Fair use (s. 107) is an intentionally drafted ambiguous provision in the U.S. Copyright Act for the purpose of defending users of copyright works from a variety of otherwise infringing acts. Although often compared to the Canadian fair dealing, the two defenses are quite different. Two interesting documents on the analysis of fair use and its interpretation were recently released.

General Counsel from the U.S. Patent and Trademark Office released a memorandum on 19 January 2012 on: USPTO Position on Fair Use of Copies of NPL Made in Patent Examination. The memorandum looks at three issues: . . . [more]

Globalization takes its toll. This time the toll is to be paid by Americans who want to use works that had, according to US law at the time, entered the public domain but that have been removed from that status and place back under copyright by a 1994 act of the US Congress in order to bring that country into line with the Berne Convention for the Protection of Literary and Artistic Works. As you might imagine, a number of disappointed users sued the US government, arguing that according to the intent of the Copyright and Patent Clause of . . . [more]

English news sources reported yesterday that a three-judge panel of the High Court found Theodora Dallas, until recently a university lecturer in psychology, guilty of contempt of court and sentenced her to six months imprisonment. She will serve the first three in jail and “be on license” for the second three.

Dallas was on a jury trying a case of grievous bodily harm. The trial judge had given jurors clear instructions not to look up matters connected to the trial. At home, she searched the term “grievous bodily harm” and then put it in conjunction with “Luton,” producing a result . . . [more]

The U.S. Court of Appeals for the 10th Circuit ruled today in Awad v. Ziriax et al, blocking a proposed constitutional amendment that would forbid domestic courts from considering or using international law. The more controversial aspect of the amendment is that it would also ban courts from using or considering Shari’ah law.

The Appeals court upheld the decision of The Western District Court of Oklahoma on November 29, 2010 to grant a preliminary injunction blocking the amendment, and stated,

Appellants argue there is no discrimination because the amendment bans all religious laws from Oklahoma courts and Sharia law

. . . [more]

The EU privacy directive (1995 version – I gather that it is being revised, though I don’t know on what timetable) provides that member countries may not release personal information outside the EU unless the recipients are bound by equivalent safeguards for privacy.

While the US has a ‘safe harbor’ agreement with the EU about criteria for judging when the protections are equivalent, Canada does not. On the other hand, we have a generally applicable privacy law (PIPEDA) and some provincial equivalents, plus personal health information laws in most provinces. Are they enough to permit the personal information to come . . . [more]

The conclusion of most of the occupy camps across North America this fall was largely peaceful, with some notable exceptions involving pepper spray and excess force. But the protesters for the most part were non-violent, and in my exposure in Toronto, largely respectful of the legal system.

Although skepticism abounded when police announcements were shared or news stories circulated, judicial decisions appeared to have much more impartiality and credibility to the protesters. If the courts can be used as an alternative to police excess and fiascoes like the G20, I interpret it as a small success for our judicial . . . [more]

Because of the possible protections afforded “freedom of religion” under the constitutions of many countries, we’ve seen various groups or individuals seek to exempt their activities from the normal operation of the law by claiming to be or belong to “churches” or “religious organizations.” The use of certain otherwise proscribed drugs, for example, has been claimed to be an important part of “religious practice” (see, e.g. Holy Light of the Queen and the drug ayahuasca; and the amazingly prolific , involving marijuana). More commonly, perhaps, people attempt to form churches or to become recognized as ministers of churches in order . . . [more]

I have always loved law reform commission reports. They are great sources for legal research. Many of the reports provide historical background on an issue and you can often find comparative information about how other jurisdictions have responded to a legal problem.

My highlights from the fall of 2011:

• Of course, the great news is that all of the reports of the former Ontario Law Reform Commission have been digitized (as reported December 12 right here on Slaw)
• The British Columbia Law Institute (BCLI) is launching a two-year project to consider reforms to judge-made rules governing when a person is

. . . [more]

We have discussed Arizona’s controversial new anti-immigration measures several times on Slaw (e.g., here, here and here). Besides appearing to discriminate against various groups, the measures conflict with federal immigration laws and policies. Well, the saga is not yet over. On December 12, 2011, the New York Times announced that the United States Supreme Court agreed to decide whether Arizona may impose such tough anti-immigration measures. The measures include:

• Requiring police officers to determine the immigration status of people they stop for a violation of any law if the officers think the persons are in the country illegally

. . . [more]

The Attorney General for England and Wales, Dominic Grieve gave a very interesting speech on December 1 entitled ‘Contempt – A Balancing Act: balancing the freedom of the press with the fair administration of justice’ to journalism students where he commented on his approach to contempt of court.

‘Citizen journalists’ should not think they are immune to the law of contempt, that there is a certain belief that so long as something is published in cyberspace there is no need to respect the laws of contempt or libel. While he accepts the danger posed to the administration of

. . . [more]

The European Court of Justice issued its breathlessly awaited (at least by some) decision in SABAM v. Scarlet today, striking a serious blow to those imposing intense international pressure with the objective of securing exceptional enforcement for intellectual property rights online. These efforts aim to leverage Internet intermediaries such as ISPs, hosting sites, domain name registrars and even individual blogging sites in order to stomp out any infringing activity occurring on the platforms they operate.

As these intermediaries process and host vast amounts of online conduct, they are uniquely placed to impose unprecedented levels of monitoring and control onto users . . . [more]

On November 8, 2011, the High Court of England and Wales ruled that a Catholic priest qualified as an employee of his diocese, thus exposing the diocese to vicarious liability for clergy sex abuse.