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Reconciling Copyright Restoration for Pre-1972 Foreign Sound Recordings with the Classics Protection and Access Act
Get PDFWhen Congress first added sound recordings to the Copyright Act, it acted prospectively only: sound recordings fixed on or after February 15, 1972, received federal statutory copyright protection, while sound recordings fixed before February 15, 1972, were left to the vagaries of state law. This historic inequity was corrected in 2018 with enactment of the Classics Protection and Access Act (CPA), which provides sui generis protection to pre-1972 sound recordings that is similar, but not identical, to federal copyright protection. But there is a subset of pre-1972 sound recordings that already had federal copyright protection before the CPA was enacted: namely, sound recordings of foreign origin that were granted copyright under the umbrella of copyright “restoration” in the Uruguay Round Amendments Act of 1994. This raises an obvious question that Congress did not expressly address: is the new sui generis protection provided by the CPA a substitute for the existing copyright protection that such foreign sound recordings already enjoyed, or is it supplemental to the existing copyright protection that such foreign sound recordings already enjoyed, or does it simply not apply to such foreign sound recordings at all? This article examines the three alternatives and concludes that Congressional clarification is needed. Absent such clarification, it is possible that foreign sound recordings are simply not covered by the CPA at all, rendering its protections for digital music providers ineffective and depriving foreign sound recordings of the term extension provided by the CPA
Les grands juges de la Cour suprême des États-Unis
No full textNo judicial institution plays a role in the life of a people comparable to that of the Supreme Court in the United States. Already in 1835, Tocqueville pointed out: “In the hands of the seven federal judges rest unceasingly the peace, the prosperity, the very existence of the Union”. History has confirmed his analyzes many times. In the 21st century , its power is still just as great, but, with the deepening of democracy, the Court struggles to be recognized as fully legitimate, even in the United States.
In 2021, President Joe Biden appointed a commission of about 50 members to consider ways to make it more responsive to the hopes of the sovereign people. Their analyzes not yet known to date will be added to those of the many reports already published by the Congress on the subject. The United States never ceases to question the extraordinary influence that the Court exercises over American society. Who would have originally thought that the institution would acquire such power?
Certainly not those who had designed it because, originally, the Court had only limited powers. The federal judicial power at the top of which it was placed was considered indispensable only because the Union had to have its own judicial power, not being able to be judged by that of its members and because it was intended to govern only a small number and defined matters.https://www.repository.law.indiana.edu/facbooks/1317/thumbnail.jp
Annual Report of the Jerome Hall Law Library, 2021/22
Get PDFA brief report highlighting the activities and accomplishments of the librarians and staff of the Jerome Hall Law Library
Insider Trading Law in the United States and Australia: Fiduciary Breaches, Market Abuses, and the Harshness of Penalties
No full textThe topic of investor protection has occupied investors, businesses, regulators, academics, and courts since the 1930s. The topic exploded in importance after the 2008 financial crisis and the Bernard Madoff Ponzi scheme of the same year. Investor protection scholarship now seeks to respond to developments such as the institutionalization of the markets, the democratization of finance, and the enhanced role of market professionals and other gatekeepers. Additionally, although the philosophy of full disclosure remains the guiding principle behind the securities laws, recent research has questioned the merits of a disclosure-based regime. In light of these trends, regulators try to strike the right balance between imposing a strict investor protection regime, on the one hand, and giving businesses the freedom to innovate new projects, market new services, and reduce costs, on the other. The Cambridge Handbook of Investor Protection brings together leading scholars to inform this debate and fill a gap left by these developments. Offers perspectives from 21 leading scholars of securities and financial services law Addresses both theoretical and practical issues in investor protection regulation Brings readers up to date with debates over investor protection and market regulation over the past several decades
Includes the chapter, Insider Trading Law in the United States and Australia: Fiduciary Breaches, Market Abuses, and the Harshness of Penalties by Maurer Professor Donna M. Nagy and Juliette Overland.https://www.repository.law.indiana.edu/facbooks/1322/thumbnail.jp
The Law to Use the Mark the DelPaís, Act 195-2016: Case Study of a Puerto Rican Certification Mark with Potential of Becoming a Geographic Indication for Economic Development
