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Alina Trapova and Emanuele Fava

This article examines the issue of copyright exhaustion for digitally distributed video games in the EU. In light of the case law of the CJEU and national courts, it applies to video games two relevant dichotomies – sale/licence and goods/services. Diving into the modern Games-as-a-Service (GaaS) trend, it argues that treating all transactions as sales and all games as goods poorly reflects the complexity of today's video game industry. The many uncertainties of the current legal framework and the impractical consequences of digital exhaustion could force the industry to change its distribution models in ways not necessarily beneficial to consumers. Thus, the applicability of exhaustion to digitally distributed games should be ruled out once and for all. Nonetheless, where copyright is unable to offer satisfactory solutions, consumer law may protect players vis-à-vis digital distribution platforms, while at the same time providing legal certainty to the industry.

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Mark Jephcott, Max Kaufman and Ben Gordon

In Peninsula Securities, the Supreme Court held that a restrictive covenant, granted in a lease to an anchor tenant of a shopping centre not to allow any retail unit in the centre to be leased to competing shops, does not engage the doctrine of restraint of trade. The question of its enforceability therefore hinges on whether the relevant covenant breaches competition law, and specifically whether it is anti-competitive by object or effect. This relatively straightforward conclusion of the Supreme Court in Peninsula Securities masks over 50 years of conflicting judgments and uncertainty in the area.

Prior to Peninsula Securities, the majority decision of the House of Lords in Esso Petroleum v Harper's Garage gave rise to a ‘battle of the tests’: the majority opined that the doctrine of restraint of trade would only be engaged if the covenantor contracts to give up a freedom they already had (what has come to be known as the ‘pre-existing freedom test’; Lord Wilberforce, dissenting, formulated what came to be known as the ‘trading society test’ which is basically a rule of reason test. In Peninsula Securities, the Supreme Court clearly sided with the latter, but in reality neither test is likely to be considered in future challenges to an anchor tenancy restrictive covenant – the key question is whether it is anti-competitive, something which only the relevant facts of the case will determine.

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Chuanzi Cai

China has long been the World's Walmart of counterfeits, and the remedies in counterfeiting cases have always been criticized as too small to compensate trademark owners. In the year 2013, China revised its trademark law, which increased the cap of statutory damages and incorporated secondary liability clauses into the law. Does the change of law bring any changes to the remedies granted in counterfeiting civil cases? What are the factors affecting court decisions? Relying on more than 800 civil cases in trademark counterfeiting, this article empirically studies the case characteristics and court decisions to understand the case outcomes and litigation scenario. It reveals the characteristics of civil litigation and factors affecting court decisions on trademark counterfeiting in China. Though there is some literature on remedies in trademark cases, very few analyses focus on courts' legal reasonings or the changes in civil remedies after the law revision. This article tries to fill in this gap, looking through the lens of the law on the books – the law revisions – and the law in practice – the court decisions.

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Anna Vvedenskaya

In the last decade, significant review and change have been done regarding the taxation of profits from multinational companies. The OECD BEPS Action 1 is focused on granting additional taxing rights to jurisdictions where the customers of the service are located. This is because consumers add to the value creation process (prosumers), together with the company itself.

Many enterprises do not have a physical presence at market jurisdictions because of the worldwide digitalization of the business process. With distant sales, they avoid sufficient taxation at the source countries.

Multiple jurisdictions, businesses, and individuals provided various taxing rights allocation proposals. OECD considered some of them as possible ways to address the issue of under-taxation at market jurisdiction.

This article evaluates the applicability of the OECD analysis of the value creation to the video games industry under the angle of differences and similarities between single-player and multi-player video games with social networks. This work is focused on the differences related to user participation and network effects for the value creation process. It explores the importance of the user participation and network effects for the value creation process of single-player and multi-player video games, to find if that respective taxing rights allocation should be different for these types of video game. It also analyses main proposals on taxing rights allocation, their applicability to the industry, and if these proposals acknowledge the differences in value creation based on the network effects of the video game.

