Ex officio unfairness assessment limited to contractual clauses connected to the dispute – Opinion of AG Tanchev in Case C‑511/17 Unicredit Bank Hungary

“On the 19th of December 2019, AG Tanchev delivered an Opinion on Case C-511/17, which deals with the scope of the obligation to assess the unfairness of contractual terms ex officio, under Directive 93/13/EEC (Unfair Terms Directive). As AG Tanchev starts by noting, this case is related to other cases on the Hungarian framework on consumer credit agreements denominated in a foreign currency (for example, Sziber C‑483/16, OTP Bank and OTP Faktoring C‑51/17 and Dunai C‑118/17) …” (more)

[Madalena Narciso, Recent developments in European Consumer Law, 21 January]

Joe Atkinson, ‘Implied Terms and Human Rights in the Contract of Employment’

This article considers the potential for implied terms in the contract of employment to protect employees’ human rights. The slim prospects of legislative action in this area make it important to consider common law means of protecting human rights at work. Part 2 begins by setting out the function of implied terms in the contract of employment and the various ways human rights can affect the legal regulation of the employment relationship. Part 3 considers the extent to which the implied term of trust and confidence can protect employees’ human rights. While there are numerous points of overlap between trust and confidence and human rights, both the scope of the implied term and the level of protection it provides mean that it is currently an inadequate mechanism for protecting human rights at work. Part 4 then assesses the prospects of a new human rights term being implied into the contract of employment using the existing tests for terms implied ‘in fact’ and ‘in law’, and develops a prima facie case in favour of implying a human rights protective term into all employment contracts as a default rule.

Joe Atkinson, Implied Terms and Human Rights in the Contract of Employment, Industrial Law Journal, volume 48, issue 4, December 2019, pages 515–548, https://doi.org/10.1093/indlaw/dwz001.

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

The earliest deepfake videos to gain notoriety were those featuring famous actresses, whose faces had been superimposed onto the bodies of pornographic performers. The technology has since spread rapidly beyond the adult entertainment industry, and there is growing concern over the ways in which deepfakes may be used to extort, intimidate, humiliate or defame. This is relevant for non-celebrity victims as well, given the average person’s propensity to share photographs of themselves on social media … (more)

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, volume 15, issue 1, January 2020, pages 40–48, https://doi.org/10.1093/jiplp/jpz139. Published: 13 November 2019.

Christopher Yoo, ‘Self-Actualization and the Need to Create as a Limit on Copyright’

Personhood theory is almost invariably cited as one of the primary theoretical bases for copyright. The conventional wisdom views creative works as the embodiment of their creator’s personality. This unique connection between authors and their works justifies giving authors property interests in the results of their creative efforts.

This Chapter argues that the conventional wisdom is too limited. It offers too narrow a vision of the ways that creativity can develop personality by focusing exclusively on the results of the creative process and ignoring the self-actualizing benefits of the creative process itself. German aesthetic theory broadens the understanding of the interactions between creativity and personality. Psychologists, aestheticians, and philosophers have underscored how originating creative works can play an important role in self-actualization. When combined with the insight creative works frequently borrow from the corpus of existing works, this insight provides a basis for this insight provides a basis for broadening fair use rights. Moreover, to the extent that works must be shared with audiences or a community of like-minded people in order to be meaningful, it arguably supports a right of dissemination.

The result is a theory that values the creative process for the process itself and not just for the artifacts it creates, takes the interests of follow-on authors seriously, and provides an affirmative theory of the public domain. The internal logic of this approach carries with it a number of limitations, specifically that any access rights be limited to uses that are noncommercial and educational and extend no farther than the amount needed to promote self-actualization.

Yoo, Christopher S, Self-Actualization and the Need to Create as a Limit on Copyright (August 31, 2018), in Comparative Aspects of Limitations and Exceptions in Copyright Law (Shyamkrishna Balganesh, Wee Loon Ng-Loy and Haochen Sun eds, Cambridge University Press 2019 forthcoming); U of Penn Law School, Public Law Research Paper No 18-42.