No full textIn 2016, the Puerto Rican Congress codified the “Law for the use of the DelPaís Mark” (the DelPaís Law), creating a composite certification mark called Productos DelPaís de Puerto Rico (the DelPaís Mark) for raw fruits, milk, honey, meats, egg, fish, ornamental plants, spices, vegetables, starches, and value-added products. The Puerto Rican Department of Agriculture intended the DelPaís Mark to function as a certification mark and Geographical Indication (GI) to differentiate local from imported products to promote purchasing of locally produced items and eventually export internationally. A GI is a source identifier identifying that a place makes a particular product with unique characteristics, so there is a higher consumer’s recognition and willingness to buy such products and help these communities’ economic development. Despite the Department’s efforts, the DelPaís Mark deters positive economic growth of small and medium enterprises, failing as a Certification Mark and potential GI. The cases of Café de Colombia, Hawaiian Kona Coffee, Jamaica Blue Mountain Coffee, and Tequila de Mexico derive Five Factors predominating in GI policies. These are Product Definition, Collective Organization, Marketing, Legal-Institutional Framework, and Economic Impact. Some issues found in the DelPaís Law range from inconsistent marketing, vague administrative procedures, lack of product definitions, disorganized support, and limited economic impact. Recommendations serve as guidelines for uniformity in production, marketing plan, organizing supply chain, financial and technical aid, a cooperative food hub, and recording data to measure progress and attract investors for the existing certification mark and creating a GI
The Immigrant Struggle for Effective Counsel: An Empirical Assessment
Get PDFRecently, in Department of Homeland Security v. Thuraissigiam, the Supreme Court upheld 8 U.S.C. § 1252(e)(2), a statutory provision placing restrictions on certain noncitizens from seeking habeas review in the federal judiciary. The Court focused on the Constitution’s Suspension Clause, but it also discussed the Due Process Clause, declaring that there was no violation there either.
One question which flows from this decision is whether the federal courts will soon be precluded from hearing other types of claims brought by noncitizens. Consider ineffective assistance of counsel petitions, which in the immigration law context are rooted in the Due Process Clause. Some circuit courts of appeals have held that a specific agency within the Department of Justice—the Board of Immigration Appeals—has the sole, final decision-making authority on these claims. Other circuit courts, in contrast, have stated that because IAC petitions are constitutional in nature, noncitizens are entitled to take BIA decisions to Article III appellate courts.
As this study shows, statutory text, precedent, and the inscrutability of many of the BIA’s rulings support the notion that the federal circuit courts should retain jurisdiction in these cases—even given Thuraissigiam. By creating a unique dataset containing 1,615 cases, this study empirically evaluates those publicly available ineffective assistance of counsel judgments delivered by the BIA. The results reveal that the BIA’s holdings often are summarily issued and lack detailed explanation, with the government prevailing in most instances. With the stakes so high, it is imperative that Article III circuit courts are able to independently review these ineffective assistance cases, especially before the finality of a negative immigration order takes effect
Prosecuting White-Collar Financial Crime: The Contrasting Cases of the US, Spain, and Ireland in the Aftermath of the 2008 Global Financial Crisis
No full textWhy have no Wall Street executives been prosecuted or convicted for actions that contributed to the global financial crisis? Scholars have documented a variety of legal, bureaucratic, economic, and political reasons for a lack of prosecutions, but one missing piece from this scholarship is a comparative perspective; other countries similar also experienced the effects of the crisis but convicted more financial executives than did the US. This article examines the financial crises and post-crisis responses in Ireland and Spain to see why they put more bankers in jail. The comparative analysis highlights several legal, economic, and political variables that partially explain the different approaches to criminal accountability and provides the necessary comparative context to evaluate reasons offered for a lack of criminal accountability in the US
Just Ice for Bourbon: The Need for GIs in International Protection of America\u27s Beloved Spirit
Get PDFThe term bourbon has become increasingly popular in markets all over the globe. The popularity of the bourbon trend has been exploited for both labelling liquors and describing nonalcoholic products. Bourbon has several separate definitions, usually differing on the issue of the geographical scope of the spirit\u27s production. The bourbon liquor industry has experienced periods of significant downturn followed by periods of explosive revival, motivated mainly by foreign interest, from countries such as Japan, in the product In the 1970s, Japanese interest in whisky and US bourbon facilitated a resurgence of the then-struggling US bourbon industry. In 2018, production of bourbon reached its highest level since 1972. Compared to the exports of 1997, bourbon exports to foreign countries tripled in volume and price in 2018.
