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Bardo Fassbender

The chapter deals with a question so far addressed only cursorily in the literature about concepts of international constitutionalism – the ‘writtenness’ of an international constitutional law. Can we assume the existence of an ‘unwritten’ international constitution, or does the very concept of a constitution in the modern sense require that a constitution is laid down in written form? The chapter discusses the importance of ‘writtenness’ in modern constitutionalism and addresses the ‘English exception’, that is, the absence, in the United Kingdom, of a document called ‘the constitution’. It concludes with a plea for taking the constitutional character of the UN Charter more seriously, arguing that the idea of an unwritten constitution of the international community does not provide a viable alternative.

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Gaetano Dimita

This chapter focuses on the implementation of Article 8 of the WCT and the relevant case law. It will be shown how the umbrella solution of the WIPO Treaties caused a different set of legal and interpretation issues, depending on the approach chosen for implementing them. In the European Union where Article 8 was implemented verbatim, the disputes concerned the definition of ‘communication’ and ‘public’. In the United States, where the legislator opted not to amend the Copyright Act, the disputes concerned the scope of the existing rights under Section 106 in light of the WIPO Treaties obligations. Keywords: making available, communication to the public, copyright, WIPO treaties, United States, European Union

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Pilar Cámara Águila

This chapter deals with the special features of Spanish Law, in relation to the ownership of copyrights of university professors and staff of public research organizations. Together with the general regulation of salaried authors in the Intellectual Property Law, some special laws regulate the rights of these organizations on the results of scientific investigations developed by its personnel. It is doubtful whether it affects the ownership of copyright in accordance with the general regulation or repeals it. On the other hand, the reform of the Intellectual Property Law in 2014 has raised the question of whether the new wording of article 32 recognizes the ownership of copyrights to universities, by establishing the possibility of using the scientific creations by them, unless they are already holders of those rights. Keywords: Copyrights, university professors, thesis, universities and public research organizations, results of the investigation, salaried author.

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Uma Suthersanen

This chapter starts from a dilemma. The zeitgeist of this century and the foreseeable future is not only to celebrate humanity’s cultural heritage but to also preserve and maintain it for future generations, whilst ensuring its current accessibility to the public. This task is vested in libraries, museums, archives and other memory institutions – collectively known as cultural heritage institutions (CHIs). But ownership rights are not clear. The question who own the orphans arises, and with it the issue of property in digital cultural heritage assets. Keywords: orphan works, cultural heritage, property in digital cultural assets, preservation, digitisation

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Paul Torremans

This chapter provides an introduction to the approach the Court of Justice has taken to the right of communication to the public. It looks at the decisions in Reha Training and GS Media and tries to make sense of the approach before analyzing it critically. There is a special emphasis on hypertext links. Keywords: communication to the public, new public, hypertext links, grand chamber, critical analysis

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Chloé Anne Vlassopoulos

This chapter retraces the emergence of climate migration as a global issue. It examines the role played by different actors, ranging from scholars from environmental and migration studies, to operational institutions such as the International Organisation for Migration and the UN High Commissioner for Refugees, among others. Vlassopoulos develops an insightful analysis on how migration was constructed, in the context of environmental disturbances and then climate change, as a political issue – or, alternatively, as a consequence of climate change, or as a possible solution to issues raised by climate change. The chapter discusses the recent re-interpretation of climate migration within the loss and damage workstream in terms of institutional mandate and the difficulty of promoting the issue and the role for climate change institutions such as the Executive Committee of the Warsaw International Mechanism without disempowering migration institutions.

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Paula Giliker

This introductory chapter examines the meaning of the term ‘European Union tort law’ and distinguishes it from studies examining the more loosely defined ‘European tort law’. European Union tort law is found in a number of different areas of law ranging from product liability to competition law. It plays an important role in ensuring the effectiveness of EU law and that EU citizens are able to obtain compensation for their losses resulting from breach of EU law. Owing to its diverse and piecemeal nature, its true breadth is often overlooked. Chapter 1 also highlights the cultural tensions underlying the development of EU tort law and the role harmonisation proposals play in this context.

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Ysolde Gendreau

Whatever the direction a discussion nowadays on contemporary copyright is taking, it is fair to assume that the issue of the balancing of interests will be raised. The chapter looks at the official balancing acts that meet in copyright statutes anywhere (economic versus moral rights; copyright versus related rights; rights versus remedies) as well as those that are not so often mentioned, but that nevertheless have an impact on the understanding of the law (justifications for copyright; shifting identities within copyright law). Canadian law is used to provide examples, but the reasoning can easily resonate elsewhere. Keywords: copyright, copyright balance, copyright subtext, international copyright, collective management, copyright exceptions.

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Christine Riefa and Séverine Saintier

Directive 2005/29 provides a blanket ban on unfair commercial practices, which harm consumers’ economic interests. The Directive is said to give a pan-European floor to remedying economic torts and yet, the text itself does not make any reference to being a ‘tort instrument’. The absence of the notion of ‘tort’ in the Directive is surprising given the fact that it requires member states to offer ‘tort’-like remedies, including interim as well as final injunctions for the cessation or prevention of unfair commercial practices. In addition, the scope of the Directive explicitly covers unfair practices ‘before, during and after a commercial transaction’ thus encompassing situations where no contractual link will exist and falling necessarily into the remit of tort law. The absence of any mention of tort undoubtedly brings some ambiguity that the national legal orders have had to grapple with. It is therefore not unexpected that the technical choices member states made in order to implement the Unfair Commercial Practices Directive (UCPD) vary greatly. The question of the impact of the UCPD on the common law system of torts is particularly important, given the limits of tort as a tool to address economic loss, and is the focus of this chapter. The UK has opted for a stand-alone piece of legislation, with the Consumer Protection from Unfair Trading Regulations 2008 (UTR) amended by the Consumer Protection (Amendment) Regulations 2014 which introduces a right of private action. This chapter contends that the introduction of the UTRs in 2008 and their amendment in 2014 is a vast improvement of the protection of consumers, although it is clearly still a work in progress. After reflecting on the inadequacy of traditional torts in remedying economic loss, the chapter demonstrates that in the UK, the UCPD supplants the old traditional barriers and there is no longer a need to decide if a claim is in tort or contract, offering consumers a much easier avenue for redress. Nevertheless it remains doubtful that consumers’ economic losses are going to be adequately compensated, given the limitations of the right of private redress introduced in 2014.

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Michael W. Doyle

The chapter explores the degree to which the United Nations (UN) Charter serves as a constitution for the international order. It finds that the Charter is neither like a national federal constitution (for example, the US Constitution) nor an ordinary contract-like treaty. Its key constitutional features are three: first, limited supranationality; second, political inequality and, third, like all constitutions, an ‘invitation to struggle’ that leads to inevitable pushback from states when UN authority expands. The chapter explains both the planned and inadvertent transfers of authority embodied in modern peacekeeping mandates and the Millennium Development Goals. It concludes with a discussion of the wider constitutional significance and prospects of the UN in the light of the contrasting success of the history of US federalism and European integration.