laufer

This paper will critically analyse the International Committee of the Red Cross’ new weapons review and emphasise the importance of considering human rights in the assessment of the legality of weapons. Further, the paper will illustrate this practically by analysing the legality of drones and killer robots from the perspective of the right to life and the prohibition against torture and cruel, inhuman and degrading treatment.

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Letizia Lo Giacco

Based on the ever-increasing interpretation and application of international law by domestic courts, this paper offers an insight into the practices of judicial citation of international and domestic jurisdictions while adjudicating international criminal law related matters. The paper considers selected instances of judicial citation and operates a prima facie distinction between judicial citation as a finding device and as a justification exercise. It is argued that domestic courts rely on international judicial decisions primarily as a finding device whilst international case law deals with domestic judicial decisions in the realm of justification. The analysis of this material triggers reflections on the relevance of judicial citation for the doctrine of sources of international law, inasmuch as it adds to the formation of normative expectations on subjects of international law, as well as for a scholarly conceptualisation of contemporary international law-making.