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6
Wiebke Abel, Shawn H.E. Harmon
and Yolande Stolte
The number 6 represents the
number of years that SCRIPTed has been in existence and
publishing quality scholarship. This photo of a human 6 was
taken at the SCRIPTed conference, “Governance of New
Technologies”, held in Edinburgh on 29-31 March 2009, and shows
some of the conference delegates.
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| Editorial |
- After Marper: Two Readings, Two
Responses
Roger Brownsword , pp.1-3
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This editorial responds to the
important case of S and Marper v The United Kingdom (2008) in
which the European Court of Human Rights held that the law that
authorises, in England and Wales, the taking and retention of
DNA samples, together with the making and retention of
identifying profiles for criminal justice purposes, is
disproportionately broad, a conclusion which contradicts two
domestic appellate panels.
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| Reviewed Articles |
- Virtual Worlds As A New Game Theoretic Model For
International Law: The Case Of Bilateral Investment Treaties
Peter S Jenkins, pp.4-32
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Game theoretic analysis of
international law has traditionally revolved around the
Prisoner’s Dilemma, a model developed during the Cold War that
reflects the general unenforceability of international
agreements. Bilateral Investment Treaties (BITs) are, however,
enforceable and require a different approach. The current global
economic crisis will exacerbate the controversies concerning the
broad powers exercised by the arbitrators appointed under BITs.
It is thus imperative to explore a viable new game theoretic
model, which can be provided by virtual worlds such as Second
Life and World of Warcraft.
- New Technology and Researchers’ Access to Court and
Tribunal Information: the need for European analysis
Philip Leith and Maeve McDonagh, pp.33-56
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We discuss the limitations and
rights which may affect the researcher’s access to and use of
digital, court and administrative tribunal based information. We
suggest that there is a need for a European-wide investigation
of the legal framework which affects the researcher who might
wish to utilise this form of information. A European-wide
context is required because much of the relevant law is European
rather than national, but much of the constraints are cultural.
It is our thesis that research improves understanding and then
improves practice as that understanding becomes part of public
debate. If it is difficult to undertake research, then public
debate about the court system – its effectiveness, its biases,
its strengths – becomes constrained. Access to court records is
currently determined on a discretionary basis or on the basis of
interpretation of rules of the court where these are challenged
in legal proceedings. Anecdotal evidence would suggest that
there are significant variations in the extent to which court
documents such as pleadings, transcripts, affidavits etc are
made generally accessible under court rules or as a result of
litigation in different jurisdictions or, indeed, in different
courts in the same jurisdiction. Such a lack of clarity can only
encourage a chilling of what might otherwise be valuable
research. Courts are not, of course, democratic bodies. However,
they are part of a democratic system and should, we suggest –
both for the public benefit and for their proper operation – be
accessible and criticisable by the independent researcher. The
extent to which the independent researcher is enabled access is
the subject of this article. The rights of access for
researchers and the public have been examined in other common
law countries but not, to date, in the UK or Europe.
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Patent Protection for Second and Further Medical Uses Under the
European Patent Convention
Eddy D Ventose, pp.57-74
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It was only eleven years after the
European Patent Convention (EPC) 1973 came into force that the
Enlarged Board of Appeal (EBA) in EISAI/Second medical
indication finally settled the issue of whether patent
protection should be provided for second or further medical uses
of substances or compositions. This issue had divided the
delegations during the drafting of the EPC, where the
pharmaceutical industry lobbied tirelessly for patent
protection. The EBA’s decision did not sit comfortably with the
text of Article 54(5) EPC 1973 and seemed contrary to the
intentions of the drafters of the EPC. An examination of: (a)
the intentions of the framers of the EPC; (b) the considerations
that guided the EBA; and (c) the subsequent developments at the
EPO, is poignant given the importance of patent protection for
second and further medical uses in fuelling research and
development in finding cures of illnesses. Consequently, the
objectives of this paper are to: first, examine the travaux
préparatoires of the EPC to see what light they shed on the
interpretation of Article 54(5) EPC 1973; second, explore the
origins of second medical uses and the decision of the EBA in
EISAI/Second medical indication; third, delineate the
requirements of the Swiss-type claim, including the form of
claim; fourth, examine the decisions applying EISAI/Second
medical indication to find out whether they have extended that
decision beyond its original parameters; and, fifth, evaluate
the recent changes heralded by the EPC 2000.
- The APEC Asia-Pacific Privacy Initiative – A New Route To
Effective Data Protection Or A Trojan Horse For Self-Regulation?
Nigel Waters, pp.75-89
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Asia Pacific Economic
Cooperation (APEC) is a grouping of twenty-one member economies
in the Asia Pacific Region. It was established in 1989 to
facilitate economic growth, cooperation, trade and investment in
the region. The APEC Privacy Framework was adopted by
Ministerial Declaration in October 2004, after a two year
development by a Privacy Subgroup of the APEC Electronic
Commerce Steering Group, with the Implementation section added a
year later. The Subgroup has continued to meet regularly to
progress implementation of the Framework. The current emphasis
is on a number of linked Pathfinder projects, in one or more of
which sixteen of the twenty-one APEC member economies are
currently participating. This paper considers the APEC Privacy
Framework, its strengths and weaknesses, and its
interrelationship with other international privacy instruments.
