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Author Remuneration in the Streaming Age – Exploitation Rights and Fair Remuneration Rules in the EU
Get PDFThe transition from linear to on-demand consumption of music, films and other copyrighted content on platforms like Spotify, Netflix and YouTube has given rise to the question whether authors and performers receive a fair share of streaming revenues. While these revenues are substantial and right holders may have the opportunity to control access to copyright-protected content on the basis of copyright protection, it is often not the creators themselves who benefit from growing streaming revenue and reinforced access controls. The issue has a global dimension. The Group of Latin American and Caribbean Countries (GRULAC) proposed that the World Intellectual Property Organization (WIPO) undertake an analysis of creators’ position – and chances to receive fair remuneration – with regard to digital content earnings. In the EU, the issue of author remuneration featured prominently in the debate on the 2019 Directive on Copyright in the Digital Single Market. It culminated in the harmonization of several aspects of copyright contract law, including the right to fair remuneration, across EU Member States. In February 2024, South Africa passed a Copyright Amendment Bill addressing this issue as well. These initiatives at the international, regional and national level confirm the importance of the remuneration issue in current copyright debates and, more specifically, in streaming contexts.
This analysis sheds light on the European example. As indicated, the EU has introduced several legal mechanisms designed to ensure appropriate and proportionate remuneration of authors and performers in the online environment. Those include, first, rules governing licensing agreements between individual artists and the creative industry, such as ex post contract adjustments, provisions favouring royalties over lumpsum payments, and norms regulating the choice of jurisdiction, among others. Second, a specific liability regime for user-generated content (UGC) on platforms like YouTube seeks to encourage rights clearance initiatives. Additionally, Europe utilizes mandatory collective licensing and remunerated copyright exceptions as legal tools to generate revenue streams for authors and performers. To lay groundwork for the discussion of these legal instruments, Section 1 provides an overview of the exclusive rights that apply to the realm of streaming and provide a basis for remuneration claims. Section 2 then introduces the issue of rights clearance and describes the different legal mechanisms used in Europe to ensure fair remuneration for authors and performers: individual licensing agreements; mandatory collective licensing; and remunerated copyright exceptions. Section 3, in addition, examines the situation of European producers who may also find themselves in a weak position in negotiations with large streaming platforms – and at the same time unable to rely on the legal solutions developed for authors and performers. Section 4 summarizes the results of the analysis
Clothes Captioning: The Demand for a Sustainable Fashion Industry and the European Union’s Push for Digital Product Passports
Get PDFFirst, this Comment will provide background on the demand for transparency on the fashion industry, its response, and the regulatory framework proposed by the EU. Then, Part III will argue that the ESPR and the SSCT fall short of meeting the EU’s objectives because their requirements, as applied to textiles, are too stringent; their enforcement and effect on trade partners too disparate; and the risk of businesses’ intellectual property too high. In Part IV, this Comment will recommend that the EU strengthen its proposals by providing guidance on enforcement, equal treatment of small and medium-sized enterprises (“SMEs”) in the textile industry, and an exemption process for trade secret holders
Constructing Solutions: Addressing Liability and Ownership Risks Associated with Business Information Modeling
Get PDFThis Comment will first discuss the background of BIM, including its technological characteristics and implementation into a complex construction project, as well as the potential benefits that incentivize parties to utilize BIM in a project. Next, this Comment will discuss the legal risks and uncertainty associated with BIM, particularly regarding ownership and liability. Specifically, this Comment will focus on ownership of the intellectual property and designs within an overall model and will contrast liability in traditional construction projects with liability in a construction project utilizing BIM. Lastly, this Comment will discuss potential solutions to these risks and uncertainties. The analysis of potential solutions will include a discussion of the legal and policy considerations that courts should undergo when handling BIM litigation. Additionally, recognizing that courts have lagged behind rapid technological advancements like BIM in creating modern precedent, this analysis will include a discussion of methods that parties can take outside of litigation to manage and control legal risk, particularly through precise contract drafting and use of modern technologies like blockchain and other digital ledger technologies.
By providing the necessary background, analyzing primary legal issues with the implementation of BIM technology, and making recommendations for both courts and parties to solve these issues, this Comment seeks to provide a path for ameliorating the legal uncertainty surrounding BIM so that it can be more effectively adopted in the construction industry
The China Challenge: Excluding Mexican/Chinese EVs From the United States
Get PDFPart II of this Article summarizes the rules applicable to trade in passenger vehicles under the USMCA and WTO rules. Part III looks at the rationale for BYD and perhaps other Chinese auto producers to build factories in Mexico. Part IV examines the legal and practical options for BYD, and other Chinese autos and SUVs assembled in Mexico to penetrate the U.S. market. It also examines the actions available to the U.S. government to exclude those imports from the United States. Part V examines the implications of the exclusion policies for the United States, China, and Mexico that appear likely to be followed by either Democratic or Republican administrations in the foreseeable future. The article concludes with a brief summary and recommendations
The Conundrum of the Essential Security Exception: Can the WTO Resolve the GATT Article XXI Crisis and Save the Dispute Settlement Mechanism?