It was found that the existing proposals are not always consistent with the preparatory work on value creation analysis performed by the OECD and do not consider the named differences. The results of this work support the position that the proposals, including the most recent one, meet the existing urge for the taxing rights reallocation, but are mainly politically-driven and not always in line with the existing principles of international tax law.

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Anna-Lisa Tie

Video game content has grown increasingly popular on internet service providers such as YouTube and Twitch. This genre of uploaded material includes the gameplay of internet users, in the form of pre-recorded ‘Let's Play’ videos, as well as livestreamed playthroughs. However, the application of current copyright law principles to these kinds of content is still a grey area. This legal uncertainty can be attributed to the absence of binding judicial precedent on whether video game Let's Plays and livestreams constitute copyright infringement or fair use. More recent legislative provisions intended to update copyright law for current digital technology provide little assistance, as their implementation by internet platforms has perpetuated a practice of favouring the interests of game developers over users who produce Let's Plays and livestreams. This article discusses the problems of applying existing copyright law to video game playthroughs uploaded online, as well as the drawbacks of the automated tools YouTube and Twitch have developed to manage these types of content in their systems. In order to address these issues, suggestions for copyright law reform will be explored. However, in the absence of imminent legislative amendments, I conclude that compulsory licensing arrangements, and making modifications to YouTube's and Twitch's content scanning tools are the most viable means of achieving a better balance between the interests of game developers, the internet platforms, and Let's Play creators and game streamers.

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Christopher P Evans

It has been 50 years since the adoption of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which established the obligation upon all States Parties to work towards nuclear disarmament under Article VI. Yet, despite extensive reductions in nuclear weapons stockpiles since the Cold War peaks, nuclear arms control and disarmament efforts are currently in disarray. After the Intermediate-Range Nuclear Forces Treaty was terminated in 2019, the New Strategic Arms Reduction Treaty remains as the only bilateral limitation on United States (US) and Russian nuclear forces in operation and is due to expire in February 2021. The US has justified its limited nuclear disarmament progress on the premise that the current international security environment is not conducive to further nuclear disarmament. Instead, the US has recently promoted a new initiative called Creating an Environment for Nuclear Disarmament (CEND). The initiative aims to provide a platform for all States to engage in constructive dialogue to identify ways to improve the international security environment, which make nuclear deterrence necessary while addressing the hurdles that currently impede progress towards nuclear disarmament. Significantly, the US regards CEND as an ‘effective measure’ and an illustration of its commitment towards disarmament under Article VI. This article seeks to address the US claim that CEND represents a good faith, effective measure towards nuclear disarmament pursuant to Article VI. This will revisit existing doctrinal interpretative debates concerning the obligation under Article VI, particularly the requirements that negotiations and measures be adopted in good faith, and what constitutes an effective measure towards nuclear disarmament. The discussion will then determine whether the CEND initiative itself can be considered a good faith, effective measure towards nuclear disarmament, by considering its purpose, origins and implementation, and actions of the US.

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Anne Peters, Heike Krieger and Leonhard Kreuzer

As a standard bridging law and other spheres of normativity, due diligence is pervasive across numerous areas of international law. This paper defines the features and functions of due diligence, illustrating how the concept's development reflects structural changes in the international legal order. Concerning their content, due diligence obligations can be separated into two overlapping types: procedural obligations and obligations relating to States' institutional capacity. Thus, due diligence serves to manage risks, compensate for States' freedoms being circumscribed through legalisation, expand State accountability and possibly stabilise the international order through ‘proceduralisation’. However, it is argued that due diligence cannot be characterised as a general principle of international law due to its diverse content in different fields of international law and its dependence on accompanying primary rules. Finally, it is contended that due diligence introduces certain risks, particularly by diluting States' substantive obligations and contributing to the rise of ‘informal’ international law.