There are minimal legal protections currently available to America\u27s bourbon producers to insulate their unique spirit from foreign competition. Despite successful adoption and use of geographical indications (GIs) in many countries, the United States has avoided employing GIs to insulate local products in international markets, with the exception of a few protections for regionally produced wines. GIs have been gaining significance as accessibility to international markets has increased substantially in recent years. In 2015, Japan joined the GI trend, agreeing to recognize GIs with the EU. Products such as Scotch whisky are recognized and protected as GIs in Japan. The previous year, the Japanese company Suntory acquired Jim Beam, a Kentucky-based company comprised of several well-known bourbon labels. The relationship between the US bourbon and Japanese whisky markets has a long history and an arguably longer future ahead.
Many of the arguments for the use of GIs have not been updated since countries such as Japan joined the international trend towards GI adoption. Thus, this paper will use the bourbon industry as an example to illustrate and further arguments presented by advocates of GIs. Looking to the successful adoption of GI agreements in Japan, this paper will highlight the benefits of participation in GI recognition and advocate for the US\u27s entering into GI agreements with Japan and other international bodies generally
The Case for A Global Excess Profits Tax: A Response to Dr. Tarcísio Diniz Magalhães & Professor Allison Christians
No full textIn striving to slow the spread of the COVID-19 pandemic, governments across the globe acted quickly to implement various stayat- home orders and bans on all non-essential activities. While these actions were likely effective in slowing the spread of the virus, the economic impacts were felt almost immediately. The US deficit rose to 281 trillion. Almost as quickly, various proposals have been offered regarding how to mitigate this pandemicfueled deficit. One solution offered is the return of a historical tax scheme-an excess profits tax. Excess profits taxes have historically been applied both domestically and internationally during times of war. Although there are variations in how an excess profits tax is calculated, traditionally, an excess profits tax is applied to those companies who earn returns in excess of a set normal rate of return.
Despite variations in how excess has been calculated under the historical versions of excess profits taxes, all have been implemented on a purely temporary basis to raise revenue for a particular crisis. One recent COVID-19 excess profits tax proposal, however, suggests taking a different approach. Professor Allison Christians and Dr. Tarcisio Diniz Magalhaes propose the implementation of a global excess profits (GEP) tax which aims to immediately address the fiscal crisis resulting from the COVID-19 pandemic by taxing those companies whose profits are especially fueled by high tech and unique intangibles and redistribute such wealth to developing countries. Professor Christians and Dr. Magalhaes assert that, unlike with historical excess profits taxes, new tools made available by leveraging technology and increased globalization will make a modern-day excess profits tax more successful on a global scale. Indeed, Professor Christians and Dr. Magalhaes propose implementing a GEP tax to effectively address the challenges brought on by an increasingly digital global economy.
This note argues that, while Professor Christians and Dr. Magalhaes\u27s GEP tax proposal improves upon some of the weaknesses of the historical excess profits taxes by leveraging new tools developed by the Organisation for Economic Co-operation and Development (OECD), their proposal, which utilizes a uniform, flat percentage for determining excess profits, remains largely inaccurate and thus will have inequitable results. Indeed, this note argues that Professor Christians and Dr. Magalhaes\u27s GEP tax proposal does not go far enough in leveraging the new tools made available by the OECD\u27s digitalization project in order to create both an equitable and effective GEP tax.
Part II of this note will provide a historical overview of the experiences with various versions of excess profits taxes both domestically and internationally. Part III describes the modern context, which calls for the return of the excess profits tax. More specifically, it describes the rising profits of digital multinational corporations and the challenges of effectively taxing those profits, especially in light of the global economic strain resulting from the pandemic. Considering these issues, Part IV summarizes and highlights the key aspects of Professor Christians and Dr. Magalhaes\u27s proposal for implementing a GEP tax. Part V evaluates their proposal considering the lessons learned from the historical experiences with excess profits taxation. It evaluates their proposal, as well as historical excess profits taxes, on several accepted principles of sound tax policy, including accuracy, administrability, transparency, and the extent to which their proposal minimizes tax avoidance. Finally, Part VI proposes that the GEP tax proposal be revised to leverage even further the new tools and data that were unavailable during historical applications of excess profits taxes. This note argues that international taxing authorities now have access to the data necessary to calculate nuanced rates of return at the firm level, making the tax significantly more equitable across firms and industries and limiting opportunities for avoiding the tax