Get PDFThe continued blocking of Appellate Body members to the World Trade Organization’s dispute settlement mechanism has thrown the multilateral trading system’s most important governing body into an existential crisis. As a precondition for resuming the WTO’s dispute settlement functions, the United States has insisted that WTO Members agree that the “essential security exception” under Article XXI(b) of the General Agreement on Tariffs and Trade of 1994 is wholly self- judging and thus nonjusticiable. This article argues that the U.S. position is unsupported by the text, context, object and purpose, and negotiating history of Article XXI. Moreover, the U.S. position poses dangerous consequences to the future relevance and legitimacy of the rules-based trading system. Continued insistence of Article XXI’s nonjusticiability by the United States would thus be misguided, and indeed risks only worsening the current crisis
UN Team of Experts on Rule of Law and Sexual Violence in Conflict
No full textThe United Nations Team of Experts on the Rule of Law and Sexual Violence in Conflict (the “Team”) was created by Security Council resolution 1888 (2009) to assist national authorities in strengthening the rule of law, with the aim of ensuring criminal accountability for perpetrators of conflict-related sexual violence. This resolution recognizes that conflict-related sexual violence is a threat to international peace and security, and that Member States affected by conflict need assistance to address impunity in order to prevent and deter future violations.The Team is the only dedicated Security Council mandated mechanism to provide this type of support on a global basis.
The Team is based at the United Nations Headquarters in New York and with the consent and cooperation of host governments deploys regularly to some of the world’s most challenging contexts. The Team has a unique “co-lead” structure that includes members from several United Nations entities to enable the United Nations to deliver as one in assisting Member States to address conflict-related sexual violence
Is the Regulatory Landscape Changing in the Federal Courts? If So, How Can Litigants Adapt?
No full textLast year, the panel discussed the potential impact of the Supreme Court’s decision in West Virginia v. Environmental Protection Agency and its invocation of the major questions doctrine on Federal agency litigation. The major questions doctrine holds that Federal courts should not defer to an agency’s decision regarding the scope and substance of its regulatory authority when that decision concerns an issue of “vast economic and political significance” and the agency does not have “clear congressional authorization” to act. Recently, in Texas v. Nuclear Regulatory Commission, the United States Court of Appeals for the Fifth Circuit, citing West Virginia and the major questions doctrine, held that the NRC lacked the authority to license a private, away from reactor storage facility for spent nuclear fuel. The court held that Congress did not delegate to the NRC the clear authority to license such a facility. Additionally, in its upcoming term, the Supreme Court is scheduled to hear Loper Bright Enterprises v. Raimondo, Docket No. 22-451. This case presents the question whether the court should overrule the long-standing Chevron doctrine or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted does not constitute an ambiguity requiring deference to the agency.This technical session will explore these and other recent judicial cases questioning seemingly established administrative law precepts to determine their impact on the existing Federal regulatory landscape. The panelists will discuss whether the Federal regulatory landscape is changing and how parties may have to adapt. The distinguished panel proposed will provide diverse perspectives on this topic of concern to all who appear in administrative agency proceedings
The River of Accountability Mechanisms: Then and Now
Get PDFIn 1993, the river of international accountability mechanisms (IAMs) commenced from its source – the World Bank Inspection Panel (The Panel). In its journey the river was fed by the tributaries of similar accountability mechanisms from other development institutions, including four regional development banks – the Inter-American Development Bank in 1994, the Asian Development Bank in 1995, the European Bank for Reconstruction and Development in 2003, and the African Development Bank in 2006. It also welcomed other entities – bilateral institutions like Japan Bank for International Cooperation (2003) and Proparco (2018), United Nations Development Program (2014) and other organizations like the Green Climate Fund (2017) and the Asian Infrastructure Investment Bank (2018)
Unacceptable Means: The Inspection Panel Actions on World Bank Forcible Resettlement
Get PDFThis essay reviews the World Bank’s Inspection Panel’s work on cases involving involuntary resettlement. Since its Inception, the Panel has received 89 requests involving resettlement (over half of all cases) and has investigated 32. It traces Panel cases, lessons learned, and advisory reports on resettlement and livelihood restoration. Despite the growing evidence through the years of resettlement failures, the World Bank continues to violate its own safeguard policies and repeat the same omissions and mistakes in projects. The essay concludes with recommendations for empowering the Inspection Panel and for the Bank to move towards bottom-up community development that better addresses community needs
Codifying Prior Informed Consent to Govern Unregistered Pesticide Export
Get PDFDespite binding international law and congressional authority to the contrary, the U.S. Environmental Protection Agency (EPA) continues to allow U.S. chemical manufacturers to export dangerous and unregistered pesticides to poorer countries through a regulatory loophole that must close. EPA should immediately initiate rule making to require “prior informed consent” (PIC) for the export of pesticides unregistered in the United States under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). PIC is a widely accepted legal concept defined by U.S. domestic statutes and multilateral treaties and agreements