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Magnus Strand

This first Chapter of the book presents the passing-on problem and identifies the major legal issues triggered by that problem that are discussed throughout the book. ‘Passing-on’ in this respect is the act of letting harm or loss incurred by a business pass through that business and thereby move on to burden its customers, i.e., the next level of the supply chain. This can be done, knowingly or otherwise, by raising selling prices in response to the harm or loss at issue. The point of departure in this chapter and throughout the book is that the passing-on problem is not a single and coherent legal problem that can be addressed as such, but a set of factual circumstances that gives rise, in turn, to several legal issues that need to be resolved in a consistent manner. Three main legal issues triggered by passing-on are identified: (1) Who in the supply chain will have access to court to bring an action in respect of the initial harm caused? (2) Will those parties be able to demonstrate sufficient proximity (within the meaning of applicable substantive law) to the original harmful act or unjustified transaction, as the case may be, to bring a successful claim? (3) Will a possibility for the claimant to pass on the alleged harm or loss be relevant to the estimation of the award? This chapter further identifies the different parties involved in the passing-on problem and their respective interests, introducing shorthand denominators for those parties that are used in the book. Finally the chapter outlines the various EU law contexts in which passing-on has or could occur, and presents the structure of the presentation to follow in subsequent chapters. Keywords: EU law, private enforcement, damages law, restitution law, passing-on, indirect purchasers
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Magnus Strand

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Edited by Johanna Gibson

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Pamela Andanda

The application of exceptions to copyright infringement in online news articles has become contentious with the widespread practice of aggregation. The specific concern is whether reproducing or adapting news articles that are published on competitors’ websites without permission falls within the scope of the exceptions to copyright infringement in respect of news articles or, alternatively, such conduct is protected by fair use.

This paper provides a South African perspective on the above concern by comparing the USA case of Meltwater 1 with the South African case of Moneyweb, 2 which has attempted to provide clarity on copyright in the context of online journalism. The paper first analyses the complexities of the rapid rise of online news, which raise questions such as whether hyperlinking is sufficient attribution and the difference between ‘scraping’ and aggregation, as well as the effects of these practices on competing media. It then considers whether the doctrine of fair use, which should arguably be flexible enough to adapt to the changing obligations in the context of new technologies, 3 is capable of providing clear guidance on reasonable online media practice beyond South Africa. The central argument is that the doctrine of fair use should foster online innovation and the sharing of public information while ensuring respect of copyright.

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Anne L. Bandle

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Anne L. Bandle

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  • Research Handbooks in Information Law

Nancy S. Kim

Online contracts, such as website terms of use, are typically ignored by consumers yet courts and companies treat them as binding contracts. This chapter explores the origins of online contracts and the development of the law in this area. Companies have adopted novel contracting forms in response to business and marketplace needs and courts have adjusted contract law to accommodate them. The burdens of these new contracting forms, however, have been placed primarily upon consumers. This chapter suggests ways that contract law could further evolve to more evenly balance the burdens of online contracting.
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  • Research Handbooks in Information Law

John A. Rothchild

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  • Research Handbooks in Information Law

John A. Rothchild

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Edited by Johanna Gibson