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Social Contract for the Internet Community? Historical and
Philosophical Theories as Basis for the Inclusion of Civil
Society in Internet Governance?
Rolf H. Weber and Romana Weber, pp.90-105
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Netizens are affected by decisions
taken with regard to Internet governance and should therefore be
able to influence such. However, the heterogenity of Internet
users requires special efforts in order to find a method of
consensus building which includes all interested parties and
creates the opportunity to make decisions acceptable for as
large a part of the civil community as possible. Notwithstanding
the fact that the Internet society is a newly emerging civil
society, considerations taken into account in earlier contexts
can lead to valuable lessons. In this respect, a theory which
seems to offer a feasible approach encompasses the concept of a
so-called “social contract” that is historically and
philosophically addressing issues of civil society’s
participation. Through the establishment of a civil society,
each individual is protected by the whole of the community. The
inclusion of civil society requires the implementation of a
bottom-up process allowing responsiveness of the concerned
actors in a rational discourse which improves democratic quality
of the structures. Furthermore, each individual should be
granted with the same rights and obligations in the sense of the
same chance to development for everyone, in particular with
respect to the use of freedom by having the social contract
which secures the self-determination of all individuals.
Furthermore, a new forum should be created which could realise
appropriate fairness in all decision-making matters.
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| Analysis |
- The German Constitutional Court on the Right in
Confidentiality and Integrity of Information Technology Systems
– a case report on BVerfG, NJW 2008, 822
Wiebke Abel and Burkhard Schafer, pp.106-123
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On the 27th of February 2008,
the German Federal Constitutional Court (Bundesverfassungsgericht)
recognised in a landmark ruling for the first time a new
constitutional right in the confidentiality and integrity of
information technology systems. We will show in this case
commentary why the Court found it necessary to introduce new
legislation, and provide an overview of the newly established
constitutional right.
- Conquering the Tower of e-Discovery Babel: New Age
Discovery for the 21st Century
Daniel B. Garrie and Maureen Duffy-Lewis, pp.124-131
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The authors argue that the
paperless world of discovery has arrived, and it is time for all
litigators to consider “signing up” for the “Discovery Training
Camp”. If your law firm represents cross-border businesses or
companies, you need to be aware of the substantial changes in
the US affecting electronic information in legal and regulatory
matters, as well as the new Canadian requirements promulgated at
the provincial and federal levels. This article offers a vital
insight into this area.
- The Fog over the Grimpen Mire: Cloud Computing and the
Law
Miranda Mowbray, pp.132-146
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This paper is about legal
questions connected with cloud computing, the business trend in
which computation is carried out on behalf of a user on remote
machines, using software accessed through the Internet. The user
may not know where these machines are; they are “somewhere in
the cloud”. Some of these legal issues will be resolved by
standard agreements between buyers and vendors. I will give some
examples from current agreements from prominent cloud service
providers. Other issues will probably end up in court. It makes
sense to consider these questions now, before they become urgent.
- Nanotechnology – New Challenges for Patent Law?
Herbert Zech, pp.147-154
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After the advent of IT and
genetic engineering, patent law now faces another challenge:
nanotechnology. Being a hybrid of chemistry and engineering,
nanotechnology holds some peculiarities that cause special
problems for patent law. Among these are: the patentability of
naturally occurring products; the distinction between compound and apparatus claims; and the patentability of
selection inventions. The challenges, however, can probably be
overcome by consistently applying existing patent law principles.
[This article was presented at the SCRIPTed 'Governance of New
Technologies' conference held in Edinburgh on 29-31 March 2009.]
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| Reports |
- So What are Sports’ Legal Rights and Wrongs? Report of the
AHRC SCRIPT Murrayfield Discussions
Abbe E. L. Brown, pp.155-159
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- Governance of New Technologies: The Transformation of
Medicine, Information Technology and Intellectual Property.
Final Conference Report
Shawn H.E. Harmon and Wiebke Abel, pp.160-170
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| Book Reviews |
- Parallel Trade in Europe: Intellectual Property,
Competition and Regulatory Law
By Christopher Stothers
Reviewed by Colm Brannigan, pp.171-174
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- Governance And Information Technology: From Electronic
Government To Information Government
By Viktor Mayer-Schönberger and David Lazer (eds)
Reviewed by Catherine Heeney, 175-178
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- Gringras On The Laws Of The Internet
By Clive Gringras and Elle Todd; and
Jurisdiction And The Internet: Regulatory Competence Over
Online Activity
By Uta Kohl
Both reviewed by Daithí Mac Síthigh, pp.179-181
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- International Domain Name Law: ICANN And The UDRP
By David Lindsay
Reviewed by Cédric Manara, pp.181-183
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- Self-Regulation In Cyberspace
By Jeanne Pia Mifsud Bonnici
Reviewed by T. J. McIntyre, 184-187
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- Information Technology Law
By Ian J. Lloyd
Reviewed by Shefalika Ghosh Samaddar, 188-193
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