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Building a Text and Data Mining Limitation: The Brazilian Case
Get PDFIn recent years, there has been a growing body of legal regulation of
TDM. Since 2018, Japan, the European Union, Singapore and others have
promoted changes to their copyright law and included specific limitations and
exceptions for TDM. These changes have been slow in the Global South and
the developing world, even though they are urgently needed there. This report
aims to present the Brazilian copyright legal framework and the policy
documents related to Intellectual Property, Artificial Intelligence and
innovation influencing political and public debate. This set of policies and
legislative texts provides the grounds for the discussion on the need for a
TDM Limitation in Brazil, a debate which has been intensified within the
scope of the work carried out by a special commission that was convened by
the Brazilian Senate to work on a substitute draft for the AI Bill. Brazil’s
TDM provision is focused on uses carried out by public-interest-oriented
organizations. It found its place within the Bill on AI as a distinct topic and
is currently formally part of Bill 2338/2023, which is being discussed in the
Senate. While there is a reasonable possibility that the TDM provision will
be voted on and approved in the Senate, recent developments on Generative
AI may bring even more complexity to the debate on the interplay between
AI and copyright
Incentivizing Sustainability in American Enterprise: Lessons From Finnish Model
Get PDFThe disparate climate performances of Finland and the United States, two of the wealthiest countries in the world, bring to light the question of how corporate responsibility has been inspired in each jurisdiction. Having established the urgency of the climate crisis and the importance of corporate behavior in optimizing a given country’s approach to protection of the global environment, an examination of each nation’s legal frameworks may shed light on features of the corporate regime that are effective in advancing sustainability goals and those that are not.22 Part I of this paper establishes a comparative framework by providing background on sociopolitical forces that have shaped American and Finnish corporate law and the respective positioning of their business sectors within the current global landscape.23 Part II explores dynamics between each country and their business sectors in an effort to ascertain elements of each regime that have contributed to the present state of climate-related corporate governance in each jurisdiction.24 Finally, Part III speculates on the future of sustainability and corporate governance within the United States by analyzing key features highlighted in Part II, in lieu of recent global economic and regulatory developments
A Right to Republish: Redesigning Copyright Law for Research Works
Get PDFResearch works occupy a unique place in the knowledge economy. They are foundational to human development, and they expand our existing knowledge base and catalyze entirely new fields of study. Creators of research works have a significant interest in the public accessibility of their works at the earliest opportunity with no expectation of financial returns from sales and distribution. As such, they constitute a different category of works and facilitate distinct considerations than other creative goods governed by copyright. Copyright law is organized around the provision of economic incentives to facilitate the continued production and distribution of authorial works for societal progress and development. It rests on the assumption that authorial motivation is the same for all authors – economic – and that the existing panoply of exclusive rights work favorably for authors of every kind of work. However, copyright law systematically fails to address and protect the motivation of research authors, namely, the widespread dissemination of their works at the earliest possible opportunity. Authors of journal articles routinely give up copyright in their works and any royalties that may accrue in exchange for publication, even under the strictest public access conditions. This Article argues that there should be differentiated treatment of research works in copyright law. The Article proposes the creation of an inalienable and nonwaivable secondary publication right for research authors. Such a secondary publication right will empower authors of research works to make the final reviewed and accepted version of a manuscript publicly accessible on a digital platform without the need for prior approval from the journal publisher and regardless of any term to the contrary in the publishing agreement. The secondary publication right would vest upon first publication of the work by the publisher. It would stimulate the production of research works and their dissemination to the public, thus offering alignment among copyright law’s goals of incentivizing authors and maximizing access to knowledge goods
Child Privacy in the Digital Era: Is COPPA Enough?
Get PDFChildren growing up in the digital age are experiencing an entirely different world than their parents once did. While most adults’ first online experience occurred on a bulky desktop computer, today’s children are born into a society that is largely digitized and where online accessibility is at the swipe of a pocket-sized smartphone. Despite the many benefits that this generation of children enjoys due to the increased access to the internet and innovative technology, parents, child advocates, and privacy experts caution against the dangers that arise when children enter the digital landscape.
