cearta.ie – Page 29 – the Irish for rights

Postdoctoral Research Fellowship: Comparative Unjust Enrichment, Paul-André Crépeau Centre for Private and Comparative Law, Faculty of Law, McGill University

24 May, 201625 May, 2016

I am delighted to post this on behalf of Professor Lionel Smith:

McGill University – Faculty of Law
Paul-André Crépeau Centre for Private and Comparative Law
Postdoctoral Research Fellowship: Comparative Unjust Enrichment

The Paul-André Crépeau Centre for Private and Comparative Law intends to appoint a Postdoctoral Research Fellow with effect from August 2016 or other agreed date. The position is funded by an Insight Grant from the Social Sciences and Humanities Research Council of Canada. The principal investigator is Professor Lionel Smith, researcher at the Crépeau Centre, and the team is composed of colleagues from McGill’s Faculty of Law and beyond. The position is for one year, with the possibility of renewal for a second year.

ABOUT THE PAUL-ANDRÉ CRÉPEAU CENTRE FOR PRIVATE AND COMPARATIVE LAW
Based at McGill University in Montreal (Quebec, Canada) the Crépeau Centre is the only research centre in Canada devoted to research in fundamental private law. Quebec’s private law is civilian, but it evolves in a North American environment that is otherwise largely grounded in the common law. Quebec’s private law therefore provides a living model for the fruitful coexistence of two legal traditions, in which the ongoing interaction of the common law and the civil law is combined with the interaction of French and English in Quebec’s bilingual civil law.…

Copyright reform comes a little closer in Ireland

23 May, 201617 June, 2016

| 4 Comments

| Copyright, CRC12 / CRC13

Further to my post on the Brief (pdf) to the incoming Minister for Education, I note this morning that a similar Brief (pdf) to the incoming Minister for Jobs, Enterprise and Innovation has been published on that Department’s website. Under the heading “immediate priorities in the months ahead” (section 1.3, p5) I was delighted to see the following priority:

(p) A Bill to provide for amendments in the Copyright area

It is proposed to submit for Government approval before summer 2016, a Memorandum for Government with draft Heads of a Bill seeking approval to draft a Bill aimed at achieving certain reforms and modernisation of certain aspects of copyright. [p8]

Similarly, under the heading “key priorities for the Innovation and Investment Division” (section 2.2, p22), I was delighted to see the following priority (emphasis added):

(b) Intellectual Property
(i) Implement a new certification scheme for Intellectual Property to enable small companies to qualify for the Knowledge Development Box (KDB) alongside legislation to underpin this initiative and, separately progress necessary legislative changes to patents legislation;
(ii) Continue preparatory work in the lead up to a referendum on ratification by Ireland of an international Agreement setting up a Unified Patent Court to adjudicate on patent litigation;
(iii) Progress amendments to copyright legislation in response to recommendations in the Report of the Copyright Review Committee.

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Cross words about copyright and today’s Irish Times simplex crossword

21 May, 201621 May, 2016

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| Copyright, Grading and Marking

My dad’s voice comes from the other room, asking “document granting exclusive right to publish?”, adding that “it’s in nine letters”. It turns out that this is the clue for nineteen down in today’s today’s Irish Times simplex crossword. It also turns out that the answer is “copyright”. I had spent at least a quarter of an hour assuring him that the answer couldn’t possibly be “copyright”, because copyright automatically vests if the work is original, and no additional grant of copyright, or document granting an exclusive right to publish, is necessary. As the Patents Office explains “the act of creating a work also creates the copyright, which then subsists in the physical expression of the work”. To the extent that there is anywhere a document granting a right to publish, the closest is an imprimatur, but that didn’t fit. And somebody who holds a copyright in a work can license its use to someone else, and can even licence its exclusive use to someone else, but “licence” didn’t fit either (and anyway, licences are permissions to do lots of things, like drive a car, use a television, or keep a dog; they are not confined to publications or copyrights; and they don’t have to be written documents).…

Some third level legislation envisaged in the Brief to the incoming Minister for Education

19 May, 201617 June, 2016

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| Universities

A brief prepared by the Department of Education and Skills for the incoming Minister has been making some waves this morning. What it has to say about third level funding is dispiriting, but I won’t bellyache about that here. Instead, I want to look at some of the legislation affecting third level that is envisaged in the Brief. This is a regular theme on this blog, most recently in a series of posts this time last year (I, II, III, IV). As to the Department’s legislative programme, the Brief (pdf) says (links added):

The Department is engaging in a programme of important legislative reform. … There are two Bills which had been published but had not completed their passage through the Oireachtas before the dissolution of the Dáil in February: [the Education (Admission to Schools) Bill and the Technological Universities Bill] …

Drafting is under way on a further two Bills.
Universities (Amendment) Bill – The main purpose of this Bill is to allow the Minister for Education and Skills to give a direction to a university requiring it to comply with policy decisions made by the Government relating to the remuneration or numbers of public servants employed in that university.

