Kelsey Farish, ‘Do deepfakes pose a golden opportunity? Considering whether English law should adopt California’s publicity right in the age of the deepfake’

… This article is organized as follows. Section 2 briefly explores the development of deepfake technology, together with the risks deepfakes may pose to the individual. Section 3 introduces the legal framework and the generally accepted views on publicity rights in California. The Californian approach is used as a backdrop for Section 4, which evaluates English image rights jurisprudence as a form of IP, as a commercial asset, and finally, as an element of privacy. Section 5 argues that despite California’s recognition of publicity as a discrete right, it is in practice a nebulous term for multiple causes of action. Regardless of its nomenclature, the Californian right shares much in common with its English cousin and, accordingly, there is little merit in transposing the Californian approach into English law. Section 6 concludes by conceding some risks posed by deepfakes may not be capable of legal remedy at all, be they rooted in publicity actions or otherwise.

Kelsey Farish, Do deepfakes pose a golden opportunity? Considering whether English law should adopt California’s publicity right in the age of the deepfake, Journal of Intellectual Property Law and Practice, Published: 13 November 2019.

Varese and Mazza ‘The Protection of Fashion Shows: An Uncharted Stage’

The history of fashion shows goes back more than a century, and over the years, catwalks have gone from being private sales channels for a few wealthy customers to pure entertainment shows promoted globally. In this article, we analyze both national and international laws dealing with the protection of fashion shows in order to establish how fashion shows could be protected under intellectual property laws in Italy, with specific regard to copyright. The possibility for fashion shows to access copyright protection opens up a list of interesting questions: Who is the author of the work? Are models to be considered as performers? This scenario gets even more complicated if we consider how fashion shows have been changing in the last few years, turning to new technologies such as holograms, augmented reality, and drones. Further, copyright protection could be accompanied by further tools, such as registered or unregistered designs for the single elements of a scene and choreography or unfair competition if the general look and feel of a former fashion show has been slavishly imitated. A final section of this article is dedicated to the use of cultural heritage and historical museums, which are increasingly chosen by fashion houses for the settings of their shows.

Elena Varese and Valentina Mazza, The Protection of Fashion Shows: An Uncharted Stage, Laws 2019, 8(4), 29; Received: 27 August 2019 / Revised: 31 October 2019 / Accepted: 12 November 2019 / Published: 17 November 2019.

Candela and Geloso, ‘Coase and transaction costs reconsidered: the case of the English lighthouse system’

What is Coase’s understanding of transaction costs in economic theory and history? Our argument in this paper is twofold, one theoretical and the other empirical. First, Coase regarded positive transaction costs as the beginning, not the end, of any analysis of market processes. From a Coasean perspective, positive transaction costs represent a profit opportunity for entrepreneurs to erode such transaction costs, namely by creating gains from trade through institutional innovation. We demonstrate the practical relevance of entrepreneurship for reducing transaction costs by revisiting the case of the lightship at the Nore, an entrepreneurial venture which had arisen to erode the transaction costs associated with regulation by Trinity House, the main lighthouse authority of England and Wales. By intervening into the entrepreneurial market process, Trinity House would pave the way for the nationalization of the entire English and Welsh lighthouse system. By connecting our theoretical contribution with an empirical application, we wish to illustrate that Coase’s theoretical understanding of transaction costs is inherently linked to an empirical analysis of market processes.

Rosolino A Candela and Vincent Geloso, Coase and transaction costs reconsidered: the case of the English lighthouse system, European Journal of Law and Economics, December 2019, volume 48, issue 3, pp 331–349.

David Acheson, ‘The Digital Defamation Damages Dilemma’

The size and unpredictability of damages awards in defamation cases is commonly understood to be one important factor in the law’s chilling effect on speech. Although England’s Defamation Act 2013 was primarily aimed at addressing this chilling effect, it did little to reform remedies, and the nominal cap on general damages has now risen to roughly £300,000. This paper builds on existing criticisms of the principles governing the assessment of defamation damages, and argues that the issue is becoming more pressing as the landscape of defamation litigation is reshaped by the internet age.

Modern libel cases increasingly involve statements published not by traditional media organizations, but by ordinary individuals using the internet to air their grievances or express their views. Most of these defendants have more limited financial resources than media companies, and less awareness of the legal problems their online comments might cause, or of how to avoid or respond to those problems. But real harm can be caused to claimants’ personal and professional reputations by online criticism, and it can be nearly impossible to remove the traces of defamatory comments from the internet, even if the victim sues successfully.

In this new environment, existing problems with defamation damages can have even more insidious implications for freedom of speech. Judges often seem incapable of properly contextualizing the sums of money they award against individual defendants, frequently describing awards of thousands or tens of thousands of pounds as ‘modest’ or ‘small’, even in cases where there is no evidence of actual loss. Claimants should be adequately compensated for their losses as far as possible, but damages awards that risk bankrupting defendants for posting careless comments online cannot be appropriate. If this issue is not addressed, there is a risk that important online discourse will be seriously chilled.