Part I of this paper delves into children’s interaction with the internet and the surrounding online technology, while also highlighting the different risks they are exposed to today with their online presence. Part II of this paper explores the United States’ current regulatory framework, the Children’s Online Privacy Protection Act (“COPPA”), which was enacted in 1998 with the intention of safeguarding children’s personal information from being collected when using online services, websites, games, or apps. Part II continues by examining the FTC’s proposed amendments for the COPPA Rule in response to the evolving landscape of online platforms that now largely involves social media, video-sharing websites, and IoT devices. Lastly, Part III evaluates whether, even with full compliance, the COPPA Rule or its proposed revisions can effectively mitigate privacy risks and subsequent privacy harms children are exposed to in the digital age
Criminalizing Transgender Care
Get PDFSince 2021, twenty-four states, in extraordinarily quick succession, have enacted statutes banning physicians from prescribing puberty blockers and cross-sex hormones to minors for treatment of gender dysphoria. Although the Food and Drug Administration has not approved these drugs for this use, off-label prescribing is a common practice, and leading medical organizations all agree that this off-label use of puberty blockers and sex hormones is an essential component of transgender medical care. These state laws thus represent an extreme, and unprecedented, interference with the provision of standard-of-care medicine. This article, after exploring the ongoing litigation challenging these bans, argues that they violate a fundamental right under the Due Process Clause of the Fourteenth Amendment—namely, the right to obtain standard-of-care treatment from a physician. It demonstrates that this right is deeply rooted in America’s history and traditions by presenting the first-ever comprehensive review of state policies regarding off-label prescribing practices and showing that the states have virtually never interfered with physicians’ prescribing decisions in this manner. Finally, in light of relevant judicial precedents, this article shows why courts should strike down these unparalleled, oppressive state laws as unconstitutional
IMF Human Rights Accountability: A Pragmatic Way to Break the Deadlock
Get PDFIn the three decades since the 1993 establishment of the World Bank Inspection Panel, almost all development finance institutions (DFIs) have established analogous panels, ombudsperson offices or other independent accountability mechanisms (IAMs) to allow people who believe they have been harmed by the DFI’s activities to directly trigger processes of fact-finding, dispute resolution, and, if applicable, redress. The primary exception has been the International Monetary Fund
Going Federal, Staying Stateside: Felons, Firearms, and the Federalization of Crime
Get PDFScholars have long debated the federalization of crime. Proponents assert that federal prosecutions are more likely than state prosecutions to result in convictions and severe punishments, and thus more likely to deter crime. Opponents argue that federalization leads to the arbitrary, and even racist, punishment of a few unlucky defendants plucked from a sea of similarly situated peers. Everyone seems to agree about one thing, though: the federal system outstrips the state system in effectiveness and severity. Yet, no one has obtained the state-court data needed to substantiate these comparisons. This Article fills that gap with an examination of the crime of being a felon in possession of a firearm, an offense that now accounts for nearly 10% of the federal criminal docket.
The Article makes three main contributions to the literature. First, it shows how the literature’s claims about the superiority of federal prosecutions (compared to state ones) are rarely substantiated by data about actual state court prosecutions. In essence, the literature considers only the cases that went federal, not the far more numerous cases that could have gone federal yet stayed in state court. Second, using a novel case study of all the federal and state felon-in-possession prosecutions in one of the nation’s largest counties—Alameda County, California—the Article tests several bedrock claims about federalization. The testing leads to surprising results regarding conviction rates, sentencing severity, and racial disparities in charging practices. Finally, the Article connects these findings to the larger problem of academia’s fixation on all things federal—a fixation that comes at the expense of state and local topics
Equality and Human Rights: Confronting Racial Discrimination Introduction
Get PDFIntroduction of this special issue of the American University International Law Review and the Academy on Human Rights and Humanitarian Law and acknowledgments
Regional Discrimination as a Quasi-form of Racial Discrimination: Comparing the Protection Under Anglo-American, International and Chinese Laws
Get PDFThis article seeks to explore the issue of regional discrimination from two perspectives. First, the article evaluates whether it is possible to remedy the absence of direct protection by fitting regional discrimination within the scope of current anti-racial discrimination laws. Second, it highlights China’s protection against regional discrimination and evaluates the Chinese laws’ scope and gaps in protection
A Health Justice Approach to Abortion
Get PDFThe Supreme Court’s watershed decision in Dobbs v. Jackson Women’s Health Organization, overturning fifty years of precedent protecting abortion rights, has led to chaos in both the legal and public health landscapes. With Roe v. Wade eliminated, reproductive rights and justice advocates urgently need new frameworks to help regain access to comprehensive reproductive health care in the long term. Recently, a number of legal scholars have argued in favor of medicalizing civil rights—adopting the framework of health justice to talk about civil rights issues. Scholars argue that the health justice framework could be used to advance civil rights in the realms of race discrimination in policing, fair housing, and poverty rights, by framing these concerns as public health issues. This Article is the first to extend the health justice framework to abortion. The health justice framework offers a new form of medicalization that could advance more equitable access to reproductive health care.Medicalization has a complicated history in the legal regulation of abortion. Although scholars do not all agree on a definition of the concept, “medicalization” is typically defined as the framing of a phenomenon as medical in nature and properly within the jurisdiction of medical experts in terms of decision-making authority. Feminist scholars have often viewed medicalization suspiciously, especially in the context of reproduction, since medicalization has tended to correspond with physician control over women’s bodies. In the last few decades of intense debate over abortion, the focus has been on abortion as a constitutional right, but the notion of abortion as a medical concern has been lost since Roe, in part due to feminist arguments against medicalizing abortion rights. In the decades since Roe, abortion has been siloed from healthcare in the law and segregated from mainstream medicine.This Article pushes back against feminist legal scholars’ critiques of the medicalization of abortion rights. It argues that, unlike the medicalization of the past, the health justice framework depends less on the sole professional authority of physicians and more on concerns about the social determinants of health and health equity at the population level. The health justice approach accommodates medicalized framings by focusing on public health outcomes of abortion restrictions, while also aiming for reducing health disparities through structural reforms and redistribution of resources rather than physician-controlled medical interventions. The health justice framework thus links together both medicalized (health-focused) and demedicalized (equality-focused) framings of abortion in a way that could advance reproductive health equity. Re-medicalizing abortion through a health justice lens provides strategic benefits in political and social climates hostile to abortion, especially in a post-Dobbs world