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The process of judicial appointments and the eligibility of academics

18 May, 20166 December, 2016

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| Judicial Appointments

As has been widely reported, a new Judicial Appointments Commission for appointing judges forms a key element of the Programme for Government, to reduce political influence in the judicial appointments process. The new Commission will have an independent chair selected by the Public Appointments Service and approved by an Oireachtas committee, though the final decision on judicial appointments will remain with the Government. Reflecting the commitment in the Confidence and Supply Arrangement for a Fine Gael-Led Government entered into between Fine Gael and Fianna Fáil that the Government will “establish a Judicial Appointments Commission to identify the most suitable candidates for judicial office”, the Programme for a Partnership Government provides (Chapter 16, section 6, at page 152) (pdf):

We will introduce legislation to replace the Judicial Appointments Advisory Board with a new Judicial Appointments Commission. The new structure will include a reduction in its membership, an independent chairperson selected by the Public Appointments Service and approved by an Oireachtas Committee, and a lay majority including independent people with specialist qualifications.

We will reform the judicial appointments process to ensure it is transparent, fair and credible. We will reduce the number of suitable candidates proposed by the Judicial Appointments Commission for each vacancy to the lowest number advised as constitutionally and legally permissible by the Attorney General, but in any event not more than three candidates to be shortlisted by the Judicial Appointments Commission for any vacancy.

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In the inugural Arthur Browne lecture, Prof Gráinne de Búrca says that EU anti-discrimination law is not really in decline

17 May, 201618 May, 2016

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| Conferences, Lectures, Papers and Workshops, ECJ, Human Rights

Arthur Browne KC MP (1756-1805) (pictured left; see wikipedia | DNB) was a Regius Professor of Law in Trinity College Dublin, and a leading Irish lawyer and politician, at the end of the eighteenth century:

Browne was one of the most distinguished academic lawyers to teach in Trinity College, Dublin, perhaps the ablest. His writings are still worth reading; and not merely for their historic interest. His life reveals a lawyer of wide culture and compassion, who tried in the turmoil and cruelty of eighteenth century Ireland to reconcile opposition to popular violence and an attachment to the established state and church with opposition to arbitrary state power. His views on legal education and on many aspects of the law were enlightened for the time. Browne deserves a place in the history of Irish law, and not merely as the last Irish Prime Serjeant.

[Paul O’Higgins “Arthur Browne (1756-1805):
An Irish Civilian” (1969) 20 NILQ 255, 270].

The Irish jurist Arthur Browne was one the most gifted legal scholars of eighteenth-century Ireland; he was also an educator, an advocate, and a parliamentarian. Born in America of Irish parentage, Browne studied at Trinity College, Dublin, eventually becoming professor of civil law and publishing works on civil, admiralty, and ecclesiastical law at the turn of the nineteenth century.

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After a challenge to ObamaCare, will there be Restitution to the Executive in the US?

12 May, 201613 May, 2016

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| Restitution

In US House of Representatives v Burwell (pdf), US District Judge Rosemary M Collyer has today upheld the challenge of the House of Representatives to a portion of the Patient Protection and Affordable Care Act (ObamaCare), ruling that the government had wrongly spent billions of dollars in the past two years to reimburse insurance companies for providing health coverage at lower costs to low and moderate income consumers. There is no mention in the judgment about the recovery of the unauthorised reimbursements, but the case plainly raises that question, which I have been discussing in a series of posts (I, II, III, IV, V, & V(a)) on this blog. There is another post to come in the series, and an addendum – but the implications on Burwell are too big to postpone.

The judge set up the issue in this way:

This case involves two sections of the Affordable Care Act: 1401 and 1402. Section 1401 provides tax credits to make insurance premiums more affordable, while Section 1402 reduces deductibles, co-pays, and other means of “cost sharing” by insurers. Section 1401 was funded by adding it to a preexisting list of permanently-appropriated tax credits and refunds.

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Workplace surveillance, conditions of employment, and privacy

12 May, 20168 June, 2016

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| Contract, Privacy

The Hawthorne effect is alive and well, and living in the interstices between private law and privacy law. In particular, I recently saw the following clause in a contract (the names have been changed to protect the innocent, the guilty, bystanders, and anyone else involved ):

WORKPLACE SURVEILLANCE
The employer’s workplaces are subject to overt workplace surveillance. You agree that you consent to this surveillance which is primarily to ensure the safety and security of the employer’s workplaces and the appropriate use of the employer’s resources. The overt surveillance is in the form of computer, internet usage and camera surveillance and is of an ongoing and continuous nature, in accordance with the employer’s relevant policies as amended from time to time.

This surveillance is carried out by all means available to the employer, which may include accessing your email account; accessing your files; accessing your computer or other electronic devices and recording internet usage by you including remote access internet usage and accessing those records.

The Citizens Information website has a lot of information on the legitimate scope of surveillance in the workplace, and the Data Protection Commissioner has issued Guidance Notes on the Monitoring of Staff, which emphasises that

monitoring, including employees’ email or internet usage, surveillance by camera, video cameras or location data must comply with the transparency requirements of data protection law.

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