Acheson, David, The Digital Defamation Damages Dilemma (September 2, 2019).

‘Corporate Law as Law’

David Kershaw, The Foundations of Anglo-American Corporate Fiduciary Law (2018). Corporate law has a short historical memory. One result is that conceptual battles that go nowhere get refought, as a look at much of the literature generated in the wake of Citizens United will confirm. There are a few historical classics in the academic literature though. The lead publication in this short stack is Harold Marsh’s Are Directors Trustees? Conflicts of Interest and Corporate Morality, published in The Business Lawyer in 1966. Marsh told a stark story about the decline of the duty of loyalty, which he said went from flat prohibition of self-dealing transactions in 1880 to a general permission subject to judicial fairness review in 1960. Norwood Beveridge challenged Marsh’s description of the early period in a couple of papers published in the 1990s, but the Marsh account has held its place … (more)

[Bill Bratton, JOTWELL, 15 November]

Tom Cornford, ‘The Negligence Liability of Public Authorities for Omissions’

In this article I address the question of whether the omissions principle – the principle that the common law does not impose liability for omissions – applies with the same force in negligence cases involving public authority defendants as in cases involving private defendants. My argument is that the answer depends upon the answer to a prior question: can a duty of care be based upon the public law powers and duties of a public authority? In making my argument, I refute the views both of those who insist that a claim in negligence against a public authority can be rejected purely because it relates to an omission not falling within one of the standard exceptions to the omissions principle and of those who insist that such a claim can succeed while at the same denying that a duty of care can be based on a public authority’s public law powers and duties.

Tom Cornford, The Negligence Liability Of Public Authorities For Omissions, Cambridge Law Journal, volume 78, issue 3 (November 2019), pp 545-569. DOI: Published online by Cambridge University Press: 15 November 2019.

Mark Leeming, ‘Equity in Australia and the United Kingdom: Dissonance and Concordance’

This paper falls within the area of ‘comparative common law’ (a concept which includes equity). It touches on four aspects of equitable principle. Speaking generally, some aspects of the first and second (confidential information and liability for knowing assistance in a breach of trust) in the Australian and United Kingdom legal systems have diverged; some aspects of the third and fourth (exceptions to Saunders v Vautier and judicial advice) have converged. How did that come about and what can be learned from it?

Leeming, Mark, Equity in Australia and the United Kingdom: Dissonance and Concordance (October 25, 2019). Sydney Law School Research Paper No 19/66.

Reid and MacQueen, ‘Fraud or Error: A Thought Experiment?’

This article examines some anomalies in the way in which Scots law classifies cases involving fraud and those where ‘induced error’ is preferred. Scots law has been unable to make a conscious structural choice in this regard. was in a muddle in this regard because it had failed to make a conscious structural choice. In a sophisticated modern legal system classification is important and ought to be discernible with more certainty than is presently the case. This article will offer an explanation of how the current taxonomy came about and will propose a thought experiment, namely that all misrepresentations leading to an error ought to be part of the law of fraud.

Reid, Dot and MacQueen, Hector Lewis, Fraud or Error: A Thought Experiment? (November 6, 2019) (2013) 17 Edinburgh Law Review 343-369.

Patrick Hodge, ‘The scope of judicial law-making in the common law tradition’

“Judge-made law is an independent source of law in common law systems. To jurists brought up in legal systems which have codified law this is one of the striking features of the common law tradition. Instead of interpreting a code to develop the law, common law judges develop the law which their predecessors have made. While statute law now impinges on many areas of private law, large tracts of our private law remain predominantly the product of judicial decisions. Today, I wish to discuss some of the areas of private law which have been and remain predominantly judge-made and the limits in the common law tradition on judicial law-making …” (more)

Lord Hodge, Justice of The Supreme Court of the United Kingdom, ‘The scope of judicial law-making in the common law tradition’, Max Planck Institute of Comparative and International Private Law, Hamburg, Germany, 28 October 2019.

Barak Richman, ‘New Institutional Economics’

This entry in the Oxford Handbook of New Private Law describes the parallels and mutual dialog between New Institutional Economics (NIE) and New Private Law (NPL). It observes that both fields share more than the word ‘new’ in their titles. NPL and NIE share methodological orientations; they share scholarly priorities; they have influenced each other; and they offer parallel paths ahead. The fields also reinforce each other, as NIE focuses on problems governed by private law and, reciprocally, private law reflects the teachings of NIE. And both scholarly movements share common principles: both NPL and NIE exhibit the hallmarks of interdisciplinary, scholarly pluralism, and an inquisitive focus on real-world, tractable problems. The chapter concludes with some thoughts about the future of NPL, and in particular the lessons it can take from NIE’s successes.

Richman, Barak D, New Institutional Economics (November 1, 2019). Oxford Handbook of New Private Law, Henry Smith et al eds, forthcoming.