‘Development of Private International Law in the UK post Brexit’

“With Brexit having taken place on 31 January 2020 this workshop comes at an ideal time to focus on how private international law in the UK should develop once the implementation period for the UK leaving the EU has finished (which under UK law should be on 31 December 2020). Several eminent speakers will address the issue from four key perspectives …” (more)

[Matthias Weller, Conflict of Laws .net, 20 January]

‘Legal Theory Lexicon: Consent’

“Most law students begin realize that consent is a powerful legal and moral concept early in the first year of law school. A physical blow to the person is a battery – unless the blow was landed in a boxing match, in which case consent turns the battery into something that is legally permissible and not actionable, even if it results in serious harm. Intercourse without consent is the very serious crime of rape; intercourse with consent is quite something else. The basic legal structure is easy to grasp …” (more)

[Lawrence Solum, Legal Theory Blog, 19 January]

‘Chinese court rules that AI article has copyright’

“A court in the Chinese city of Shenzen has decided that an article that was written by an artificial intelligence program has copyright protection. The article was written by Tencent’s Dreamwriter AI Writing Robot, an internal code at the Chinese tech giant that produces half a million articles per year in subjects such as weather, finance, sport, and real estate …” (more)

[Andres Guadamuz, TechnoLlama, 19 January]

‘Common Law Expansions to Anonymous Defamers Online’

“The issue of anonymous parties engaging in defamation has been one of the primary issues in online defamation. In many cases, the matter is often resolved as soon as this identity is ascertained. As such, de-anonymizing has been one of the primary strategies employed by plaintiff’s counsel in such actions …” (more)

[Omar Ha-Redeye, Slaw, 19 January]

Edward Stone, ‘Dying trusts, living trusts’

The popularity of trusts has been on a long downward trend in the UK. According to the latest data published by HMRC in September 2019, the total number of trusts and estates registered for tax in the UK has fallen by almost one-third since April 2006 to 150,000 and the number of interest in possession trusts has almost halved over the same period to 49,000. The decline is explored in this article and how it could be halted by adopting US style ‘living trusts’.

Edward Stone, Dying trusts, living trusts, Trusts and Trustees, https://doi.org/10.1093/tandt/ttz133. Published: 16 January 2020.

Harold Anthony Lloyd, ‘How To Do Things With Signs: Semiotics in Legal Theory, Practice, and Education’

Discussing federal statutes, Justice Scalia tells us that ‘[t]he stark reality is that the only thing that one can say for sure was agreed to by both houses and the president (on signing the bill) is the text of the statute. The rest is legal fiction’.

How should we take this claim? If we take ‘text’ to mean the printed text, that text without more is just a series of marks. If instead we take ‘text’ (as we must) to refer to something off the page such as the ‘meaning’ of the series of marks at issue, what is that meaning and how do we know that all the legislators ‘agreed’ on that ‘meaning’? In seeking answers here, we necessarily delve into semiotics (ie, the ‘general theory of signs’) by noting that meaningful ink marks (‘signifiers’) signify a meaning beyond themselves (the ‘signified’.) Thus, understanding how signs function is integral to lawyers’ textual and linguistic analysis. Additionally, as this article demonstrates, legal analysis and rhetoric are much impoverished if lawyers ignore nonverbal signs such as icons, indices, and nonverbal symbols.

In providing a broad overview of semiotics for lawyers, this article thus (1) begins with a general definition of signs and the related notion of intentionality. It then turns to, among other things, (2) the structure and concomitants of signs in more detail (including the signifier and the signified), (3) the possible correlations of the signifier and the signified that generate signs of interest to lawyers such as the index, the icon, and the symbol; (5) the expansion of legal rhetoric through use of the index, the icon, and the non-verbal as well as the verbal symbol, (6) the nature of various semiotic acts in public and private law (including assertives, commissives, directives, and verdictives); (7) the interpretation and construction of semiotic acts (including contracts as commissives and legislation as directives); (8) the role of speaker or reader meaning in the interpretation and construction of semiotic acts; (9) the semiotics of meaning, time, and the fixation of meaning debate; (10) the impact of signifier drift; (11) the distinction between sense and understanding; and (12) some brief reflections on semiotics and the First Amendment. This article also provides an Appendix of further terms and concepts useful to lawyers in their explorations of semiotics.

Lloyd, Harold Anthony, How To Do Things With Signs: Semiotics in Legal Theory, Practice, and Education (January 8, 2020).